by oblitera

tion on face

of will.

1294. A revocation by obliteration on the face of Revocation the will may be partial or total, and is complete if the material part is so obliterated as to show an intention to revoke; but where, in order to effect a new disposition, the testator attempts to revoke a provision of the will, by altering or obliterating it on the face thereof, such revocation is not valid unless the new disposition is legally effected.

NOTE-Red. L. of Wills, p. 306, et seq., Sec. 25,
Subds. 9-11.

of

1295. The revocation of a will, executed in dupli- Revocation cate, may be made by revoking one of the duplicates. duplicate. NOTE.-Where there are duplicates of the will, and the testator cancels the one in his custody, that is an effectual revocation of the whole will, if done with that intent.-Onions vs. Tyrer, 2 Vern., p. 741; Sir Edward Seymour's case, cited in Burtenshaw vs. Gilbert, Cowp., p. 49.

by
will.

1296. A prior will is not revoked by a subsequent Revocation will, unless the latter contains an express revocation, subsequent or provisions wholly inconsistent with the terms of the former will; but in other cases the prior will remains effectual so far as consistent with the provisions of the subsequent will.

NOTE.-Conover vs. Hoffman, 15 Abb. Pr., p. 100; Robinson vs. Smith, 13 Abb. Pr., p. 359; McLoskey vs. Reid, 4 Bradf., p. 334; Nelson vs. McGiffert, 3 Barb. Ch., p. 158; Brant vs. Willson, 8 Cow., p. 56. In the cases of Dickinson vs. Swatman, 6 Jur. (N. S.), p. 831 (1860); Goodright vs. Glazier, 4 Burr, p. 2512; Harwood vs. Goodright, 1 Cowp., pp. 87-92; 1 Jarman, p. 128 and notes, the effect of a subsequent will, as a revocation of a former, is fully discussed and left by these authorities doubtful, but the text settles the question.

not

revived by

revocation

1297. If, after making a will, the testator duly Antecedent makes and executes a second will, the destruction, cancellation, or revocation of such second will does not revive the first will, unless it appears by the terms of

of

subsequent will.

Revocation by marriage and birth of issue.

such revocation that it was the intention to revive and give effect to the first will, or unless, after such destruction, cancellation, or revocation, the first will is duly republished.

NOTE.-Stats. 1850, p. 178, Sec. 11. section and note.

See preceding

1298. If, after having made a will, the testator marries, and has issue of such marriage, born either in his lifetime or after his death, and the wife or issue survives him, the will is revoked, unless provision has been made for such issue by some settlement, or unless such issue are provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of such revocation can be received.

NOTE.-Red. L. of Wills, p. 293 (ed. 1864). Marriage of a femme sole revokes.-Forse and Hunbling's Case, pp. 30, 31; Eliz. in Com. Banc., 4 Co. Rep., p. 60. So when wife survives husband.-1 Jarman Eng. (ed. 1861), p. 114; Colton vs. Lazer, 2 P. Wms., p. 623; Doe vs. Staple, 2 Term Rep., pp. 685-696, Kenyon, Ch. J. Marriage of a man, and particularly where issue is had, revokes will. This rule is deduced from the civil law. Just. Inst. Lib., 2 Cap., p. 13, Sec. 5. Rule not confined to unmarried testator (Christopher vs. Christopher, cited in 4 Burr, p. 2182; s. c. Dick., p. 445; 1 Jarman Eng., ed. 1861, p. 115), but applies to one whose wife dies subsequently to making will, marries again, and by that subsequent marriage has issue.Overby vs. Overby, 2 Show., p. 242; Lugg vs. Lugg, 2 Salk., p. 592; 1 Ld. Ryan, p. 441; 12 Mod., p. 226; Brown vs. Thompson, 1 Eq. Cas. Abr., p. 413, Pl. 15; Eyre vs. Eyre, 1 P. Wms., p. 304, in N. A; Parsons vs. Lanoe, 1 Vesey, pp. 189-192; Amb., p. 557; Gibbons vs. Caunt, 4 Vesey, p. 840, and Am. note. The text regarding provision by the will being made for such subsequent issue is sustained (Red. L. of Wills, p. 294; Kenedel vs. Scrafton, 2 East., p. 530); and this is also the case when provision is made by another instrument.-Ld. Mansfield, Ch. J., in Brady vs. Cubett, Doug., pp. 31-39. So, also, it was held by Ld. Elenborough, in Kenedel vs. Scrafton, supra, and by Ld. Kenyon, in Doe vs. Lancashire, 5 Term Rep., p. 58.

1299. If, after making a will, the testator marries, and the wife survives the testator, the will is revoked, unless provision has been made for her by marriage contract, or unless she is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation must be received.

NOTE.-Stats. 1850, p. 178, Sec. 12.

1300. A will, executed by an unmarried woman, is revoked by her subsequent marriage, and is not revived by the death of her husband.

NOTE.-Stats. 1850, p. 178, Sec. 13. See note to Sec. 1298, ante," Femme Sole" and cases cited.

1301. An agreement made by a testator, for the sale or transfer of property disposed of by a will previously made, does not revoke such disposal; but the property passes by the will, subject to the same remedies on the testator's agreement, for a specific performance or otherwise against the devisees or legatees, as might be had against the testator's successors, if the same had passed by succession.

NOTE.-Stats. 1850, p. 178, Sec. 14. The statute of 1 Vic., ch. 26, Sec. 23, supports the text of this section. Most of the American States have adopted similar statutes, or the substance of its provisions, which are the same as the text here. This, being in accord with the intent of the testator, is a reasonable and just provision.

Effect of

marriage of

a man on

his will.

Effect of a a woman

marriage of

on her
will.

Contract of revocation.

sale not a

not a

of will.

1302. A charge or incumbrance upon any estate, Mortgage for the purpose of securing the payment of money revocation or the performance of any covenant or agreement, is not a revocation of any will relating to the same estate which was previously executed; but the devise and legacies therein contained must pass, subject to such charge or incumbrance.

NOTE.-Stats. 1850, p. 178, Sec. 15. This is a clearly

Convey

ance, when

not a

revocation.

When it is a

just provision, and similar in its equities to the preced

ing section.

1303. A conveyance, settlement, or other act of a testator, by which his interest in a thing previously disposed of by his will is altered, but not wholly divested, is not a revocation; but the will passes the property which would otherwise devolve by succession. 1304. If the instrument by which an alteration is revocation. made in the testator's interest in a thing previously disposed of by his will expresses his intent that it shall be a revocation, or if it contains provisions wholly inconsistent with the terms and nature of the testamentary disposition, it operates as a revocation thereof, unless such inconsistent provisions depend on a condition or contingency by reason of which they do not take effect.

Revocation of codicils.

1305. The revocation of a will revokes all its codicils.

Afterborn child,

for, to

1306.

Whenever a testator has a child born unprovided after the making of his will, either in his lifetime succeed. or after his death, and dies leaving such child unprovided for by any settlement, and neither provided for nor in any way mentioned in his will, the child succeeds to the same portion of the testator's real and personal property that he would have succeeded to if the testator had died intestate.

Children or issue of

NOTE.-Stats. 1850, p. 178, Sec. 16. See Sec. 739, ante, and ample note on "Posthumous Child."

1307. When any testator omits to provide in children of his will for any of his children, or for the issue of

testator

for by his will.

unprovided any deceased child, unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator as if he had died intestate, and succeeds thereto as provided in the preceding section.

NOTE.-Stats. 1850, p. 178, Sec. 17.

1308. When any share of the estate of a testator is assigned to a child born after the making of a will, or to a child, or the issue of a child, omitted in the will, as herein before mentioned, the same must first be taken from the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken from all the devisees or legatees, in proportion to the value they may respectively receive under the will, unless the obvious intention of the testator in relation to some specific devise or bequest, or other provision in the will, would thereby be defeated; in such case, such specific devise, legacy, or provision, may be exempted from such apportionment, and a different apportionment, consistent with the intention of the testator, may be adopted.

NOTE.-Stats. 1850, p. 178, Sec. 18.

ment

lifetime of

1309. If such children, or their descendants, Advanceso unprovided for, had an equal proportion of the during testator's estate bestowed on them in the testator's testator. lifetime, by way of advancement, they take nothing in virtue of the provisions of the three preceding sections.

NOTE.-Stats. 1850, p. 179, Sec. 19.

Death of being lifetime of leaving

devisee,

relation of testator in

1310. When any estate is devised to any child, or other relation of the testator, and the devisee dies before the testator, leaving lineal descendants, such descendants take the estate so given by the will, in the same manner as the devisee would have done scendants. had he survived the testator.

NOTE.-Stats. 1850, p. 179, Sec. 20.

testator,

lineal de

land, how

1311. Every devise of land in any will conveys all Devises of the estate of the devisor therein, which he could construed. lawfully devise, unless it clearly appears by the will that he intended to convey a less estate.

NOTE.-Stats. 1850, p. 179, Sec. 21.