Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

declarations may be received in connection with proof of the torn and mutilated condition of the will to aid in determining the testator's intention to revoke1.

§95. Effect of Subsequent Will as to Revocation. General Rule.

The general rule is that a will which is expressly revoked by a later one is void and of no effect16. This rule applies where the later will has been lost or destroyed1, also where the principal bequest in the later will has been declared void18. A will, denied probate on the ground of undue influence, and containing a clause expressly revoking all former wills makes both void and ineffectual.

§96. Revocation by Conveyance.

The general rule is well established that a conveyance of all property devised, revokes the will in toto, and conveyance of part of property devised revokes the will pro tanto 20. It has been said that "the doctrine, hard and unreasonable as it appears in some of its excrescences on this subject, and notwithstanding it has been repeatedly assailed by great weight of argument, has nevertheless stood the ground immovable; on the strength of authority, as if it had been one of the essential landmarks of property. The cases have been investigated and discussed with the utmost research and

[blocks in formation]

ability by the courts of law and equity and the principle again and again recognized and confirmed that, by a conveyance of the estate devised, the will was revoked, because the estate was altered, though the testator took it back by the same instrument, or by a declaration of uses. The revocation is upon the technical ground that the estate has been altered or newly modeled since the execution of the will. The rule has been carried so far that, if the testator suffered a recovery for the very purpose of confirming the will, it was still a revocation, for there was not a continuance of the same unaltered interest. There is an exception to the rule in the case of mortgages and charges on the estate, which are only a revocation in equity pro tanto, or quoad, the special purpose, and they are taken out of the general rule on the fact of being securities only. Those doctrines of the English cases have been reviewed in this country, and assumed to be binding, as part of the settled jurisprudence of the land"21. A will is satisfied and not overturned or revoked where the allowance of a conveyance of property as a satisfaction of a devise or legacy would be equivalent to a revocation of wills in part, and it would have to be proved in the manner provided by our statute for the revocation of wills, that is, by the destruction of the will or the making of a new will22.

$97. Will Revoking Conveyance.

Where a man conveyed to one of his sons certain lands upon the consideration that the son would release and relinquish all his rights to heirship, and subsequently made a will

21. 4 Kent's Comm. 530.
22. Carmichael v. Lathrop,

108 Mich. 473, 32 L. R. A. 232; 66 N. W. 350.

disposing of his property to his wife and son who was to receive a certain sum of the estate when he arrived of age, the remainder of the estate after the wife's death was to pass to the son who was to share in it "with the rest of the heirs," the effect of the latter clause was to practically revoke the conveyance made to the son22a.

A clause in a deed providing that the deed shall not become operative until after the grantor's death is a testamentary disposition of property and may be revoked by a later will22b

§98. Implied Revocation.

Implied revocation may be effected from changes of condition on account of divorce23, but not on account of a subsequent marriage of a woman, so long as no children are born24. However, where a testatrix executed a will while sole, her subsequent marriage and birth of issue resulted in an implied revocation 25.

§99. Revocation as to Marriage and Birth of Issue.

The principle is well established that a married woman can make a will as if single, but her will is not revoked by her subsequent marriage26. A second wife's right to dower in lands of which the testator died seized cannot be impaired and are the same as if the testator died intestate, where a

22a. Appeal of Turner, 48 Mich. 360, 19 N. W. 493.

22b. Moody v. Macomber, 159 Mich. 657.

23. Lansing v. Haynes, 95 Mich. 16, 35 Am. St. Rep. 545; 54 N. W. 699; Wirth v. Wirth, 149 Mich. 687, 113 N. W. 306.

24. Noyes v. Southworth, 55 Mich. 173, 54 Am. Rep. 359; 20 N. W. 891.

25. Durfee V. Risch, 142 Mich. 504, 5 L. R. A. (N. S.) 1084.

26. Noyes v. Southworth, 55 Mich. 173, 54 Am. Rep. 359, 20 N. W. 891.

testator devised all his lands to his children by his first wife before his second marriage27. Subsequent marriage and issue born of a feme sole, who executed a will before marriage, revokes the will by operation of law28 under the statute 29.

§100. Agreement as to Revocation-Statute of Frauds.

It is manifest that a will made in pursuance of an oral agreement may be revoked by the testator30 and where lands are devised it is void under the statute of frauds31, nor will a specific performance of a parol contract be granted where a will was executed in pursuance of the contract and nothing was done by way of performance except the payment of the consideration, the will being refused probate on the ground of implied revocation by marriage and birth of issue32. Where a will made to carry out an agreement to leave property to a party in consideration of his taking care of testator was destroyed and the land conveyed to another with notice, but later set aside on account of the mental incompetency of the testator the legal existence of the will was left to the determination of the probate court33.

§101. Agreement to Render Will Irrevocable.

The rule is apparent that no testator can by contract ren

27. Burrall V. Bender, 61 Mich. 608, 28 N. W. 731; Metter v. Stepper, 32 Mich. 194.

28. Durfee V. Risch, 142 Mich. 504, 5 L. R. A. (N. S.) 1084, 105 N. W. 1114, see Grindling v. Reky, 149 Mich. 64, 113 N. W. 290.

29. C. L. '97, §§9270, 9285.

30. DeMoss v. Robinson, 46 Mich. 62, 41 Am. Rep. 144,; 8 N. W. 72.

31. DeMoss v. Robinson, 46 Mich. 62.

32. Grindling V. Reky, 149 Mich. 64, 113 N. W. 290.

33. Leonardson v. Hulin, 64 Mich. 1, 31 N. W. 26.

der his will irrevocable during his life, for the very reason that it is the essence of a will to be revocable until death34.

§102. Revocation of Mutual Wills.

Mutual wills having been made by husband and wife, it is beyond the jurisdiction of the probate court to decide whether mutual wills form a contract and whether a proponent has by revoking her own will estopped herself from claiming under the other.

§103. Power of Revocation.

Revocation is not allowed to alter a contract which forms part of a will, and is not performed by the other party3. Where to secure a surety, the principal inserted an agreement in her will to pay him upon her death a certain sum, such sum to be a first lien on all her estate left at the time of her death and to be paid to the surety out of said estate after paying her funeral expenses, it was determined that no lien existed on the property during the lifetime of testatrix, and that chancery could not interfere to prevent her from disposing of her property as she saw fit37. The mortgagee could not, by the revocation of the will, alter or annul her contract with the mortgagor as to the time of payment of the sum specified, there having been no default on his part, where at the time of the execution of a mortgage conditioned in part for the payment of $4500 to the legatees of the mortgage, and as a part of the same transaction the

34.

Mandelbaum v. McDorell, 29 Mich. 78.

35. Lansing v. Haynes, 95 Mich. 16, 35 Am. St. Rep. 545,

54 N. W. 699.

36. Keagle V. Pessell, 91 Mich. 618, 52 N. W. 58.

37. Nash V. Burchard, 37 Mich. 85, 49 N. W. 492.

« ΠροηγούμενηΣυνέχεια »