S. REVOCATION. The mode of revocation of a will provided in the Statute of Frauds, Car. II., is by "burning, cancelling, tearing, or obliterating the same." ln the present English Statute of Wills, the terms used are, " burning, tearing, or otherwise destroying." If the testator has torn off or effaced bis seal and signature at the end of a will, it will be presumed to have been done anima revocandi. I Add. Eccl. 78 ; 1 Cas. temp. Lee, 444 ; 3 Hagg. Eccl. 568. So, too, where lines were drawn over the name of the testator. 2 Cas. temp. Lee, 84. So, also, where the instru ment had been cut out from its marginal frame, although not otherwise defaced, except that the attestation clause was cut through, it was held to amount to a revocation. 1 Phill. Eccl. 375, 406.
It is not requisite in order to effect the re vocation that the testator should effect the Lestruction of the instrument. It is sufficient ..f he threw it upon the fire with the intention of destroying it, although some one snatch it off after it is slightly burned, and preserve it without his knowledge. 2 W. Blackst. 1043. But it would seem that it must be an actual burning or tearing to some extent,—an in tention merely to do the acts not coming within the statute. 6 Ad. & E. 209 ; 2 Nev. & P. 615. But, aside from the statute, a mere intention to revoke evidenced by any other act, will be effectual to revoke as burn ing or tearing, etc. 8 Ad. & E. 1. How much the will must be burned or torn to con stitute a revocation under the statute of frauds, was left by the remarks of the differ ent judges in Doe v. Harris, supra, in per plexing uncertainty. 1 Williams, Ex. 121.
If the testator is arrested in his purpose of revocation before he regards it as complete, it will be no revocation, although be tore the will to some extent. 3 Barnew. & Ald. 489.
A will may be revoked in part. 2 Roh. Eccl. 563, 572. But partial revocations which were made in anticipation of making a new will, and intended to be conditional upon that, are not regarded as complete until the new will is executed. 1 Add. Eccl. 409 ; 2 id. 316. See 8 Sim. Ch. 73.
9. By the present English statute, every obliteration or interlineation or alteration of a will must be authenticated in the same mode that the execution of the will is required to be. Hence, unless such alterations are signed
by the testator, and attested by two witnesses, they are not to be regarded as made, however obvious the intention of the testator may be. But if the words are so obliterated as to be no longer legible, they are treated as blanks in the will. 3 Curt. Eccl. 761. The mere act of defacing a will by accident and without the intention to revoke, or under the misap prehension that a later will is good, will not operate as a revocation. 1 P. Will. 345 ; Cowp. 52 ; 1 Saund. 279 b, c ; Swinburne, Wills, pt. 7, 16, pl. 4; 1 Add. Eccl. 53. The ' revocation of a will is prima facie a revoca tion of the codicils. 4 Hagg. Ecel. 361. But it is competent to show that such was not the testator's intention. 2 Add. Eccl. 230 ; 1 Curt. Eccl. 289 ; 1 Williams, Ex. 134. The same capacity is requisite to revoke as to make a will. 7 Dan. Ky. 94 ; 11 Wend. N. Y. 227 ; 9 Gill, Md. 169 ; 7 Humphr. Tenn. 92.
The making of a new will purporting on its face to be the testator's last will, and con taining no reference to any other paper, and being a disposition of all the testator's pro perty, and so executed as to be operative, will be a revocation of all former wills, not withstanding it contain no express words of revocation. 2 Curt. Eccl. 468; 18 Jur. 560; 4 Moore, Parl. Cas. 29. So the appointment of an executor is a circumstance indicating the exclusiveness of the instrument. 1 Macq. Hou. L. 163, 173. And the revocation will become operative, notwithstanding the second will becomes inoperative from the incapacity of the devisee. I Pick. Mass. 535, 543.
W44ere there are numerous codicils to a will, it often becomes a question of difficulty to determine how far they are intended as additions to, and how far as substitutes for, each other. In such cases, the English ec clesiastical courts formerly received parol evidence to show the animus of the testator. But it was held, in a recent case of this kind, that parol evidence could not be received unlesS there was such doubt on the face of the papers as to require the aid of extrinsic evidence to explain it. 2 Curt. Eccl. 799.