SECTION V.

Of the Revocation of Devises, and of Republication.

The doctrine with regard to the revocation of wills necessarily embraces all that can be said on the subject of revocation of devises. What is affirmed of the first is applicable also to the last. It is of the very essence of a will that all its provisions are under the control and direction of the testator until his death. Until that event it is said to be ambulatory. (Dan v. Brown, 4 Cowen, 490. Matter of Michell, 14 John. 324.) And the testator may revoke it in

whole or in part.

A subsequent will does not revoke a prior one, unless it contains a clause of revocation, or be inconsistent with it; and if the inconsistency be only partial, it is a revocation pro tanto only. (Brant v. Wilson, 8 Cowen, 56. Nelson v. McGiffert, 3 Barb. Ch. 158.)

At the revision in 1830 it was supposed to be possible so to define the law with respect to revocations of wills as to leave little or nothing open to the discretion of the courts. The statute, therefore, in the first place re-enacted, with some slight changes, the old law with respect to such revocations made by the testator himself, animo revocandi, and in the next place provided for the cases of implied revocation occasioned by changes of the testator's social relations, or subsequent dealings with his property.

The first class of revocations is embraced in the 42d section. (2 R. S. 64.) It provides that no will in writing, except in the cases thereinafter mentioned, nor any part thereof, shall be revoked or altered, otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another person in his presence, by his direction and consent; and when so done by another person, the direction and consent of the testator to the fact of such injury or destruction shall be proved by at least two witnesses.

The most obvious mode of revoking a prior will is by an express clause in a subsequent will revoking all former wills. In such a

case there can be no doubt as to the intention of the testator. It is recommended to all persons engaged in the preparation of testamentary writings, to leave no doubt on this point; but if it be the intention of the testator to revoke all previous testamentary dispositions of his property, or of any of it, it is the part of wisdom so to declare in explicit terms.

It is the intention of the testator to revoke his will which constitutes the revocation. The mere act of canceling a will is not a revocation, unless it be done animo revocandi. (Jackson v. Halloway, 7 John. 394.) On this principle, when the testator made obliterations in his will already executed, not with an intent to destroy the devise already made, but to enlarge it, by extending it to lands subsequently acquired; and made interlineations and corrections which could not operate from their not being attested according to law, it was held that the will remained operative as originally executed.

It requires the same mental capacity to revoke a will by cancellation, burning, &c. as it does to make a will originally. The act of cancellation must be accompanied by the intention. Both must concur. A lunatic can have no such intention. If a party is incompetent to make a will, he is incompetent to revoke it, either by a physical destruction of the instrument, or by an express revocation by a will in writing. (Smith v. Wait, 4 Barb. 28. Nelson v. McGiffert, 3 Barb. Ch. 158.)

The revised statutes have sought to define the cases of implied revocation, arising from some change in the social relations of the testator, some different disposition of his property, or from a subsequent will, not expressly revoking a former one, but making devises incompatible with those in the former instrument. These questions formerly rested on the decisions of the courts, and with respect to some of them there was a contrariety of opinion. It was held that a subsequent marriage and birth of a child amounted to an implied revocation of a will either of real or personal property; but that such presumptive revocation might be rebutted by circumstances. To work a revocation it required the concurrence of both circumstances, marriage and the birth of a child. Neither circumstance alone was enough for that purpose. Neither this or any other implied revocation was within the statute of frauds. (Burch v. Wilkins, 4 John. Ch. 506.) The subject was fully examined, and the English cases reviewed, by the chancellor, in the case last

cited; and it was that case which led to the adoption of the legislative provision on the subject. It is contained in the 43d section. (2 R. S. 64.) It is there enacted that if after the making of any will disposing of the whole estate of the testator, such testator shall marry, and have issue of such marriage, born either in his lifetime or after his death, and the wife or the issue of such marriage shall be living at the death of the testator, such will shall be deemed revoked, unless provision shall have been made for such issue by some settlement, or unless such issue shall be provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of such revocation shall be received. This last provision, excluding parol evidence to rebut the implication of a revocation, was inserted to repudiate the suggestion to the contrary by the chancellor, in Burch v. Wilkins, (supra.) To prevent marriage and the birth of a child from working a revocation of the will, the provision for such child must either be contained in the will, or some settlement, or be so mentioned in the will as to show an intention not to make such provision. The intention, which is to govern, must thus be indicated by some writing, and cannot be made out by extrinsic oral evidence.

It is not important whether the testator, at the time he made his will, was a bachelor, or a widower, or a married man, with children. If he loses his wife, and again marries and has a child by his second wife, he falls within the letter as well as spirit of the act. (Havens v. Van Den Burgh, 1 Denio, 27.)

Another instance of implied revocation by marriage occurred where an unmarried woman having executed a will, should marry. This act is declared to be a revocation of her will. This was so at common law, upon the ground that it is of the essence of a will that it should be valid during the remainder of the devisor's life. For this reason the will of a feme sole ceased upon her becoming covert. (Doe v. Staples, 2 D. &. E. 696, per Lord Kenyon.) The principle on which the common law was based sprung from the disability of a married woman to devise her estate. The revised statutes have adopted this provision without qualification. Since the act of 1860, chap. 90, and the act of 1849, relative to married women, (L. of 1849, ch. 375,) have in a great measure removed the disability of married women, the common law basis of the principle is in

a great measure removed. The statute, however, remains unaltered, and it is believed, is still obligatory.

By the common law, an agreement or covenant, made for a valuable consideration, to convey lands, which had been previously devised by will, operated in equity, though not at law, as a revocation of such devise. In cases of this kind the legal estate passed to the devisee; but the court of chancery would compel him to convey it to the person entitled under the equitable agreement. (Cotter v. Layer, 2 P. Wms. 623, 626.) The revised statutes provide for such cases and prevent the agreement of the devisee from operating as a revocation, either at law or in cquity. They direct that the property shall pass by the devise, subject to the same remedies for a specific performance or otherwise, against the devisee, as might be had by law against the heirs of the testator, if the same had descended to them. (2 R. S. 64, § 45. Langdon v. Astor's Ex'rs, 2 Smith, 9.) It was held more than a century ago, that if A. devises lands, and then makes a mortgage thereof in fee, it is a revocation in law, but otherwise in equity. (Hall v. Dunch, 1 Vern. 329, approved in Sparrow v. Hardcastle, 3 Atk. 805.) It was deemed expedient by the legislature, at the time of the revision, that the rule in this respect should be uniform in all the courts. As the rule in equity was thought to be the most reasonable, it was in substance adopted, by declaring that a charge or incumbrance upon any real or personal estate, for the purpose of securing the payment of money or the performance of any covenant, shall not be deemed a revocation of any will relating to the same estate previously executed; but the devises and legacies therein contained shall pass and take effect subject to such charge or incumbrance. (2 R. S. 64, § 46.) The statute makes no distinction between a mortgage in fee, or for a term for years. It does not leave one rule to be operative at law, and another in equity; but makes the provision general.

It was held, too, before the revised statutes, that where an estate, specifically devised, was sold by the testator, by an executory contract, it was a revocation of the devise, in equity, though not at law; for the estate, from the time of the contract, was in equity considered as the estate of the vendee. And although such executory contract was revoked by the purchaser and testator, so that the latter was restored to, and died seised of his former estate, the devise was not thereby restored. The devise being once revoked, could not be made effectual but by a republication of the will.

(Walton v. Walton, 7 John. Ch. 258.) It was considered essential to the validity of a devise of lands, under the former law, that the testator should be seised thereof at the time of making the will, and should continue so seised without interruption until his decease. If therefore a testator, subsequently to his will, by deed aliened lands which he had disposed of by such will, and afterwards acquired a new freehold estate in the same lands, such newly acquired estate did not pass by the devise, which was necessarily void. (1 Jarman on Wills, 170, Perkins' ed.) We have seen that since the revised statutes, a will may be so drawn that it will operate to pass the real estate of which the testator was seised at the time of his death. The legislature intended to provide for the effect of conveyances by the testator, upon devises made by him, and to make the rule uniform at law and in equity. It was therefore enacted, that a conveyance, settlement, deed, or other act of a testator, by which his estate or interest in property previously devised or bequeathed by him shall be altered, but not wholly devested, shall not be deemed a revocation of the devise or bequest of such property; but such devise or bequest shall pass to the devisee or legatee the actual estate or interest of the testator, which would otherwise descend to his heirs, or pass to his next of kin; unless in the instrument by which such alteration is made, the intention is declared that it shall operate as a revocation of such previous devise or bequest. (2 R. S. 65, § 47.) The subsequent section provides that if the provisions of the instrument by which such alteration is made are wholly inconsistent with the terms and nature of the previous devise or bequest, such instrument shall operate as a revocation thereof, unless such provisions depend on a condition or contingency, and such condition be not performed, or such contingency do not happen. (Id. § 48. Brant v. Wilson, 8 Cowen, 56.) A devise is revoked by the conveyance of the land devised, notwithstanding the conveyance be to the devisee. The latter will then hold under the deed and not under the will. (Rose v. Rose, 7 Barb. 174.) Nor will the effect be altered, when the testator sells and conveys the land devised, if he takes back a bond and mortgage for the purchase money or any part of it. (Adams v. Winne, 7 Paige, 97. Brown v. Brown, 16 Barb. 572.) The conveyance is not merely an alteration of the estate, but completely devests the testator of all title to it. The mortgage taken back is a mere security for the payment of the money. In the last mentioned case, it was