of law it is, that where you have a devise "to A. B. and to his heirs Therefore, whether I look to the words of the Statute, to what must be the popular meaning (having regard to the Statute) of the term 66 clause," or whether I look to the legal signification of the devise to the heirs of Elizabeth Ely, in the one case, and in the other, I find that there is something which in my judgment can be removed out of the will by obliteration, something which, when obliterated, is revoked, something which the testator, having written, desires to recall, and which he is allowed to recall, and to treat as pro non scripto by the process of obliteration provided for by the Statute. My Lords, I therefore am clearly of opinion that the conclusion arrived at by the Court of Appeal in this case was a correct one; that the striking out of the words was justified by the Statute; and that the will for the purposes of the devise is to be read as if those words had never been included in it. I therefore submit to your Lordships that the appeal should be dismissed, with costs. LORD PENZANCE. My Lords, the question in this case turns entirely upon the meaning of the sixth section of the Statute of Frauds; and I agree with what has just been said, that although the form of the section is negative yet it contains within it an affirmative proposition. I read the earlier part of the section as being a power conceded to a testator to revoke by cancelling, burning, obliterating, or by another writing properly executed, some portion, at least, of his testamentary disposition. Now, in considering to what extent that power was intended to be given, of course we must have regard to the precise words of the section. It would run in the affirmative form in this way: "Any devise in writing of lands, tenements, or hereditaments, or any clause thereof, shall, at any time after a certain date, be revocable by any other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing, or obliterating the same by the testator himself, or by others in his presence and by his directions and consent." Now, to begin with, what is the meaning of the word "devise"? The previous section says that all devises of lands "shall be in writing and signed by the party so devising the same;" and then the sixth section speaks of "a devise in writing of lands, tenements, or hereditaments." I understand by that language that the meaning of the word "devise" is those words reduced into writing which carry with them a disposition of land. "Devise" does not mean the whole will, because there may be many other things in the will that have nothing to do with the devising of lands; but it means that group or collocation of words reduced into writing which operates as a disposition of the testator's lands. Now this section obviously gives a power to revoke any such devise when it has been made, by burning, cancelling, tearing, or obliterating those words, and if the whole of such words were obliterated it would entirely revoke the devise. It further gives the testator power to revoke the devise by some other will or codicil in writing" (that is, a complete will or codicil) or other writing declaring the same." Declaring what? Why, declaring that he had revoked or intended to revoke the devise. So far no one would dispute the construction of the section. 66 66 But, my Lords, in addition to that a power is conferred upon the testator to revoke "any clause" of his devise. Now, what is the meaning of those words? My Lords, I have read with great attention and care the decision of the learned judges in the Court of Exchequer, and I find that the learned Lord Chief Baron has considered that the words, " any clause thereof," that is to say, any clause of the devise, necessarily mean words which contain within themselves a devise; because he says in express terms, "It is the entire devise and bequest, and must remain in force until cancelled in the manner pointed out by the Statute." Then he refers to the cases, and then he says, speaking of the case of Larkins v. Larkins, "There, was a complete devise as regarded those two persons, and the alteration operated as to what was struck out; it was a complete revocation as to that particular trustee, and, if so, it comes within the words; that is to say, he looks upon the case of Larkins v. Larkins in this light: he says that although it was one sentence, yet it really contained within it two complete devises; and, inasmuch as the one name was struck out, it was within this clause of the Statute of Frauds, because the striking out operated as a complete revocation of that entire devise. Therefore, my Lords, it seems to me that the learned judge whose judgment I have been reading considered that in order to bring a case within this section of the Act of Parliament it was necessary that the thing which was struck out, and which was to be revoked, should be a set of words containing a complete devise. But it is obvious that it was not necessary for the learned counsel for the appellant in your Lordships' House to go so far as that, and I do not think he did go so far; he was content to take his stand upon a narrower ground than that; he said that the words "the devise or any clause thereof" must mean some independent sentence, some set of words which have an independent meaning of their own without reference to any context; and he said that if there were such words as those, no doubt a testator might, either by another and properly executed instrument, or by striking his pen through them, get rid of and revoke such words. But, my Lords, I am not aware that there is anything in the Statute which justifies that interpretation. When you speak of a devise (meaning thereby what I have already suggested, viz., a set of words carrying with them a disposition of lands) and when you say that it may be revoked in the whole, or that any clause thereof may be revoked, it seems to me to be putting a construction upon the Statute for which there is no warranty in the language, to say that that clause must be an independent sentence. One can easily see, by putting an illustration, that no reasonable object of the Legislature would be effected by such a mode of construction, because, as I think was put in the course of the argument, if in this case, instead of the words "her heirs and assigns forever," the sentence had stopped at the words "Elizabeth Ely," and then in a subsequent sentence it had run in this way: "And I further declare that after the death of my said mother the said property shall go to her heirs and assigns forever," you would have had an independent sentence, and there, according to the construction contended for, the devise might have been revoked in that respect without touching the rest of the will. My Lords, it is hardly conceivable that the Legislature intended in this section to make a distinction between two things that are identical in effect, the only difference between them being that in the one case the words which carry the devise, or carry the beneficial intention into effect, are to be found as portions of a larger sentence, whereas in the other case they form an independent sentence. One cannot see any reason for such a mode of legislation. If the intention was to allow a part of a devise to be revoked, there seems to me to be no object in confining the power so to revoke to cases in which the part to be revoked found a place in some independent sentence. But, my Lords, upon this point of the matter, what say the cases that have been referred to? The two cases that have been cited appear to be the only cases that have arisen; which certainly is a very remarkable circumstance. The Statute of Frauds was not passed yesterday, and the thousands and thousands of wills which, since the passing of the Statute, have had words struck out of them, one would have thought would have given rise to this question, if the matter had been doubted. After all, only two cases have been produced to your Lordships' House in which the matter has in any way been raised. In both those cases, as I understand it, it was not doubted that you could get rid of a devise to A. B. by striking out the name A. B. But A. B. is not an independent sentence; it has no meaning in itself; a man's name standing alone without any context has no meaning whatever; it is no part of a testator's express disposition to use the word A. B. or the words "John Brown." It seems to me, therefore, that those cases, so far as they go, proceed upon the idea that the words "any clause thereof" are not to be confined to cases in which there is some entire independent sentence, which, standing alone and entirely free of context, has a meaning of its own. But, my Lords, another matter has been touched upon. It is not necessary for the determination of this case, because here the effect of what has been done has not been in any way to increase, but on the -- contrary, to decrease the interest that Elizabeth Ely took. But I confess that I have been wholly unable to appreciate the arguments which have been used elsewhere, and to some extent in this House, upon the question whether, supposing it to be established that this section of the Statute of Frauds really did give to the testator the power to revoke a portion of a devise, that is to say, a portion of the words constituting a devise, that power would cease to exist in a case where the effect of revoking a portion of the words used would be to increase, and not to diminish, the interest of the taker. If that construction is to be put upon the Statute, it cught, I think, to have some words from which that inference could be drawn. The Statute says, You may revoke a portion of those words constituting the devise if you like; but it says nothing about the effect. Of course it is easy enough to put hundreds of instances in which, as suggested by the Lord Chancellor, there having originally been the words "without impeachment of waste," a testator strikes his pen through them, and there is then an end of that disposition. Then another case may be put, perhaps rather in the opposite direction; where A. and B. are joint tenants or tenants in common. Whatever may be the restriction or qualification that is struck out, whether it may have a tendency to increase the benefit of the person in question or not, appears to me to be quite immaterial. My Lords, the opposite idea, I think, is founded upon a view of the word" devise," which is contrary to what I have suggested to your Lordships as the proper view. As I understand, the idea involved in that argument is this: A devise is a gift; if a testator has made a gift to a man the Statute gives him power to revoke the gift or any part of it, and not only to revoke a part of the gift, but to give something more. Looked at in that light one understands the idea; but I venture to think that the word "devise" is not to be read in that way, but that a devise merely means a disposition of lands in words in writing, and that when you say that the testator may revoke any clause thereof," that is, may revoke any portion of those words, it means any intelligible portion of those words, whether the effect is to increase the beneficial interest of the taker, or the reverse. 66 My Lords, I do not think that I need further discuss this matter. I am entirely of opinion that the judgment of the Court of Appeal gave the right construction to this section. The judgment in the Court of Exchequer appears to me to be far too narrow, because the result of it would be this: that if a man had made a devise in any form, and he wished to alter that devise without doing away with it, he could not do it at all except by a fresh will, that fresh will cancelling the first devise; he would have to make a new devise in the amended form that he might desire, and the power of obliterating and cancelling a portion, which was obviously intended by the words of the sixth section of the Statute of Frauds, would really come to nothing, because he could do nothing in the way of revocation except by revoking the whole and making a fresh disposition. I am therefore of opinion that the judgment of the Court of Appeal ought to be affirmed.1 THE LORD CHANCELLOR. My Lords, I wish to say, in order to prevent misunderstanding, that the observations which I made to your Lordships were made only with reference to an obliteration which is a revocation in the proper sense of the term, that is to say, a cutting down or a taking away of something previously given. It is of course possible to conceive the case of an obliteration which might have the effect of enlarging that which before was given. Until a case of that kind arises, if it ever should arise, I wish to keep my judgment upon it altogether suspended. Decree appealed against affirmed; and appeal dismissed, with costs." WARNER v. WARNER. SUPREME COURT OF VERMONT. 1864. [Reported 37 Vt. 356.] THIS was an appeal from a decree of the Probate Court disallowing the will of Isaac Warner deceased, and was tried by the jury at the Chittenden County Court, April Term, 1863, Pierpoint, J., presiding, upon the plea, that the paper propounded was not the last will and testament of the said deceased. The proponent introduced testimony tending to prove that two days before the death of said deceased, during his last sickness, he said to his wife (the proponent) that she would find in a trunk where he kept his papers, a will made out by him for her benefit; and that some three weeks after his death she examined the trunk and found among the papers the will in question, and that she thereupon presented the same to the Probate Court for probate. She also found there a former will with the testator's name partly torn off. The following facts were duly proved and not disputed, viz.: The paper propounded was dated August 22d, A. D. 1857. It was all in the handwriting of the deceased, except the names of the witnesses, and was folded and filed in the handwriting of the deceased, "Isaac Warner's last will and testament," and was in all respects duly executed, witnessed and published, at that date, as his last will and testament, he then being of sound disposing mind and memory. The deceased in the earlier part of his life was a practising lawyer in this State. He died at Burlington on the 11th day of August, 1861, aged 79 years, leaving no will of later date. 1 The speech of LORD O'HAGAN in concurrence is omitted. 2 See Eschbach v. Collins, 61 Md. 478 (1883). Under the New York Statute obliteration of a part of a will is not effective. Lovell v. Quitman, 88 N. Y. 377 (1882). |