Supreme Court of United States.
*287 For the appellant, two propositions were stated, and the corresponding authorities cited: 1st. That the Will of 1777, was a revocation of the Will of 1775, in act, as well as intention, either of which is sufficient. Moore 177. 3 Mod. 260. Dy. 143. Off. of Ex. 20. Swinb. 15. 525. Cowp. 90. God. Or. Leg. 51. 54. Cro. I. 115. 1 Roll. Abr. 614. 2 Eq. Abr. 771. 2d. That the mere cancelling of a latter Will, much less the mislaying or loss of a latter Will, is not a revival of a former Will: The cancelling may be done with a view to die intestate; and the mislaying may be accidental; and the Will of 1777, being in writing, can only, by the act of Assembly, be annulled by writing. 3 Atk. 799. Doug 36. Cowp. 49. 1 P Wm. 343. 345. 4 Burr 2513. Lost. 465. 470. Pow. Dev. 534. 535. 1 vol. Penn. L. (Dall. Edit.) p. 53. sect. 2. 6.
For the Appellees, the case was considered in various points of view. 1st. Does the law of Pennsylvania permit the revocation of a Will by parol, or must it be in writing? The act of Assembly declares that it shall be in writing. 1 Vol. Dall Edit. p. 55. s. 2. 6. In England, it is true, a Will might *288 have been altered by parol; but it must have been express, not intentional, in the present, and not in the future, tense. God. Or. Leg. 51. 54. Swinb. 531. Cro. I. 115. The evidence here is not positive; it is mere supposition, that the Will of 1777 in express terms revoked all former Wills. 2d. Is the act of making a subsequent Will (even where its contents are unknown) sufficient in itself, as a revocation of a former Will? The authorities directly disaffirm the position, where the subsequent Will does not alter the whole disposition of the estate; and if the same solemnities are necessary to revoke, which are required to make a Will, there is not, in the present cases, proof by two witnesses of the contents of the Will of 1777. Besides, the paper called a subsequent Will, does not appear to be more than a codicil, as it is not proved that any Executors were constituted; and both might, therefore, stand together. There is no proof that the latter Will disposed of the personal estate differently, but only that it increased the legacies. Perk. 179. God. Orph. Leg. 53. 12. 3, Cro. E. 721. Pow.Dev. 538. Swinb. 532. Cro. E. 721. Cro. Car. 23. 4 1 Show. 537. 534. Salk. 592. Sho. P.C. 149. Hardr. 375. Cowp. 87. 8. 3 Wil. 497. 2 Bl. Rep 937. S.C. 3dly. Does the destruction of the latter, revive the former, Will? The intention of the party is undoubtedly material upon this question. The testatrix sent for the Will; but whether she cancelled it, with a view to die intestate, or James Lawson destroyed it, with a view to claim the whole estate as heir at law, can only be explained by the circumstances; and there is one circumstance that is strong indeed, to shew that the never meant to give to him the whole; namely, that James Lawson had arrived in Cumberland County before the making of the latest Will, and yet she therein bequeathed to other persons, legacies to a considerable amount. The cancelling of a latter Will, under circumstances less forcible, has been deemed the revival of a former one. 4 Burr. 2712. 4thly. Is there any difference between the revocation of a Will in Pennsylvania, and in England, since the statute of frauds and perjuries? The doctrine in the act of Assembly (1 vol. Dall. Edit. p. 640.) is the same as the doctrine in the statute, 29 Car. 2 a. 3 and the effect should be equally uniform.
For the appellant, in reply. All the cases cited by the opposite counsel, relate to real estate in England, subsequent to the statute of frauds and perjuries. But our position is, that a subsequent Will, or Testament, does, of itself, revoke all prior Wills of personal estate. A latter Testament, says Swinb. 15 always infringes a former one; but a codicil is different; and the distinction between a Testament and Will is established in Cowp. 90. The present Will was not found (nor was any other Will found) in the *289 possession of the Testatrix; and the presumption, therefore, is, that she cancelled the Will of 1777, with an intention to die intestate.
CHEW, President, delivered his opinion, in general terms, in affirmance of the sentence of the Register's Court.
McKEAN, Chief Justice.
There has been no case or precedent cited, which comes up to this, in all its parts; but there are several cases, which depended upon the same principle.
Before the statute of 29 Car. 2 ch. 3. Wills in England might be revoked by any express words, without writing; and so it was in Pennsylvania, until altered by positive law; but in England, since that statute, and in Pennsylvania, since the act of Assembly, of the 4th of Anne, "concerning the probates of written and noncupative Wills, and for confirming devises of lands," Wills of lands must be revoked by writing, accompanied with solemnities similar to those necessary for making the Wills. Here, latter Wills of lands, or a writing, revoking a former Will, must be proved by two or more credible witnesses; and no Testament, or Will in writing, for personal estate, can be revoked by words, except the same be committed to writing and read to the testator, is allowed by him, and proved by two witnesses at least. Besides these actual revocations, there are other acts of the testator, which have always been considered as revocations, because contrary to, or inconsistent with, the Will, and evidencing an alteration of intention; as a deed in fee; or a lease for years to the same devisee, to commence after the testator's death; a subsequent marriage and birth of a child; cancelling, obliterating or destroying the Will, and such like. These are termed, "implied, constructive, or legal, revocations," and still subsist as they were before the act of Assembly, or the statute of frauds. Cro. I. 49. Carth. 81. But all presumptive revocations may be encountered by evidence, and rebutted by other circumstances. Cowp. 53. Deug. 37.
It has been often determined, that a Will, revoked by a subsequent Will, but not cancelled, was re-established by the cancellation of the subsequent Will. 1 Show. 537. Show. P.C. 146. 1 Will. 345. 2 Vern. 741. S.C. Prec. Chan. 459. S.C. 4. Burr. 2512. Cowp. 86. 92. Doug. 40. 2 Blackst. 937. 3 Mod. 204. Salk. 592. 3 Mod.
There are, however, some particular circumstances, in this case, besides the general question.
It appears, that the appellant had lived in the neighbourhood of the testatrix when she made the Will of 1779; that the legatees in that Will were chiefly the same as in the present, but some legacies were larger, on account of the money being then depreciated, and that Oliver Anderson was expressly requested by the testatrix to take care of the Will of 1775, left the last *290 should get into the hands of the appellant, or be lost. On the other hand, it does not appear what became of the Will of 1779, after it was sent and delivered to the testatrix, whether it was destroyed by her, or any other person, but it cannot be found. It does not appear, wherein the Will of 1779 differed from the present one, nor what alteration was thereby made in particular, only that there were partial alterations, and there were no executors named in it.
In this view of the case, I am of opinion, that the mere circumstance of making the Will of 1779, is not virtually a revocation of the former, the contents being unknown, and it not appearing to have been in esse at her death, but rather the contrary, and that she had cancelled or destroyed it. No other person was interested in its destruction, from any thing I can discover, except the appellant, or his brothers, who were not in America; and charity will induce a presumption, that she herself destroyed it. If this is the fact, the first Will is not thereby revoked, as neither could be complete Wills, until the death of the testatrix, and her destroying it had the same effect as if it had never existed, unless it had been clearly proved, that she did it with an intention to die intestate. Should a contrary opinion hold, to wit, that the first Will was revoked, at the instant the second was executed, yet the cancelling of the second by the Testatrix herself is a revival of the first, if undestroyed. Cowp. 92. Harwood v. Goodright.
Here is a good subsisting Will properly attested: There is no way to defeat it, but by proving it was revoked by another Will, subsisting at the death of the Testatrix, or that she cancelled the latter Will, so revoking all former ones, with a mind to die intestate. And as the appellant has failed in such proof, I concur with the President, that the Will of 1775 must stand; and that the sentence of the Register's Court be affirmed, with double costs.
THE COURT concurring, the sentence of the Register's Court was, accordingly, affirmed, with double costs.[*]
[*] See ant. p. 266 Boudinot et al. Executors against Bradford.
