"testator committed to writing, and, after the writing thereof, "read unto the testator, and allowed by him, and proved to be SO done by three witnesses at the least." Notwithstanding this enactment, a will of personal estate may, like a will of real estate, be revoked by implication, arising from circumstances analogous to some of those which have been held sufficient to revoke a will of real estate. Some of the grounds, however, on which wills of real estate have been held to be revoked, do not apply to personal estate;-that, for instance, which arises from an alteration, or intended alteration, of the estate; for a will of personal estate speaks at the death of the testator, and hence a renewed lease for years, where a different estate is considered to be obtained, may pass by the prior will where an intention to that effect can be clearly collected from the language of the will. A will of personal estate may, like a will of real estate, be revoked by burning, cancelling, tearing, or obliterating. Cancellation is itself an equivocal act, and, in order to operate as a revocation, must be done animo revocandi. But although it is not the necessary inference that the cancellation of a will implies an abandonment, it is the ordinary inference deducible from every act of cancelling; and it has been established, in regard to wills of personal estate, that, in order to bar its application to any particular case, two things, at least, are requisite:-1st, It must be proved by indisputable evidence, that the cancelled paper once existed in a finished state; 2nd, It must be shewn by evidence equally indisputable, that the testator adhered to it throughout in mind and intention, notwithstanding its cancellation 1. The obliteration and tearing of a will may operate as a partial and not as a total revocation of a will. If a testator tear off or efface his seal and signature, the court will infer an intention to revoke the whole will, this being the ordinary mode of performing that operation; but if, on the other hand, he obliterate a particular clause, this, on the same principle, operates only as a revocation pro tanto, or of that particular clause*. So, again, if part of one This is also the doctrine of the civil law. Vide D. 28. 4. 3. Mantica says, "ita demum præsumitur testa mentum cancellatum, favore venientium ab intestato, quando testator cancellavitvel induxit totum testamentum. Quod si testator solum cancellaverit 'Thynne v. Stanhope, I Add. 54. sheet of a will, consisting of several sheets, be torn off or cut through, the other sheets, together with the signature, attestation, and so forth, remaining in their original state, this would only revoke the part actually so cut or torn; and would not enure to a revocation of the whole will1. A codicil is, primâ facie, dependent on the will, and the cancellation of the will is, therefore, an implied revocation of the codicil: but there have been cases, where the codicil has appeared so independent of and unconnected with the will, that, under the circumstances, the codicil has been established, though the will has been held invalid. It is a question altogether of intention; and, therefore, the legal presumption may be repelled, by shewing that the testator intended the codicil to operate, notwithstanding the revocation of the will 2. Marriage, and the subsequent birth of a child, will, in the case of personal, as well as real estate, operate together to revoke a will 3. Neither of these events will, however, alone revoke a will 4, and even the concurrence of the two may be rebutted by circumstances. The inference of revocation from marriage and the subsequent birth of children is, however, so strong, that though it may be rebutted by circumstances, yet they must be very strong, clear, and unequivocal; and it has been said, that "to shew that the deceased adhered to or meant to revive the will there must be some act, or at least some declaration clearly referring to it (after the change of circumstances,) as an existing will intended to operate 5." As the revocation implied from the union of the two facts, marriage and the birth of children, is only grounded on the presumption of intention, strong indeed, but liable, at least, in the case of wills of personalty, to be encountered by circumstances indicating, with greater strength of probable inference, a contrary intention; so the rule against a revocation of a prior testament by the subsequent birth of a child or children only, may give way to inferences arising from very special circumstances; and, accordingly, it has been held, that to induce a revocation of a will, subsequent marriage, concurring with the subsequent birth of children, is not an essential ingredient; but that the birth of children alone, concurring with other circumstances, --such as a great change in the condition of the testator's personal estate, which, under the prior will, would have given a very large and unequal share to the children born before it was made,declarations by the testator of his intention to make a new will,— and other circumstances, tending to shew that it was not the intention of the testator to adhere to his old will 1,-will be sufficient to revoke. " 2. Revocation of a Will under Lord Langdale's Act.]-We have already seen, that under this act a will is revoked by marriage. It is further enacted, "that no will shall be revoked by any presumption of an intention on the ground of an altera"tion in circumstances 2;" and "that no will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, [that " is, by marriage,] or by another will or codicil executed in man ner hereinbefore required, or by some writing declaring an in"tention to revoke the same, and executed in the manner in " which a will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the tes"tator or by some person in his presence and by his direction, "with the intention of revoking the same 3." " Johnson v. Johnson, 1 Phill. 477. * Sect. 19. 3 Sect. 20. 2. Republication of Wills of Freehold 4. Republication of Wills of Copyhold Estate, 225. 3. Revival of Wills of Freehold Es and Personal Estate, 226. 1. Effect of Republication.]—Republication gives to the will the same effect as it would have had if made at the date of the republication, instead of the date of its execution; or it revives and makes valid a will which has been revoked or become void. By virtue of the republication, therefore, subsequently-acquired lands may pass under a general devise, or even under a specific devise, and be subjected to a general charge contained in the will. 2. Republication of Wills of Freehold Estate.]-Previous to the Statute of Frauds, any will might be republished by a mere parol declaration. This statute prescribes the mode of executing a will, or revoking or altering it, but is silent as to republication. It follows, however, from the nature of its provisions, that a will cannot be republished, with respect to freehold estates, otherwise than by re-execution, with the solemnities required by the statute, (which is the most usual mode of republication), or by a 1 Bowes v. Martin v. Sa vage, cited 1 3 Goodtitle v. 5 Sect. 22. codicil, executed and attested as the Statute of Frauds requires with respect to a will. Whether a will is republished by a codicil, which does not expressly republish or confirm it, is a question which has occasioned much litigation. It was formerly held, that, unless a codicil afforded some evidence of an intention to republish the will, it would not have that effect; but it is now settled, that the will is republished by any codicil duly executed, unless an intention appear upon the codicil that the will is not to be republished1, although the codicil is not annexed to the will2, although it does not refer to the estate, and although it relates only to personal property, and shews no actual intention to republish the will3. A codicil republishing a will makes the will speak as from the date of the codicil, for the purpose of passing after-purchased lands, but not for the purpose of reviving a legacy, revoked, adeemed, or satisfied4. 3. Revival of Wills of Freehold Estate.]-When a will has been wholly revoked by a subsequent inconsistent will, it may be revived and republished by a codicil, which will have the effect of revoking the subsequent will: and it has been contended, that, by annexing the codicil to the prior will, a sufficient intention is shewn to republish it, and to revoke the subsequent will. The mere republication by a codicil of a will which has been only partially revoked by one or more prior codicils, will not operate so as to revive any part of it, which has been revoked by a prior codicil. When a will has been wholly or partially revoked by a subsequent inconsistent will or codicil, it is revived, but not republished, by the cancelling or other destruction of the subsequent will or codicil. This is the only case in which a will, which has been revoked, can be revived, as to freehold estates, without re-execution. By Lord Langdale's act 5 it is proved, that no will or codicil, or any part thereof, shall be revived otherwise than by the re-execution thereof, or by a "codicil duly executed "and shewing an intention to revive the same; and when any "will or codicil which shall be partly revoked, and afterwards wholly revoked, shall be revived, such revival shall not extend "to so much thereof as shall have been revoked before the revo"cation of the whole thereof, unless an intention to the contrary "shall be shewn." 4. Republication of Wills of Copyhold and Personal Estate.]A will, with respect to personal and copyhold estates, may be republished, not only in the same manner as with respect to free hold estates, but also by mere parol declarations; and very slight expressions are sufficient for that purpose1. After a will has been 'Long v. Alrevoked, it may be revived, with respect to such property, by dred, 3 Add. 48. parol evidence that the testator treated it as unrevoked. With respect to a will of personal estate, it has been said by Sir John. Nicholl, that "he would not venture to lay down decidedly that no act short of a direct and formal republication would be sufficient to revive a former will, and revoke a latter,-both instruments remaining perfect: but it certainly would require either a second republication, or very unequivocal circumstances 2". The 1 Phill. 336. mere conservation of a will for many years in connexion with its place of deposit, may, it seems, so evidence adherence to and approval of such a will as to amount to a republication of it3. The Long v. Alrepublication of wills of copyhold or personal estate is now, of dred, 3 Add. 48. course, subject to the operation of the section of Lord Langdale's act which has just been stated. SECT. 5.-PROOF OR PROBATE. 1. Of the Proof of a Will of Real Es- | 5. Bona Notabilia, 232. tate at Law, 227. 2. Of the Proof of a Will of Real Es tate in Equity, 228. 3. Of Probate of Wills of Leasehold and other Personal Estate, 230. 4. Courts of Probate, 231. 6. Distinction between Probate in com mon and solemn Form, 234. 7. Caveat, 234. 8. The Probate, 234. 9. Receiver pendente Lite, 235. 10. Administration pendente Lite, 235. 1. Of the Proof of a Will of Real Estate at Law.]—A will of real estate, in regard to its proof, does not differ materially from a deed. The law does not furnish any means of giving it a permanent authentication; and, therefore, whenever it becomes necessary to give such a will in evidence in a court of law or equity, it is proved, like a deed, by the attesting witnesses. When it has been so proved in an action or suit, it may be disputed again in another action or suit by the same or different parties; and when the parties claiming adversely to the will do not think proper to bring forward their claims, there are frequently no means of preventing them from disputing the validity of the will at a future period. It is only in a very few instances |