CANCELLATION. The act. of crossing out a writing. The manual operation of tearing or destroying a written instrument; 1 Eq. Cas. Abr. 409.
The statute of frauds provides that the revocation of a will by cancellation must be by the "testator himself, or in his presence and by his direction and consent." This pro vision is in force in many of the states; 1 Jarm. Wills (3d Am. ed.) *113 n. In order that a revocation may be effected, it must be proved to have been done according to the statute; Delafield v. Parish, 25 N. Y. 79; Heise v. Heise, 31 Pa. 246 ; Spoonemore v. Cables, 66 Mo. 579; Barker v. Bell, 46 Ala. 216 ; declarations of a testator are not suffi cient; Lewis v. Lewis, 2 W. & S. (Pa.) 455; Wittman v. Goodhand, 26 Md. 95 ; Jackson v. Kniffen, 2 Johns. (N. Y.) 31, 3 Am. Dec. 390.
Cancelling a will, anintotrevocandi, is a revocation ; and the destruction or oblitera tion need not be complete; 3 B. & Ald. 489; Avery v. Pixley, 4 Mass. 462; Card v. Grin man, 5' Conn. 168; Burns v. Burns, 4 S. &R. (Pa.) 567. It must be done animo revocandi.; Schoul. Wills 384; Wolf v. Bollinger, 62 368 ; 'Dickey v. Malechi, 6 Mo. 177, 34 Am. Dec. 130 ; and evidence is admissible to show with what intention the act was done; Jack son v. Holloway, 7 Johns. (N. Y.) 394; Hatch v. Hatch, 9 Mass. 307, 6 Am. Dec. 67 ; Bots ford v. Morehouse, 4 Conu. 550 ; Corliss v. Corliss, 8 Vt. 373 ; Tomson v. Ward, 1 N. H. 9; Burns v. Burns, 4 S. & R. (Pa.) 297; Bates v. Holman, 3 Hen. & M. (Va.) 502; Carroll's Lessee v. Llewellin, 1 Harr. & McH. (hid.) 162; 4 Kent 531; Collagan v. Burns, 57 Me. 449 ; Herring v. Allen, 25 Mich. 505; Durant v. Ashthore, 2 Rich. (S. C.) 184 ; Patterson v. Hickey, 32 Ga. 156. Accidental cancella tion is not a revocation; Smock v. Smock, 11 N. J. Eq. 156. Where the first few lines of a will were cut off, the remainder, which was complete, was admitted to probate; L. R. 2 P. & D. 206. Partial cancellation, with proof of animus revocandi, will revoke a will; Bohanon v. Walcot, 1 How. (Miss.) 336, 29 Am. Dec. 631; and when more than one-third of the items were cancelled, leav ing the remainder unintelligible and repug nant, the will was held to be revoked; Dam mann v. Dammann (Md.) 28 Atl. 408. Where the testator wrote on his will "This will is invalid," held a revocation; Witter v. Mott, 2 Conn. 67.
Cancellation by an insane man will not revoke a valid will; In re Forman's Will, 54 Barb. (N. Y.) 274; Ford v. Ford, 7 Humphr. (Tenn.) 92. See Laughton v. Atkins, 1 Pick. (Mass.) 535; Farr v. O'Neall, 1 Rich. (S. C.) 80.
In Louisiana it requires a written instru ment executed with formalities to revoke a will, hence placing it among waste paper and refusal to receive it after attention was called to it, and an unsuccessful attempt to make a new will, were held to be no can cellation; Succession of Hill, 47 La. Ann. 329,
16 South. 819.
There may be a, partial obliteration, which works a revocation pro tanto; Clark v. Smith, 34 Barb. (N. Y.) 140 ; Bigelow v. Gillott, 123 Mass. 102, 25 Am. Rep. 32 ; Wolf v. Bolling er, 62 Ill. 368; Giffin v. Brooks, 48 Ohio St. 211, 31 N. E. 743 ; and a careful interlinea tion is not a cancellation ; Dixon's Appeal, 55 Pa. 424. A cancellation by pencil is enough ; 2 D. & B. 311; 6 Hare 39; L. R. 2 P. & D. 256; Estate of Tomlinson, 133 Pa. 245, 19 Atl. 482, 19 Am. St. Rep. 637. Where a will is found among a testator's papers, torn, there is a presumption of revocation; Beau mont v. Keim, 50 Mo. 28; In re Johnson's Will, 40 Conn. 587; Idley v. Bowen, 11 Wend. (N. Y.) 227. Where after a person's death a will is found in an unsealed envelope which had been in his possession up to the time of his death and with lines drawn through his signature, the presumption is that he him self drew the lines for the purpose of re voking the will ; In re Philp, 64 Hun, 635, 19 N. Y. Supp. 13.
Perpendicular marks across a will are not "handwriting ;" In re Hopkins, 172 N. Y. 360, 65 N. E. 173, 65 L. R. A. 95, 92 Am. St. Rep. 746.
Mere cancellation of a deed does not di vest the grantee's title ; Devlin, Deeds 300, 305; Holbrook v. Tirrell, 9 Pick. (Mass.) 108; Fawcetts v. Kimmey, 33 Ala. 264; Botsford v. Morehouse, 4 Conn. 550; National Union Bld'g Ass'n v. Brewer, 41 Ill. App. 223; even though done before recording; Hall v. McDuff, 24 Me. 312; but .it might practically have that effect between the parties by es toppel; Sawyer v. Peters, 50 N. H. 143; or by reason of the destruction of the only evi dence of the transaction ; Blaney v. Hanks, 14 Ia. 400; Parker v. Kane, 4 Wis. 12, 65 Am. Dec. 283.
On a bill in equity for the re-execution of lost secutlties, which were held by a dece dent in his lifetime and after his death were not found among his papers, a party alleg ing their destruction or cancellation by the decedent is bound to prove the fact to the satisfaction of the court. The absence of the papers raises no presumption of such destruction or cancellation ; nor is mere proof of an intention to destroy or cancel, or of the declaration of such intention, alone sufficient ; Gilpin v. Chandler, 2 Del. Ch. 219.
In the case of an insurance policy after death, the remedy of the company for fraud, etc., is at law by way of a defence to a suit on the policy ; a bill in equity will not lie for revocation in the absence of special facts; Riggs v. Ins. Co., 129 Fed. 207, 63 C. C. A. 365.
See DEED; INSURANCE; WILL; LOST IN STRUMENT; REVOCATION.