HIGH COURT OF ERRORS AND APPEALS

OF PENNSYLVANIA.

JULY SESSION, 1792.

LAWSON, appellant, v. MORRISON et al., appellees.

Revocation of will.

A will, revoked by the execution of a subsequent one, but not cancelled, is, in general, re-estab lished by the cancellation of the subsequent will.

The fact of the execution of a second will, not found at the decease of the testator, and the contents of which are not shown, is not, ipso facto, the revocation of a former one; to have that effect, its existence must be shown, at the death of the testator, or that he cancelled the latter will, with an intent to die intestate.

APPEAL from a sentence of the register of wills, &c., and two justices of the common pleas for the county of Cumberland. The case had been argued in July 1789 (before the present organization of the judiciary department under the existing constitution), and afterwards in October 1792, by Brad ford and Ingersoll, for the appellant, and by Lewis, for the appellees.

The facts on which the appeal arose were as follows: A written paper, purporting to be the will of Janet Morrison, dated the 19th of October 1775, was exhibited for probate to the register of wills, &c., on the 19th of October 1786. A caveat was entered by the appellant, against admitting it to be proved, alleging that the testatrix had made a later will, which expressly revoked the former will; and that the latter will had not been cancelled or destroyed, although it could not be found after her death. The will of October 1775, was however, established, by the sentence of the register's court; from which sentence, the present appeal was brought; and new evidence was given in this court.

On the record and evidence, it appeared, that Janet Morrison had a will written, before this of 1775, by Oliver Anderson, which former will was duly executed. The same scrivener wrote this will. He afterwards wrote another will, in 1777, and a fourth will, about the latter end of the year 1779. The testatrix destroyed the first will, when the will of 1775 was executed, and also that of 1777, when she executed the will of 1779. In the last will, the scrivener (who was a witness) believes there were words revoking all former wills, and *that he had usually inserted such a clause in all the *287] wills he wrote; and John Ray, a subscribing witness to the will of 1779, swears, that, when it was executed, the testatrix declared it to be her last will, and that she revoked all former wills. The legatees were generally

1792]

COURT OF ERRORS AND APPEALS.

Lawson v. Morrison.

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the same, in the wills of 1775 and 1779: but the legacies were larger in the last, on account of the then depreciated state of the paper bills of credit emitted by congress. The will of 1779 had been delivered to the testatrix, about ten days before her death, by a Mrs. Linn, whom she had sent for it, to Oliver Anderson, who then had both wills in his custody; but the will of 1779 had not been seen afterwards. James Lawson, the appellant, was the eldest son of James Lawson, an only brother of the testatrix, who had no sister; but her brother had two other sons, named Thomas and Francis, and no other descendants. The testatrix had induced her nephew, James, to come from Ireland to Pennsylvania, with his family, some years before her death, and about a week before that event, received them, with their effects, into her house, and a few days after she had obtained the will of 1779, from Oliver Anderson. For some weeks before her death, she expressed great kindness for the appellant, and frequently said, "all her estate must be his." But when the will of 1779 was executed, the one of 1775 was not cancelled; because the testatrix was then out of humor with the appellant, and she was afraid less the will of 1779 might get into his hands, or be lost; and in such case, she desired Oliver Anderson to produce the will of 1775, as he deposed.

Upon this statement, the question arose-whether the will of 1779 (whose contents did not appear, but from the deposition of Oliver Anderson), was a revocation of the will of 1775?

For the appellant, two propositions were stated, and the corresponding authorities cited: 1st. That the will of 1777 was a revocation of the will of 1775, in act, as well as intention, either of which is sufficient. Moore 177; 3 Mod. 260; Dyer 143; Off. of Ex. 20; Swinb. 15, 525; Cowp. 90; God. Or. Leg. 51, 54; Cro. Jac. 115; 1 Roll. Abr. 614; 2 Eq. Abr. 771. 2d. That the mere cancelling of a later will, much less the mislaying or loss of a later will, is not a revival of a former will: the cancelling may be done with a view to die intestate; and the mislaying may be accidental; and the will of 1777, being in writing, can only, by the act of assembly, be annulled by writing. 3 Atk. 799; Doug. 36; Cowp. 49; 1 P. Wms. 343, 345; 4 Burr. 2513; Lofft 465, 470; Pow. Dev. 534, 535; 1 Dall. Laws, 53, § 2, 6.

For the appellees, the case was considered in various points of view. 1st. Does the law of Pennsylvania permit the revocation of a will by parol, or must it be in writing? The act of assembly declares that it shall be in writing. 1 Dall. Laws, 55, § 2, 6. In England, it is true, a will might *have been altered by parol; but it must have been express, [*288

not intentional, in the present, and not in the future, tense. God. Or. Leg. 51, 54; Swinb. 531; Cro. Jac. 115. The evidence here is not positive; it is mere supposition, that the will of 1777 in express terms revoked all former wills. 2d. Is the act of making a subsequent will (even where its contents are unknown), sufficient, in itself, as a revocation of a former will? The authorities directly disaffirm the position, where the subsequent will does not alter the whole disposition of the estate; and if the same solemnities are necessary to revoke, which are required to make a will, there is not, in the present case, proof by two witnesses of the contents of the will of 1777. Besides, the paper called a subsequent will, does not

Lawson v. Morrison.

appear to be more than a codicil, as it is not proved that any executors were constituted; and both might, therefore, stand together. There is no proof that the latter will disposed of the personal estate differently, but only that it increased the legacies. Perk. 179; God. Orph. Leg. 53, 12-3; Cro. Eliz. 721; Pow. Dev. 538; Swinb. 532; Cro. Eliz. 721; Cro. Car. 23-4; 1 Show. 537, 534; Salk. 592; Show. P. C. 149; Hard. 375; Cowp. 87-8; 3 Wil. 497; s. c. 2 W. Bl. 937. 3d. Does the destruction of the later, revive the former will? The intention of the party is undoubtedly material upon this question. The testatrix sent for the will; but whether she cancelled it, with a view to die intestate, or James Lawson destroyed it, with a view to claim the whole estate as heir-at-law, can only be explained by the circumstances; and there is one circumstance that is strong indeed, to show that she never meant to give to him the whole; namely, that James Lawson had arrived in Cumberland county, before the making of the latest will, and yet she therein bequeathed to other persons, legacies to a considerable amount. The cancelling of a later will, under circumstances less forcible, has been deemed the revival of a former one. 4 Burr. 2512. 4th. Is there any difference between the revocation of a will, in Pennsylvania, and in England, since the statute of frauds and perjuries? The doctrine in the act of assembly (1 Dall. Laws, 640) is the same as the doctrine in the statute 29 Car. II., c. 3, and the effect should be equally uniform.

For the appellant, in reply.-All the cases cited by the opposite counsel, relate to real estate in England, subsequent to the statute of frauds and perjuries. But our position is, that a subsequent will or testament does, of itself, revoke all prior wills of personal estate. A later testament, says

Swinb. 15, always infringes a former one; but a codicil is different; and the distinction between a testament and will is established in Cowp. 90. The present will was not found (nor was any other will found) in the

*possession of the testatrix; and the presumption, therefore, is, that *289] she cancelled the will of 1777, with an intention to die intestate.

CHEW, President, delivered his opinion, in general terms, in affirmance of the sentence of the register's court.

MCKEAN, Chief Justice.-There has been no case or precedent cited, which comes up to this, in all its parts; but there are several cases, which depended upon the same principle.

Before the statute of 29 Car. II., c. 3, wills, in England, might be revoked by any express words, without writing; and so it was in Pennsylvania, until altered by positive law; but in England, since that statute, and in Pennsylvania, since the act of assembly of the 4th of Anne, "concerning the probates of written and nuncupative wills, and for confirming devises of lands," wills of lands must be revoked by writing, accompanied with solemnities similar to those necessary for making the wills. Here, later wills of lands, or a writing, revoking a former will, must be proved by two or more credible witnesses; and no testament, or will in writing, for personal estate, can be revoked by words, except the same be committed to writing and read to the testator, and allowed by him, and proved by two witnesses at least. Besides these actual revocations, there are other acts of the testator, which have always been considered as revocations, because contrary to, or incon

Lawson v. Morrison.

sistent with, the will, and evidencing an alteration of intention; as a deed in fee; or a lease for years to the same devisee, to commence after the testator's death; a subsequent marriage and birth of a child; cancelling, obliterating or destroying the will, and such like. These are termed, “implied, constructive, or legal revocations," and still subsist as they were before the act of assembly, or the statute of frauds. Cro. Jac. 49; Carth. 81. But all presumptive revocations may be encountered by evidence, and rebutted by other circumstances. Cowp. 53; Doug. 37.

It has been often determined, that a will, revoked by a subsequent will, but not cancelled, was re-established by the cancellation of the subsequent will. 1 Show. 537; Show. P. C. 1461; 1 Wils. 345; 2 Vern. 741; s. c. Prec. Chan. 459; s. c. 4 Burr. 2512; Cowp. 86, 92; Doug. 40; 2 W. Black. 937; 3 Mod. 204; Salk. 592.

There are, however, some particular circumstances, in this case, besides the general question. It appears, that the appellant had lived in the neighborhood of the testatrix, when she made the will of 1779; that the legatees in that will were chiefly the same as in the present, but some legacies were larger, on account of the money being then depreciated, and that Oliver Anderson was expressly requested by the testatrix to take care of the will of 1775, left the last *should get into the hands of the appellant, or [*290 be lost. On the other hand, it does not appear what became of the will of 1779, after it was sent and delivered to the testatrix, whether it was destroyed by her, or any other person-but it cannot be found. It does not appear, wherein the will of 1779 differed from the present one, nor what alteration was thereby made in particular, only that there were partial alterations, and there were no executors named in it.

In this view of the case, I am of opinion, that the mere circumstance of making the will of 1779, is not virtually a revocation of the former, the contents being unknown, and it not appearing to have been in esse at her death, but rather the contrary, and that she had cancelled or destroyed it. No other person was interested in its destruction, from anything I can discover, except the appellant or his brothers, who were not in America; and charity will induce a presumption, that she herself destroyed it. If this is the fact, the first will is not thereby revoked, as neither could be complete wills, until the death of the testatrix, and her destroying it had the same effect as if it never existed, unless it had been clearly proved, that she did it with an intention to die intestate. Should a contrary opinion hold, to wit, that the first will was revoked, at the instant the second was executed, yet the cancelling of the second by the testatrix herself, is a revival of the first, if undestroyed. Harwood v. Goodright, Cowp. 92.

Here is a good subsisting will properly attested: There is no way to defeat it, but by proving it was revoked by another will, subsisting at the death of the testatrix, or that she cancelled the later will, so revoking all former ones, with a mind to die intestate. And as the appellant has failed in such proof, I concur with the president, that the will of 1775 must stand; and that the sentence of the register's court be affirmed, with double costs. THE COURT Concurring, the sentence of the register's court was, accordingly, affirmed, with double costs. (a)

(a) See Boudinot et al., Executors, v. Bradford, ante, p. 266.

*AUGUST SESSION, 1791.

HANNUM et al., Plaintiffs in error, v. SPEAR, Defendant in error.

Lien of decedents' debts.—Sale under power.

The lien of a decedent's debts is not discharged, by a sale under a power, for the payment of legacies.

Spear v. Hannum, 1 Yeates 380, reversed.

THIS was a writ of error from the supreme court, founded on a bill of exceptions, taken at nisi prius, in Chester county, on a trial before MCKEAN, Chief Justice, and Justice YEATES.

The question arose on the will of Elizabeth Ring, who had given power to her executors to sell lands, for payment of legacies; and on the argument two points were made: 1st. Whether the power to sell, given by the will, was, in fact, for the payment of debts, or of legacies? And 2d. Whether by the laws of Pennsylvania, the creditors of the testatrix had such a lien on her lands, as could not be defeated by the sale, which the executors had made, by virtue of the power in the will?

The counsel for the plaintiff in error (Lewis, E. Tilghman, McKean and Ross) cited the following authorities: 1 Dall. Laws, app. 26, ch. 51; Ibid. p. 28, ch. 109; Ibid. p. 29, ch. 189; Ibid. p. 32; Penn. Laws, Weiss's Edit. p. 6, pl. 109; Ibid. p. 9, pl. 14; Ibid. p. 10, pl. 4; 1 Dall. Laws, app. 43, 47; 3 Ibid. 521.

The counsel for the defendant in error (Ingersoll and Wilcocks) cited the following authorities: Bac. Law Tr. 93; 2 Bl. Com. 378; 2 Woodes. 348; Cowp. 90; 21 Vin. 505, pl. 1; 3 & 4 Wm. & Mary, c. 14 (a); 2 Ves. 590; Ambl. 188; Gilb. Ch. 330; 2 Ves. 587; Prec. in Ch. 397; Cha. Ca. 249; 1 Dall. Laws, 12, 67; Ibid. in App. p. 45, § 8; 1 Dall. 481; Lov. on Wills, 190, 213.

THE COURT delivered their opinion, seriatim, to the following effect. CHEW, President.-The question turns upon the power to sell lands, contained in the will of Elizabeth Ring. If the *power had been to sell *292] for the payment of debts, I should incline to the opinion, that the purchaser held the lands discharged from the debts. It has been the constant usage (and usage is the best interpreter of the laws), to give, by will, the power to sell lands, for the payment of debts. The titles of purchasers under such powers, have never heretofore been called in question; and they ought not now to be undermined. But in the present instance, the power was only given by the testatrix to sell the lands, for the payment of legacies : the executor, in selling them for the payment of debts, has assumed a power, which is not given by the will; and if they were sold, with a view to the payment of legacies, the purchaser has no defence against creditors. I am,

(a) But Ingersoll observed, that the statute of W. & M., c. 14, did not extend to Pennsylvania; and neither the court, nor the opposite counsel, contradicted the asser

tion.