CHAPTER V. REVOCATION AND REVIVAL. $89. Animus Revocandi, Evidence, Revocation, Statute. $93. Execution of Revoking Instrument. $94. Leaving of Will. $95. Effect of Subsequent Will as to Revocation. General Rule. $96. Revocation by Conveyance. 897. Will Revoking Conveyance. $98. Implied Revocation. $99. Revocation as to Marriage and Birth of Issue. $100. Agreement as to Revocation-Statute of Frauds. $103. Power of Revocation. $104. Changes Not Contemplated by the Law. $105. Statute Relating to Omission of Children. $106. Intent Under Statute as to Revocation. $107. Statute Relating to Exclusion of Children. $108. Revival of Revoked Will. $89. Animus Revocandi, Evidence, Revocation, Statute. The animus revocandi may be defined as that state of mind to revoke, recall or annul, i. e. the determination to revoke or recall that which was done and expressed in a testamentary document under a previous determination of mind, the animus testandi. Evidence is admissible to show the intent by facts and circumstances from which the animus revocandi may be inferred. Thus, pieces torn out of a will at the top, and the separation of the half sheets are evidence of violence, but from these acts alone without showing some express declaration on the part of the testator no intent can be inferred, for the question whether done by the testator or some other person; and if done by him, whether accidentally, or intentionally, and for the purpose of revoking the will as well as the declarations which were said to have been made should go to the jury and be determined by them1. Revocation may be defined as that quality of a will which makes it ambulatory. It may be divided into express and implied. Express revocation is founded upon some document or act which clearly shows the intention of revocation, i. e. animus revocandi. But where a husband and wife have made mutual wills, each devising to the other all his or her property, an express revocation is not effected by his conveying to her half his property and by her releasing to him her interest in the remaining half, their deed not mentioning the wills2. Implied revocation is founded upon the reasonable presumption of an alteration of the mind of the testator, arising from conditions since the making of the will, producing a change in his previous obligations and duties3. Again, the revocation may be accomplished without the animus revocandi in the following manner: First, by the testator being incompetent to make a will at the time he performs the act of revocation. Second, by the testator being competent to perform the act of revocation under a mistake of fact. The rules that apply here are the same as those which 1. Lawyer v. Smith, 8 Mich. 412. 2. Lansing v. Haynes, 95 Mich. 16, 35 Am. St. Rep. 545, 54 3. Lansing V. Haynes, 95 Mich. 16, 35 Am. St. Rep. 545, relate to the capacity for making a will. It is manifest that the act of revocation may not consist in a mere physical destruction, however complete, for it may have been occasioned by mistake or fraud, or as in the case of a testator who since the making of the will has become insane, it may be accomplished without any lawful intent whatever. Again, the mere intent without some physical act tending to the destruction of the will, and sufficient to fulfill the requirements of the statute is obviously inadequate, nor where a will is cancelled or destroyed without the previous permission and authority of testator, it is clear that acts of that nature do not effect a revocation, because they are done without the intention of the testator to revoke®. The statute provides that no will nor any part thereof shall be revoked, unless by burning, tearing, cancelling or obliterating the same, with the intention of revoking it, by the testator, or by some person in his presence and by his direction; or by some other will or codicil in writing, executed as prescribed by law; or by some other writing, signed, attested and subscribed in the manner provided in this statute for the execution of a will; excepting only that nothing contained in this section of the statute shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator. It is apparent that the execution of a paper in the form of a will under the provisions of our statute does not place the instrument beyond the control of the testator, whether he retains possession of it himself or delivers it over to the persons for whose benefit it has been made or to another person for 54 N. v. 699. 4. See chapter II. 5. Potter's Will, 33 N. Y. S. R. 936, 12 N. Y. Supp. 105. 6. Cheever V. North, 106 Mich. 309, 58 Am. St. Rep. 499, 37 L. R. A. 56, 64 N. W. 455. 7. C. L. '97, §9270. them. It remains at all times subject to his control. If he retains possession of it, he may revoke it in one of the ways specified in the statutes. §90. Construction of Statute. Common Law Rule. The statute has been construed as having reference to the common law rule which is that all wills are, in their nature, ambulatory until the death of the testator, at which time, and not before, the testament becomes operative, and that a latter will revokes a prior, inconsistent will9. §91. Effect of a Will Once Revoked by Subsequent One. The rule may be stated that where a will is once revoked by a subsequent one, it is not revived by the revocation of the last will10. In this relation it has been said that "there seems to have been a material distinction, and on good ground, between the state of a former will, after a second one merely inconsistent with it, and its state after a second one with a declaration expressly revoking it. In the first case the only chance for the second to operate in revocation of the first, according to the prevalent theories of the courts, was by its coming to a head as an active will, which it could do only by surviving its author. Being the last expression of the decedent, and at the same time practically inconsistent with the prior one, the intent to repeal the first by it was to be implied. In case, however, of its being recalled by the testator in his lifetime, it could not, on the theory referred to, be taken to have had the effect to do 8. In re Kennedy's Estate, 159 Mich. 548. 9. Cheever V. North, 106 Mich. 390, 58 Am. St. Rep. 499, 37 L. R. A. 56, 64 N. W. 455. 10. Cheever v. North, 106 Mich. 309, 58 Am. St. Rep. 499, 37 L. R. A. 56, 64 N. W. 455. away with its predecessor. Being cut off before having its dispositions of property awakened into life, it could have no affirmative operation, through its dispositions, upon the estate"11. But where the execution of a will has been conclusively established and it has been regularly probated, and a later will is afterwards produced which does not revoke the former one in terms, the question of revocation cannot be determined in a mere proceeding for the probate of the later will if there is any room for a dispute as to construction12. §92. Revocation by Making Another Will. Where a testator has parted with the possession of the will, he can revoke it by making another13. §93. Execution of Revoking Instrument. It is apparent that where, in proceeding to produce a will, there is sufficient evidence of the suppression or destruction of a later and revoking will, the presumption that such will was legally drawn and executed is permissible1. 894. Extrinsic Evidence as to Revocation. A will twenty-five years old was found after the death of the testatrix in a barrel among waste papers, and either worn or torn into several pieces which were scattered loose among the papers in the barrel, it was determined that the declarations of testatrix that she had destroyed the will were not admissible as proof in themselves of a revocation, but such 11. Scott v. Fink, 45 Mich. 241, 7 N. W. 799. 12. Besancon v. Brownson, 39 Mich. 388. 13. In re Kennedy's Estate, 159 Mich. 548. 14. Lambie's Estate, 97 Mich. 49, 56 N. W. 223. |