In a late case,[259] the subject of receiving parol evidence in regard to the fact and intent of the revocation of wills, is very carefully examined, and the principle declared, that where the testator executed a will, and subsequently executed another, which he took away with him, and which on his decease could not be found, the earlier one being found, that the solicitor who drew the will, or any other witness familiar with its contents, might give evidence thereof; and it appearing that the provisions of the later one were inconsistent with those of the former, it was held to amount to a revocation. The practice, in the American courts, of receiving parol evidence of the contents of a lost will, seems to be universal, and without question, notwithstanding the stringent statutory requirements in regard to the mode of executing wills.[260] The evidence must come from witnesses who have read the will, and whose recollection of its contents is trustworthy.[261] But in cases of fraud, more indulgence is allowed to the proof, and in Jones v. Murphy,[262] the court said: “It is better, surely, that a person should die intestate than that the spoliator should be rewarded for his villainy.” The English courts do not grant the same indulgence to admit alleged lost wills to probate. In a late case, where the contents of the will were propounded for probate after a delay of seven years, and no sufficient explanation given of the manner or cause of the loss, and when no draft of the will could be produced, but only oral proof of its contents, due execution, and that it could not have been revoked, probate was denied.[263]
The question as to what extent a codicil shall control the provisions in the will is not always easy of solution. Each case depends almost exclusively upon its own peculiar circumstances, and will not, therefore, be much guide to others, unless the facts are very similar. But the general rule of construction is that already stated, to allow all the provisions of the will to stand which are not inconsistent with those of the codicil, and in determining this, to seek for the intention of the testator, as far as practicable.[264] Where a codicil refers to the former of two inconsistent wills, by date, as the last will of the testator, it has the effect to cancel the intermediate will, and evidence of mistake cannot be admitted.[265] Where a codicil named the wife as “sole executrix of this my will,” it was held that the appointment of other executors in the will was revoked.[266]
It has been held that a revocation is not valid, in most of the American States, unless done with the same formality required in the execution of the will itself.[267]
Thus, writing the word “obsolete” on the margin of his will by the testator, but without signing the same in any of the modes allowed by law, will not amount to a revocation.[268]
In a somewhat recent case in Pennsylvania, the question of revocation arose, in regard to a bequest to charity.[269] The court held that, where there are two wills, in some respects inconsistent, the latter revokes the former only so far as they are inconsistent with each other, unless there is an express clause of revocation. But where the property given specifically in the first will is, in the second, contained in a general devise to the same objects, and for the same purpose, and the appointment of other executors, there is a manifest inconsistency, and it evinces an intention that both wills should not stand.
Many times it happens that a testator, dissatisfied with an executor or devisee named in his will, erases the name of such executor or devisee; but this will not always effect his purpose, as it should be done by a subsequent codicil, properly executed. Thus, where a testator (without a republication of his will) made alterations and corrections in it, with the intent, not to destroy it, but to enlarge and extend a devise already made, it was held not a revocation of the devise.[270]
The physical destruction or cancelation of a will by a testator is the most palpable and unmistakable mode of its revocation. In what manner or in what different modes this may be done was first laid down in the Statute of Frauds, where revocation was to be effected by “burning, canceling, tearing, or obliterating” the will. These four phrases have been generally adopted and inserted in our statutes, with either some modification or enlargement.
The enumeration of these several modes for the destruction of a will by a testator, to amount to its revocation, has not prevented controversy and uncertainty; for law cannot define acts in words so precisely and unmistakably as to preclude all doubt and quibbling. There are sure to be some who will play upon words—a mental recreation to which legal minds are somewhat given—and who will insist upon an exact literal conformity when a revocation is sought to be maintained under this provision. It would seem to an ordinary mind hardly possible to admit of a doubt that cutting a will was, in effect, equivalent to tearing; yet a legal quibble went so far as to question this, when it became necessary to decide that cutting was, in effect, the same as tearing.[271] Probably, the legislature of West Virginia took into consideration a knotty question of this kind, and took good care to save a legal luminary stumbling over a question of this sort; for, by the statute of that State, it is provided that a revocation in this manner may be effected by “cutting, tearing, burning, obliterating, canceling, or destroying the same.”
To avoid any limited construction of the words as used in the English Statute of Frauds, it is generally provided in our statutes that a revocation may be made as in that statute, or by otherwise destroying the will.[272] This cuts off a great deal of uncertain construction, and removes a great temptation for fine legal distinctions. In the New York statute, a revocation is effected in this way, if the will is burnt, torn, obliterated, canceled, or destroyed, with intent and for the purpose of revoking the same.[273]
The statute very wisely requires two things to be combined before it concludes that a will is revoked. There must be the act of destruction with the intent, or the animo revocandi, as the law terms it. Under the English statute, it had been determined that the mere acts named will not constitute a valid revocation unless done with the intent to revoke.[274] Lord Mansfield here explains very graphically the acts which might often occur, which would destroy the writing, but would not amount to a revocation of the will; as, if a man were to throw ink upon his will instead of sand; or, having two wills, of different dates, should direct the former to be destroyed, and by mistake the latter is canceled. In neither case would it amount to a revocation of the will, although the writing were irrevocably gone.