Revocation and Revival of Wills

Chicago-Kent Law Review
Volume 25 Issue 3 Article 2
June 1947
Revocation and Revival of Wills

W. F. Zacharias
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W. F. Zacharias, Revocation and Revival of Wills, 25 Chi.-Kent L. Rev. 185 (1947).
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CHICAGO-KENT
LAW REVIEW
Copyright 1947, Chieago-Kent College of Law
VOLUME 25 JUNE, 1947 NUMBER 3
REVOCATION AND REVIVAL OF WILLS

W. F. Zacharias and G. Maschinot*
T HIE UNINFORMED laymen may think that the existence of a

statute dealing with the subject necessarily makes all legal
questions clear and free from doubt. The experienced lawyer, on
the other hand, is never surprised to discover how little certainty
there is to be derived from what would appear to be a complete
statutory treatment of any problem. Nowhere does this point
seem more evident than over the subject of the legal effect to be
given to the revocation of a will which purports, as do so many
wills today, to revoke all former wills made by the testator.
The problem thus generated is apt to arise when the testator,
having duly executed an earlier will which remains intact at the
time of his death,' subsequently executes a later will, codicil, or
other non-testamentary document by which he either expressly
or impliedly revokes the former. Thereafter, the subsequent docu-
ment is intentionally revoked so as to be no longer operative or
entitled to probate at the time of the testator's death. Manifold
questions are bound to arise from such course of conduct, not the
* Professor of Law and Associate Professor of Law, Chicago-Kent College of
Law, respectively.
1 The intentional physical destruction thereof, as by burning, tearing, cancelling
or the like, will generally result in its invalidation: Page, The Law of Wills (W.
H. Anderson Co., Cincinnati, Ohio, 1926), 2d Ed. Vol. 1, § 399 et seq. If the earlier
will has merely been lost, that fact will not prevent probate if it is otherwise still
valid: Page, op. cit.. Vol. 1, § 632 et seq.
CHICAGO-KENT LAW REVIEW
least of which, of course, is whether the earlier will may be pro-

bated or whether the maker of the two instruments must be said
to have died intestate. What, on the surface, would appear to
be a simple problem calling for a simple answer, can become
far more complicated if the subsequent document is a will
containing an express clause of revocation or, perhaps, merely
impliedly revokes the former because setting up an entirely
different scheme of disposition; is a codicil which embodies
such an express clause or is silent on the point but substi-
tutes new provisions for old ones, in part or in toto; or
lastly, is an instrument of nontestamentary character which dis-
closes an intention to revoke the earlier either at once or upon
conditions which might never materialize. Assuming, which is
often far from the case, that the subsequent document is effective
for its purpose immediately upon its execution, there will still
arise questions as to whether, by its destruction, the original will
is automatically revived by operation of law, must be re-executed
to have probative effect, or need merely be republished. Going
still further, subordinate problems will spring up as to whether
parol proof is admissible to establish the testator's intention at
the time of the destruction of the later instrument or whether any
presumptions, for or against the revival of the earlier will, may
be indulged in with respect thereto. These, and other questions
inherent in the general problem, have received a variety of an-
swers, both judicial and statutory, to the point where it might
almost be said that the law is in a state of total confusion and
sadly in need of clarification. So great a conflict upon a question
of vital importance to the objects of a testator's bounty ought
to find resolution if possible, 2 hence the following discussion may
prove helpful by suggesting lines along which clarification might
be sought.
No little of the confusion has been produced by failure to
2 It is not the purpose of the authors to propose any kind of uniform statute on
the subject, for they are inclined to leave the peoples of each state, in all fields of
law, free to have the most widely differing views that they may choose. But one
who comes into a new jurisdiction, or simply wants to know the law of his own
or some other state, should find the answer without being obliged to wait for test
cases to reach supreme courts.
recognize that the modern last will and testament is really a

composite document consisting of a "will" by which land may
be devised and a "testament" designed to distribute the personal
estate of the testator; the former finding its authority in the early
English statutes 3 while the latter, being primarily of ecclesiastical
cognizance, 4 has been affected by the doctrines of the civil law.
Indiscriminate use of terminology as well as of the basic ideas
underlying the two forms of disposing of property after death
have produced a maze that is difficult to follow. It may be helpful,
however, to trace the English developments first and then com-
pare or contrast them with those produced in this country. At
the same time, existing literature on the subject may be brought
down to date. 5
I. REVOCATION AND REVIVAL IN ENGLAND

As the original Statute of Wills6 spoke only as to the author-
ity for, and manner of making, a will and was silent on the sub-
ject of revocation, the courts of that country were free for a long
period to decide how revocation should be accomplished and also
whether revival of an earlier will was possible. Regarding the
intention to revoke as being the important thing, the courts soon
came to recognize, following the ecclesiastical idea, that oral
332 Hen. VIII, c. 1 (1540) and 34 & 35 Hen. VIII, c. 5 (1542). These statutes,
as a part of the common law, have passed into the jurisprudence of most American
states. See Ill. Rev. Stat. 1945, Ch. 28.
4 2 BI. Com, 499.
5 Jarman on Wills (Sweet & Maxwell, Ltd., London, 1930), 7th Ed. by C. P.
Sanger, Vol. 1, Chaps. 7-8; Redfield, Law and Practice of Surrogates' Courts
(Baker, Voorhis & Co., New York, 1894). 5th Ed.. pp. 195-203: Rollison, The Law
of Wills (Callaghan & Co., Chicago, 1939), pp. 252-8 and 287-302: Schouler on
Wills, Executors and Administrators (Matthew Bender & Co., Albany, New York,
1915), 5th Ed., §§ 404-23; Page, The Law of Wills (W. H. Anderson Co., Cincin-
nati, Ohio, 1926). 2d Ed., Vol. 1. § 399 et seq.; Thompson on Wills (The Bobbs-
Merrill Co., Indianapolis, 1936), 2d Ed., Chaps. 10-1; Underhill, A Treatise on the
Law of Wills (T. H. Flood & Co., Chicago, 1900), Vol. 1, pp. 302--65. See also
Atkinson, Handbook of the Law of Wills (West Publishing Co., St. Paul, 1937), pp.
379-85 and 421-5. Major articles on the subject may be found in Roberts, "The
Revival of a Prior by the Revocation of a Later Will," 48 U. of Pa. L. Rev. 505
(1900); W. W. Ferrier. Jr., "Revival of a Revoked Will." 28 Cal. L. Rev. 265
(1940); and Bordwell, "The Statute of Wills-Part XII," 14 Iowa L. Rev. 283
(1929). Miscellaneous case notes to specific cases will be noted hereafter in con-
junction with the discussion of each particular case.
6 See note 3, ante.
revocation was sufficient 7 although the same result might be ac-

complished by the making of a later will." Since the permitting
of oral revocation could lead to fraud and perjury," it was deemed
wise to include provisions in the Statute of Frauds to the effect
that no will or testament should be revoked save by intentional
physical destruction on the part of the testator or his agent or "by
some other will or codicil in writing, or other writing" duly signed
and witnessed. 10 The statute was silent, however, as to when the
revoking instrument was to take effect so the door was left open
for judicial determination as to its operative consequences.
A. AS TO TESTAMENTS
Inasmuch as the earlier instrument sought to be revoked

might be either a will or a testament, hence be likely to provoke
questions in either a common law or an ecclesiastical court, the
way thus opened invited conflicting decisions. The ecclesiastical
treatment of the problem, following civil law lines, was to the
effect that the revoking instrument operated from the moment of
its proper execution," hence immediately nullified the earlier
testament; the mere fact that the earlier document remained in
full physical existence was of no significance. That view is best
7 Swinburne, A Treatise of Testaments and Last Wills (London, 1677), 4th Ed.,
Part VII, § 15.
8 2 B1. Com., 502.
9 The history of a conspiracy to defeat a will on such lines is told in a note to
Mathews v. Warner, 4 Ves. Jr. 186, 31 Eng. Rep. 96 at 107 (1798). which refers to
the manuscript of Lord Nottingham on the case of Cole v. Mordaunt (1676). The
judge is reported to have said: "I hope to see one day a law, that no written
will should be revoked but by writing." The annotator says: "This is said to be
the principal case which gave rise to the Statute of Frauds."
1029 Car. II, c. 3 (1677). Section 6 thereof, relating to wills, required that the
revoking instrument be signed in the presence of "three or four" witnesses. Section
22, concerning testaments, forbade the repeal thereof "by word of mouth only,
except the same be in the life of the testator committed to writing . . . read unto
the testator, and allowed by him and proved to be done by three witnesses at the
least." Similar legislation, found in almost every American jurisdiction, is noted
hereafter and has been given mandatory effect. As a consequence, the problem
of reviving an earlier will cannot arise unless the subsequent writing complies
with the Statute of Frauds: Beard v. Beard, 3 Atk. 72, 26 Eng. Rep. 844 (1744).
"1In Onions v. Tyrer, 1 P. Wms. 344, 24 Eng. Rep. 418 (1716). it had been
determined that a second will containing an express clause of revocation, duly
executed but for the fact that the witnesses did not subscribe their names in the
testator's presence, did not revoke an earlier will. As a consequence, the heir
at law was enjoined from conducting an ejectment action against the devisee under
the first will.
illustrated by the decision of the Prerogative Court in Helyar v.

Helyar,12 wherein the testator, after making a will in 1742, made
another in 1745 which contained an express clause revoking all
former wills, named a different executor and omitted a devise
given under the earlier will. At the time of the testator's death,
the will of 1742 was found in his trunk but no trace could be dis-
covered of the later will although it had last been seen in the
testator's hands. 13 Oral proof of the quondam existence of the
later will and of its contents was received and, on the strength
thereof, it was held that the execution of the second will was, by
law, a revocation of the first.
It was then argued that the first had been revived by the
subsequent destruction of the second one. On that point, the
court said the deceased had not done any act sufficient to revive
the earlier will, indicating that, in order to revive, there had to
be a "republication or some express declaration of the testator
that he would have the first operate as his will.'1 4 Revival of
the earlier will was, then, considered possible so long as evidence
could be offered to show that such was the testator's intention.
While apparently no presumption would be indulged in merely
because the earlier testamentary document remained in physical
existence and the later one had been cancelled, 15 there was evi-
dence of one sort or another in the succeeding cases that the
12 1 Lee Ecc. 472, 161 Eng. Rep. 174 (1754). Initial steps of an appeal from that
decision may be noted in Ex parte Hellier, 3 Atk. 798, 26 Eng. Rep. 1256 (1754),
but the appeal was subsequently abandoned by agreement. See 161 Eng. Rep. 174 at
190, note (c).
13 According to the facts in Daniel v. Nockolds, 3 Hagg. Ecc. 777, 162 Eng. Rep.
1341 (1832), a will dated in 1819 had been found carefully deposited and locked
in a drawer in the testator's bedroom. Another will, dated in 1823, containing
different terms and an express clause of revocation, was found in the same room
but much soiled and crumpled and lying among old and useless papers. Both
were offered for probate. The court, accepting only the later will, said: ". . . here
is a later revocatory will entire and in force as a revocation of the former,
though the devises and bequests may have lapsed . . . why did not the deceased,
a professional man, cancel if he intended to revoke it and revive the former will?
Declarations without acts are always dangerous evidence ..
14 1 Lee Eec. 472 at 512, 161 Eng. Rep. 174 at 189.
15 The headnote to Usticke v. Bawden, 2 Add. Ecc. 116, 162 Eng. Rep. 238 (1824),
declares that ". . . to the revival of a former [will] uncancelled, upon the can-
cellation of a latter revocatory will, the legal presumption is neither favorable to
nor adverse. The law, having furnished that principle, retires; and leaves the
question one of intention merely, and open to a decision either way, according to
extrinsic facts and circumstances."
testator either did1 6 or did not 17 intend to revive the earlier will
so no occasion arose to settle other problems posed in situations
like the one under consideration.
B. AS TO WILLS
While these precedents were being established in the ecclesi-

astical tribunals concerning testaments, the common-law courts
were faced with substantially similar questions over wills. In the
first such case,' that of Goodright v. Glazier,9 Lord Mansfield
declared:
A will is ambulatory till the death of the testator. If the
testator lets it stand till he dies, it is his will: if he does not
suffer it to do so, it is not his will. Here, he had two. He
has cancelled the second: it has no effect, no operation; it
is no will at all, being cancelled before his death. But the
20
former, which was never cancelled, stands as his will.
The fact that the second will contained an express clause of revo-
cation and was not merely inconsistent with the first appears to
have been regarded as producing a distinction without a differ-
16Thus, in Usticke v. Bawden, 2 Add. Ecc. 116, 162 Eng. Rep. 238 (1824), and
in Welch v. Phillips, 1 Moore P. C. 299, 12 Eng. Rep. 828 (1836), oral statements
by testator shortly before death were held sufficient to disclose an intent to revive.
In Kirkeudbright v. Kirkcudbright. 1 Hagg. Ecc. 325, 162 Eng. Rep. 601 (1828),
the testator had made a will in 1824 giving all his estate to his wife. In 1825,
during a period of separation, he made a new will giving a legacy to his paramour
but which, he later said, he had done "to please the girl and prevent her from
relaxing in her attentions to me." This will was never thereafter found. Re-
sumption of cohabitation with his wife as well as declarations of the testator
during his last illness were held sufficient to produce a revival even assuming
the 1825 will to the paramour had been executed with testamentary intention.
17 Intestacy was declared in Moore v. Moore, 1 Phill. Ecc. 375. 161 Eng. Rep.
1016 (1816), Hooten v. Head. 3 Phill. Ecc. 26, 161 Eng. Rep. 1247 (1819), and in
Wilson v. Wilson, 3 Phill. Ecc. 543, 161 Eng. Rep. 1409 (1821), for the court
there found that the tenor of the testator's declarations, following upon the can-
cellation of a second will with express revocatory clause, were to the effect that
if he did not make a new will he would die without one.
is Eggleston v. Speke, 3 Mod. 258, 87 Eng. Rep. 170 (1688), was actually earlier in
point of time, but the case passed on the ground that the second instrument was
insufficient, under the Statute of Frauds, to revoke the earlier will because not
subscribed by the witnesses in the testator's presence. See also Onions v. Tyrer,
1 P. Wms. 344, 24 Eng. Rep. 418 (1716).
19 4 Burr. 2512, 98 Eng. Rep. 317 (1770).
20 4 Burr. 2512 at 2514, 98 Eng. Rep. 317 at 319.
ence, if that fact was not entirely overlooked. 1 Nowhere does

the word "revival" appear in the opinion, so it might be inferred
that the first will, according to the common law, continued to have
potential effect throughout hence did not need to be brought back
into existence after the danger threatened by the presence of a
subsequent will was removed by its destruction. That, at least,
would be a logical sequitur to the basic concept that a will is an
ambulatory instrument prior to the time of the testator's death.
Some doubt on that score may be conceived from what Lord
Mansfield said, four years later, when deciding the case of Har-
wood v. Goodright.2 2 He there stated:
. . .it may be said, that if there is a complete second will,
it cannot do otherwise than revoke a former: for if it is only
a variation or subtraction from a former will, it is in the
nature of a codicil . . . The mere circumstance of making a
second will is not in itself a revocation of a former: for the
testator may cancel such latter will, and it has been settled
that if a man by a second will even revoke a former, yet if he
keep the first will undestroyed, and afterwards destroy the
23
second, the first will is revived.
It is a trifle inconsistent to say that the earlier will is not re-

voked by the execution of a second one yet at the same time say
that it is revived by the destruction of the later one. It either
continues in legal existence as a potential instrument or else is
nullified. If the former, revival is unnecessary; if the latter, then
the common-law views as to revival came extremely close to those
followed by the ecclesiastical courts except that, seemingly, some
presumption in favor of testacy rather than intestacy might be
21 A note to Goodright v. Glazier, to be found in 98 Eng. Rep. 317, says: "It
appears from the quotation of this case in Buller, 266, that the second will ex-
pressly revoked all former wills; and . . . this is not taken notice of by Burrow,
as it seems it ought to have been, for that is a usual clause in wills, and the
omission of it may, in the opinion of some persons, make a distinction between
this case, and other wills having such a clause of revocation."
22 1 Cowp. 87, 98 Eng. Rep. 981 (1774).
2,31 Cowp. 87 at 90, 98 Eng. Rep. 981 at 983.
drawn from the fact that the earlier will had been preserved. -4
Such view, however, overlooks the possibility that the testator
may have intended to die intestate under the belief that the first
will had been nullified by the execution of the second and that
that instrument, in turn, was nullified at the time of its destruc-
25
tion or cancellation.
c. STATUTORY TREATMENT
The resulting confusion from these conflicting views, a con-

fusion which might lead to the result that an instrument would
be ineffective to pass the personal estate but could operate to
devise land, eventually led to the enactment of a statute in 1837
which purported to settle all questions. While that statute re-
codified the ideas underlying the Statute of Frauds concerning
revocation, it also purported to deal with the subject of revival
by requiring re-execution of the earlier will and testament at the
time of the destruction of the later one. 26 The statute may be
said to have adopted the essence of the ecclesiastical ideas on the
subject but it does not expressly specify that the former will is
revoked at the moment of execution of the later one, so while the
difficulties have been lessened by its existence they have not been
entirely eliminated.
The English decisions since the enactment of that statute fall
into one of three categories. The first concerns itself with the
27
problem of whether or not the later will or codicil was executed
24 In Burtenshaw v. Gilbert, 1 Cowp. 49, 98 Eng. Rep. 961, Lofft 465, 98 Eng.
Rep. 750 (1774), Lord Mansfield held that if the first will is subjected to physical
destruction, such as tearing off the seals, the fact that a subsequent will was also
subsequently destroyed could not alone operate to revive the earlier one. He there
indicated that it could never be set up "but by a new instrument of republication."
25 See cases cited in note 17, ante.
26 1 Vict., c. 26, § 22. The statute directs that "no Will or Codicil, or any part
thereof, which shall be in any Manner revoked, shall be revived otherwise than
by the Re-execution thereof, or by a Codicil executed in the manner herein-before
required, and showing an intention to revive the same; and when any Will or
Codicil which shall be partly revoked, and afterwards wholly revoked, shall be
revived, such Revival shall not extend to so much thereof as shall have been re-
voked before the Revocation of the whole thereof, unless an Intention to the
contrary shall be shown."
27 In Lister v. Smith, 3 Sw. & Tr. 282, 164 Eng. Rep. 1282 (1863), it appeared
that testator executed a codicil to his will, expressly revoking a gift in trust for
the benefit of his daughter, more as a sham to get the daughter, who was Informed
or revoked2" under circumstances indicating only a conditional

purpose on the part of the testator so as not squarely to present
2 9
the problem here concerned.
In the second, the subsequent will or codicil was found to
contain an express clause designed to revoke the former will
either wholly or in part. The subsequent destruction of the later
will or codicil, even though the earlier will remained in existence,
was treated as evidencing an intention to die wholly or partially
intestate ° so long as no steps were taken, in the fashion directed
by the statute, to revive the earlier will. Oral declarations that
such was the testator's intention have been uniformly rejected as
being inadmissible without regard to what the law might have
been prior to the adoption of the statute.8 ' Rigid adherence to
this view has been given, even though the later will or codicil
itself failed for violation of other rules of law,3 2 so long as the
of the revocation, to persuade her mother-in-law to compromise a dispute between
testator and the mother-in-law. The will without the codicil was ordered probated
after the jury was cautioned that the admission of oral testimony of such alleged
circumstances tended to "make wills . . . very insecure if a regularly executed
document . . . can be set aside on evidence of the sort you have just heard. .. ."
28 See Powell v. Powell, L. R. 1 P. D. 209 (1866). In Dickinson v. Swatman, 4
Sw. & Tr. (Supp.) 205, 164 Eng. Rep. 1465 (1860), it was argued that testator had
burned his later will under the erroneous belief that he thereby revived the earlier
one, so that, if the first will had been effectively nullified, a copy of the later one
should be admitted to probate. It was held that, for lack of proof of such purpose,
the decedent died intestate.
29 The subject of dependent relative revocation is not here considered.
30 Major & Mundy v. Williams & Iles, 3 Curt. Ecc. 432, 163 Eng. Rep. 781 (1843)
James v. Cohen, 3 Curt. Ecc. 770, 163 Eng. Rep. 896 (1844) ; Tupper v. Tupper,
1 K. & J. 665, 67 Eng. Rep. 627 (1855) ; Brown v. Brown, 8 El. & B1. 876, 120 Eng.
Rep. 327 (1858) ; Wood v. Wood. L. R. 1 P. D. 309 (1867) : In the Goods of Debac,
77 L. T. Rep. 374 (1897); In the Goods of Chilcott, [1897] P. D. 223; Barkwell
v. Barkwell, [1928] P. D. 91; Goldie v. Adam, [1938] P. D. 85; in the Estate
of Mordon, [1944] P. D. 109.
31 The court, in Major & Munday v. Williams & Iles, 3 Curt. Ecc. 432 at 434-5,
163 Eng. Rep. 781 at 782 (1843), said: "There have undoubtedly been cases, de-
cided over and over again under the Statute of Frauds, holding that parol evi-
dence was admissible to prove the revival of a once revoked instrument. It was
this that led to the introduction of the 20th and 22nd sections into the present
Wills Act. It is admitted . . . the first will was revoked. . . . The only mode by
which it could be revived is that pointed out by the 22nd section. That section
is most express . . . destruction of the revoking instrument is not sufficient, it is
not a re-execution of the revoked will, according to the present act."
22 Tupper v. Tupper, 1 K. & J. 665, 69 Eng. Rep. 627 (1855), concerned a codicil
revoking a valid bequest and purporting to give the fund to charitable uses. Held:
although the charity could not receive the benefit of the gift, the codicil operated
as a revocatory instrument. Onions v. Tyrer, 1 P. Wins. 344, 24 Eng. Rep, 418
(1716), was distinguished. See also In re Burnyeat's Will. 128 L. T. Rep. 751
(1923), noted in 23 Mich. L. Rev. 86, although there the codicil merely set forth
subsequent instrument was duly executed. It might also be noted

that, although the statute does not say so, courts have declared
that the subsequent instrument operated instantly upon execution
so far as revocation was concerned even though it was still ambu-
33
latory in character as a dispositive document.
Where the testator, in attempted compliance with the statute,
has endeavored to revive the earlier will, revoked by an express
clause found in some subsequently executed instrument, his efforts
have not always met with complete success. Thus, in the case of
In the Goods of Chilcott,3 4 the testatrix, having made a will in
1889, instructed her solicitor to prepare a codicil which she took
away but never executed. Instead, she executed a fresh will, in
1892, prepared by another solicitor, which expressly revoked the
former one. In 1893, she executed a codicil, prepared by her
original solicitor who was in ignorance of the existence of the
1892 will, which purported to be a second codicil to the will of
1889 and by which she indicated a desire to "confirm my said
will and the first codicil thereto." All of these documents re-
mained in existence at the time of her death. It was held that
the codicil served to revive both the 1889 and the 1892 will so
that both wills and the codicil had to be admitted to probate.
A somewhat similar mishap occurred in the case of Goldie
v. Adam35 where the testator made a will and three codicils in
1929 and then marked a prior will as being cancelled. In 1932
he made another will expressly revoking the 1929 will together
with its codicils. One year later, in 1933, he executed a testa-
mentary document expressed to be a fourth codicil to the revoked
a different scheme of disposition and did not expressly revoke the earlier provi-
sion. Express revocation would have been unwise since the codicil wes designed
to operate only if testator's widow married a person other than a natural-born
British subject. When the widow did marry an alien, the net result of testator's
failure to observe the requirements of the Rule against Perpetuities was to give
her a share of the estate by descent despite the obvious intention to cut her off
'with nothing. Cf., Baker v. Story, 31 L. T. Rep. 631 (1874).
83, Lord Merrivale. in Barkwell v. Barkwell, [1928] P. D. 91 at 101, declared:
"Cases beyond number have made it clear that words of revocation contained in
a will operate immediately upon its execution, so effectually, that without some
express act of revivor the revoked testament has thenceforward no existence."
34 [1897] P. D. 223.
85 [1938] P. D. 85.
will of 1929, referring to it by date, and concluded with the state-

ment: "In all other respects I confirm my said will and the first
three codicils thereto," but said nothing about the 1932 instru-
ment. All the documents were found in perfect condition. It
was held that the mistaken reference, in the last codicil, to the
1929 will did not revive it, so only the 1932 will and the 1933
codicil, after deleting the mistaken reference, could be admitted
to probate. That result was achieved by finding that when the
testator referred to the 1929 will he really meant to say the 1932
one and when it was revived in toto, including the express clause
of revocation therein, it then served to completely and finally
nullify the earlier will. The holding is logical, but the underlying
assumption that the testator had made a mistaken reference is
not too clearly borne out. By contrast, in the case of In the
Estate of Mordon,3 6 it was apparent that at the time the testatrix
had executed a codicil to her first will she had forgotten about
the existence of two subsequent wills each containing an express
clause of revocation. As her codicil did not contain a clause
confirming her first will in all respects, so thereby failing to re-
vive a clause of revocation contained therein, it was held neces-
sary to grant probate to the third will, to the expressly confirmed
parts of the first one, and to the last codicil. It would seem, there-
fore, that the testator seeking to revive an earlier will which has
been once revoked because of the existence of a later testamentary
document so directing must exercise considerable care if he ex-
pects to accomplish his purpose.
The third category of cases includes those in which there
is no express clause of revocation in the subsequent instrument
but in which some other language may or may not be found suffi-
cient to produce that result so as to require, or make unnecessary,
a positive act of revival. The phrase most frequently seized upon
for this purpose is the common recital that the document is the
"last will and testament" of the testator. The question was first
presented in the case of Plenty v. West3 7 where the King's Bench
36 [1944] P. D. 109.
37 6 C. B. 201, 136 Eng. Rep. 1227 (1848).
Court, in response to an inquiry propounded by the Chancellor,

declared that the last of the three wills, each bearing the designa-
tion of "last will and testament," was the only one possessing
validity. There was no explanation given for such holding and
it would seem unfortunate in view of the fact that, while the wills
varied to some extent, the last one made only a partial distribution
of the estate. A more sensible view would have been to permit
the three wills to stand together to the extent that they did not
conflict with one another. While there is intimation that the
decision therein was shortly thereafter overruled by the holding
in Cu.tto v. Gilbert,38 it has been followed in at least four cases
decided thereafter, 3 9 even to the point of admitting parole evi-
dence to show that the last document was intended to be the sole
and only will.
In direct contrast, is the holding of the Chancellor in Free-
man v. Freeman40 wherein an injunction against an ejectment
action brought by the heir was granted in favor of a devisee
under an earlier will which had remained in existence even though
the testator had made a later document designated as a "last will
and testament" but which dealt only with some of the testator's
property and was silent as to the land in question. The Chan-
cellor indicated that a different result might have followed had
the testator written "this is my only will," but since he did not
it was deemed possible for both instruments to stand together,
particularly since there was no evidence of a design to die partially
intestate.
No court came nearer to producing an unjust result than the
one concerned in the case of Cutto v. Gilbert.41 The testator there
38 9 Moore P. C. 131, 14 Eng. Rep. 247 (1854). The Privy Council, however,
merely purported to distinguish the case before it from the one presented in Plenty
v. West.
39 See Dempsey v. Lawson. L. R. 2 P. D. 98 (1877) ; Jenner v. Ffinch, 5 P. D. 106
(1879) ; Estate of Bryan, [1907] P. D. 125; In the Estate of Fawcett, [1941] P.
D. 85. In the last mentioned case, a holographic instrument which lacked a
revocatory clause and did not state it was a "last will" was, nevertheless, given
effect since it could be construed to constitute a complete and different disposition
of the estate.
40 5 DeG. M. & G. 704, 43 Eng. Rep. 1044 (1854).
419 Moore P. 0. 131, 14 Eng. Rep. 247 (1854).
had executed a will in 1825 which remained uncancelled at the

time of his death. Witnesses testified that he had, in 1852, exe-
cuted a document designated as a "last will and testament" but
they were unable to disclose the nature of its contents, whether
similar to or different from the earlier will, nor could they pro-
vide any more information as to its whereabouts beyond the fact
that it was last seen in the possession of the testator. The Pre-
rogative Court held, in the absence of proof of any revival, that
the will of 1825 had been effectively revoked and that the dece-
dent had died intestate. The Privy Council, on appeal, reversed
and ordered the earlier will probated because it refused to assume
that the later will was inconsistent with the earlier one or in any
way operated to revoke it. The appellant, beneficiary under the
earlier will, was granted the estate. A few months later, accord-
ing to a note appended to the decision,4 2 the successful appellant
accidentally discovered a will, dated in 1851 and obviously the
one referred to by the witnesses, standing upright in a drawer
in such a position as to be readily overlooked. That will, follow-
ing the dispositions contained in the one dated in 1825, gave
everything to appellant so the Privy Council was proved to be
right after all. Had it followed the rationale of the decision in
Plenty v. West,4 3 a clearly unjust result would have been produced.
A somewhat similar result was obtained in Cadell v. Wil-
cocks. 44 In that case, the testatrix had made a will in 1890 by
which she purported to exercise a power of appointment as well
as to make disposition of her own estate. A second will, made in
1894, lacked an express clause of revocation but made some
changes in the scheme of disposition. A third will, made in 1895,
designated as a "last will and testament" but lacking in an ex-
press clause of revocation purported to give all of testatrix's
property to one daughter absolutely. Neither the second nor the
third will sufficed to exercise the power of appointment. It was,
nevertheless, held that the 1890 and the 1895 wills should stand
42 9 Moore P. C. 131 at 148, 14 Eng. Rep. 247 at 254.

43 See note 37, ante.
44 78 L. T. Rep. 83 (1897).
and be probated together for there was nothing in the second or

third wills which could be regarded as being inconsistent with
the intended exercise of the power of appointment albeit they
both were designated as "last" wills. 4 5 As the English statute
is vague on the point as to whether or not the subsequent will
46
or codicil should declare an intention to revoke the former will,
the holdings in the three cases last mentioned ought to be ap-
proved as more in keeping with the probable intention of the
testator for the use of the phrase "last will and testament,"
especially when found in some printed form purchased for the
testator's own use, can hardly be said to evidence a clear inten-
tion to revoke a former will.
Any discussion of the English cases ought not be concluded
without reference to the decision in the case of In the Goods of
Hodgkinson.4 7 The testator there concerned had made a will in
June, 1881, giving "all my property of every description" to a
friend. In September, 1881, he made a second will giving "the
share and interest" he had received under the will of his lately
deceased mother to his sister. The second will lacked any clause
of revocation and was not described as a last will. The property
therein referred to was real estate and the only real estate he
possessed at the time of his death. The second will was subse-
quently cancelled by cutting off the signature. The trial court
admitted the whole will of June, 1881, to probate. On appeal,
the decision was modified on the ground that the first will had
been revoked in part and had not been revived while the second
45 The court cited the case of Re Kingdon, 54 L. T. Rep. 753, 32 Ch. Div. 604
(1886), as holding that an express revocatory clause in a later will would operate
to revoke an earlier one, including a purported exercise of a power of appointment
therein, even though no subsequent provision was made relating to the subject
matter of the power of appointment.
46 1 Vict., c. 26, § 20, declares that no earlier will shall be revoked otherwise than
"by another Will or Codicil executed in the manner herein-before required, or by
some Writing declaring an intention to revoke the same." Italics added. If the
word "or" is truly disjunctive, the mere execution of a subsequent will or codicil
should serve to revoke a former one, whether so stating or not, unless the same is
in some way re-executed and revived pursuant to Section 22. If, on the other hand,
the phrase "declaring an intention to revoke the same" applies not only to some
writing but also to subsequent wills or codicils, then the denial of probate to earlier
instruments in the cases cited in note 39, ante, is erroneous and the earlier wills
should have been admitted and any discrepancy between them and the later wills
should have been resolved as a matter of construction.
47 L. R. 18 P. D. 339 (1893).
will was not operative as to the property therein referred to since

it had been effectively cancelled. As a consequence, the decedent
was held to have died intestate as to the realty. Such decision
suggests that, without regard to whether or not the subsequent
will so states and whether or not it is described as a "last" will,
the mere making of a subsequent will containing different pro-
visions than those contained in an earlier one will suffice to re-
voke the earlier one, either in whole or in part, so that re-execu-
tion of the former is necessary if it is to be revived in any respect.
In the light of the statute and the decisions interpreting it,
the present state of the English law might be summarized about
as follows. Assuming (1) that the subsequent instrument is exe-
cuted with the requisite intent, then (2) if it contains an express
clause of revocation, some act of revival satisfying the require-
ments of the statute is essential to give new life to the earlier
will and parol declarations will not be enough any more than
would the mere destruction of the subsequent instrument, but
(3) that same result may or may not be obtained if the subse-
quent document, while lacking an express clause of revocation,
be designated as a "last will" or presents a different scheme of
disposition, except (4) in the latter case, the earlier instrument,
if it be not revoked, must be read along with the later one.
II. REVOCATION AND REVIVAL UNDER AMERICAN LAW
A. STATUTES AS TO REVOCATION*
Every one of the states in the United States, as well as the

District of Columbia and the Territory of Hawaii, possesses a
statute of some sort dealing with the subject of revoking a will
through the execution of some subsequent instrument but for two
* Unless otherwise indicated, the statutes hereinafter referred to merely by
name of the state are, for convenience, here cited alphabetically: Alabama, Code
1940, Tit. 61, §§ 26-7; Arizona, Code Ann. 1939, Ch. 41, § 103; Arkansas, Pope Dig.
1937, §§ 14519 and 14528; California, Deering Probate Code Ann. 1944. Ch. 3, §§ 72.
74 and 75; Colorado, Stats. Ann. 1935. Vol. 4, Ch. 176, § 40; Connecticut, Gen.
Stats. 1930, Tit. 50, Ch. 256. § 4880; Delaware, Rev. Code 1935, Ch. 93, § 3715:
District of Columbia, Code 1940, Tit. 19, §§ 103 and 108; Florida, Stats. 1941, Tit.
41, Ch. 731, §§ 731.13. 731.15, 731.17 and 731.18: Georgia, Code 1933, Ch. 113.
§§ 401-3 and 406; Hawaii. Rev. Laws 1945, Tit. 31. Ch. 295, §§ 12177-8 and 12182:
Idaho, Code Ann. 1932. Vol. 1, Tit. 14, §§ 14-307 and 14-310; Illinois, Rev. Stat. 1945.
CRICAGO-KEN'T LAW REVIEW
noteworthy exceptions. The Oregon statute appears to be wholly

silent on the point, while that of Tennessee provides simply that
no nuncupative will shall affect an existing written will unless it
be reduced to writing, read to and approved by the testator, and
48 It
thereafter be proved by at least two competent witnesses.
will be remembered that the English statute specifies that neither
a will, a codicil, nor any part of either shall be revoked, at least
so far as is here concerned, except by (1) another will, (2) a
codicil, or (3) some other writing declaring an intention to revoke
and duly executed according to the manner made necessary for
the proper execution of a will in the first instance. 49 Any analysis
of the American statutes may well be built around that model but,
with the exceptions noted, it might be observed at the outset that
the American statutes present no uniform pattern.
Ch. 3, § 197; Indiana. Burns Ind. Stat. Ann. 1933, Vol. 3, Ch. 3. § 7-301; Iowa. Code
1946, Vol. 2, Ch. 633, § 633.10: Kansas, Gen. Stat. 1945 Supp., Ch. 59, §§ 611-2; Ken-
tucky, Rev. Stat. 1946. Ch. 394, §§ 394.080 and 394.100; Louisiana, Dart Civ. Code
1945, Vol. 1, Ch. 6, Arts. 1690-4: Maine, Rev. Stat. 1944, Vol. 2, Ch. 155, § 3; Maryland,
Ann. Code 1939, Vol. 2, Art. 93, § 337; Massachusetts. Ann. Laws 1933, Vol. 6, Ch.
191. § 8; Michigan, Stats. Ann. 1937. 1943 Revis., Vol. 23, Ch. 266, § 27.3178(79) :
Minnesota, Stats. 1941, Ch. 525, § 525.19: Mississippi, Code Ann. 1930, Ch. 72.
§3551; Missouri, Rev. Stat. Ann. 1939, Vol. 1. Ch. 1. Art. 20. §§521 and 525:
Montana, Rev. Code 1935, Vol. 3. Ch. 77, §§ 6995, 6998 and 6999; Nebraska. Rev.
Stats. 1943, Vol. 2, Ch. 30, Art. 2, § 30-209; Nevada. Comp. Laws 1929, Vol. 4,
§§ 9912-3; New Hampshire. Rev. Laws 1942. Vol. 2. Ch. 350. § 13; New Jersey,
Stat. Ann. (Perm. Ed.), Tit. 3. Ch. 2, § 3:2-4: New Mexico, Stats. Ann. 1941. Vol.
2, Ch. 32, §§ 108-9; New York, Thompson Cons. Laws 1939, Vol. 1, Decedent Estate
Law, §§ 34 and 41; North Carolina, Gen. Stats. 1943. Vol. 2. Ch. 31, § 31-5; North
Dakota, Rev. Code 1943. Vol. 5, Ch. 56-04; §§ 56-041, 56-0405 and 56-0408; Ohio,
Page's Gen. Code Ann., Vol. 7, Ch. 4, §§ 10504-47 and 10504-54; Oklahoma, Stats.
Ann. (Perm. Ed.), Tit. 84. Ch. 2. §§ 101, 105 and 106; Oregon, Comp. Laws Ann.
1940, Vol. 2, Tit. 18, Ch. 3, § 18-304; Pennsylvania, Purdon's Stats. Ann., Tit. 20,
Ch. 2, §§ 271-2; Rhode Island. Gen. Laws 1938. Ch. 566, § 17; South Carolina,
Code 1942, Vol. 4, Ch. 175. § 8921; South Dakota, Code 1939, Vol. 3, Tit. 56, Ch.
56.02, §§ 56.0217, 56.0221-2: Tennessee, Williams' Code Ann. 1934. Vol. 5, Tit. 3,
Ch. 1, § 8097; Texas, Vernon's Civ. Stat. Ann.. Vol. 22. Tit. 129. Art. 8285; Utah,
Code Ann. 1943, Vol. 5. Tit. 101, Ch. 1, §§ 101-1-19, 101-1-22, 101-1-23; Vermont.
Pub. Laws 1933, Tit. 12, Ch. 117, § 2756; Virginia. Code 1942, Ch. 212, §§ 5233-4:
Washington, Remington's Rev. Stat. Ann. 1932, Vol. 3, Tit. 10, Ch. 3, §§ 1398 and
1405; West Virginia, Code Ann. 1943, Ch. 41, §§4045-6; Wisconsin, Stats. 1945.
Ch. 238, § 238.14; Wyoming, Comp. Stats. Ann. 1945, Vol. 1, Ch. 6, § 6-306.
48 Tenn., Williams Code Ann. 1934; Vol. 5, Tit. 3, Ch. 1, § 8097. That statute
makes no mention of the typical means of revocation to be found available in the
other states. It, and the one in Pennsylvania, are the only ones which seem to
have carried over the ideas found in Section 22 of the Statute of Frauds relating to
the revocation of wills or testaments concerning personal property. See Purdon's
Pa. Stat. Ann., Tit. 20, Ch. 2, § 272.
49 1 Vict., c. 26, § 20. See also Section 6 of the Statute of Frauds. The latter
specified that the "other writing" had to be signed in the "presence of three or
four witnesses." The former merely declares it shall be executed "in the Manner
in which a Will is herein-before required to be executed."
REVOCATION AND REVIVAL O1' 1VILL'
1. Revocation by Subsequent Will

Most of the statutes provide that the revocation may be pro-
duced by the execution of some subsequent will,50 but there any
degree of similarity ceases. Only in the case of Georgia, 51 and
perhaps Louisiana,52 is there any express indication that the act
of executing the second or subsequent will shall possess any im-
mediate effect upon the first or former one. Only by inference
can it be gathered from some of the other statutes that the second
will might perform that immediate function; an inference which
might be gleaned where the statute declares that the revoking
will shall contain an express clause of revocation. Whether or
not such an inference would be warranted under certain of the
other statutes could be settled only after careful application of
the rules governing the grammatical construction thereof for the
phrasing is such that the requirement of an expressed revocative
intent, necessary when some writing other than a will is used,
might also apply to a subsequent will.
The English statute, in the phrase "by another Will or
Codicil . . or by some Writing declaring an intention to re-
voke," ' 54 seems to use the disjunctive "or" and would lead one
to believe that the words "declaring an intention to revoke,"
indicating the necessity for some sort of express revocatory
clause, are designed to apply only to some writing other than a
will or codicil. The juxtaposition of the three forms of revocation
in the same statutory paragraph, as found in a number of the
American statutes, after giving due recognition to punctuation,
might or might not produce the same conclusion. It might, on
the one hand, be argued that phrases similar to the English statu-
50 Burns Ind. Stat. Ann. 1933. Vol. 3. Ch. 3, § 7-301. and Mass. Ann. Laws 193.3.
Vol. 6, Ch. 191, § 8, merely refer to some "other writing" for that purpose, but
since such writing must be signed, attested and subscribed in identical fashion
to a will it could clearly be inferred that a second will would be sufficient.
51 Ga. Code 1933, Ch. 113, § 402, states: "An express revocation is effected when
tht maker by writing or acts annuls the instrument . . . [It] takes effect instantly
or independently of the validity or ultimate fate of the will or other instrument
containing the revocation."
-F2 See Dart Civ. Code 1945, Vol. 1, Ch. 6. § 6. Art. 1694.
53 In this category are the statutes of Cal., Colo.. Ill., La.. N. Jers., N. Mex.,
and Okla.
54 1 Vict., c. 26, § 20. Italics added.
tory language, following reference to some "other" writing, al-

though prefixed by the word "or," could also be taken to refer
to the subsequent will or codicil mentioned therein, could be read
as if "or" meant "and," thereby leading to the result that the
revocatory instrument, whether a subsequent will or not, should
disclose an express intent to revoke the former will if it is de-
signed to have that effect.5 5 On the other hand, the grammatical
precision to be found in other statutes forbids any such inference
and therefore leads to the conclusion that a subsequent will with-
out an express clause of revocation is sufficient, at some point of
time or another, to nullify the former one, 6 although some other
type of writing lacking express statement would not be.
After the question whether an express clause of revocation in
a subsequent will is or is not necessary has been settled, there then
arises the problem as to the scope of such revocation. A few of
the statutes would seem to indicate that the subsequent will, in
order to possess revocatory effect, should nullify the former will
in toto.57 Others seem to contemplate that the subsequent will
might accomplish a partial revocation for the great bulk of the
statutes allow the revocation of "any elause" or "any part" of
the earlier will, 8 thereby intimating that the remainder thereof
shall stand unaffected.
There are, moreover, a substantial number of statutes which
add the phrase "or altered" to the word "revoked" so as to
make the subsequent will serve both as a revocatory and an
amendatory instrunient.'-" If the later will presents a total altera-
5 Such construction might be possible, judging from the vording and punctua-
tion to be found in the statutes of Ark.. D. of C.. Fla., Ida.. Md.. Mont.. N. York.
N. Car., N. Dak., Pa.. R. I., S. Car.. S. Dak.. Utah, Va., and W. Va.
56 Compare the statutes mentioned in the preeeeding footnote with those found
in Kas., Ky., Mich.. and Minn.
57 The omission of phrases such as "any clause" or "any part thereof." typical
of most statutes, may be of significane in Ala.. Colo.. Conn.. Hawaii. Me., Mass.,
Nev.. N. Mex., Ohio. and Vt.
58A most unusual provision exists in Illinois where the statute indicates that
the later will serves as a total revocation if it contains an express clause to that
effect, but otherwise serves merely in the capacity of a codicil. See Ill. Rev.
Stat. 1945, Ch. 3. § 197.
5 C. f. the statutes of Ark.. Cal.. Del.. Fla.. Ida., Kas., Minn., Mont.. N. Y.,
N. Dak., Okla., Pa., S. Dak., and Utah. Compare with N. Car., Gen. Stats. 1943.
Vol. 2. Ch. 31, § 31-5. which permits alteration by a holographic will, and Tenn..
Williams Code Ann. 1934. Vol. 5. Tit. 3. Ch. 1, § 8097. which approves of altera-
tion by a nuncupative will.
tion of the former one, being inconsistent in all points by com-

parison with its predecessor, there would be no error in calling
the later instrument a "will" for it could properly substitute an
entirely new dispositive scheme in lieu of the old one. Revoca-
tion in such instances would then follow at some point of time,
whether expressed or not, since the testator could not be said to
possess two different testamentary intents at the same time and
the latest expression thereof should control.
Where, however, the statute not only permits revocation and
alteration of an earlier will but, as a number of them do,6 0 goes
so far as to permit a will "or any part thereof" to be revoked
or altered by a subsequent will, there is occasion to believe that
the latter is not really a will but more nearly a codicil. If no
more than a codicil, its existence should logically produce merely
a partial rather than a total revocation, thereby leaving the
earlier will to stand unrevoked at least to the extent that it is not
inconsistent with the later will. Most such statutes, nevertheless,
overlook the point for they fail to explain the legal consequences
of making a subsequent will which revokes or alters a former one
in part rather than in its entirety.
Recognition of this problem has been accorded in six of the
American jurisdictions, located in proximity to one another, which
permit partial revocation or alteration, for each has enacted an
. identical provision which declares that:
A prior will is not revoked by a subsequent will, unless the
latter contains an express revocation, or provisions wholly
inconsistent with the terms of the prior will. In other cases,
the prior will remains effectual so far as consistent with the
provisions of the subsequent will. 6 1
In those states, and in Louisiana and Illinois," 2 express declara-

60 See statutes listed in note 59. ante. except for Ark.. Del., Kas.. and Minn.
While Tennessee does not purport to authorize alteration of a part of a will, it
has been held that the method there indicated can operate only to alter bequests
of personalty: Greer v. McCrackin, 7 Tenn. (Peck) 301, 14 Am. Dec. 755 (1824).
61 The six statutes referred to are to be found in Cal., Mont., N. Dak., Okla..
S. Dak., and Utah.
62 La., Dart Civ. Code 1945. Vol. 1. Ch. 6, § 6, Art. 1691: Ill. Rev. Stat. 1945,
Ch. 3, § 197.
tion of intention to revoke is, of course, highly essential if such

is the testator's purpose, for the mere existence of a later will
is, ipso facto, insufficient to revoke the former one and the two
must, so far as possible, be read together.
With the exceptions thus noted, the bulk of the American
statutes indicate that an earlier will is revoked, at some time or
another, by the proper execution of a subsequent will even though
the latter is silent on the precise point of revocation.6" Such
statutes appear to be predicated on the idea that the power to
make a will necessarily implies the power to revoke it,64 and that
the latest expression of the testator's intention, evidenced by the
making of a subsequent will, is to be regarded as the controlling
one. Those statutes, however, are usually silent as to when the
revocation occurs, unless that fact may be gathered from other
provisions which might be found therein dealing with the revival
of a revoked will. Too frequently, though, the statute which is
not sufficiently worded to require the presence of an express
revocatory clause in the subsequent will is usually likewise silent
on the means to be pursued to revive a former one.6 5 In those
jurisdictions, therefore, problems such as are here being consid-
ered must be left to judicial consideration and nothing can be
determined, from perusing statutory language, other than the
fact that at some time or another, and by some means or another,
the proper execution of a later will should operate to revoke an
earlier one.
2. Revocation by Codicil
It is possible, both in England and in twenty-seven Ameri-
can jurisdictions, by virtue of express statutory language,
to revoke an existing will by the due execution of a codicil
63 Statutes without provision for an express revocatory clause in a subsequent
will, but indicating that the mere existence thereof is enough, may be found in
Ala., Ariz., Conn., Del.. Hawaii, Ind., Iowa, Me., Mass., Miss., Mo., Neb., Nev.,
N. Hamp., Ohio, Tex.. Vt., Wash., and Wis.
64 Statutory expression on that point is to be found only in Ga., La., Wis., and
Wyo.
65 Notable exceptions on this score among the statutes listed in note 63 ante,
are Ala., Hawaii, Ind., Mo., Nev., Ohio, and Wash., each of which contains a
provision on revival.
thereto. 6 Such codicil must necessarily be in writing and, typi-

cally, should be executed with the customary formalities required
for the execution of a will in the first instance, but whether it
should contain an express revocatory clause or not is, in the main,
as much the subject of doubt as has been noted in the case of a
subsequent will. In Colorado, the statute requires that the codicil
designed to revoke an existing will shall be one "declaring the
same." 6 7 The New Jersey provision recites that no revocation
shall occur except by ". . . (b) Another will or codicil in writing
revoking or altering the same." ' 68 But in all other instances,
where there is reference to a codicil as a revoking instrument,
the statutes are no more explicit than was seen to be the case with
respect to a subsequent will.
Inasmuch as the primary function of a codicil is to serve as
a modifier of the will to which it becomes a part, it would seem
that total revocation ought not to be produced merely because
the testator has seen fit to execute a codicil thereto. If such is
his design, as made apparent through the use of an express revo-
catory clause, the codicil ought to accomplish his purpose even
in the remaining states for while the statutes found there do not
declare that a codicil can be used as a revoking instrument still
it may be deemed to be such an "other writing" as would be
sufficient under most of these statutes to produce the desired end.
It so happens that in all but five instances out of the remaining
twenty-three, while such statutes are silent on the point of whether
a codicil will serve to revoke an existing will, they do permit
revocation by some writing other than a subsequent will.69 There
may be a subordinate problem, however, as to whether the codicil,
although executed according to the formalities necessary for a
will, can meet the requirements concerning attestation and the
66 C. f., Ariz.. Colo., Conn., D. of C., Fla., Hawaii. Ky., Me.. Md.. Mich., Miss.,
Neb., Nev., N. Hamp., N. Jers., N. Car.. Ohio, Pa.. R. I., S. Car., S. Dak.. Tex.,
Vt., Va., W. Va., Wis., and Wyo.
67 Colo., Stats. Ann. 1935, Vol. 4, Ch. 176, § 40.
68 N. Jers., Stats. Ann. (Perm. Ed.), Tit. 3, Ch. 2, § 3:24.
69 Of the twenty-three jurisdictions not named in note 66, ante, all permit revo-
cation by some writing other than a subsequent will except Iowa, Missouri, Ten-
nessee and Washington. The Oregon statute, as has already been noted, is totally
silent on the subject of revocation.
like essential if an "other writing" is used. The formal require-

ments for the latter, while generally the same, may vary from
70
those necessary to the proper execution of a will or codicil.
In the case of the five instances referred to above, three of
the statutes permit the partial revocation of an existing will by
the execution of a subsequent one, so there is at least tacit ac-
knowledgment that the latest testamentary document, if not
specifically designed to revoke the whole of the former one, is
really a codicil in operation and can have only a modifying effect
on the original will.71 In the other two jurisdictions, to-wit:
Oregon and Tennessee, one has no statute on the subject and the
other merely concerns itself with attempted revocation by a
nuncupative will.72 Considered in that light, it would seem as
though a substantial portion of the American states treat a codicil
as having no more vitality, insofar as revocation is concerned,
than enough to produce, at some time or another, a modification
but not a nullification of the former will.
3. Revocation by Other Writing

Forty of the American jurisdictions possess statutory pro-
vision for the revocation of an existing will by means of some
writing other than a later will or codicil. 73 The source of such
provisions is, in all probability, the English Statute of Frauds
which had declared that the revocation might be produced by
some "other writing declaring the same." 74 Despite the common
parentage, however, there is considerable diversity among these
provisions over whether (1) the writing must expressly declare
the testator's purpose to revoke his earlier will, 75 (2) can accom-
70 See, for example, Dela. Rev. Code 1935, Ch. 93, § 3715.
71 C. f., Iowa, Missouri, and Washington.
72 Tenn., Williams Code Ann.. 1934, Vol. 5, Tit. 3. Ch. 1, § S097.
7.2The exceptions are Colo., Conn., Hawaii. Iowa, Mo., Nev.. Ore.. Tenn., Wash..
and Wyo.
74 29 Car. II, c. 3, § 6.
72 Specific language to that effect appears in twenty-five of the statutes. See
Ark.. Cal., D. of C., Fla.. Ga., Ida., Ill.. Kas., Ky.. La., Md., Minn., Mont., N. J..
N. Y.. N. Car., N. Dak.. Okla.. Pa., R. I., S. Car., S. Dak., Utah, Va.. and W. Va.
The statutes of Mississippi and Texas call for a "declaration in writing" instead
of merely for some "other writing." It would seem that to be an effective
"declaration" the document ought to contain a complete expression of the testator's
purpose.
plish that end by some tacit but inferrable intent,7" or (3) must
refer to the earlier will in precise terms of description at the
time he declares his purpose to revoke it.,-
There is also doubt over the point whether such "other writ-
ing" must produce a complete nullification of the former will or
can be used merely to revoke a part thereof. It has been noted
that under the statutes of most states a subsequent will can
serve to revoke the earlier one either in whole or in part.7 8 The
state statutes which permit a subsequent will to operate either
way, and which likewise permit revocation by the use of an "other
writing," logically authorize either partial or total revocation of
the former will in the fashion here considered.7 9 In the other
states, the "other writing" referred to must produce a total revo-
cation of the earlier will or else it can have no operative effect
whatever.8 0
Following the pattern already indicated with respect to sub-
sequent wills,"' a sizeable number of American jurisdictions pur-
port, by statute, to permit an "other writing" not only to revoke
but also to alter an existing will.8 2 Such language might be re-
garded as intimating that testamentary documents might be found
to consist of (1) wills, (2) codicils, and (3) anomalous "other
writings," were it not for the fact that wherever such "other
writing" might serve as an alteration of an existing will it ob-
tains its validity, in all instances, from the fact that it has been
76 See the statutes of Ala.. Ariz.. Dela., Ind., Kas., Me., Mass., Mich., Neb., N.
Hamp., Ohio, Vt., and Wis.
77 The New Mexico statute, Stats. Ann. 1941, Vol. 2, Ch. 32, § 32-108, says the
instrument should be one that "distinctly refers to such will."
76 See notes 57 and 58, ante.
79 Statutes which appear to permit either partial or total revocation may be
found in every state except Ala., Ark.. Cal., Colo.. Conn., Hawaii, Ill., Kas., Me.,
Mass., Nev., N. Mex., Ohio, Ore., and Vt.
so See note 79, ante. The statutes in Colo.. Conn.. Hawaii. and Nev., noted as
being an exception to the general rule that a subsequent will may produce either
partial or total revocation of an earlier will, do not permit the use of an "other
writing" for any purpose but limit revocation to wills and codicils.
st Note 59, ante.
s2 C. f., Ark., Cal.. Dela., Fla.. Ida., Kas.. Minn.. Mont., N. Y., N. Dak., Okla..
Pa.. S. Dak.. and Utah. The North Carolina statute contains two separate clauses.
The first, dealing with revocation alone, limits the other writing to one executed
pursuant to the usual formalities, while the second authorizes both alteration and
revocation by a holographic instrument.
executed with at least the full formalities required for either a

will or a codicil so is essentially on a par with, if not in fact, one
or the other of the latter. Any confusion in nomenclature arising
from provisions of this character, therefore, may well be disre-
garded as it probably arises from an attempt to give statutory
basis for the use of a codicil as a modifying instrument while, at
the same time and in the same paragraph, combining the subject
with that of revocation. In all other instances, however, the
"other writing" is confined in purpose to serve merely to revoke
83
the former will either in whole or in part.
It might also be again noted that only in the case of the
statute of Georgia8 4 is there any consideration given to the pre-
cise moment of time when the "other writing" shall be effective
for the purpose and even there it can possess immediate effect
upon execution only if the writing contains express revocatory
language. The existence of some statutory language on the sub-
ject, therefore, merely serves to point up more strongly than
ever the fact that the manifold problems which could arise are far
from answered by a perusal of the legislative expressions on the
subject. The most that can be gathered therefrom is that if the
testator dies leaving both a properly executed will and a sub-
sequent "other writing" of revocatory character in existence,
provided the latter cannot operate as a later will or codicil, he
must then be said to have died intestate since the former testa-
mentary intent has been abrogated, if not before then at least
at the moment of death, by the latest expression of his purpose.
B. STATUTES AS TO REVIVAL
Some of the unsolved difficulties posed under statutes dealing

with the revocation of earlier wills by the execution of subsequent
written instruments may find resolution in the event there is
legislation purporting to deal with the means by which a will,
83 It should be noted that while partial revocation is permitted in most juris-
dictions, it is apparently not recognized in others. See notes 57 and 5S, ante.
84 Ga. Code 1933, Ch. 113, § 402, indicates that an "express revocation . . . by
writing . . . takes effects instantly or independently of the validity or ultimate
fate of the will or other instrument containing the revocation."
REVOCATION AND REVIVAL OF WILLs,
admittedly revoked, may be revived. In that respect, statutes

of some sort exist in twenty-five of the American jurisdictions.
By and large, such statutes probably find their genesis in Sec-
tion 22 of the English statute which directed that no will or
codicil, or any part thereof, which had been revoked should be
revived "otherwise than by the Re-execution thereof, or by a
Codicil executed in the manner herein-before required, and show-
ing an intention to revive the same."85 If the earlier revocation
there referred to had been accomplished by some physical act
such as tearing off the signature, the attestation clause or the
like, there would be no doubt that such conduct, when intention-
ally performed, operated to produce an instant revocation for
immediately thereafter there was no instrument which could have
met the requirements for probate had the testator then died.
Under such circumstances, the re-execution of the revoked will
or the adoption thereof by a codicil would be appropriate ways
to give new life to that which had thereby become extinct. Whether
the same acts should be required, or be even necessary, if the
earlier will remained in full physical condition, and the only event
that happened after its due execution was the making of a later
will which had been subsequently destroyed, is not so simple a
question.
It might be argued, following the common-law view, that since
the subsequent will possesses an ambulatory character giving it
no possible operative effect until the testator dies, the original
will has not been rendered invalid by the mere execution of the
later one so that, in the event of the physical destruction of the
latter, the former has never ceased having potential existence
hence need not be "revived." Talk about revival under such
circumstances would clearly be illogical. If such view currently
exists in some of the American jurisdictions, it has been rendered
innocuous in at least twenty-one states which, removing some of
the uncertainty created by the indefiniteness in the English stat-
95 The English statute also contains a clause, not found in any of the American
counterparts, which reads: ". . and when any Will or Codicil which shall be
partly revoked, and afterwards wholly revoked, shall be revived, such Revival shall
not extend to so much thereof as shall have been revoked before the Revocation of
the whole thereof, unless an Intention to the contrary shall be shown."
utes,sG have indicated that the due execution of a subsequent will

has produced the revocation of an earlier will, or wills, by specify-
ing that the destruction of the later will shall not operate to
revive the former one.
Nineteen of these states have adopted what might be consid-
ered to be a standard provision which declares that the making
of any subsequent will or writing followed by the cancellation,
destruction 7 or revocation thereof does not revive any will previ-
ously executed."" The other two express the same idea but confine
the situation to cases where the subsequent will expressly revoked
the former one."9
While such provisions do not say, in so many words, that the
former will was effectively revoked instantly upon the due execu-
tion of the later one, it can only be reasoned, from the necessity
for some form of revival procedure, that the later will must pos-
sess that effect or there would, logically, be no occasion to refer
therein to the means to be followed in order to revive the old one.
There is some confusion, however, apparent in the case of five
of the states having revival statutes.9 0 Each of them first recites
that a prior will is not revoked by a subsequent one unless the
latter contains an express clause of revocation or sets forth pro-
visions wholly inconsistent with the terms of the former will.
Each then, in a separate paragraph, goes on to provide, following
the standard clause, that the destruction, cancellation or revoca-
86 The Statute of Frauds is silent on the subject of revival. 1 Vict., c. 26, § 20.
following the Statute of Frauds, merely declares the manner of revocation. Section
22 thereof, although describing the way by which a will "which shall be in any
manner" revoked is to be revived, presupposes the nullity of the former will.
87 Only destruction will suffice according to Ga. Code 1933, Ch. 113, § 403.
88 Allowing for local variations, such provision reads: "If, after [the] making
[of] a [any] will, the testator makes [shall duly make and execute] a second
will, the destruction [cancelling or revocation] [or other revocation] of the [such]
second will does [shall] not revive the first will.... ." See the statutes of Ark.,
Cal.. Hawaii, Ida., Ind., Kas.. Mo., Mont., Nev., N. Y., N. Dak., Ohio, Okla., Ore.,
S. Dak.. Utah, and Wash. While the Ala. provision is phrased differently it is
closely akin to the others: Ala. Code 1940, Tit. 61, § 27. N. Mex. Stats. Ann. 1941.
Vol. 2, Ch. 32, § 32-109, states the idea as follows: "If a person having made a
first will, should make a second, annulling the first, and afterwards annuls the
second, the first will is not thereby made valid, unless the validity of the first
will be acknowledged."
89 See statutes of Florida and Georgia.
no The five are Montana. North Dakota. Oklahoma. South Dakota and Utah.
REVOCATION AND REVIVAL OF IVILLS
tion of "a second [or subsequent] will" does not revive the first
will. If, as is probably the legislative intent, the "second will"
referred to is one that produces a revocation because expressly
or impliedly so requiring, then the revival provision can have
significance, otherwise it flatly contradicts the prior expression
that the two or more wills are to be construed together so far as
possible. Assuming the former to be the case, and in those states
where no such conflict exists, it then becomes pertinent to exam-
ine the revival procedures established by statute for it certainly
ought not to be the policy of the law to compel a rewriting as
well as a formal re-execution of the original testamentary scheme
if the original document is still extant.
The English method calls for (1) a re-execution of the orig-
inal will, or (2) the making of a codicil thereto, either being ac-
companied by an intention on the part of the testator to revive
the revoked instrument. It is worthy of some note that only six
of the twenty-five statutes in this country bearing upon revival
go to the length of requiring re-execution of the original instru-
ment, 91 and only five out of those six indicate that a properly
executed codicil will suffice. 9 2 It cannot be said, therefore, that
the English statute, even though it may have furnished the idea
for statutory regulation of the subject, has had much influence
on the methods to be pursued in this country.
By far the predominant method utilized here is that of re-
.' Provisions found in the District of Columbia, Kentucky, Virginia. and West
Virginia are essentially similar in character if not in phraseology. They differ
from the English model in that they contain a proviso that the revival shall
be "only to the extent to which an intention to revive is shown." The statute
of Florida directs that the revoked will "may be republished and made valid by
the re-execution of the same with the formalities required by law for the execution
of wills." Such language raises a question as to whether the word "may" is to
be given permissive or mandatory effect. The Nevada statute permits revival
either if the subsequent will is revoked with intention to reestablish the earlier
one or if "the first will shall be duly re-executed."
.2 The Nevada statute omits reference to a codicil as a means of revival. The
Florida one contains a paragraph specifically recognizing that "a codicil referring
to a previous will has the effect of republishing the will as modified by the codicil."
it is doubtful, however, if a codicil would serve the purpose of reviving a revoked
will since the revival provision, while indicating that the earlier will "may be
republished," continues with the additional requirement that it be made valid
by the re-execution of the same with the formalities required by law for the
execution of wills." Republication alone would seem to be insufficient for the
purpose.
(JEICAGO-KENT LAW REVIEW
publishing the original revoked will, for eighteen of the statutes

sanction it as a means, sometimes the only specified means, of
bringing about a revival.9 3 As the term "republication" is often
used as a synonym for "re-execution," ' 94 it might be said that
statutes of this class contemplate such an act on the testator's
part as would have been necessary to make a valid will in the
first instance. On the other hand, as republication evidences a
desire to give new validity, as of the date of republication, to a
will which was executed some time before then, that result could
also be achieved through the use of an adequate and properly
executed codicil even though the statute be silent as to that pre-
cise means. In either event, since wills or codicils must gener-
ally now be executed according to the same formalities, there
should be no doubt in these jurisdictions that re-execution should
be adequate to produce a revival of the former will.
Whether anything less will suffice, for example an independ-
ent oral announcement by the testator, made in the presence of
witnesses on some occasion subsequent to the destruction or can-
cellation of the later will,9 5 to the effect that he desires his earlier
will to stand as representing his scheme for the disposition of his
estate, would have to be judicially determined by construing the
word "republication" as used in such statutes. If "republica-
tion" means no more than reiterating the original ceremony of
"publishing" the will, then re-execution, involving the compound
93 It is an alternative method under the statutes of Ala.. Ark.. Cal., Ida.. Ind.,
Kas., Mo., Mont., N. Y., N. Dak., Ohio. Okla., Ore., S. Dak.. Utah, and Wash.
None of these statutes require anything more than that the earlier will be "duly
republished," except for Kansas which, in 1939, added the qualification that the
republication should occur "in the presence of two or more competent witnesses
who shall subscribe the same in the presence of the testator." See Kas. Gen.
Stat. 1945 Supp., Ch. 59, § 59-612. According to Georgia and Hawaii. republica-
tion is the only method, although the former permits oral proof thereof.
94 Page, op. cit., Vol. 1, § 505.
.5The revival provisions usually indicate that the "republication" is to come
"after such destruction, cancellation or revocation" of the subsequent will. Italics
added. It might, then, be the concluding step in one continuous transaction or
could occur on some other and distinct occasion. Only under the statutes of
Arkansas, Missouri, Oregon and Washington could it be argued, because of the
noticeable omission of the phrase "after such destruction." that the ceremony of
"republication," whatever its form, should be a part of the transaction at which
the subsequent will is revoked and the earlier one revived.
elements of signing, sealing, attestation and the like should not

be necessary.96
If the act of revival occurs simultaneously with the destruc-
tion, cancellation or revocation of the later will, some help is
provided by the language found in a number of the American
revival statutory provisions. They declare that if it shall appear
"by the terms of such revocation that it was his [the testator's]
intention to revive and give effect to his first will," then the same
shall stand revived and in full force and effect.9 7 It is noteworthy,
however, that such statutes, while specifying the time of its dis-
closure, provide no precise means by which such intention shall
be made known other than that it be revealed in the "terms of
such revocation," hence must form a part of that transaction. It
might be the case that the method pursued to revoke the subse-
quent will could take the form of either a new will, a codicil, or
some "other writing" where that will serve as a revoking in-
strument, in which event it would be a simple matter for the
testator to disclose his intention by apt language over his signa-
ture duly authenticated so as to possess credibility should the
point be made the subject of a later challenge. Inasmuch, how-
ever, as the revocation of the subsequent will may be produced
by an act of physical destruction, such as a burning or tearing,
there would probably be no written record of that transaction so
any "intention to revive" the older will would doubtless have to
be found in oral statements which might have been made by the
testator coincident with that conduct.
It is at this point that these revival statutes disclose their
most serious weakness for while a will may not, generally, be
revoked by oral statements yet, once revoked, it may be given new
96 Point is added to such argument under the Kansas provision for it is the only
one to provide any clue to the steps necessary for revival. It recites that the
testator "shall duly republish his first will in the presence of two or more com-
petent witnesses who shall subscribe the same in the presence of the testator."
The absence of any direction that the will should be re-executed, in view of the
other precise requirements, lends credence to the idea that "republish" and "re-
execute" are not truly synonymous. The Georgia statute, on the other hand, ex-
pressly indicates that the "republication may be proved by parol."
97 See statutes listed in note 93, ante, and also Nev. Comp. Laws 1929, Vol. 4,
§ 9913.
CHICAGO-KENT LAW REVIEV
life by the very sort of parol testimony which originally caused

the passage of the Statute of Frauds.9 8 The testator who would
avoid tempting those who might be lightly turned toward perjury
would necessarily have to revoke his earlier will by some physical
act which totally removed it from existence, after which revival
could be accomplished only at the cost of making an entirely new,
even though identical, will. His retention of the original will in
sound physical condition, followed by the revocation of some later
testamentary instrument which he might have destroyed under
the belief that he would thereby die intestate, could expose his
legal heirs to the hazard that their expectations would be de-
feated if perjured testimony was available to establish the pur-
ported fact that, at the moment of destruction of the later will,
the testator was supposed to have said that he wished the original
will to stand. In the absence of any presumption to be drawn
one way or another from the fact that the original will still re-
mained intact at the testator's death, the statutory foundation
for the admission of parol testimony of that character is, to say
the least, highly inconsistent with the general safeguards thrown
around the testator's estate so as to insure that it reaches the
hands of those to whom it was intended to come.9 9
Revival in the fashion indicated by these more or less stand-
ard provisions is, in any event, confined to a total revival of the
earlier will in all its terms for no allowance is made therein for
anything else. In that respect, they do agree with the English
statutory views on the subject. Four of the American statutes
which might be said to be modelled on the lines of the English
one, however, contain a clause not found therein which authorizes
revival only to the "extent to which an intention to revive the
same is shown."' Under such statutes, still further confusion is
98 W. W. Ferrier. Jr.. "Revival of a Revoked Will," 28 Cnl. L. Rev. 265 (1940).
particularly pp. 271-6, furnishes critical comment on this fact.
99 The New Mexico provision is even more vague for it merely requires that "the
validity of the first will be acknowledged." It neither specifies the means to be used
nor does it limit the time of the acknowledgment to the moment of revoking the
subsequent will. The prospect of combatting perjury is, therefore, made more
difficult than in the other states where the witne.sses to the alleged revival are at
least tied down to a precise point of time and space.
1 See the statutes of the District of Columbia. Kentucky. Virginia and West
Virginia.
JREVOCATION AND RE I'IVAL 01 WILLS
added since the testator is permitted to revive such parts of his

former testamentary scheme as he may see fit, leaving the rest
to remain in the limbo to which they were consigned by the act
of executing the subsequent will or codicil or the making of the
other revocatory instrument. ,
In all the other states, no consideration appears to have been
given by the legislatures to the many and complicated problems
which can grow from the simple facts originally outlined for
twenty-four of the statutes, while containing some expression on
the subject of revocation, are utterly silent on the point of re-
vival. In those states, and even in the ones which do have stat-
utes but which statutes, as has been seen, are not complete On
all points, there is considerable work left for the judicial depart-
ment to perform before ready answers can be found to all of the
questions which might be raised. It is, therefore, necessary to
turn to the judicial decisions to ascertain what answers might
there be provided to either the fundamental aspects of the prob-
lem of revocation and revival or to the many collateral ones
introduced by partial, and often imperfect, legislative treatment
of the subject.
To be continued

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Chicago-Kent Law Review

Volume 25 Issue 3 Article 2

Revocation and Revival of Wills

Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview

Part of the Law Commons

VOLUME 25 JUNE, 1947 NUMBER 3

REVOCATION AND REVIVAL OF WILLS

T HIE UNINFORMED laymen may think that the existence of a

least of which, of course, is whether the earlier will may be pro-

recognize that the modern last will and testament is really a

I. REVOCATION AND REVIVAL IN ENGLAND

revocation was sufficient 7 although the same result might be ac-

Inasmuch as the earlier instrument sought to be revoked

illustrated by the decision of the Prerogative Court in Helyar v.

While these precedents were being established in the ecclesi-

ence, if that fact was not entirely overlooked. 1 Nowhere does

It is a trifle inconsistent to say that the earlier will is not re-

The resulting confusion from these conflicting views, a con-

or revoked2" under circumstances indicating only a conditional

subsequent instrument was duly executed. It might also be noted

will of 1929, referring to it by date, and concluded with the state-

Court, in response to an inquiry propounded by the Chancellor,

had executed a will in 1825 which remained uncancelled at the

42 9 Moore P. C. 131 at 148, 14 Eng. Rep. 247 at 254.

and be probated together for there was nothing in the second or

will was not operative as to the property therein referred to since

II. REVOCATION AND REVIVAL UNDER AMERICAN LAW

Every one of the states in the United States, as well as the

noteworthy exceptions. The Oregon statute appears to be wholly

1. Revocation by Subsequent Will

tory language, following reference to some "other" writing, al-

tion of the former one, being inconsistent in all points by com-

In those states, and in Louisiana and Illinois," 2 express declara-

tion of intention to revoke is, of course, highly essential if such

thereto. 6 Such codicil must necessarily be in writing and, typi-

like essential if an "other writing" is used. The formal require-

3. Revocation by Other Writing

executed with at least the full formalities required for either a

Some of the unsolved difficulties posed under statutes dealing

admittedly revoked, may be revived. In that respect, statutes

utes,sG have indicated that the due execution of a subsequent will

publishing the original revoked will, for eighteen of the statutes

elements of signing, sealing, attestation and the like should not

life by the very sort of parol testimony which originally caused

added since the testator is permitted to revive such parts of his

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