10 Pa. 82 | Pa. | 1848
The first question is, whether the will of 1821 was restored and revived by the cancellation of the posterior will of 1824.
It is- material to observe, that no doubt whatever exists as to the wilful and premeditated intention of destroying or cancelling the will of 1824. That is apparent on the paper itself. There is no allegation, nor the least room for a suggestion, that it was done by accident, mistake, or fraud. There is, therefore, no occasion to let in any testimony, or invoke the aid of any principle of law on that subject. The plaintiff’s case is in fact founded on the cancellation of the will of 1824. He claims as heir-at-law. Taking it, therefore, as beyond cavil, that the act of cancellation on the part of the testator was wilful, what effect had that act on the prior will of 1821, which he preserved intact and sound ?
All wills are in their nature inchoate and ambulatory until testator’s death, at which time, and not before, the testament becomes operative and complete. The will of 1824 was an inchoate intention, mutable and inconstant, and, by the wilful and deliberate act of cancellation on the part of the testator, it became as if it never had been. The prior will of 1821, being preserved by testator entire, and without intentional or apparent blemish, became the will for the time being, which would be consummated at testator’s death, unless before that time he manifested a change of intention, according to the rules of law.
That change of intention would be manifested by making a new will, or a revocation of the prior will might be presumed even from subsequent acts of the testator; but only from those acts which of themselves have been adjudged to afford sufficient evidence of an entire change of intention, and, therefore, constituted of themselves independent revocations.
These acts are such as burning, destroying, cancelling, or obliterating the instrument. Or by marriage of testator and birth of a child, conveying away the whole of the estate, &c. But none of these acts were present here, as regarded the will of 1821. So that if it was restored by the act of cancellation of the posterior will of 1824, it must remain the will of deceased.
The language of Lord Mansfield in Goodright v. Glazier, 4 Burr. 2514, in which Justices Yates and Willes concurred, is strong and clear to the point. “A will (he says) is ambulatory till the death of the testator. If testator lets it stand till he dies, it is his will. If he does not suffer it to do so, it is not his will.” Here he had two. He has cancelled the second. It has no effect,
It would appear, then, to be sufficiently established that the act of cancellation, deliberately and intentionally performed, of a posterior will, does of itself revive and restore a prior will, preserved by the testator.
And this brings us to the consideration of the rejected evidence.
The will of 1800 could have no possible relevancy to the question at issue. The plaintiff claims to establish that the testator died intestate; that the will of 1821 was not restored by the cancellation of the will of 1824. How could an act done in 1800 anticipate time, and establish, repeal, supersede, or modify that which was made twenty years afterwards ? The death of a child or a trustee named in a will, can neither repeal, revoke, nor invalidate it. The death of Elizabeth Darrach, therefore, could have no possible effect on the will of 1821, so far as its existence and validity as a will were concerned.
The other rejected evidence is all of the same class and character, and would, in effect, if allowed to prevail, defeat the rule in regard
The case of Boudinot v. Bradford, 2 Y., does not conflict with the position here taken. That was a case, sui generis, with strong peculiarity of facts; in which it was necessary, in the application of general principles, to mould in some degree their harmony of outline, but the strong lineaments are there.
In support of the exclusion of the evidence, I might cite Comfort v. Mather, 2 W. & S. 450; Goodtitle v. Otway, 2 H. Bl. 516; Lewis v. Lewis, 2 W. & S. 455.
I may add, that this doctrine is in entire conformity with the 13th section of our present statute of wills, which announced no new principles, but merely gave to those already sanctioned by the courts a statutory habitation.
The distinctive feature of our jurisprudence, relative to the acquisition and transmission of title to real estate, is, that it should be made stable, uniform, and certain, either by writing, or by some notorious act, upon which the mind can fix and rest with certainty, and not hang upon the flickerings of memory in relation to incessant declarations, not being, part of or connected with the noto
On the whole, we see no error in this record. The same light was struck up at Nisi Prius, which guided Lord Mansfield and his associates in banc under like circumstances.
Judgment affirmed.