
    Barksdale v. Barksdale.
    March, 1842,
    Richmond.
    (Absent Alijen, J.)
    Wills of Personalty — Revocation—Case at Bar. — Testator, in 1838, made a will, all written with his own hand, whereby he gave 30,000 dollars to his sister, 5000 dollars to S. S., and the residue of his estate to his father ; in 1839, he signed another instrument, whereby, revoking all other wills before made, he gave T. Y. T. 5000 dollars, and the residue of his estate to his father, but this last paper was not written by him, and it was not duly attested according to the statute of 1834-5. Held, the clause of revocation in the instrument of 1839, was not independent of the dispositions contained in it, so as to operate as a substantive declaration in writing revoking the will of 1838, but the revocation was made with a view to the new dispositions, and those being void for want of due attestation, the revocation is a nullity.
    Same — Same — Construction of Statute — Quere. — Whether the statute of 1834-5 does not repeal the 9th section of the statute of wills touching revocations of wills of personalty ? Two judges held that it did, and the other two gave no opinion on the point.
    William Barksdale made a will, dated the 4th June 1838, in the following words — “In the name of God, Amen. I William Barks-dale of the county of Amelia, in the state of Virginia, do ordain this writing, written with my own hand this 4th day of June 1838, to be my last will and testament, hereby revoking all *others whatsoever. I give and bequeath to my eldest sister, Frances P. Barksdale, 30,000 dollars. I give and bequeath to Susan Stott, 5000 dollars. All the rest and residue of my estate, whether real or personal, I bequeath to my father William Jones Barks-dale of Clay Hill, Amelia. I also appoint him my. sole executor: it is my will and desire, that my executor give no bond and security for the trust reposed in him. In witness whereof I have hereunto set my hand and affixed my seal the day.and year above written.” Signed and sealed by the testator.
    At the July term of the general court, 1840, this will was propounded for probat by the legatee Frances P. Barksdale, an infant by Thomas Giles her next friend; and it was proved, that the will and the testator’s signature was wholly written with his own hand.
    William Jones Barksdale, the father, heir at law and distributee, of the decedent, opposed the probat, and produced in court another instrument of writing, dated the 2nd November 1839, purporting to be the last will and testament of the decedent, in the following words: “I William Barksdale of Amelia county, state of Virginia, being in feeble health though of sound mind, revoking all other wills and testaments which I may previously have made, do make this my last will and testament as follows, to wit: In the first place, all my debts must be paid. In the second place, I give and bequeath to my friend Thomas Y. Tabb of Amelia county 5000 dollars, to be paid by my executor hereafter named on demand at any time after the expiration of two years after the date, hereof. In the third place, I give and bequeath to my honoured father William Jones Barksdale of Amelia, all the remainder of my property, whether real or personal, including all bonds and other debts due to me. I constitute my friend Gustavus Myers of &c. my sole executor of this my last will and testament. Given under my hand and seal at the Hot Springs, this *2nd day of November 1839.” Signed and sealed by the decedent, and witnessed by S. Ford.
    The subscribing witness, Ford, deposed, that he wrote the will for the decedent, who signed, published and declared the same as and for his last will and testament in the presence of him the witness; he believed the decedent was at the time of perfect sense and memory; and he subscribed his name as a witness in the decedent’s presence : that the decédent, being then ill at the Hot Springs, requested the witness to write his will, saying, that he had left a will at home, but he did not believe it to be such a one as he ought to have made, inasmuch as he believed it to be wholly in discord with what he was convinced had been his grandfather’s wishes and intentions when he left him his legacy, and inasmuch as the will he had previously made was inexpedient : that the decedent manifested great anxiety to revoke the old and to execute a new will, which the witness wrote for him, which he signed, which the witness witnessed on the 2nd November 1839, and which was the same paper now produced in court: and that the decedent, after the execution of this instrument, expressed very great satisfaction, in having done what he believed to be his duty, and what he considered, indeed, to be altogether right and proper: that the witness supposed, as he had often heard, that the legacy the decedent received from his grandfather amounted to 50,000 dollars. And it was agreed that the decedent died without having ever had any child, or been married; and that the only real estate he owned at the date of his will, or at the time of his death, was a small parcel of land of little value which his father had given him.
    The general court held that the instrument of writing of the 2nd November 1839, was not a revocation of the instrument of the 4th of June 1838, which was proved to be wholly in the handwriting of William Barksdale deceased: therefore, the court ordered, that the instrument *of the 4th June 1838 should be recorded, as the true last will and testament of the decedent.
    William Jones Barksdale applied to a judge of this court for a supersedeas to the sentence; which was allowed.
    The cause was argued here by G. N. and C. Johnson for the appellant, and Heigh for the appellee.
    It was agreed, that the paper of the 2nd November 1839 was not a will, since it was not executed according to the provisions of the statute of 1834-5, which requires wiils and testaments of personal estate to be executed with the like solemnities required for wills of real estate. But, as that statute makes no provision touching- the revocation of wills of personal estate, the question was, whether the clause of revocation in the instrument of the 2nd November 1839, could be abstracted from the instrument, so as to operate as a revocation under the 9th section of the statute of wills, 1 Rev. Code, ch. 104, p. 377, which provides, that !‘no will in writing, or any devise therein, of chattels, shall be revoked by a subsequent will, codicil or declaration, unless the same be in wi'iting?”
    1. It was argued for the appellant, that the revocation of a will was wholly different from the making of one; which was proved by the fact, that the English statute of wills provided one mode of making a will of real estate, and another mode of revocation of such a will; and, therefore, notwithstanding the act of 1835 as to the making of a will of personalty, the mode of revocation remained the same as it had been before that statute was made. And for the appellee it was insisted, that the statute of 1835 as to the making, was a repeal of the 9th section of the statute of wills as to the revocation, of a will of personalty.
    2. Taking the 9th section of the statute of wills to be still in force, the counsel for the appellant contended, *that the clause of revocation of all previous wills, contained in the instrument of the 2nd November 1839, might be abstracted from the paper, and was a declaration in writing by the decedent, which revoked the will of June 1838; and this the rather, because it appeared by the deposition of Ford, the subscribing witness, that the principal object of the decedent was to revoke the will of June 1838. The counsel for the ap-pellee said, that the clause of revocation could not be abstracted from the paper of November 1839, so as to operate as an independent declaration in writing; that clause being there inserted, only to remove the former will out of the way, and to give effect to the new testament: that a mere revocation was certainly not intended, since the decedent not only gave to his father by the last will what he gave his sister by his first, but he gave by the last 5000 dollars to Thomas Y. Tabb, which 5000 dollars he gave by his first to Susan Stott. The authorities cited were Eggleston v. Speke, 3 Mod. 258; Onions v. Tyrer, 1 P. Wms. 353; Ex parte Ilchester, 7 Ves. 348; Cogbill v. Cogbill, 2 Hen. & Munf. 467; Bates v. Holleman, 3 Id. 502; Hollyar v. Hellyar, 1 Phill. 430; Richardson v. Berry, 3 Haggard, 149; Eangton v. Atkins, 1 Pick. 541; Rob. on Wills, 251-5, 259, 366, and the English statute of frauds, 29 Car. 2, ch. 3, $ 5, 6, inserted in Appendix Rob. on Wills, p. 501.
    
      
      Wills — Testamentary Revocation — Declaratory Revocation — Distinction between. — The principal case is cited with approval in Dower v. Seeds, 28 W. Va. 131.
    
    
      
       Wills of Personalty — Revocation—Construction of Statute. — The principal case is cited with approval in Dower v. Seeds, 28 W. Va. 136.
    
   BALDWIN, J.

The case presented for our consideration, is one in which the testator disposed of his whole estate, real and personal, by a will executed with all due legal solemnities, but the probat of -which is resisted by his sole heir and dis-tributee, on the ground that it was subsequently revoked by an instrument in the form of a last will and testament, and intended to operate as such, b°y which the testator devised and bequeathed his whole estate, real and personal, with an express revocation of all former wills. The last mentioned paper is ^'ineffectual as a will, not having been executed with the solemnities required by law, and has not been .propounded as such, but is relied upon in opposition to the former will as a valid written revocation.

I deem it unnecessary to enquire whether, since our statute of 1835, intended to place the making of wills of personalty upon the same footing as wills of realty, a revocation of them can be effected by any declaration in writing, which would not be effectual for that purpose in relation to a will of lands. The obvious convenience and policy of extending the provisions of the statute to revocations, render it highly probable that the omission to do so is attributable to inadvertence. Whether the omission can be supplied by a construction of the statute according to its spirit, is rendered a matter of difficulty by the interpretation given to the English statutes of 32 and 34 Hen. 8, 29 Car. 2, ch. 3, and 12 Car. 2, ch. 12. See 1 Rob. on Wills 193; 1 Wms. on Ex’ors 79, 90. Waiving, in this case, that broad enquiry, it will be sufficient for my purpose to consider whether a clause of revocation can be valid, which is found, as in the present case, in an invalid will.

Upon the concession, that the provisions of the statute of 1835 are applicable only to the making and not to the revocation of wills, we must look to, and be governed by, the pre-existing law in relation to written revocations of wills of personals. This we find in the revised act of 1819, 1 Rev. Code, ch. 104, $ 9, p. 377. The law is in these words: “No will in writing, or any devise therein, of chattels, shall be revoked by a subsequent will, codicil, or declaration, unless the same be in writing.”

There are two modes of written revocation contemplated by the law just quoted, one by a will or codicil in writing, the other by a declaration in writing. For the sake of distinction, the first may be called a testamentary revocation, and the last a declaratory revocation. *It is true, the declaratory revocation may assume the shape of a last will and testament ; but that is mere matter of form, if the paper be not also testamentary in its nature. The distinction between the two modes of revocation is not formal, but essential. In the testamentary revocation, the testator contemplates a new disposition of his property, and the revocation may be implied from inconsistency in the provisions of the two instruments, in which case it is a matter of comparison and construction ; or it may be express, in order that the testator may do his new testamentary work without being in any wise fettered by the contents of his former will. The declaratory revocation, on the other hand, is always express, is not a matter of comparison and construction, and is in contemplation by the testator of that disposition of his property made by the law governing in cases of intestacy.

In every testamentary revocation, the testator always acts upon the supposition that his whole purpose will be accomplished, that his entire testamentary act will be effectual, as well in regard to the new disposition of the subject, as the revocation of that which he had made by the former instrument; and his revocation- is in fact part and parcel of his new testamentary action. This is manifestly true in relation to implied testamentary revocations; and, if not so obviously, it is to my mind equally true, in relation to those which are express. That the testator should ever proceed upon the hypothesis of the invalidity of the instrument which he employs to effectuate his object, is beyond my conception; nor can I conceive, when he makes a new disposition of his property, and eodem flatu a revocation of a formhr disposition of it, how he can do so with any other expectation than that both will share the same fate. It seems to me necessarily to follow, that the invalidity of the instrument, which defeats the new disposition of his property, must also defeat the revocation of the former instrument.

*It has been argued, however, with great ingenuity and force by the appellant’s counsel, that the statute does not require that an express revocation must necessarily be by last will and testament; that any written declaration is sufficient for the purpose; that here we have such a declaration, and though we find it in a paper intended to operate as a last will and testament, which is nugatory as such, not having been written altogether by the testator, nor attested by two witnesses, yet that still it is a declaration in writing, which is all that the statute requires, and as such is unquestionable on the score of validity. All this I admit, upon the supposition of its having been shewn that the revocation contemplated by the testator was not a subsidiary conditional exercise of power, but an independent substantive act, without reference to the character of the instrument employed, and unaffected by the new disposition thereby made of his estate. But this, in my opinion, has not been shewn; and it seems to me, in the nature of things, cannot be shewn. How can we know, that the testator contemplated the revocation as effectual, though the testament itself should be unaccomplished? How could such an expectation exist, without a probability, in his mind, that his testament would prove abortive? and who ever made his last will and testament under the influence of such a belief?

In a case like this, no argument to prove the revocation substantive and independent, can, to my apprehension, avail any thing, unless it goes the length of proving that the testator intended to die intestate, which is impossible here, it being directly in the teeth of the testamentary provisions of the instrument. Any argument short of this, can only tend to raise a probability that the testator would have preferred, if the question had been presented to his mind, a total intestacy to the establishment of his former will. Nor would the argument be legitimate, as I conceive, even to that extent; *for it must be founded, in the main, upon the testamentary pro-1 visions of the last will. Now, though a regard to those provisions is perfectly proper, when we treat them and the revocation as one entire testamentary act, to stand or fall together, how can it be proper when we look to the revocation as separate and distinct, and of- substantive and independent force and efficacy? If the whole instrument is to be considered a nullity for want of the solemnities required by law, we need look no further. But how can an argument in support of the validity of a part of it only, be derived from the testator’s supposed intention as disclosed by other parts wholly invalid? Surely, no change of intention on the part of the testator can be inferred from the testamentary provisions of a will, which is void because not executed in the manner prescribed by law. 1 Rob. on Wills, 211, 212.

In my view of the subject, this being a question of express revocation, it would be wholly immaterial, whether the provisions of the will of 1839 were consistent or inconsistent with the provisions of the will of 1838. If the former, then the testator could had no design to abrogate the first will until the last was made effectual: if the latter, then his only purpose must have been to make a change of or amongst the objects of his testamentary bounty. In neither case could it have been his intention to die intestate, which would be the direct result of tearing the revocatory parenthesis from the inanimate paper of 1839, and giving it distinct vitality. Besides, no man, I should think, ever made provision bj' last will and testament for dying intestate. If such had been the testator’s design, he would have torn up the will of 1838 or thrown it into the fire, or if out of his possession and control, would have simply executed a naked instrument of revocation.

Thus, though I grant and invoke the testator’s intent upon this as on any other testamentary question, yet*that intent, it must be admitted, is to be sought for only in legitimate sources, and is to be found, not in our speculations upon his probable wishes in regard to the transmission of his property, but in that deliberate and solemn authentication of them which the law, in its matured wisdom, has prescribed. Those wishes are often defeated by negligence or accident, and even by those guards which the law has thrown around the testator for his safety and the protection of the testamentary power itself; but, upon the whole, are best subserved and fulfilled by the uniformity and certainty which the required solemnities afford. I cannot, therefore, give any weight to the arguments employed to shew, that the testator’s heir at law was ultimately the chief, though originally the secondary, object of his bounty; whether those arguments be founded upon the devises in the imperfect will of 1839, or the parol evidence (if admissible at all) of the testator’s verbal declarations. One thing is certain, that to abrogate the perfected will of 1838, would transcend (to what extent cannot affect the principle) the testator’s unauthenticated desires in behalf of his heir at law, inasmuch as the effect would be to make him the sole, instead of the principal, beneficiary, to the exclusion of other objects of his regard, whether we look to the provisions indicated by the will of 1838, or by that of 1839.

I do not perceive, that the appellant’s cause can acquire any aid from the supposed analogies derived from the doctrines of virtual revocations, founded on changes in the condition of the devisor or the subject devised, and the revocatory efficacy, in regard to the latter, of imperfect acts and instruments. 'Those are common law doctrines, existing as well before as since the various statutes of wills, and resting on maxims which have no application, so far as I can discern, to express revocations. Pow. on Dev. 420. If my memory serves me, they were mainly relied on for the purpose of illustrating *the proposition, that revocation, and whether absolute or conditional, is a question of intention ; a proposition which is not denied.

The foregoing view of the subject upon principle, seems to me to be adequately sustained by authority. In order to see the full force and application of the adjudged cases, it must be borne in mind, that we can gain no light from the English adjudications upon their statute in r&lation to the revocation of wills of personals, (29 Car. 2, c. 3, $ 22,) the ecclesiastical law, which governed the making of such wills there, requiring no higher solemnities; that no similar question could arise here, in regard to revocations of devises of lands since our statute of wills, which placed such revocations and devises upon the same footing; and that we must, therefore, look to the English decisons upon the varient provisions in their statute of frauds in regard to devises and revocations of real estate. By the Sth section of that statute, devises of lands were required to be attested and subscribed in the presence of the devisor by three or four credible witnesses: by the 6th section, written revocations were required to be by will or codicil in writing, or other writing of the devisor, signed in the presence of three or four witnesses, declaring the same. Thus, the Sth section does not require the testator to sign in the presence of the subscribing witnesses, and his acknowledgment to them has been held sufficient; whereas the 6th section requires that the testator should sign in the presence of the witnesses. The difference in the language of the two sections has been attributed to inaccuracy in the composition of the statute. Rob. on Wills 193-4. Still, however, it has been made the foundation of distinctions between the authentication of devises and revocations. It has been held, that where a revocation is by will or codicil, it is sufficient that the paper be attested and subscribed as such according to the requisitions of the Sth section, and that it need not be signed *by the testator in the presence of the witnesses; that requisition of the 6th section being construed to be applicable, not to a will or codicil, but to other instruments of revocation. Rob. on Wills 194-5, and the cases there cited. Another question adjudicated by the courts is, whether a clause of revocation, contained in a will or codicil by which the testator devises the subject of the former will, is effectual, if the will or codicil has not been duly executed as such, though the instrument has been executed according to the forms prescribed by the revoking clause of the statute. And that, it will be seen, is a question the same in principle as the one involved in the case we are now considering.

The doctrine settled by the English cases, is, I think, correctly recognized by the court of delegates in the case of Limberry v. Mason, 2 Com. Rep. 451, where it was held, that if there be an intention to revoke by a new will, and the instrument made for that purpose cannot take effect as will on account of some defect in the execution, it cannot be a revocation, because it was not intended to revoke the old will until the new one should be complete. In that case, it is true, there was no express clause of revocation, the revocation being by necessary implication from the conflicting provisions of the two wills; which cannot, it seems to me, be distinguished, in principle, from the case of an express revocation, and there is no distinction made in the English statute, nor in ours.

The doctrine is directly affirmed in the case of Eggleston v. Speke, where the decision was upon the very point, the second will having been duTy executed under the revoking clause, but not under the devising clause of the statute, and containing an express revocation, as appears from the notice of it in 7 Ves. 379. The case of Onions v. Tyrer, 1 P. Wms. 343, was like the one last mentioned in all respects, except that it was made stronger by the circumstance, that the first will was cancelled *by the testator, under the impression that the second was made effectual, which cancelling was therefore-treated as merely conditional. The decision of Lord Cowper was in accordance with the doctrine above stated, though he dwelt upon the circumstances, existing also-as he said in the case of Eggleston v. Speke, that the devises in both wills were substantially the same, but expressing the-opinion that the effect would be the same, to the exclusion of the heir at law, though the devise in the second will had been to a third person.

The same principle was sanctioned by the Lord Chancellor, Lord Alvanley, and Sir W. Grant, in Ex parte the Earle of' Ilchester; they recognized the cases of Eggleston v. Speke and Onions v. Tyrer, as law, and held that the appointment of a. guardian by a testamentary paper not duly executed to accomplish such appointment, did not revoke a previous testamentary appointment, though the revocation would have been good as a substantive act; the object being only to make way for another-disposition, as was inferred from the nature of the act.

Some of the reasoning of Lord Alvanley, and of the remarks of Lord Cowper, may be open to criticism, and have been laid hold of by the appellant’s counsel in resisting the principle indicated by their decisions. That the adjudged cases, however, and opinions of the courts, have been understood to establish the above stated doctrine,. in its full extent, may be seen by reference to several respectable elementary writers. Rob. on Wills 196-8-9, 200; 1 Wms. on Ex’ors 91; Pow. on Dev. 431-2-3. And observe the distinction deduced by Mr. Powell between revoking' wills merely, and those which devise and revoke. The cases were luminously reviewed L>y Chief Justice Parker in the case 'of Langton v. Atkins; he regarded them as settling the principle held by the court in that case, that if the instrument propounded as a revoca- ■ tion, be in form a will, it must *be perfect as such, and be subscribed and attested as is required by the statute ; and an instrument intended to be a will, but failing of its effect, on account of some imperfection in its structure or for want of due execution, cannot be set up for the purpose of revoking a former will, for this substantial reason, that it cannot be known that the testator intended to revoke his will except for the purpose of substituting the other, and that it would be making the testator die without a will, though it was clearly his design not to do so. I feel no hesitation in admitting a proposition which seems warranted by the cases, that where the revoking clause has not this connection with the disposing part of the will, as where the dispositions relate to other property, without affecting the subjects of the first will, there is no reason why it should not operate as a revocation. 1 Rob. on Wills 200; Pow. on Dev. 433. But this proposition by no means breaks in upon what I consider the correct principle applicable to the present case, but on the contrary, to my mind, tends strongly to illustrate it.

Upon the whole, both upon principle and authority, I am well satisfied that there is no error in the sentence of the general court admitting to probat the will of 1838; and that it ought to be affirmed.

STANARD, J.

I am of opinion, that the statute of 1835 repeals the provision of the 9th section of the statute of wills, in regard to the revocation of wills of personal estate; that revocations of wills of personals must now be executed in the same manner in which wills of personals are required to be made. If I thought otherwise, I should still concur in the opinion of Judge Baldwin.

BROOKE, J.

There is no necessity to decide the question whether the statute of 1835 repeals the provision of the 9th section of the statute of wills; and therefore I *give no opinion on that point, though my impression is that Judge Stanard’s opinion is right. It is enough to say that I concur ip the opinion of Judge Baldwin.

CABEEE, J.

I concur in the opinions of both Judge Stanard and Judge Baldwin.

Sentence affirmed.  