| Conn. | Jun 29, 1821
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
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
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.
Decree of Probate to be disaffirmed,