“The statute does not define what is such a cancelation or obliteration as shall amount, conclusively, to a revocation of a will. Burning, or the utter destruction of the instrument by any other means, are clear indications of purpose which cannot be mistaken.
“But obliterating may be accidental, or may be partial, and therefore is an equivocal act, in reference to the whole instrument, and particularly to the parts that are unobliterated. So, canceling, by merely drawing lines through the signature, leaving it legible, and leaving the body of the instrument entire, is yet more equivocal, especially if the instrument be preserved by the party, and placed in his depository as a valuable paper. It may be admitted that the slightest act of cancelation, with intent to revoke absolutely, although such intent continue but for an instant, is a total and perpetual revocation, and the paper can only be set up as a new will. But that is founded upon the intent. Without such intention, no such effect can follow; for the purpose of the mind gives the character to the act. When, therefore, there appears a cancelation, it becomes necessary to look at the extent of it, at all the conduct of the testator, at what he proposed doing at the time, at what he did afterwards.... For, although every act of canceling imports, prima facie, that it is done animo revocandi, yet it is but a presumption which may be repelled by accompanying circumstances.”
There seems to be no question, according to Jarman,[288] that, under the Statute of Frauds and other similar statutes, as parts of an entire will may be revoked, in the same mode the whole may be so revoked. The same rule has been adopted in this country, to some extent. The question was ably examined by Surrogate Bradford, in a case in New York.[289] In that case, a testator, after his will had been prepared and executed, becoming dissatisfied with one of the devisees, his own daughter, struck out the devise to her, which was contained in these words: “To my beloved and only daughter, Sarah Ann McPherson, I give and bequeath,” etc. In a note to the foot of the page, he gave as a reason for striking out this devise, the bad treatment of his daughter, and afterwards altered a phrase in his will where “children” was used, and substituted “sons” instead, so as to exclude the said daughter. In examining this question, the learned Surrogate assumed that a part of a will might be obliterated in the same mode as the whole, and referred to various decisions in support of this view. He, however, held that, as the subsequent alteration, substituting “sons” for “children,” was invalid, not having been re-witnessed, as is required, that the obliteration of the devise was not effectual as to that part, and could not be treated as a revocation.
In Kentucky, in the case of Brown’s Will,[290] it was declared that a cancelation of a portion of the devises, the testator’s signature being left untouched, did not affect the residue of the dispositions, which remained unaltered, the testator’s intention not to revoke them being clearly established.
CHAPTER VII.
Wills as Affected by Domicile.
There is a certain respect paid by the laws of one nation or community to those of another, which is termed international comity, which, for general convenience and utility, is observed and regarded by tribunals when certain acts done in one place are to be construed in another.
Of course, such comity is merely conventional—there is no binding obligation to enforce it; but from long observance, and the customary regard tribunals have given to certain rules of international comity, these rules have been so long sanctioned by precedent and authority as now to have the force of law. The law relating to wills as affected by domicile is, to a great extent, founded on such rules of international comity, or leges gentium.