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the sectiopart of it: This parts, and i de 6th sectio
The refer of the woecond Patie fin
enactment, animo revocandi, there cannot, I think, be any doubt whatever.
That, my Lords, being the state of the facts of the case, what is the legislation which it is necessary for your Lordships to look at upon the subject? Was this obliteration effectual with regard to the real estate to alter the devise, so that whereas Elizabeth Ely, under the will as it originally stood would have an estate in fee simple absolutely, under the will as obliterated she would have only an estate for life? Now, my Lords, the Statute which has to be looked to with reference to that question is the Statute of Frauds. The 6th section of the Statute of Frauds consists of two parts, and I will, in the first instance, read the first part of it: [His Lordship read it). That is the first part of the section. The second part is put in apposition to the first, and, as I took the liberty of suggesting during the argument, it seems to me to be inserted for the purpose of constituting an equilibrium between the two portions of the enactment. It runs thus : [His Lordship read it).
My Lords, I think that, in reality, your Lordships need apply your attention to no more than the first half of the section, because it must be obvious that the object of the Legislature was, in the second part, merely to declare affirmatively the consequence which resulted from the first part. The reference to the first part of the section, by the use, in the second part, of the words “in manner aforesaid," shows that it was not intended by the second part to cut down whatever might be the operation of the first. Now the first part is expressed negatively, but involved in it there is really an affirmative enactment. The Statute of Frauds had provided that there should be no will, devising lands validly, unless it was executed and attested in a particular way; but, then, a will being valid under the first part of the Statute, there is, in this section, a provision as to revocation; and I take the first part of the 6th section to enact, in substance, this : “ That a devise in writing of lands, and any clause thereof, shall be revocable by burning, cancelling, tearing, or obliterating the same by the testator himself," that is, by burning, cancelling, tearing, or obliterating the devise, or any clause thereof. And inasmuch as you have the words “ burning” and “ cancelling," which apply to a material object, you obtain from that the obvious proof that “devise ” must mean the will, the written paper executed in the manner provided by the Statute.
The enactment therefore is that the will may be revoked, and any clause in the will may be revoked, by burning, cancelling, tearing, or obliterating the same, or by another writing executed in the manner provided by the Statute. Those are the two ways in which a revocation may take place. Of course, from the very nature of things, those two ways are not co-extensive. You will of course be able, by means of a fresh writing, to produce results much more extensive than you can produce by cancelling or obliterating ; but where you can produce results which are intelligible by cancelling or obliterating, the Statute allows you
to do it; where you cannot attain the end and object which you have in view by cancelling or obliterating, you must resort to the larger and higher means of inaking another writing. Of course you may by the other writing produce every result that you can produce by cancelling or obliterating; but it does not follow that by cancelling or obliterating you can produce every result that you can produce by a different writing. The one is a lower form, a lower power of alteration than the other; the other, that is to say the fresh writing, is the higher power.
That, my Lords, being the scheme of the Statute, let me apply it to what is done in the present case. You have here a devise " to Elizabeth Ely, her heirs and assigns, forever,” and the testator obliterates the words “ her heirs and assigns forever" (I overlook the obliteration of the surname * Ely," as it is immaterial), leaving it to stand a devise to Elizabeth Ely; so that she takes under a devise which does not go beyond her own life, and does not pass to heirs. Now, I ask in the first place, Why is that not within the Statute? The Statute speaks of any clause in the devise, (which I take to mean in the will,) being obliterated by the testator. Are the words “ her heirs and assigns forever" not a clause in the will? Why not? It has been suggested that a clause must mean something self-contained, and independent, which when presented on paper would have a meaning by itself, without reference to the context. I do not know any law which says that that is the necessary meaning of the word “ clause.” When I read an enactment speaking of a devise, that is to say, speaking of a will or any clause in a will, I naturally infer that the word “ clause " there means some collocation of words in the will which, when removed out of the will, will leave the rest of the will intelligible. I know no rule which says that the clause itself must be capable of being read as a document by itself if taken alone. The main object is to see if that which you obliterate, which you claim the right to obliterate de jure under the Statute, is something in the first place which you can obliterate de facto; because if the obliteration cannot be made de facto, then of course the Statute allowing it to be made must be inoperative. Now in this instance, de facto, the obliteration can be made. If you strike out the words “ her heirs and assigns forever," the will reads as accurately as the most skilful conveyancer could have worded it. It is complete and perfect in every point.
Then, my Lords, is there any decision which says that the word “ clause " must be taken in the limited sense which is assigned to it? I know of none. On the contrary, when I look to the cases which have been referred to, viz., Larkins v. Larkins, 3 B. & P. 16, 109, and Short v. Smith, 4 East, 419, it appears to me that in those cases no such meaning was supposed to be attached or to be attachable to the word “ clause.”
But, my Lords, I must go farther. I must say that if we are to resort to first principles, and to a technical examination of the character of the words which are here obliterated, as I understand the rule
of law it is, that where you have a devise " to A. B. and to his heirs and assigns forever," in the eye of the law that is a devise to A. B., and a devise to his heirs and assigns forever. The law says what the words say, - that you have there a devise to all of those persons. No
on have the device that she says what the doubt the law goes on to say that where you have a devise made in that way the ancestor shall have the dispositive power over the whole fee simple; but that is for the reason that you have got the devise to the heirs ad infinitum, and the devise cannot have effect given to it in any other way except by treating the words as words of limitation.
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 " 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 ms 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 certairt 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.
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
devise mige will. My section to ma difference
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 Se Botimo Lords, upon this point of the matter.
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; wbich certainly is a very remarkable circumstance. The Statute of Frands 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 bas not been in any way to increase, but on the
After all, only waiter has in any way be that you could get