Third. Upon the death of my said wife Emma, I give, devise and bequeath the said residue and remainder of my estate to my children, Alice Jones, Sarah Jones, and George Jones, to them, their heirs, executors, administrators and assigns forever, share and share alike, per stirpes and not per capita.
Fourth. This will shall remain in full force and effect notwithstanding children may hereafter be born to me.
Fifth. I nominate, constitute, and appoint my said wife Emma, and the Institute Trust Company, executors of this my last will, giving to them full power and authority to sell and convey any and all real estate, whereof I may die seized, at such times and for such prices as they may consider for the best interests of my estate.
Sixth. I hereby revoke any and all wills at any time by me heretofore made.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this first day of July, 1921.
(Signed) JOHN JONES (L. S.).
Signed, sealed, published and declared by John Jones, the above-named testator, as and for his Last Will and Testament, in the presence of us, and each of us, and at the same time declared by him to us, and each of us, to be his Last Will and Testament, and thereupon we, at his request, and in his presence and in the presence of each other, have hereunto subscribed our names as witnesses, this first day of July, 1921.
RALPH ROE, 3921 Broadway, New York, N. Y.
JOHN DOE, 65 Fifth Avenue, New York, N. Y.
JAMES SMITH, 130 Post Avenue, New York, N. Y.
REVOCATION.—A will may be revoked at any time at the pleasure of the testator. The ordinary ways of accomplishing a revocation of a will are: (1) The testator executes a later will, and in express terms says, "I hereby revoke all former wills by me made." Even if such an expression is not put in the second will, if its terms are wholly inconsistent with the former will, this in itself, will act as a revocation. Again, a will may be revoked by mutilation, as by being burned, torn, or otherwise mutilated by the testator himself, or in his presence and by his direction. The mutilation of the will, however, if not accompanied by an intent thereby to revoke it, is of no effect. I think I am tearing up an old insurance policy, but because of poor eye-sight, discover later that I have torn my will. This would not amount to a revocation of the will. As has been said by a writer on the subject of wills, "No amount of cancellation or destruction without the intent to revoke, and no amount of intent without the actual destruction, will suffice to revoke a will. Both the intent and the actual destruction or cancellation must coexist."
Sometimes changes in the circumstances and conditions of the testator's life will work a revocation. For example, at common law, the marriage of a woman worked an absolute revocation of her will. This has now been changed in most States by statute. In a great many States, however, today, if a testator, having no children, should make his will, and after the execution of the will, a child is born, the will is revoked in toto, when no provision for such child is made in the will. However, as above stated, this rule is not uniform in all States, and local statutes should therefore be consulted on this point. Where a testator already has children, the birth of additional children will not affect his will except, that such after-born children will inherit the same as though he had left no will. These rules in regard to after-born children apply only where the will does not make any mention of possible issue, and for this reason it is well to insert the clause, in many jurisdictions, providing that the will shall remain in full force and effect notwithstanding the fact that children may thereafter be born to the testator.