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other, by cancellation. Such presumption is not entertained, however, where the will is proved to have been in the possession of a third person.
But it must not be supposed that every cancellation, erasure, or interlineation appearing on an executed will, constitutes a revocation, or even an alteration, of the instrument. Far from it. If such attempted changes have not been attested by witnesses and the will reacknowledged, they are to be wholly disregarded, and the will, if otherwise valid, should be admitted to probate and recorded in the language originally employed. Thus, in one case, the testator in his own handwriting had made various alterations, erasing some of the legacies, changing the names of some of the legatees, and of one of the executors. The changes, however, were of no effect, and the will was upheld in the form as executed. The same result was reached in another case, where the first paragraph of the will was physically cut out of the will. The piece cut out could not be found, but the substance of the lost paragraph was testified to by the scrivener who had prepared it, and by one of the subscribing witnesses. It was held that the evidence did not show any revocation.
It seems almost superfluous to remark in this connection that the only alterations, erasures, etc., which involve the question of revocation,
are those made after the will has been once signed and witnessed. A will cannot be said to be revoked before it becomes a will. If the changes are made before execution, they become part of the will and are authenticated with it at the time of signing and attesting.
One of the first things likely to be considered, therefore, is whether the alteration was made before or after execution. Some of these appear on their face to have occurred subsequently, as, for instance, where the signature of the testator is found to have been stricken out. Where not so apparent, the appearance of such erasures and changes often give rise to protracted litigation in which the issues are sharply contested. There seems to be no established presumption one way or the other, although the courts appear to lean somewhat in favor of the proposition that the alterations were probably made after execution.
Thus, in one case, where the testator's signature had been obliterated and then rewritten, it was said that where there are no suspicious circumstances, and the interlineation or erasure is not explained, there is no presumption that they were fraudulently made by third persons after execution. In another case, it was plainly asserted that a material alteration will not be presumed to have been made prior to execution.
21. Same: the intent to revoke.
But whatever may be the fact, it must be remembered that in order to accomplish the revocation of a will, the physical act of destruction or cancellation must be accompanied by an intention to revoke. Neither, without the other, has any effect whatever. Where, however, the act is proved to have taken place, the intent may be implied from the circumstances. For instance if the testator was seen to tear his will into fragments and cast them into the fire, a court would almost certainly infer the presence of an intent to revoke. But not necessarily so, for since an intention is the result of a mental operation, it must appear that the testator was of sound mind; that the destruction was his free and voluntary act, and not induced through undue and improper influence.
Same: effect of change of property.
If the testator sells or otherwise divests himself of property which he had previously bequeathed or devised, this works an implied revocation of his will, in whole or in part as the case may be. But such a result does not follow a mere agreement to sell where he dies before actual giving of the deed or transfer. In such case the legatee or devisee takes the property, subject to whatever rights the other party to the testator's contract may have in it. The same result follows the placing of any charge, or other incumbrance upon the property, such as a lease, mortgage, and the like.
23. Same: by operation of law.
By the rule of the Common law, where a testator has experienced certain changes in his or her domestic life, the law presumes an intention to revoke all prior instruments. Thus, the will of an unmarried woman is deemed revoked by her subsequent marriage, her changed status as a wife demanding a new testamentary disposition of her property.
What is meant by the term "unmarried woman" is one who has no husband living; hence, a widow is deemed an unmarried woman within the meaning of the statute. But if a married woman makes a will it is not affected either by the death of her husband, or by her divorce and her subsequent remarriage. Although the will of an unmarried woman becomes ineffectual upon her marriage, she may republish or reexecute it with like effect as though she were making a new will; but a will which is revoked by marriage is not revived by a cessation of the married state, and the resumption by the testator of her status as a single woman.
In the case of a man, in order to work a revocation of his will, the marriage must be followed by the birth of issue thereof. But this result will not occur if provision is made for such issue by will or otherwise, or in case it appears by the will that the testator had in mind the possibility of issue and that his intention was to make no provision therefor.
In some of the states these principles have been modified. Thus, by a recent statute in New York, the will of any person, man or woman, is revoked by a subsequent marriage, provided the testator is survived by a husband or wife, as the case may be, or any issue of such marriage; unless provision shall have been made for them by settlement or by the will, or unless they are in such way mentioned therein as to show an intention not to make such provision. In the event of such revocation the surviving husband or wife, and the issue of such marriage, shall be entitled to the same rights in the decedent's estate as though no such will had been made.
24. Same: birth of post-testamentary child.
A similar statute also provides that the birth of a child shall work a partial revocation of the will of either of its parents, if the child be unprovided for by such will, or be in no way men