:

The contestants claimed that the deceased on the 15th day of March, 1859, cancelled said will with the intention of revoking it, and in support thereof offered to prove that the deceased at that date wrote on the same paper on which the will is written at the foot of the writing of the will, and on the back of the same paper, what appears there written, with the intention of revoking said will. This was objected to by the proponent, upon the ground that such writing was not such an act of cancelling as the law makes necessary for the revocation of a will, although the deceased might have done it with intent to revoke said will.

It appeared that the will was written upon a sheet of foolscap paper and covered the first page and about one third of the second page, and that thus far there were no marks of obliteration, cancellation, or defacement upon the paper. But upon the last half of the second page were written the following words: "This will is hereby cancelled and annulled. In full this 15th day of March in the year 1859," and several lines lower down upon the page are the following words, erased:

"In testimony whereof I here I have."

Written lengthwise of the paper as folded, and below the filing of the paper upon the back, being the outside on fourth page, were these words: "Cancelled and is null and void. I. WARNER."

The court, against the objection of the proponent, admitted the testimony of one Charles F. Warner, which tended to prove that the testator intended the said writings upon the will as a revocation by cancelling, and that he first designed to make another will, but finally decided to make no will, but leave it to the law to divide his property.

Upon the testimony and facts proved, the proponent claimed, that the court should direct a verdict establishing the will. The court refused so to rule, and submitted the case to the jury. The proponent asked the court further to charge the jury upon several points presented, which the court declined to do.

The jury returned a verdict that said instrument was not the last will and testament of the said Isaac Warner deceased.

To the several rulings of the court, the refusal to charge as requested, and the charge as given, the proponent excepted.

Daniel Roberts, for the proponent.

Wm. G. Shaw and E. J. Phelps, for the contestants.

BARRETT, J. The main question in this case is, whether the will was revoked by the act of the testator, in writing what he did on the second page of the instrument.

The Statute prescribes the several and only modes in which a will, duly executed, may be revoked; viz.: 1st, by some will, codicil or other writing. 2d, by burning, tearing, cancelling or obliterating. It is clear, and is conceded, that this will is not revoked by either of the first of said modes; nor by either of the other modes, unless it be by cancelling. That is a mode by itself, different and distinct from burning or obliterating, though obliteration may in some cases be an

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act of cancelling. In the present case there is no obliteration. So the only question is, Was the act of the testator a cancelling, within the meaning and intent of the Statute?

We regard it as a settled doctrine of the interpretation of Statutes, that when an English Statute is enacted in this State, if it had received a judicial interpretation in England prior to its enactment here, it is to be taken that the language is used in our Statutes in the sense given to it by the adjudications in England, unless there is some other sense impressed upon it by attendant provisions of the Statute thus enacted. But if it had received no such interpretation, it stands for interpretation here the same as if it had been first enacted here. Adjudications in England, made since such enactment here, have not the force of authority, as to the sense of the language as used in our law. As resting on reasons that commend themselves to our approbation, all adjudications upon the subject may aid in giving to terms used a just sense and effect, having reference to the subject-matter of, and to the purposes designed to be served by, the Statute in question.

It is plain that the object of the Statute 29 Car. II. is the same as that for which our similar Statute was enacted; and, in the matter of wills, to provide ample security against their revocation being effectuated, unless by means insuring the utmost certainty that it was the intent of the testator to revoke what would otherwise stand for, and be effectual as, a will disposing of his worldly effects.

To this intent, the provisions in this behalf have been made. The class of acts of revocation, of which cancelling constitutes one mode, contemplates something to be done to the instrument itself, showing, or tending to show, that, by such act, the testator designed to make an end of it as his will; and each of the modes prescribed was designed to be equally effectual in that respect. If the document should be entirely burned up, or entirely obliterated, or torn into scraps, or covered over with closely drawn cross lines, there would be no doubt as to the intent of the testator. But it has been held not to be necessary to go to that extent in any of the modes, in order to answer the requirements of the Statute; and that the slightest degree of either mode, provided it appear, even by resort to other evidence, that the act was done with the intent to have it constitute a revocation, is effectual as such revocation. Accordingly it has been decided that the slightest burning or tearing of the material on which the will was written, even though none of the script should be destroyed or effaced, that the erasure of a single word, or the drawing of a slight line across the face of the script, partaking of the character of the act prescribed by the Statute, if it appear to have been done in the accomplishment of such act, effectuates a revocation.

Now it is obvious, from the general current of the cases early and late, that the leading idea is, that the testator must perform some one of the prescribed acts upon the instrument itself, so that, when produced, it shall bear the mark of such act. What amounts to burning,

to tearing, to obliterating, is not the subject of question. But what amounts to cancelling, - how, with reference to the text of the instrument, must the act be done, not as to the shape or character of the marks, but where must they be located, is the main point of debate in the present case. The proponent claims that the cancelling marks must be made upon some part of the written text of the will.

The Latin verb, from which the term cancel is derived, means to make lattice work, and the corresponding noun in Latin, in the plural, cancelli, signifies lattice work; and when applied to marks, means marks made in the form of lattice work. How this term came to be applied to marks made upon written instruments, for the purpose of destroying their validity, is obvious both from general and judicial history, not only as taught by the books, but as derived from observation. To draw cross lines over the face of a written instrument has been, and is, a common mode of showing the intent, thereby, to make an end of it as an instrument in force. In earlier times, when the ability to write was possessed by very few, the great mass of persons of all grades from the highest lord to the lowest peasant, could manifest their intent, with pen and ink, only by unlettered marks. While they would be dependent on the few skilled in the art, to draw their instruments of contract in making disposition of their property, they could and did resort to various modes, by which, without clerkly aid, to make an end of their validity.

From the fact that cross marks were so easily made, and, when made upon the face of a written instrument, were so significant that, thereby, the maker of them designed to put an end to the continuing validity of the instrument, this mode was recognized and adopted into the Statute, in common with tearing, burning and obliterating, as one by which wills might be revoked. In some instances, this mode might be preferable to either of the others, as when it should be desirable to preserve the legibility of the entire instrument, which might not happen as the result of burning, tearing or obliterating. While, therefore, a common and customary mode of manifesting the intent to abrogate the instrument, by drawing cross lines over the face of it, gave rise to the use of the term cancel, still the entire judicial history of the subject shows that that manner of marking an instrument is by no means essential in order to answer to the full force and effect of the term in its legal sense. The net result of all the cases and all the text-books, as well as the reason of the thing, and the appropriate analogies, seems to be this, that, when the instrument is so marked by the maker of it, as to show clearly, whenever it is produced, that the act was designed by him to be a cancelling, that act becomes effectual, by force of the Statute, as a revocation of the will by cancelling.

In the present case the act of the testator was done, not only upon the paper on which the will was written, but upon such a part of it as always to go with that part of the will which contained the disposition of the property, not indeed on the face, but on the back of such dis