A revocation of a will is an act by which the will ceases to have any efficacy.1 The same degree of mental capacity is required to enable a person to revoke a will as to enable him to make one.2 With this limitation a person can at any time during his life revoke any will he may have made, except in cases where there was a sufficient consideration for the making of the will.3

Section 18. How Effected

Revocation may be effected either by acts of the testator or by operation of law. A will will be revoked, either entirely or pro tanto, by a subsequent will, and may be revoked by an instrument executed with the same formalities as a will.4 When inconsistent wills bear the same date, extrinsic evidence is admissible to show which was executed last, but if there is no extrinsic evidence available, neither will can be probated.5

"By the sixth section of the statute of frauds it was provided that revocation of a written devise of lands, tenements, or hereditaments, or any clause thereof, might be effected by burning, canceling, tearing or obliterating the same, either by the testator himself or by another in his presence, and by his direction and consent." 6

1 Carter vs. Thomas, 4 Me., 341; Am. & Eng. Ency. of Law, Vol. XXX, page 620.

2 Olmstead's Estate, 122 Cal., 224.

3 See Section 10.

4 Graham vs. Burch, 47 Minn., 171;

Fellows vs. Allen, 60 N. H., 439; Matter of Barnes, 70 N. Y. App. Div., 523. 5 Phills vs. Anglesey, 7 Bro. P. 0., 443.

The destruction of a will by a third person, either before or after the death of the testator, will not affect the validity of the will.7

"The act of burning, tearing, canceling, obliterating or destroying, in order to effect a revocation, must be done with that intention." 8

But the mere intention to revoke a will, not manifested in any act, is not sufficient.

At common law, and in some of the states in this country, certain changes in the condition or circumstances of the testator effected a revocation of his will.9 The most important of such changes of condition were marriage and birth of issue.

The effect of these events upon a will were discussed by the court in the case of Durfee vs. Risch:10

"Testatrix, while unmarried, executed the will in question. She subsequently married and had issue, one child, who survives. The sole question is whether the will of a single woman is revoked by her subsequent marriage followed by the birth of a child or children. Our statute of wills, which prescribes the formalities required for the revocation of wills, provides that 'nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator.' There is no doubt that at the common law the marriage of a male testator, followed by birth of issue, operated to revoke a will. This revocation was implied from the changed relations and obligations of the testator, and was based upon the presumption that, had the same conditions and obligations existed at the time of the execution of the will and been taken into account, a different will (if any) would have been made. Page on Wills, Sec. 283; 1 Woerner on Am, Law of Admin. (2d Ed.), Sec. 54. It is difficult to suggest any reason why the same implication of a revocation should not arise in case of a female testatrix. The presumption that, had the same conditions existed at the time of the execution of the will as existed later, the disposition of the estate would have been different, is certainly as strong in the case of a wife and mother as in the case of a husband and father.

6 American & Eng. Ency. of Law, Vol. XXX, pp. 629, 630, and see statutes of the several states.

7 Tucker vs. Whitehead, 59 Miss.. 594.

8 Wolf vs. Ballinger, 62 Ill., 368;

Collagan vs. Burns, 57 Me., 454. 9 Padelford's Estate, 7 Pa. Dirt., 331. 10 142 Mich., 504.

"The proponent argues that the rule as to revocation of the will of a female was, at the common law, that her subsequent marriage alone revoked the will, that since by statute a married woman may now make a valid will, and since it is generally held that the effect of this statute is to abrogate the rule that marriage alone (in the case of a woman) revokes the rule, it follows that there is left no common law rule upon which a revocation of a will by a female can be predicated. This is ingenious, but not convincing. It is true that the weight of authority sustains the view that, where statutes like our Married Woman's Act (section 8690), (3 Comp. Laws) exist, marriage of a feme sole does not of itself operate to revoke the will. Kelly vs. Stevenson, 85 Minn., 249, 88 N. W. Rep., 739; Ward's Will, 70 Wis., 251, 35 N. W. Rep., 731. This is the rule in this State. Noyes vs. South worth, 55 Mich., 173, 20 N. W. Rep., 891.

"The common law rule as to the implied revocation resulting from marriage of the testatrix rested upon the ground that, after marriage, she could not make a new will, and as a will is ambulatory during the life of the testator, the continuing purpose to continue the will previously made in force could not be presumed from mere inaction on the part of one who, because of disability, could not act. Where, as in this State, the reason for this rule fails, the rule fails. It does not follow, however, because the marriage alone does not revoke the will, that marriage and birth of issue do not. The abrogation of this rule places the male and the female on the same plane as to this, i. e., that the subsequent marriage does not of itself revoke the will. But it is illogical to say, because the existence of a more restricted rule to the wills of females prevented the application of the general rule of the common law, that such rule should not be applied to male and female alike, when the removal of the latter as disability makes the general rule applicable. As was said of a similar question in Lansing vs. Haynes, 95 Mich., 16, 54 N. W. Rep., 699, the common law is not so unbending as to lead to this result.

"The reason of the law is the essence and soul of the law."

In Noyes vs. Southworth, supra, it was said: "Our constitution has done away with all the disabilities of coverture on this head, and expressly authorized every married woman to make wills of her estate as if she were a sole. This leaves her case to be governed by the same rule which would apply to anyone else on change of condition. . . . There is no sound reason that we can perceive why, in the absence of statute, implied revocations should be extended, or should be differently treated as between men and women when the property rights of married women have ceased to be hampered by marriage.

"But it is further insisted, that, as section 9285, 3 Comp. Laws, makes provision for a child born after the making of his father's will, the rule that marriage and birth of a child revoke a will previously made by the father is abrogated. It is contended that this provision applies only to man's will, and it was so held in Cotheal vs. Cotheal, 40 N. Y., 405; but it is at the same time urged that inasmuch as the rule as applied to a woman's will is applied by analogy, it follows that if the statutes have abrogated the rule as to men, the rule as to women has no existence. This contention does not take account of the fact that we are to apply a principle of the common law, and that that principle is not affected by the withdrawal of a class of persons from those to be affected by its operation. We regard this principle of the common law as controlling, and hold that the marriage of the testatrix and subsequent birth of a child to be resulted in a revocation by operation of law."

There is some conflict as to whether the divorce of the testator will work a revocation of a will, but the weight of authority is to the effect that it will not. In Bacacke vs. Bacacke,11 it was held as follows:

"While our statute recognizes revocations of wills by implication of law, it has not undertaken to designate or specify what subsequent changes in the condition and circumstances of the testator will produce such revocation, but it is for the court to determine from the facts of each particular case, under the rules and forms of law, whether the testator intended the will to stand, notwithstanding the changes in his condition and circumstances. To show that the present case does not fall within the exception of the statute respecting the revocation of wills by implication of law, we have already mentioned certain facts which courts have held to constitute such revocation, and also have instanced some of the changes in the condition of a testator from which a revocation of a will cannot be implied. The doctrine of revocation by implication of law is based upon a presumed alteration of intention arising from the changed condition and circumstances of the testator, or on the presumption that the will would have been different had it been executed under the altered circumstances. An entire revocation by implication of law does not extend to a large number of cases. Change of circumstances may work a partial revocation, and the will in other respects stand as it is written. No case has been cited, nor has the writer been able to find a single authority, which holds that a subsequent granting of a divorce to the wife of a testator, and a settlement of her property rights, work a revocation. It could no more than revoke the will as to her legacy, and whether it would have that effect in this case it is not necessary now to determine, as the question is not before us."

11 50 Neb., 18. Vol. X.-21.