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 .
13. Walton v. Walton, 7 Johns. Ch. (N. Y.) 258; Graham v. Burch, 47 Minn. 171, 28 Am. St. Rep. 339, 49 N. W. 697; Bigelow, Wills, 134. But see Bennett v. Gaddis, 79 Ind. 347.
14. In re Gensemore's Estate, 246 Pa. 216, 92 Atl. 134.
15. Graham v. Burch, 47 .Minn. 171, 28 Am. St. Rep. 339, 49 N.
W. 697; Smith wick v. Jordan, 15 Mass. 113. Contra in England Simpson v. Walker, 5 Sim. 1. See Redfield, Wills (4th Ed.) 344.
16. l Stimson'a Am. St. Law, Sec. 2843.
17. 1 Stlmson's Am. St. Law. 5 2842. See Page, Wills. Sec. 291; 1 Woeruer, Administration, Sec. 55 subsequent revocation of the revoking will. In England it was held by the common-law courts that the effect was to "revive" or put in force again the provisions of the earlier will, if this had not been destroyed, on the theory that, as the second will had no operation until testator's death, if it was revoked it could not operate as a revocation of the earlier will.18 The ecclesiastical courts, however, held that the question of revival was one of intention purely, to be decided according to the fact and circumstances of the particular case.19 This question is there set at rest by the Wills Act,20 which provides "that no will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same," it being held thereunder that the cancellation or destruction of the revoking will cannot revive the previous will.21
In this country the view of the English ecclesiastical courts, that the question of revival is one purely of intention, has occasionally been adopted,22 with the burden, it seems, of showing revival upon the party asserting it.23 In some jurisdictions, on the other hand, the view is taken that the revocation of the subsequent will ipso facto revives the earlier one,24 pro18. Goodright v. Glazier, 4 Burrows, 2512, 4 Gray's Cas. 434; 1 Jarman, Wills (4th Ed.) 136.
19. Moore v. Moore, 1 Phillim. 357; Usticke v. Bawden, 2 Addams, 116.
20. 7 Wm. IV. and Vict. C. 26, Sec. 22.
21. 1 Jarman, Wills 126; 1 Williams, Executors (9th Ed.) 163.
22. Blackett v. Ziegler, 153 Iowa, 344, 133 N. W. 901; Pickens v. Davis, 134 Mass. 252; Williams v. Miles, 68 Neb. 463, 62 L. R. A. 383, 110 Am. St. Rep.
431, 4 A. & E. Ann. Cas. 306 and note, 96 N. W. 151; Lane v. Hill, 68 N. H. 275, 73 Am. St. Rep. 591; Mcclure v. Mcclure, 86 Tenn. 173, 6 S. W. 44; In re Gould's Will, 72 Vt. 316, 47 Atl. 1082; See Bohannon v. Walcot, 1 How. (Miss.) 366; Randall v. Beatty, 31 N. J. Eq. 643.
23. Pickens v. Davis, 134 Mass. 252; Lane v. Hill, 68 N. H. 275, 73 Am. St. Rep. 591. See editorial note, 15 Harv. Law Rev. 142.
24. Stetson v. Stetson, 200 111. 601, 61 L. R. A. 258, 66 N. E.
Vided, accordingly to some courts, there was no express revocation of the first will, but merely an inconsistency between the first and second wills, on the theory that while an express revocation operates immediately, a revocation by an inconsistent provision is ambulatory until death.25 In a few states the rule of the English statute has been adopted in the absence of local legislation on the subject.26
There are, in many states, statutory provisions on this subject, it being sometimes provided, as in England, that a will once revoked can be revived only by a re-execution thereof, or by a codicil duly executed, while in others the canceling, destruction, or revocation of the second will does not revive the first will, unless such intent appears in the terms of the revocation, or the first will is duly republished.26a