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immediately dependent upon the crown there was an attempt to create and maintain separate tribunals exercising the jurisdiction of such courts over wills, instead of giving that jurisdiction to the tribunals administering the common law.1
There are still distinct differences, as to the proof and effect, between wills of realty and wills of personalty, though greater in some States than in others. In several States, especially those of New England, a will of realty must receive probate just as a will of personalty before it may be introduced as evidence. This is the case in Connecticut, Massachusetts, Maine, New Hampshire, and Vermont. Yet, even in these States, a will when probated is a direct conveyance of the realty therein devised to the devisees. The executor's custody of such real estate, or his power to sell the same, is permitted only for certain purposes defined by the statutes. In other States the probate of a will of realty is not necessary before it may be introduced as evidence of title in a common-law court, and even if such will has been probated, the probate is not conclusive as to the capacity of the testator or the validity of the will, in an issue concern
1 In Massachusetts, though jurisdiction over wills had been exercised by the common law courts, the colonial charter which arrived in 1692 made the Governor and Council a court of probate. The Governor and Council seem to have exercised the probate jurisdiction through county judges by the right of substitution which they possessed as a civil law court, an appeal being reserved to the Governor and Council as a Supreme Court of Probate. In New York, after the English occupation, the body of laws known as the Duke's Laws, with additions made by the Governor and Council and written instructions received by the Governors from the home government, constituted the law until 1683. About 1686, the instructions reserved to the Governor the probate of wills, after which the Governor or the Secretary of the province exercised this jurisdiction and a distinct department grew up in the Secretary's office known as the Prerogative Court. This court was recognized by the legislative assembly, and its jurisdiction in minor matters was exercised by local delegates. The Prerogative Court was not succeeded by a court of probates until 1778. A like power was reserved to the Governors of New Jersey, and was exercised by them through deputies called Surrogates. In Pennsylvania Orphans' Courts were constituted by the Act of 1683, the justices being the same as those who presided in the county courts. Their jurisdiction was vague, and was, in fact, often exercised by the provincial council.
ing the title of real estate therein devised. There has, however, been a constant movement toward requiring probate of wills of realty, and toward making the effect of such probate conclusive upon all those claiming interest in the realty. The same tendency has been working in England, though more slowly, and by the Court of Probates' Act of 1857 wills of realty might be offered for probate.
It is an essential attribute of a will that it shall remain "ambulatory" until the death of the testator. Till then, to use another legal phrase, it does not "speak.' When a will, legally made, is produced for probate or as evidence after the death of the testator, the question always arises: Is the will so offered the last will of the testator? Before the Statute of Frauds, either a devise or a will of personalty could be revoked by oral declaration showing such an intention. But it is obvious that the law, while it guards and protects the original declaration of intention, must by equally efficient measures guard and protect the testator in his right to modify such declaration and in the certainty with which such modification may be evidenced. It was therefore enacted by the Statute of Frauds that no devise or any clause thereof should 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 direction and consent. This provision of the Statute of Frauds was adopted by the American colonies, with those already referred to, and substantially is the law of most of our States to-day; the principal modifications being that wills of personalty are not generally revocable by any less formal act than a devise, and that a revocatory writing shall be executed and attested in the same. manner as an original will. The Statute of Frauds also provided that a written will of personalty should not be revoked, altered, or changed by word of mouth only, and by the Wills Act of 1837 neither a will of personalty nor a will
of realty can be revoked otherwise than by its destruction by the testator, or by some person in his presence and by his direction, with the intention of revoking the same, or by another will or codicil or revocatory writing executed in the same manner as the original will. Some of our States have adopted the requirements of the Wills Act, but there has been no development in the legislation of intentional revocation which is peculiar to this country.
The informality with which wills of personalty might have been revoked by the English law, before the Statute of Victoria, and by the earlier American law, has introduced considerable confusion into our decisions. It will be noted above that the Statute of Frauds expressly permitted a partial revocation of a devise by mutilation, and that, while the Statute of Frauds was in force, a will of personalty might be altered or revoked in any of its provisions by the informal act of the testator upon the instrument itself. Partial revocation by mutilation has been permitted in some States by legislation and in others by decision, and where so permitted difficult questions have arisen as to the effect of informal erasures by the testator. Since the more uniform and formal requirements as to the execution and revocation of wills of personalty, there has been a gradual recognition by the courts of the distinction between partial revocation and alteration. Thus it has been held that a mutilation the effect of which is to enlarge the interest or estate of a legatee or devisee is an alteration,1 while if the effect is to carry the property to the residuary legatee or heir as intestate estate, such mutilation is a revocation and not an alteration. Such distinctions are too refined for permanence. They indicate that the partial revocation by mutilation of the instrument will soon be prohibited by statute.
The effect of a later will in rendering nugatory a prior will has always been recognized by the statutes. If the later
1 Thus, if a will provides. "I give ten thousand dollars to (be equally divided between) my brother (and sister)," and the parts bracketed be erased by the testator, but remain legible.
will be itself revoked and the earlier will remain in existence, the question arises whether the earlier will is still effective. The question is most perplexing if the later will contained no express revocatory clause, but was merely inconsistent with the earlier will. This question, whether the destruction of a later inconsistent will operates to revive an earlier will not expressly revoked, was much controverted in the English courts, until it was finally decided in the ecclesiastical courts to be an equivocal act, which might or might not revive the former will, according to the intention of the testator as proved. This view has been adopted by certain of our State courts, but the question is still a matter of difference and has been settled by statutory enactment in England and in several of the States. Such enactments usually provide that a will once revoked in any manner shall not be revived otherwise than by a republication.
As the legislatures required more formal evidence of revocation, cases began to arise where the testator had been fraudulently prevented from effecting such revocation. The injustice of permitting one to take under a will who has by fraud prevented the testator from revoking such will is so manifest that the courts, being familiar with the older law permitting informal acts and declarations to operate as revocations, in some cases have held the revocation effective, notwithstanding that it was not evidenced by the formality required by law. More lately, however, it has been held that a revocation cannot be effective unless evidenced as the statutes require.
The will having been executed according to law is subject to accidental loss or fraudulent suppression, not only during the intervening period to the time of the testator's death, but even afterwards. Such loss or suppression may operate to deprive of their interests those who are entitled under the will or to extinguish the rights of strangers, acquired after the testator's death from his heirsat-law in reliance upon a supposed intestacy. The law has
done very little to provide for the preservation of the will, leaving that to be controlled by the testator, and giving him the utmost freedom in such control. There have been, however, Acts permitting the testator to deposit in the probate offices his will when executed, sealed up, the
same to be redelivered to him or on his order, or opened and offered for probate after his death. Such provisions are of course merely permissive, and do not exclude any subsequent revocation of the instrument, though it still remain in the public custody. Such provision has been made in Massachusetts, New York, and several other States, and is included in the English Court of Probates' Act of 1857. In one instance legislative permission was given for ante-mortem probate, the object not being to provide for the preservation of the instrument so much as to enable the capacity of the testator to be conclusively determined on his own application while in life; but such statute was held unconstitutional by the Supreme Court of Michigan because the proceeding did not call for the exercise of judicial powers by the court. Provisions in our statutes are, however, quite common, which aim to perpetuate the testimony of the witnesses and to enable the probate to be made, if there be no contest, without the examination of witnesses. These statutes permit the witnesses, at the time of the execution or thereafter, to make affidavit to the facts to which they would be required to testify to prove such will.
The title of those purchasing lands from the heirs of an intestate decedent is sometimes menaced by the discovery of a will of such former owner.1 As possession of Effect of probate. land is not adverse to the interest of a remainderman until the determination of the prior estate, the time when the possession of the purchaser from an heir becomes
1 A case arose in New Jersey, where in 1889 there was offered for probate and accepted the will of a testatrix who had died in 1853, whose estate had been by her heirs mortgaged and conveyed to strangers, one of such heirs appearing by the newly discovered will to have been entitled only to a life estate.