In Re Last Will & Testament of Love

Hoice, J. Our statute on the subject, O. S., sec. 4133, provides in effect that no will or testament in writing, or any clause thereof, shall be revoked, except by burning, cancelling, tearing or obliterating the same, by the testator himself, or in his presence and by his direction and consent, or by a formal will with witnesses or a holograph will, duly executed as- the statute requires and prescribes. In construing this statute, it is held with us that in any of the modes specified there may be a partial revocation of the will. In re Will of Saunders, 177 N. C., 156; Baker v. Edge, 174 N. C., 100; Barfield v. Carr, 169 N. C., 574; In re Wellborn's Will, 165 N. C., 636; Cutler v. Cutler, 130 N. C., 1. And that in order to a revocation by burning, cancelling, etc., there must be the physical act effecting an erasure or *717 destruction of some material portion of tbe will, and this must bave been done with intent to revoke. Both the physical act and the intent must concur to an effective revocation. If a testator accidentally drops his will, duly executed, into the fire and it is burned in whole or in part, or though he may have a settled purpose to revoke and has expressed this purpose to others, if there is a failure in the physical act required to carry out his purpose, there is no revocation. And in case of an alleged revocation by cancelling, while it is not required that the words should be effaced so as to make the same illegible, the portion erased must be of such significance as to effect a material alteration in the meaning of the will or the clause of the same that is challenged on the issue. In re Shelton’s Will, 143 N. C., 218; White v. Casten, 46 N. C., 197; Hise v. Fincher, 32 N. C., 139; Bethell v. Moore, 19 N. C., 311; Evans’ appeal, 58 Pa. Rep., 238; Wolf v. Bolliner, 62 Ill., 368; Clark & Perry v. Smith, 34 Barbour’s Reports, 140; Martins v. Gardiner, 8 Sim., 72; 59 English Reports, 29; 1st Jarman on Wills, 291-92-93-94; Underhill on Wills, sec. 229. In Shelton’s case, supra, it was held that a cancellation or erasure made after the execution of a will, which does not in fact destroy some material portion of the substance of the will, does not constitute a revocation thereof. In White v. Gasten, that revocation of a will is an act of the mind, demonstrated by some outward and visible sign. And in Gutter v. Gutter it is said in the opinion: “That revocation consists of two things — the intention of the testator and some outward act or symbol of destruction. A defacement, obliteration or destruction without the animo revocandi is not sufficient, neither is the intention, the animo revocandi, sufficient without some act of obliteration or destruction done.” And coming more directly to the question presented, it was held in Glark & Perry v. Smith, supra: “The intention of a testator to cancel or revoke a clause in his will, however strongly declared, is of no consequence unless it be carried out by some act amounting, in judgment of law, to an actual cancellation or revocation.” “A testator having an only son, James W. Smith, devised certain real estate to his ‘son, James W. Smith.’ After the execution of the will he, with a pen, erased from the clauses of the will containing the devise the name, ‘J ames W. Smith,’ leaving the word ‘son’ uncanceled: Held, that neither the will nor the devises to James W. Smith were revoked by the erasures.” And in Martins v. Gardiner, supra, where the name of the legatee had been erased in certain places, leaving it in others, “That as the description and in some places the name of the legatee remained uncanceled the Court would not be warranted in holding that the bequest *718 to her was. revoked.” A case that is quoted with approval by Mr. Jar-man in his valuable work on "Wills, at p. 29.3. On a proper application of these authorities and the principles they approve and illustrate, the Court is of opinion that there has been no revocation of this will or any part of the same, for the want of any physical act effecting a material alteration in its meaning. Leaving out the words that are obliterated, and accepting the position that the erasures were made with intent to revoke, the primary and controlling clause in this. item ■ of the will remains unaltered and is sufficient to carry the designated property-to the devisee as originally written. True, in the portion of the will descriptive of the devisee, the words “Annie E.” and possibly “my daughter, Annie E.,” are erased, but the words “wife of E. E. Bain” remain, fully designating the beneficiary. And as to the property, while the words “entire factory” are erased, the words “my site” remain, followed by a full and sufficient description of the property by metes and bounds. The significance of the devise, therefore, stands unimpeached. "Whether this failure on the part of the testator to carry out his expressed purpose arose from an attack of unconsciousness, to which he.was at times subject, or from an infirmity of purpose incident to his disease that was then upon him, or otherwise, he has failed to signify his intent by any adequate physical act, and it must be held that on the evidence, if accepted by the jury, there has been no revocation of this will or any part thereof. • "We are not unmindful of the subsequent erasures, in which the name of one of the beneficiaries, J. A. Love, is marked out wherever the same appears, but this is manifestly dependent, and intended to be, on the successful revocation of the principal devise to the daughter, on which it is made a charge, and this attempt having failed for g the reasons stated, the attempted revocation as to this legatee fails also. Several of the authorities above cited and others are in general support of this position, and no claim to the contrary is insisted- on before us. See Bethell v. Moore, supra,; Wolf v. Bolliner, 62 Ill., supra; 1st Jarman on Wills, 294. On the record the judge should have charged the jury, as requested, that there were no facts in evidence permitting an inference of revocation, and this will be certified that the verdict of the jury be set aside and further proceedings had in accord with this opinion. Reversed.