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1889

Revocation of Wills
John B. Van Cleft
Cornell Law School

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Van Cleft, John B., "Revocation of Wills" (1889). Historical Theses and Dissertations Collection. Paper 93.

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 THE'SIS.

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REVOCATION OF WILLS.

John B. Van Cleft.

CORNELL UNIVFRSI TY SCHOOL OF IAW.

1889.
 Of all the benefits derived from cultivated social
life and advanced civilization one of the most important and
far-reaching in its effect is the right of testamentary
disposition. When a man tter long years of diligance
has accuulated property the acquisition of which has per-
haps -been the end and aim of his life, arrives at the point
of, death. his natural inquiry will be, *and what shall be-
icome of my worldly possessions, is the labor of years :in

vain, is my property to rrvert again to the common stock,

to be owned by him who ma acquire the samebyforce of

chance or might ?N A natrual sense of justice, com-

mon to- all men however degenerate will revolt against such

a principal. Where men are bound together by the ties of

family or of friendship there is the admitted right of one

to confer upon another his property, when and in what manner

he will. If during his life a man can bestow upon another

the products of his labor why at his death should he be

denied the same privilege. It is difficult to conceive of

a society so barbaric as would favor the reversion of a
man's property to the common stock. The strife and con-

fusion which would result from a mad scramble for the

spoils of the death bed, would cause revulsion in the most

degenerate mind. To satisfy a connnon sense of justice tp

sustain the peace and harmony of society, the right of the

possessor upon his death to direct the disposition of his

property has been evolved from the almost absolute necess-

ity of things. And with some restrictions society has

given to the proprietor the right upon his own death to

dispose of his property in what manner he chooses,
and to vest his goods in certain persons to the exclusion
of all others. Society has provided for the disposition of

a man' property in case he fails to avail himself of this

privilege, .bi/t a discussion of what Mr. Schouler calls,
'the will of the state" as distinguished from the will of

the testator, is not pertinet to this discussion.

The abuse of the testamentary power~possessed by a

sane man.1is guarded against by the natural and instinctive

affection existing between him and those to whom he is bound
 a
by ties of blood or marr~iage.
Disposition of property to take effect at one's

death is called a will or testament which terms we may

now use synor&ously. Wills have kept pace with civilza-

tion. To the most degenerate society perhaps -they were
unknown. When society was nomadic, a man's only possess-

ion being movable of coursewills were confined to that

species of property. As society progressed and as real

property became a subject of private and individual owner-

ship provision -was made for wills to embrace it; And thus
has the law slowly broadened down the centuries.
AThe earliest according to some authorities was
'Noah's rTestament made in writing and witnessed under his

swal, whereby he disposed of the whole world. Among the

ancient Hebrews we find Abraham complaining that 1-) unless
he had children of his body at his death his steward Eliezer
of Damascus would be his heir. Many writers think this is
quite conclusive to show he had made him so by will.
 4

Isaac gives his deathbed blessing to his younger son by an

error which he refuses upon his discovery to retract.
Blackstone thought that the earliest authentic instance of

testamentary disposition was Jacob's bequest whereby he gave

his son Joseph a portion of his estate double that given to

-his brethern. All these seem to afford instances of
death bed dispositiong-at patriarchial discretion.
It 19y appears altogether likely that "verbal test--
aments preceded- written ones. In the primitive ages of

many nations formal wills were unknown. This was the case
with the .ancient Oermane/and also with the Athenians before
-the age of Solon. The sanctity of the family relation and
the right to the absolute possession of property in a more
advanced civilization changed this and introduced the use
of testaments. Withb the introduction of the Twelve
Tables at Rome came an unlimited right of the Romand citi-

zen to dispose of his property. This was afterwards

qualified and the observance of certain formalities was
,required, such as the presence of five witnesses and the
 5
will was in the f orm of a purchase. Afterwards the number
of the requisiteawitnesses was incresed to seven.
Under Justinian the testator's right of disposition was

restricted b.,,: a provision that he should in no cqse total-

ly disinherit his children. It appears that the right of

making a formal will and disposing of property Ffter
death is me,'ely a creature of the civil state,which was
expre ly grante A in some Qtates,while in others it was per-
mitted by the acquiesence of society. Where it is per-
mitted by law it is subjected to different formalities
and restrictions in almost every natfonbut the end isthe
same To permit a man to do what he will with his own.
The right of diposing of one's property after death is a
reasonable and natural right, so we may conclude it existed

to a certain extent everywhere and at all times.

The re4son for laws and legislation on this subject,

the reqziring of certain formalities and the imposing of

limitations,is to prevent a testator from unjust iscrimi-

nation against those who ought to be the object of his boun-

ty, and for the further purpose of securing uniformity in

 6

order that the courts may be able to interpret the will

and carry out the intention of the testator.
It is impossible to discover when testamentary

disposition was first made in England. It appears to

have existed in the arliest times but not without serious

restrictions which were not altogether removed until recent

years. 'he church always favored the restriction on the

disposition of personal property. uring the reign of

Henry II only one third of the personal property could be

willed away. The feudal tenure which e xisted after the Norman

Conqi st made the disposition of real property impossible

save with the c onsent, of the Lord. Three statutes during ,

thp r-beign of Henry VIII did much towards relievinvg this

disability and during Charles II all traces of feudal ten-

ure were abolished and by the statute of Wills passed in 1827

during the reign of the present queen of England all restr-

ictions were removed from the disposition of property wheth-

w, real or personal. The law as it existed in England was

k troduced into this country by our ancestors with such

restrictions and modifications as were deemed expedient.

 7
As new ircumstances presented themselves it has been found
necessary to make various changes and now we have a comple-
te set of statutory rules the requirments of which seem
plain and simple but have however been the source of con-
stant controversey.
Man's property is his own until he disposes of it.
One can only alienate property by delivery, by virtue of a

contract or in the execution of a gift. A contract and an

executed gift each presuppose two parties, a grantor and a
0

,g&an+,ee. A will cannot be an executed gift during the

life. of the tes+,ator for it is only made to +,take effect at
his*fdeath, nor is it a contract for it lacks mutuality' of
mind.since.these are" the only methods of placing property
bxyond the owner's control, he cannot bind his subsequent
actions by conveying that property by will as that woild
presuppose the cntrol to have passed out of his hands.
Therefore a will irrevokable in terms is none the less rev-
okable during the +estator's life;
In speaking of the suhject Lord Bacon said,'It would
be for -aman to deprive himself of that which by all things

is most incident to human condition and that is alienation

 8

or repentance.' Hence when a testator states this to be

his last will and testament it must necessarily be a

counter mand or revokation of all or so much of the former

will as is in conflict with or contrary to the last dee-

laration of the testator'smind.

This is clearly stated in the case of Timon vs.

Claffy 45 Barb. 438, ' A testator has the right when in a

full possession when in the full possession of his faculties

to destroy his own will at any time or in any mfr-ner he

pleases, and no fraud can be committed by any person in des-

troying or assisting to d'estroy a will by the express di-

rection and in the presnnce of the testator, though it is

not done in the presence of two witnesses so as to revoke

it.'

What amounts to a Revolation.

At first ali-most any act that showed an intention

to revoke a will would have that effect. The

result has been the same as with the f ormalities required in

making the will which as civilzation advanced has been

stricter, and to-day there is a general and uniform system1

 9

In primitive times a parol rovocation would be effectual

as it was regarded as the declaration of the testator's

mind. However it must have been a present revocation in

the presence of three witness. A parol revocation to take

effect in the future has never had such result as it is

only a declaration of what the testator intends to do.

If the laxity and uncertainty of the early formalities which

were allowed to affect the will were recognized to-day wills

would be practically useless and there would be no settled

doctrine, and to avoid this evil the English statute of

Frauds provided the f ollowing: 'That no devise , in writing,

oflads, tenements, and heridibamentp, or any clause there-

of shall be revocable otherlwise than by some other will or

codicil in writing or other writing declaring the same or

some burning, cancellation, tearing or obliterating the same

by the testator himself, or in his presence or by his direc-

tions and consent. But it continues unless altered by some

other will ar codicil in writing, or other writing of dev-

isor sig&d in presence of three
the or more creditable wit-

nesses declaring the same.' And by the same act,'No will

 I0

in writing concerning personal estate shall be repealed,

or any clause or bequest therein altered by words or will

by words of mouth only except the ssme be, in the life of
the testator , committed to writing and read to and allowed

by him, and proved to be done by three witnesses .'

The legislation of most of our states on this sub-

ject is based upon this provision. According to the word-

ing of the statute the instrunent revoking the will must be

4

sigiwd in the presence of witness. This q the same re-

quirment fNa** in executing a will has been held to be sufficie-
nt if the testator acknowledges the signature to be his in
their presence.
A will devising real estate cannot be revoked by an

instr~ment not executed with the same formalities. (Rjo vs.

Borland 14 Mass. 208.) The judge says,"Our statutes on
this point are a literal copy from the English statute of

Wills andhas been repeatedly decided ani is perfectly~in

Engladd that a~will whereby alands or a disposition of,

as the case here, to amount to a revocation a d'ormer one

must be such a one as would be effectual to pass lands with

the devising cl ause of this statute nnd must be witnessed

 II

and otherwise qualifielas that clause requires.'

The s+atutes in all tjie states seem to agree that
a will ,(damise in a willl or codicil can be revoked by

burning, cancellation, destroying or obliterating it by thd

testator. The destruction of the instrument then by a third
person without the testator'S consent or knowledge whether

before or after hiP death iwould not be a revocation.

In Early vs. Early 5 Red. 5, The court said,'A

testator cannot delegate his power of revocation by insert-
ing in the wil a clause which confers on another an author-
ity to destroy it after death.'
The statutes in moot states provide, that this burn-.

ing, cancellation, etc., can be done by some other person

in his presence. ( 45 Barb. 438 Timon vs. Claffy)

In this case the jury found that a will was destroyed by the

testator's wife at his request and that it was so destroy

ed in his life time and in his presence and not fraudulently
The court held, "A testato has the right, while in the full
posse'ssion of his faculties, to destroy his own will or any

time or in any manner he pleases, and no fraud can be commit-

ted by a person in destroying or in assistin to destroy

 12
a will by the express directiin and in the presence of the
testator, though it be not done in the presence of two wit-
nesses, so as to revoke it.'
The statutes in Delaware have gone so far as to pro

vide that this can be done even in the absence of the

testator if by his direction but when the will is thus des-
trowed the fact of the destruction and the intentconsent
I"aS
and direction of the testator^be shown by two witnesses.
,Whitever the means used in the destruction of the

will it must be done with a clear and defined intention of

the testator to revoke the same. Thus to use Lord Mans-

field's illustration:"If a man were to throw ink upon his

instead of sand
will there would be no revokation of the will although the
writing was irrecoverably gone unless it was done with the
intention of revoking the will.' A good examply is where
a will is torn up under a mistaken inpression that it is
invalid and then the parts gathered up and preserved. This
was held to be a valid will and to remain in full force in

the case of Burns vs. Burns 4 S & R. 47. So it would

follow thai. the accidental destruction of a will would lack

the animus r'evocandi of the testator and in no case amountr 6

a revocation.
 13
The question of the revocation is not so easily

disposed of where the burning , cancellation, or tearing is

incomplete, where the full intention of the testator was

not carried out. One of the first cpses upon thjs sub-

ject was Bibb vs. Thomas, 2 BI. I043; In this case a tes-

tator ordered his will to bp brought to him. He opened

and threw it contemptously upon the fire. But falling off

it lay where it must soon have been burned had not a woman2

in the room picked it up and put it in her pocket* The

writing was still legible, the will haveing been but slight

ly injured. Held to be within the statute and the revocat-

ion was complete. There is snother early English case which

seems tobe inconsistent with that of Bibb vs. Thomas,

( Doe vs. Harris) 6 Ad. & El. 209; in this case a testator,

who also intended to destroy his will threw it on to the

fire from which some one rescued it in a similar manner, but

with only a corner of the envolope which containedd the

will burned. The revocation was held incomplete. The

co-t in reconciling these decisions seems to have given

great weight to the fact that one will was partly burned,
 14

while the other was only scorched, the envelope protecting

it. This seems to be very po or reascning. The better

ground and the one upon which the cases are now decided
would be to adopt the intention of the testator as a criter-
ion. If it was his intention to destroy, this should gov-
ern even though the destruction was not complete. This
should be sufficient to satisfy the law. In both cases
there was an intention to destroy , but in the first case
the testator threw the will in the fire and supposed it was
destroyed; while in the/second case he intending apparentlyo
! 1 0 1h
AM~%"h2 1

destroy the will Athrew it on the fire bbut ]mew of its sub-

sequent rescue and that the party rescuing had the will in

his possession. The testator did not carry out his inten-

tion. He knew the will was not destroyed and hence there

was ronileted intention forthe testator relied upon the

promise of the rescuing party to subsequently destroy the

same. In White vs. Costen I JOnes L. 197 the testator

threw the will on thp fire intending to destroy and revoke

it. The will was burned through in three places wi+hout

interefering with the writing. The will was rescued

 15

and preserved without his knowledge but the court held it

to be a sufficient revocation.
The general rule in nearly all of the states is,

that a will m ay be revoked by some other writing signed

attested and xxkx acknowledged in like manner as a will.

In some of the states a subsequent will or codicil must ex-
pressely revoke the former will while in others the mere mak-

ing of the subsequent will is a sufficient revocation.

in Ne York thn- rule is that a subsequent will or codicil
duly' executed will revoke all former wills made by the test
tator. Thus in the case of Ludlum vs. Otis 15 Hun 410,
a testator executed a will whereby he devised his interest
in a house and lot in New York city to his cousin. After-
wards in Switzerland, he executed, in accordance with the
laws of the state of New York a second will whereby after
giving certain legacies to his servants, he devised the
remainder of his property, all situated or invested in Amer-
ica, to his natural heirs. The second will did not in any

express terms revoke the first but it was held that the

fir st will being in consistent therewith, was revoked by the

seod
 16
No man can die with two testaments. If he die
leaving two in existence the one last in point of time
contains the true expression of his intentions and there-

forp is his only will . Williams on Exec. But even

in New Yor"r the later will though well executed only
revokes the earlier will in so far as it is inconsistent

therewith unless of course the revocation be expressed.

By the statutes of most of the states the birth of
posthumous child or the
birth of children after the making of the
will and during thd life of the father, will inherit as if'
contains
he had died intestate unless the will some provis-
ion for them or they are particularly referred to in it.
The will is thus revoked pro tanto. The statutes

in several of the states go further and give the same

relief to, all children &who have not been provided for in the

will or to whom advancements have not been previously made

unless the omission in the will appears to have been intent-
ional. In Virginnia and Kentucky the birth of a child a
after the making of a will if there were no former children
revokes the will unless the child dies unmarried or an

infant. If the testator had children previously the birth

operates as a revocation pro tauto.
In some of the states the will is revoked by marr-
iage alone.
By the New York Revised statutes a will which dis-
poses of the whole estate is revoked by the subsequent mar-
riage of the testator and the birth of issue, where the wife

or the issue shall be living at the testator's death and

is unprovided for, unless so mentioned in the will as to

show an intention to make no provision. Whether the order

of the events of marriage and birth is important, the cases

do not clearly decide. Under a similar statute in England

it was held in 4 Vesey 48 that t he rule is satisfied by the

birth of a child subsequent to the will, by a first wife

followed by the testators re-marriage. It has been held'

that a will making no provision for the future birth of a

child although it did for a future wife was revoked never-

the less by the birth of a child.

In short , statute expressions vary so greatly in

America, that it seems impossible to extract from our cases

a uniform doctrine.
 18

The legal presumption is when a will has been prop-

erly mxect ed, with all the formalities required by the
statute that it continues to exist until the death of the

.testator . However this rpoof may always be rebutted

by actual proof of its revocation. Grefnleaf on Evidence
pg.e 680. But it appears that it has been held in Vermont
that if a will which was duly executed and. properly publish-
ed cannot be found after the death of its maker, its absence
willtamount, prima facie to proof of revocation. But the
presumption being one of fact, may bp rebutted and the will
established by proof of its contents. 14 Vermont 125.
0

So.teoin absence if all proof as to who destroyed the will

this presumption will prevail. I Grattan 286.
Revocation is a question of intention and the acts,

conduct and declarations of the maker of the will are cndmiss.

ible for the purpose of ascertaining whether it was revoked.
The fact of revocation msy be established by circumstantial
evidence as well as by positive proof. What amounts to

revocation is a question of law. 2 Head 164.

Where the animnus revocandi is doubtful, the onus

 19

of proving it is upon the party who alleges it. 6 Met.

282.
Th, revocation of a will by mere inference of law

ir presumption is limited to few instances. In general

the will can only be revoked by express intpntion of the
testator or by such acts as clearly and conclusively evince

such an intention. If from the facts we are unable to

spell out an intention the will remains in full force and
effect liable only to modification in thos. particulars
wherein the testator has trangressed the will of the state,
which in certain instances restrains him from neglecting
those who are the natural objects of his bounty.