
    Wm. Means and others, vs. Andrew B. Moore and Charles Moore, Executors.
    
    
      Testator intending to alter his Will and make a new one, gave directions Jor that purpose to witness, as he read over the Will to him. The witness made memoranda, by interlining tha~ proposed alterations in pencil, “ for his own convenience.” A single word was scored through with the pencil. Testator not having completed his directions the first day, was unable from weakness to complete them on a second, and the new Wdl was never drawn: Weld no revocation, the “ obliteration” not being made by the direction of testator, nor intended to revoke the whole Will.
    
    This was an appeal from the Ordinary of Spartanburg district, who admitted to probate a paper dated the 29th October, 18Í7, which was executed in due form, to pass real and personal estate, and purported to be the last will and testament of General Thomas Moore, deceased. It was contended before the Ordinary, that the will liad been revoked by the acts of the testator in his life time, and the same question was brought before the court below, on an issue by suggestion.
    The will on its production to the court appeared perfect in all its parts, and free from all marks of burning, tearing, cancelling of obliterating, except that in one clause, the wort) “ man” was scored through with a pencil and the word “ woman” inserted in pencil above it. It was stated however that several interlineations had been made in pencil which did not there appear, with a view to alter the will. This evidence was objected to, hut the objection was overruled.
    A witness, Major Andrew Berry, was then called, who proved that he went to the house of the testator, during his last illness and a few days before his death; that he learned, in conversation with the testator about the state of his affairs, that he had made a will, and that it was at Dr. Moore’s.' The witness then asked him. if he had provided in it for his youngest-daughter, (who it appeared had been born after the execution of the will.) The testator was uncertain; the witness then asked Jiim if he should procure the will to ascertain that fact, to which the testator assented. The will was accordingly procured, and the (estator began to read it, but soon desisted from weakness, and requested the witness to read it over aloud, 'which witness did, and when he had finished, the testator said, ^it is true slieis not provided for.” The witness then said to him, tc you must make another will,” and urged upon him the necessity of it, to provide for his youngest daughter; and asked if he could be of any use in preparing a new will or in making the necessary alterations. The testator replied in the affirmative, and directed the witness to get a pencil, and he would give him directions for making the memoranda necessary to draw the new will. The witness procured the pencil and made certain interlineations in some of the clauses of the will; the solo and express object of which was to enable the witness to draw another will. In making . them, the witness did not use the words of the testator, but the substance only; and they were all made thus — That certain property in such clauses as were interlined, “ is to be stricken out” and other property “ is to be put in.” After going through several clauses in this way, the testator said he was too weak to go on, and told the witness to stop: he then desisted and proposed to call on the testator the next day to finish the business; to which the testator assented. The witness attended accordingly, hut found the testator ui>able to resume the subject, and nothing more was done.
    The testator did not direct the witness to erase any Word or' to make any obliterations, nor did he know that any erasure or obliteration was made. The witness did not read to him what he had interlined, nor did the testator see the will after the in-terlineations were made. The testator did not say that he revoked the will or intended to revoke it; nor did he direct it to be cancelled of destroyed; many of the clauses were untouched, and no attempt was made or intention expressed, to alter the disposition of tbe real estate. The testator’s motive was to provide for the youngest daughter, and the alterations proposed, were calculated and intended to accumulate a legacy for her. Some three or four years before his death, the testator in -conversation with another witness, said lie had made a will but was not satisfied with it and wished to alter it. He said his youngest daughter was unprovided for in it, but he did not care for that, as the law provided for her; that his property had increased and that Mrs. Berry, one of his daughters, had certain negroes in her possession, not bequeathed to her in the will, which he wished to give her.
    The jury, under the charge of the presiding judge, found .that the will was revoked.
    A motion is now made to set aside the verdict and for a new trial, on the following grounds:
    1st. That no act of revocation was apparent on the face of the will, and that the evidence of such act cannot be supplied by parol.
    2diy. That the acts done by the direction of the testator are not embraced within the statute of frauds or act of assembly, and do not amount to a revocation.
    3dly.- That the intention to revoke, (if there was any) was not absolute but conditional; it depended upon the execution and substitution of another will which was never perfected, and therefore no revocation took place.
    4thly. That the revocation was partial only and not totaIt
    
      For the. motion, it was argued: Our statute authorizes the . revocation of wills, by destroying or obliterating. There must be an intention to revoke, with an act of obliteration. Was there any thing which amounted to an act of obliteration. An interlineation is not a defacing,, nor does it necessarily interfere with the sense, as obliteration must. If immaterial words or unmeaning marks be made between the lines of a will, it will hardly amount to the substantial act of obliteration which the- • statute intends. -Interlineation may add to and thus alter the sense; but the alteration is not made by obliterating. Sutton, vs. Sutton, Cowp. 812; 4 East, 417; Jackson vs. Halloway, 7 Johns. 398.
    If the act was not intended to apply to the whole will, •but only to make partial alterations, the cases already cited, shew that it will not operate, a revocation of the whole. A testator may alter or strike out a particular clause, and it will have no effect on the rest of his will. 3 Bos. and Pul. 16; 6 Cruise’s .Dig, 66; Bac. dbK Tit. Devises; Poiv. on Dev. 644. If there was any present intention of altering the will, it was only with a view of making a provision for his youngest daughter*
    But there was no present intention of altering the will} memoranda were made with á view to a future will, and the intention to alter in future was conditional and dependent on the execution of the new will. Onions vs. Tyre.r, 1 JV.. Bm, 343. The execution of a new will does not revoke a former, unless by its express terms .or by inconsistent provisions. This seems rather to have been intended for a codicil. We do not contend that it is necessary to erase the whole will, m order to revoke; a very slight act will be sufficient, if it be accompanied with the present intention of revoking the whole. Were further cited, Brailsford, vs. Johnson, 2.JV. Sf MiG. 272; Doe ex dem. S. Perices, vs. E. Perkes et al. 3 Barn. Si Aid. 489.
    
      Against the motion.
    
    The making of the pencil marks was certainly an act of the nature of that intended by the statute. The slightest act will be sufficient, and it is not necessary that the will should be rendered illegible.. The tearing of seals or a corner of thepaper, is a sufficient déstroying, if the animus re-vocandi exists. The court will regard the will as if the pencil marks which have been rubbed out were still upon it; and if the intention with which they were made be equivocal, parol testimony will be admitted to explain. Coiop. 52; 1 Bob. on Wills, 321; ib. 325, Brailsford, vs. Johnson; Witherspoon', vs. Wi-therspoon, 2 0.521.
    
    The question of intention ivas .a matter exclusively for the jury and they have found the intention to revoke. The finding of jury was not without evidence. The testator on more occasions than one expressed himself dissatisfied with his will and determined to alter it. He had strong reasons for this dissatisfaction, one of his children being unprovided for. The jury were expressly charged by the judge, “if you believe the testator preferred this will to dying intestate, you ought to find in its' favor.”
   The opinion of the Court was delivered by

Mr. Justice^ Huger.

Two questions arise in this case: 1st. were the pencil marks ■an obliteration within the meaning of the statu'e? and

2dly. Were they done with an intention of revoking the-'•will?

To constitute an obliteration, it is necessary? that the writing testamentary or some part of it should have been defaced by the testator himself, or by some other person in his presence, and by his direction and consent. — -(See p. laws. 491.) In what manner and by what means the writing shall be obliterated, is. not prescribed It is enough if the writing be obliterated by any means and in any manner, provided the other requisitions of the act be complied with. It must be done (whatever means be employed) with the intention of obliterating. — An accidental or unintentional obliteration, done by the testator himself, or by another, will not satisfy the requisitions of the act.

It the pencil marks were made by the testator or by his di= rections, with the intention of obliterating the writing, the act so far would have been complied with; but the evidence in this case does not shew that the testator made the pencil marks himself, or that they were made by his direction; the words of the witness copied from his own statement are, “ it was done for my own (the witness’) convenience;” and that the pencil marks were not made by the directions of the testator, is corroborated by' the further acknowledgement of the same witness, that he had himself rubbed out the marks. If the witness had understood the pencil marks as done by the testator, he could not have regarded himself as at liberty to rub them out.

But had the testator made the pencil marks himself, or had caused them to be made with the intention of an obliteration. the purpose for which he had obliterated must appear, before any just conclusion could be formed' as to the effect of such an •obliteration.

T.t is intention which gives character to an act. Had he pencilled the whole instrument, without the intention of ievok. ing it, it would not have been revoked. Had he pencilled a. part of it (symbolically) with the, intention of revoking the •whole, the whole would have been revoked.- An intended obliteration must be coupled with an intention to destroy the whole instrument, to Constitute a revocation. The intended obliteration of a part, without the intention of destroying the whole, is no revocation. (See Pringle and Ex'rs. vs. M'Pherson, & Co.)

Harrison- and Earle, for motion.

Williams, and Wallis Thompson, contra.

In this case, there is no evidence of any intention to revoke the whole Instrument. The extent of the testator’s wish, ■was to alter certain legacies and insert another; with the devises he was entirely satisfied. The obliteration therefore, though intended,-, was not coupled with the intention of destroying the whole instrument, and cannot operate as a revocation.

Had, however, the testator commenced his instructions to the witness, with the intention of making another will, by which the former was to be revoked, yet as these instructions were not completed, it must be regarded as an imperfect incohate act, by which his former will (a perfect act,) could not be revoked. (See the case of Brailsford and Johnson, 2 Nott & M' Cord, 272.) The motion therefore in this case must prevail, and a new trial is ordered. ,

Johnson, Richardson and Gantt, Justices concurred.  