James v. Marvin

Hosmer, Ch. J. If the will of Peter James, made in May, 1819, were in existence, the clause of express revocation, would, undoubtedly, revoke the prior will, now in question. The only enquiry before the court, is, whether the destruction of the latter will containing the revoking clause, has revived the former. An express revocation, is a positive act of the party, which operates, by its own proper force, without being at all dependent on the consummation of the will in which it is found, and absolutely annuls all precedent devises. This principle was settled in Burtenshaw v. Gilbert, Cowp. 49.; and in Weed v. Hanford, in Fairfield county, it was adopted by the superior [578] court. The case of Boudinot & al. exrs. v. Bradford, 2 Dall, 266., contains an explicit recognition of the principle. <4 Where a second will is made,” (said McKean, Ch. J.) “ containing an express clause of revocation, the preceding will, though not formally cancelled, is revoked.” And Powell, in his essay upon Devises, asserts, (vide p. 551.) that “If a prior will be made, and then a subsequent one expressly revoking the former, in such case, although the first will be left entire, and the second will afterwards cancelled, yet the better opinion seems to be, that the former is not thereby set up again.” The reason has been already assigned. It is because an express revocation is a positive act of the party, independent of the will which may happen to contain it, and operating instantaneously, and perse. As a clear consequence resulting from this principle, all prior wills are recalled or reversed,—the proper meaning of the word, revoked,—and must remain in this condition, until revived, by republication. By this method, every devise, not actually obliterated and destroyed, may be brought to life ; and this is entirely adequate to the exigencies of the case. A deed of revocation, separate from a will, has the effect of annulling a prior will, instantaneously; and the operation is the same, whether the revoking clause be in a deed or will; for it is never a necessary part of the latter. The implied revocation of a will, by one made subsequently, with different devises and bequests, rests on a different foundation. The revocation effected by a will merely, is not instantaneous—but ambulatory, until the death of the testator ; for although, by making a second will, the testator intends to revoke the former, yet he may change his intentions, at any time before his death ; (Pow. Dev. 549.) and this was the case of Goodright d. Glazier v. Glazier, 4 Burr, 2512. But, a clause of express revocation is something more than a declared intention ; it is an act, consummated, by the execu-, tion of the deed, or will, in which it is contained, and operating immediately. The case of Onions v. Tyrer, 1 P. Wms. 343., on which much reliance has been placed, has no bearing on the matter in question. No will can operate to revoke a former will, although it contain a clause of express revocation, unless it be executed with all good and legal solemnities ; and the above [579] case was determined on the ground, that the last will was not duly executed. Pow. Dev. 631. 633. By the express revocation, the will in question was destroy-. ed ; and never having been revived by re-publication, it is of no legal validity. The other Judges were of the same opinion. Decree of Probate to be disaffirmed,