This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
610, note; Lingan v. Carroll, 3 Har. & Mch. (Md.) 333, 338; Deford v. Deford, 36 Md. 168, 179.
47. 7 Wm. IV. and 1 Vict. c. 26, Sec. 25; 2 Woerner, Administration, Sec. 438.
48. 1 Stimson's Am. St. Law, Sec. 2822.
49. In re Upham's Estate, 127 Cal. 90, 59 Pac. 315; Drew v. Wakefield, 54 Me. 291; Thayer v.
Wellington, 9 Allen (Mass.) 283, 296; Molineaux v. Raynolds, 55 X. J. Eq. 187, 36 Atl. 276; Cruik-shank v. Home for Friendless, 113 N. Y. 337, 4 L. R. A. 140, 21 N. E. 64; Albany Hospital v. Hanson. 214 N. Y. 135, 108 N. E. 812.
50. Massey's Appeal, 88 Pa. St. 470; Rizer v. Perry, 58 Md. 112. See 2 Woerner, Administration, Sec. 438.
2 R. P. - 41 destruction of the will, or by the execution of another testamentary instrument, expressly revoking the former will or making an inconsistent disposition of the property. The Statute of Frauds provides that no devise in writing of lands, tenements, or hereditaments, or any clause thereof, shall be revocable otherwise than by some will or codicil in writing, or other writing declaring the same, signed in the presence of three or four witnesses, or by burning, canceling, tearing, or obliterating the previous will.51 In this country the statutory provisions are usually of a substantially similar character.52
- By cancellation or destruction of the instrument. In order that a will be revoked by cancellation or destruction, it is necessary that the act be done with the intention of revoking the will, animo revocandi, as it is expressed.53 Consequently, the destruction of the will by accident,54 or by mistake,55 as when the testator wrongly believes it to be invalid,56 or during the in-sanitv of the testator,57 does not revoke it. On the other hand, the mere intention to revoke is insufficient unless accompanied by some act constituting a legal
51. 29 Car. II, c. 3, Sec. 6. See Swinton v. Bailey, 4 App. Cas. 70.
52. 1 Stimson's Am. St. Law, Sec.Sec. 2672, 2673.
53. 1 Jarman, Wills, 118; 1 Woerner, Administration, Sec. 48. The statute frequently contains a provision to this effect. 1 Stimson's Am. St. Law, Sec. 2672(C).
54. Burtenshaw v. Gilbert, Cowp. 52; Burns v. Burns, 4 Serg. & R. (Pa.) 295. See Lord's Estate, 106 Me. 51, 75 Atl. 286.
55. Strong's Appeal, 79 Conn. 123, 6 L. R. A. (N. S.) 1107; Semmes v. Semmes, 7 H. & J. (Md.) 388. See, as to dependent relative revocation, post, this section, notes 70-73.
56. Giles v. Warren, L. R. 2 Prob. & Div. 401.
57. Rich v. Gilkey, 73 Me. 595; Brunt v. Brunt, L. R. 3 Prob. & Div. 37; Lang's Estate, 65 Cal. 19; Sprigge v. Sprigge, L. R. 1 Prob. & Div. 608; Forbing v. Weber, 99 Ind. 588; Delafield v. Parish, 25 N. Y. 9. In Billington v. Jones, 108 Tenn. 234, 91 Am. St. Rep. 751, 56 L. R. A. 654, it was held that, in the absence of a statute fixing the mode of revocation, the writing in pencil, below the signature, of a statement that the will was null and void, was sufficient.
Revocation,58 and it is immaterial that the testator wrongly supposes that the will has been destroyed as directed by him.59
The act of destruction, whether by burning, tearing, or other means, must, to constitute a revocation, be carried through to its end, and consequently, if the testator desists from his purpose after having partly torn or destroyed the instrument, there is no revocation, provided he would have made the act more complete had he not changed his mind.60 A partial destruction is sufficient, however, if the testator supposed that the act was carried far enough for the purpose, and the preservation of the will in its mutilated condition by a third person will not affect the validity of the revocation.61
In a considerable number of states it is provided that the cancellation or destruction of the will which effects its revocation may be the act of a third person as well as of the testator himself, provided, ordinarily, this is by the testator's direction and in his presence, and in some states the fact of destruction with the testator's consent must be proven by at least two witnesses.
The cancellation or destruction, animo revocandi, of any essential part of the will, has the effect, unless the statute otherwise provides,62 of revoking the will, as
58. Mundy v. Mundy, 15 N. J. Eq. 290; Hoitt v. Hoitt, 63 N. H. 475; Kent v. Mahaffey, 10 Ohic St. 204; Dclifieid v. Parish, 25 N. Y. 9. So in Doe d. Reed v. Harris, 6 Adol. & E. 209, it was decided that throwing the will on the fire, if it was snatched off by another person before more than the envelope was singed, did not constitute a revocation.
59. Trice v. Shipton, 113 Ky. 102, 101 Am. St. Rep. 351, 67 S. W. 377; Rise v. Fincher, 32 N.
C. 139, 51 Am. Dec. 204; Clingan v. Micheltree, 31 Pa. St. 25.
60. Doe d. Perkes v. Perkes, 3 Barn. & Aid. 489; Elms v. Kims. 1 Swab. & Tr. 155.
61. Bibb v. Thomas, 2 W. Bl. 1043; Sweet v. Sweet, 1 ftedf. Surr. (N. Y.) 451; White v. Casten, 46 N. C. 197, 59 Am Dec. 585; Lawyer v. Smith, 8 Mich. 411.
62. Gay v. Cay, 60 Iowa, 415, 46 Am. Rep. 78.
When the signature is scratched or erased,63 or so much of the paper as contains the signature is torn off,64 or the seal is destroyed.65
In some jurisdictions the statute expressly authorizes the revocation of a particular clause of the will by cancellation or obliteration, without affecting the balance of the will. Whether, in the absence of an express recognition in the statute of such a right of partial revocation, the statute should be regarded as authorizing it, is a question as to which the statutes have been differently construed.66 But even though a right of partial revocation by cancellation or obliteration is recognized, this does not involve a right, by cancelling or obliterating some of the words of a will, to make a new and different testamentary disposition, this involving, not the mere revocation of a will, but the making of a will.67