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B. Revival.

GOODRIGHT d. GLAZIER v. GLAZIER.

KING'S BENCH. 1770.

[Reported 4 Burr. 2512.]

THIS cause had been tried at the Sussex Assizes: where a verdict had been given for the plaintiff, the heir-at-law to the testator, against the defendant, who was his devisee in two wills.

It now came before this court, upon a motion on the part of the defendant for a new trial; which was opposed by Mr. Dunning (SolicitorGeneral), Mr. Burrell, and Mr. Kemp, on the part of the plaintiff; who argued, that both wills were revoked; and consequently their client took as heir-at-law.

The question turned upon the revocation of the first will, by making the second.

The short of the case was this. The former will (being a will of lands) was made in 1757: the second, in 1763. The former was never cancelled: the second was cancelled by the testator himself. Both wills were in the testator's custody, at the time of his death: the second, cancelled; the first, uncancelled.

The counsel for the plaintiff, the heir-at-law, argued That the second will was a complete instrument, at the time when it was executed; that it clearly proved the testator's intention of revoking the former; and that the execution of it was as much a revocation of the former, as if he had thrown the former into the fire; that the preservation of it was merely accidental, and of no consequence; that it had been already totally extinguished, so that it could never revive; that, as it never had been republished, it remained a mere nullity; and that no subsequent event could hinder the execution of the second will from operating as a revocation of the former. The second will was therefore the testator's only subsisting will, so long as it remained uncancelled. And when he thought fit to cancel and destroy it, it is manifest that he meant to die intestate, and that his heir-at-law should take. If a woman makes a will, and then marries, her prior will is thereby revoked; and shall remain so, although she should immediately become a widow. They cited a case of Ashburnham and Bradshaw; and also the case Ex parte Hellier, 3 Atkyns, 798, where Sir George Lee gave sentence "that the execution of a second will is a revocation of a first, though the second be afterwards cancelled; and that the cancelling the second did not set up the first:" which, they said, was the same point, only that it was personal property. Mr. Dunning said, he had inquired

1

into that case and it was affirmed by the delegates. They denied the two cases of Eggleston v. Speke, Carthew, 79, 1 Show. 89, 3 Mod. 259, and Onions v. Tyrer, 1 P. Wms. 343, to be like the present case. The former is only, "that a second will shall not revoke a first; if the second is not good in law, but void." The latter is, that " a second will, devising lands to the same person, and revoking all former wills; and this second will subscribed by three persons, but not in the testator's presence, shall not revoke the former will, so as to let in the heir-atlaw." They insisted, that the Statute of Frauds does not alter any of the old requisites of revocation, except in the cases therein excepted. The same liberality, they said, ought to prevail in the revoeation of wills, as in the making of them: and the true principle of the cases upon revocation of wills, both before and since the Statute of Frauds, is the alteration of the testator's intention. 1 Rolle's Abr. 614, 615,

616.

Mr. Serjeant Leigh was beginning to speak on the other side; but was prevented by LORD MANSFIELD, as the case was so plain as to render it unnecessary for the Serjeant to proceed.

HIS LORDSHIP observed, with regard to the case Ex parte Hellier in 3 Atk. 798, that Mr. Atkyns only reports what passed in Chancery. There might be other circumstances appearing to the Ecclesiastical Court, which might amount to a revocation of a will of personal

estate.

Here, the testator has, by both wills, devised the lands in question, to the defendant. His cancelling the second is a declaration that he does not intend that to stand as his will." Does not that speak, "that his first will shall stand?" If he had intended to revoke the first will, when he made the second, it must have operated as a delaration "that the defendant should not take." But that could not be his intention; because he devises to the defendant by both.

As to cases of revocation of devises of land, contrary to the intention of the testator (as the case of the Earl of Lincoln, and many more), they turned upon legal subtleties. They have been determined; and therefore must govern all similar cases: but none of them are applicable to the present question.

Here the intention of the testator is plain and clear. A will is ambulatory till the death of the testator. If the testator lets it stand till he dies, it is his will: if he does not suffer it to do so, it is not his will. Here, he had two. He has cancelled the second: it has no effect, no operation; it is as no will at all, being cancelled before his death. But the former, which was never cancelled, stands as his

will.

MR. JUSTICE YATES concurred with LORD MANSFIELD, for the same reasons. A will has no operation, till the death of the testator. This second will never operated: it was only intentional. The testator

1 This is wrong. The case was compromised, and therefore did not come to a hearing in the Court of Delegates. See 1 Phillim. 427, note. — ED.

changed his intention; and cancelled it. If by making the second, the testator intended to revoke the former, yet that revocation was itself revocable and he has revoked it. In the case of Onions v. Tyrer, there was no intention to die intestate: and therefore the heir-at-law was not let in. Hellier's Case might be rightly determined: there might be collateral evidence of an intention to revoke. That was a will of personal estate.

By the Statute of Frauds, "No devise in writing of lands, tenements or hereditaments, or any clause thereof, shall be revocable, otherwise than by some 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 in his presence and by his directions and consent; but all devises and bequests of lands and tenements shall remain and continue in force, until the same be burned, &c.; or unless the same be altered by some other will or codicil in writing, or other writing of the devisor, signed in the presence of three or four witnesses, declaring the same." Now here are none of these circumstances used in what is pretended to be a revocation of this first will. Therefore the first will stands good.

MR. JUSTICE WILLES declared the same opinion; and gave the same reasons; particularly repeating the clause in the Statute of Frauds concerning revocations: which showed, he said, that this is no revocation.

MR. JUSTICE ASTON was in Chancery, as one of the Lords Commissioners.

LORD MANSFIELD mentioned a cause at the delegates, between Mason v. Limbrey; where the testator, Samuel Mason, had made his will, of his real and personal estate; and properly executed two duplicates of it one of which duplicates he kept in his own hands; the other he delivered to Mr. Limbrey. A little before his death, he greatly altered and obliterated his own duplicate; and began to write over a new will, but never finished it: nor did he ever apply to Limbrey, to get back his duplicate. Sentence was given for the duplicate of the first will remaining in Mr. Limbrey's hands: for the imperfect sketch of the unfinished second will was no revocation of the first. He did not mean to die intestate. So, in the case now before us; if this second will is not the testator's will, it is no revocation of the first: he did not mean to die without any will at all.

The rule for a new trial was made absolute: and it was without payment of costs.1

1 "Those cases depend each on their particular circumstances. The only difference is, whether the presumption lies on the one side or the other. For whether there is a presumed revival, or a presumed revocation; still it is admitted that the presumption, on whichever side it lies, may be repelled by circumstances; and the case would then resolve itself into a question of intention.

"If it were necessary to decide the point, I should hold that it was not the pre

NEWTON v. NEWTON.

COURT OF APPEAL IN CHANCERY IN IRELAND.

[Reported 12 Ir. Ch. 118.]

1861.

THE LORD CHANCELLOR [BRADY]. The petition of appeal in this case was presented by Philip Jocelyn Newton, the heir-at-law of the testator, John Newton, who contends that the decree of the Court of Probate is erroneous, and that that court ought to have pronounced John Newton to have died intestate.

The question depends on the legal position which we should assign to three or four documents; which are, first, a will made by John New

sumption, when B. was cancelled, that A. should revive." Per SIR JOHN NICHOLL, in Moore v. De La Torre, 1 Phillim. 375, 400 (1816).

In the argument of the same case before the delegates, Mr. Warren, of counsel for the plaintiff, after citing Goodright v. Glazier, continued thus:

"In Harwood v. Goodright, Cowp. 87, 91, Lord Mansfield says, it is settled, that if a man by a second will revoked a former, yet, if he keep the first will undestroyed, and afterwards destroy the second, the first will is revived.' Lord Mansfield, speaking the sense of the court, considers this as a clear established rule at common law. It stands upon the authority of these two cases."

The following dialogue then ensued:

"PER CURIAM. MR. JUSTICE ABBOTT. That would go a vast length;- if you put it as an absolute proposition at law without any deduction, that the cancellation of the second will revives the first. - Suppose a man, having a wife and one child, should make a will, leaving his property in a manner suitable to the then state of his family,

that he should afterwards have six children born, and then should make a will, which he should afterwards destroy. By setting up the first will, you would leave five of the children unprovided for. - If you put it as an absolute proposition, that the cancelling of the second will would revive the first, cases might be put so distressing as to make one feel a little whether it was right.

"PER CURIAM.

“Mr. Warren. Your Lordships will do me the justice to recollect that I have only cited authorities. MR. JUSTICE ABBOTT. Certainly; and I put the question to you that you may fortify your opinion by reason as well as by authorities, if you can. "Mr. Warren. I presume to go no further than the authority of those cases, which certainly do lay it down as a decided principle of law without limitation.

“PER CURIAM. MR. BARON RICHARDS. But I think I may venture to say it has not been universally so considered. — It is a great misfortune that dicta are taken down from judges, perhaps incorrectly, and then cited as absolute propositions.

"Mr. Warren. I do not apprehend there can be any mistake in the report: when Lord Mansfield mentions it, he does not say it is decided in such and such a case, but he considers it as a point perfectly established.

"PER CURIAM. MR. JUSTICE ABBOTT. It certainly in the report is put as the settled law, excluding all question of intention.

"Mr. Warren. If it is the law, therefore whatever inconvenience may arise from it, it must remain the law, till it is altered by the Legislature, and nothing short of an

1 The facts are here omitted, and also the opinion of the LORD JUSTICE OF APPEAL BLACKBURNE, concurring with the LORD CHANCELLOR.

ton on the 4th of February, 1858; second, a will of John Newton on the 11th of January, 1859; third, a codicil of the 7th of February, 1859; fourth, a codicil made by the same John Newton on the 16th of February, 1859. These are the four instruments the legal position of which must determine this case.

The facts of the case are few; and, to my apprehension, after very fully considering it, the question is very simple. The will of the 4th of February, 1858, is not now forthcoming. It was destroyed by the testator; and it was found as a fact, by the jury before whom the case was tried, that it had been destroyed before the 16th of February, 1859, that is, before the execution of the codicil of that date. It had been revoked absolutely by an intermediate will, executed on the 24th of April, 1858, which it is only necessary to mention for this purpose, and to which it is not necessary further to allude. The will of the 4th of February, 1858, was absolutely revoked by it, and was in fact destroyed before the 16th of February, 1859. Therefore, if there was nothing else in the case, the decree would be right in affirming that the will of the 11th of February [January], 1859, and the codicil of the 7th of February, 1859, are the last will and testament of John Newton. But we have to consider the effect produced on those three

Act of Parliament could do this; and, even admitting that possible difficulties may apply to this rule of law, this is not that kind of case which would call upon the court to depart from the rule on account of any peculiar hardship." — Moore v. Moore, 1 Phillim. 406, 419-421 (1817).

"The clear result of all the cases, the common-sense of them, is that it must be ascertained whether it was or was not the intention of the deceased that the will should stand." Per SIR JOHN NICHOLL, in Hooton v. Head, 3 Phillim. 26, 32 (1819).

"Now the legal presumption as to whether, by the destruction of a later will, the revival of a former uncancelled will is to be presumed, is a point that has been much controverted, but never very clearly settled. And perhaps the bare legal presumption upon such a case is not very material to be discussed. In the case of Glazier and Glazier, 4 Burrows, 2512, so far as respects the disposition of lands, Lord Mansfield is reported to have said that the former will is revived. But the correctness of that report and the soundness of the doctrine there laid down have been a good deal questioned. In these courts, as applies to wills respecting personalty, the presumption has been rather the other way, and against the revival of the former testament; it has been held that it requires some act to show an intention of such revival. As far as my own opinion goes, I cannot help saying that good sense and the reason of the thing seem rather to favor the presumption as taken in these courts. But the truth is, that in all these matters the legal presumption must grow out of something in evidence before the court; and in fact a case can hardly by possibility be so destitute of all circumstances as to require a decision upon mere legal presumption, and nothing else. In the case of Moore and Delatorre, before the High Court of Delegates, I understand it was clearly held by that court, that whichever way the presumption of revival might be, still the intention was to be collected from all the circumstances of the case." - Per SIR JOHN NICHOLL, in Wilson v. Wilson, 3 Phillim. 543, 554 (1821).

"This court is founded in holding, under the sanction of the superior court, that the legal presumption is neither adverse to, nor in favor of, the revival of a former uncancelled, upon the cancellation of a latter, revocatory, will. Having furnished this principle, the law withdraws altogether; and leaves the question, as one of intention purely, and open to a decision, either way, solely according to facts and circumstances.

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