
    William Johnson et al., v. Brailsford.
    The degree of “framing, cancelling, tearing, or obliterating,” necessary to the revocation of a will, according to the statute of frauds, must depend on the circumstances of the case.
    Where a will has been interlined, and crossed in places, and the seals torn, and the jury find that it was done animo revocandi, this is a sufficient revocation.
    The slightest “burning, ur tearing,” &e., of a will, accompanied with satisfactory evidence drawn aliuude of the intention of the testator to revoke, will satisfy the statute, and act as a revocation.
    Our Act of Assembly uses the word “destroying,” instead of the words “burning, cancelling, and tearing,” in the statute of frauds, but the construction is the same.
    
      Where a person has torn off the seals of a will, interlined it, &c., animo revocandi, and it appears he afterwards intended to make another will, which he never executed, this will not re-establish the will.
    This was an appeal from the Ordinary of Charleston District, to the Circuit Court, where, on a feigned issue being submitted to the jury, the following special verdict was found, viz.: “1st. We find that the late William Johnson, duly made and executed his last will and testament, in the words following:
    “ ‘ South Carolina:
    
    
      “ ‘ In the name of God, Amen. I, William Johnson, of Charleston, blacksmith, being, by the blessing of God, in health of body and of sound and disposing mind and memory, do make this my last will and testament, in manner following, that is to say: To my beloved wife, Sarah Johnson, I give and bequeath, for and during her natural life, my plantation at Goose Creek, together with the plantation stock of every kind, also the house in which I now reside, to-W731 §'e*-her *with all the plate and furniture therein, house servants, coach -* and coach horses, and also my two houses or tenements, at the corner of Queen street and Kinloch’s court, house and lot in Chalmers’ alley, tract of marsh land on East Bay, opposite to Hazel street, whereon my blacksmith’s shop now stands, and my bank and canal shares ; to have and to hold for her own use, comfort, and maintenance and education of my minor children, who are to have as good an education as can be given them, suited to their capacities and the profession they seem inclined to pursue. And whereas, for the establishment of several of my children, I have given and advanced property, in my estimation, to the several amounts following, that is to say, to my son Thomas, deceased, fourteen hundred and fifty pounds, sterling; William, one thousand; Joseph, twelve hundred pounds; John, sixteen hundred and fifty pounds ; Benjamin, three thousand pounds, besides a tract of land; and to my daughter Jane, twelve hundred pounds on her marriage. 1 now give, bequeath, and devise, to my daughter Sarah, my house and lot at the corner of King street and Blackbird alley, which I estimate at two thousand one hundred pounds; to my son Isaac, my house and lot, at the corner of King and Federal streets, and a house and lot in Anson street, all which I estimate at two thousand one hundred pounds; and to my son James, the house and lot of land adjoining the one in which I now reside, and from and immediately after his mother’s decease, the house and lot in which I now reside, both of which I estimate at two thousand one hundred pounds. To my fatherless grandchildren, Thomas Johnson, and Eliza, Sarah, Jane, and Edward McOrady, I give one hundred pounds, to bo paid them as they respectively attain the age of twenty-one years, or day of marriage; furthermore, in order to equalize my estate in proportion among my children, sons and daughters, as nearly as human judgment will admit, I give and bequeath to my son William, one thousand pounds, Joseph,-hundred pounds, John,-hundred pounds, Benja-*2~41 min, a suit #of mourumg, to my daughter, Jane McOrady, one thousand ' J pounds. It is my will and pleasure, and I do hereby authorize and direct my executors, hereinafter named, as soon after my death as conveniently may be, or the majority or survivor of them, to make sale of all my Edisto lands; that is, one tract on Yarrow branch of Edisto river, one in the fork thereof, one tract on Ireland creek, and my tract on Burn’s creek, near the Catawba nation, a new acquisition from the State of North Carolina; also my negro blacksmiths, and such other town negroes as are supernumeraries, and so apply the proceeds to the payment of my debts and legacies; my pew in St. Philip’s church, I give to the use of my wife and family during her life, and after her death, to my son William, if he should be a resident of Charleston, otherwise I give the same to my son James.. I further will and direct, that on the decease of my said wife, her life estate, or all and singular the estate herein allotted to her maintenance, and the maintenance and education of my minor children, together with the rest and residue of my estate, both real and personal, should be so divided, apportioned, or disposed of, as to raise such of my children’s portions as are under three thousand pounds to that amount; and should there be an overplus of estate, then the same to be equally apportioned among them. And in case any of my said children should die under the age of twenty-one years, or die leaving no lawful issue and unmarried, then the portion of the deceased to be equally divided among my surviving children. And I do hereby appoint and constitute my wife, Sarah Johnson, executrix, and my sons, William, Joseph, and John, executors, of this my last will and testament.
    “ William Johnson.'
    “ ‘ Signed, published, and declared, in the presence of us, who, in the presence of the testator, have subscribed as witnesses.
    “ ‘ N. B. The rasure of the word ‘ twelve,’ and the interlining of the words ‘ two thousand one,’ was done before the execution hereof, and was executed this 'x'2oth day of October, in the year of our Lord, 1808. Florian 0. r*or-K Mey, Oharles S. Mey, John H. Mey. L
    “ ‘ To which said will was subjoined and duly executed, a codicil in the words following:
    “ 1 In the name of God, Amen. I, William Johnson, within named, being of sound and disposing mind and memory, do make and ordain this codicil to my will: In the first place, having set up my son Isaac, in business, with my son Joseph, and advanced him about the sum of twelve hundred pounds, I do hereby declare the same to be in lieu and extinction 6f the specific devise made to him, in my said will; secondly, I do hereby give and bequeath to my foster child, Ann Catharine Yan Norden, the sum of one hundred pounds, to be paid her within one year after my decease. Thirdly, I do hereby authorize and empower my executors and executrix, within named, or the majority of such as shall qualify, to sell and dispose of such of my property as can be sold with the least inconvenience to my wife, for the purpose of raising such sums of money as may be required to satisfy my several bequests according to the true intent and meaning of my said will.
    “ ‘William Johnson.
    “ ‘Signed, sealed, and declared in presence of us, who in the presence of each other, have hereunto set our hands. James George, Isaac Teasdale, Richard L. Latham.’ Which said codicil bears no date, but from the reference to the setting up of Isaac, one of the testator’s sons, we find it was executed after the twelfth day of December, eighteen hundred and twelve. We further find, that the said will and codicil were found in the private desk of the deceased, and at the time of its being found, the seals with which the said will and codicial had been executed, were torn off, after having been previously crossed with a pencil, and below the name of the testator, and in the handwriting of the testator, written with a pencil, were the following words and figures : “I think my will at this time unequal; with God’s permission, I mean to alter it, and have all sold, but the house and servants, &c., to Mrs. * Johnson,” and also sundry mnya interlineations in pencil on the face of the said will, as follows: between 1 ^ the 25th and 26th lines, the figures, “ 16,” are placed over the word, “ fourteen;” between the 27th and 28th lines, “ 16 hundred” are placed over the words, “fourteen hundred;” between the 28th and 29th lines, the words, “besides a tract of land,” are interlined over the words, “three thousand pounds;” on the second page, between the 5th and 6th lines, the word, “ fatherless,” is interlined over the words, “ my grandchildren,” and in the same line, the words, “ Sarah and,” are struck out. In the 16th line, the words, “ a suit of mourning,” are struck out; between the 21st and 22d lines, “ all,” interlined over the words, “ my Edisto lands;” between the 23d and 24th lines, the word, “ Burns,” interlined over the word, “ Burrs.” 2d. We further find, that, about the time the said memorandum bears date, the testator directed another will to be drawn out for him, differing materially from the above recited will, which was accordingly drawn out, but never executed; and also, from the declared intention of the testator, to alter his said will, and from its being found in his private desk, we are of opinion that the seals were torn off, as aforesaid, by the testator, and with an intention to revoke the said will; but whether the said will be legally revoked, the jury are uninformed, and pray the instruction of the Court. If the Court are of opinion that the facts aforesaid amount to a legal revocation of the said will, and that the evidence thereof is sufficient legal evidence to find such revocation on, then they find for the plaintiff, and that the said William Johnson died intestate. If otherwise, then they find, that the said William Johnson did make and execute; and leave in force the said will, as copied into this verdict, and they find for the defendants.’ ”
   The opinion of the Court was delivered by

HUGER,, J.

1. In support of the will, it is contended that there can ^.nhK-i be no revocation of a will executed, according to *the statute of ^ frauds, by the tearing and obliterating the seal; and,

2. That supposing the destruction of the seal to a will may, in the abstract amount to a revocation of it, yet, that the revocation in this case, was not an absolute self-subsisting revocation, but depended upon the substitution of another will, which having failed, the revocation is incomplete, and the will therefore must be valid. I shall consider these grounds in their order.

The statute of frauds, which has been made of force in this State, declares that all “ devises and bequests, duly made and executed, shall continue in force until the same be burnt, cancelled, torn, or obliterated, by the testator, or by his directions,” &c. &c.

The degree of burning, cancelling, tearing, or obliterating, necessary to the revocation of a will, is not fixed by the statute. This must depend upon the circumstances of the case.

If a will be thrown into the fire, and is consumed, or if it be torn into many pieces by the testator, the violent presumption would be, that the instrument was burnt or torn animo revocandi and it would require strong evidence to rebut this presumption ; but if a will be only slightly burnt, or slightly torn, there would arise no presumption from the act itself, of the intention, or the quo animo, with which it had been done, and the will would not be revoked ; but if the slightest burning, or the slightest tearing, be accompanied with satisfactory evidence, drawn aliunde of the intention to revoke, the statute will be satisfied, and the instrument be revoked. Burtenshaw v. Gilbert, 1 Cowp. 59. 4 Cruise, tit. Dev. 93. Pow. on Devises, 634.

In this case, the jury have found that the will was torn animo revo-candi. It cannot be important what part of the will be torn. The seal, though unnecessary to the will, was made a part of it.by the testator. The first two or three lines are equally unnecessary, and yet it would not be contended, if these lines had been torn from the instrument animo revo-candi, the statute would not be satisfied. Although the words *of -* our Act of 1789, P. L. 491, 2 Brev.-Dig. 35, are not precisely those used in the statute of frauds, they are so much alike as to make it almost unnecessary to notice them. The Act of 1789, uses the word, destroying, instead of burning, cancelling, and tearing ; the former appears to include them all; a will burnt, cancelled, or torn animo revo-candi is destroyed.

On the second ground, it is contended that the will was not absolutely revoked ; that the seals were torn off, the paper crossed, and interlinea-tions made with the intention of making another will; and that as another will was not made, the tearing of the seals, and the crossing of the paper, and the interlineations, are nugatory. But this is contradicted by the verdict. The jury expressly find that the seals were torn off with an intention to revoke the said will, and not to alter the said will, or with an intention to make another will, as contended. A number of facts are stated in the verdict, the crossing, the interlineations, the directions for another will, that the will was found in a private desk, and so on, from which the jury deduced the conclusion, that the seals were torn off with an intention to revoke. The testator appears to have preferred another will to intestacy, but it does not appear that he preferred the will in question to intestacy! The will directed, but not executed, was materially different; probably as variant from the one in question as that which the law would have supplied, nor does it appear that the seals were torn from the instrument at the time a new will was directed to be drawn : it may have been long after, when even the disposition to make another may have subsided. In the ease of Onions v. Tyrer, 1 P. Wms. 343, which is the leading case in this point, there existed no doubt as to the intention of the testator. He had executed his will to pass lands ; by a second will, he expressly revoked the first, and likewise ordered it to be torn, which was done. The second will was attested by three witnesses, but they did not subscribe iu presence of the testator. The statute of frauds is variant in its provisions* respecting the making and revoking of a devise. The 4th (5 ?) clause, as to making a devise, requires *- attestation in the presence of the testator by the three witnesses. The 5th (6 ?) clause, as to revoking by will, requires attestation simply by three witnesses. The second will in the case cited, conveyed the land to the same uses with the first, and only the trustees were changed; as the second will had not been attested by three witnesses, in the presence of the testator, it was invalid as to land ; but as the first will was only revoked for the express purpose of substituting the second, it was decided as the second was not valid for the purpose intended, the first was not revoked. The revocation and substitution were one entire act; they constitute a single declaration of the mind, which could not be garbled without violating a common rule of evidence; but in this case, the directions for the draft of a new will, were not only materially variant from the old will, but were not contemporaneous with the crossing or with the tearing of the seals; the crossing, tearing of the seals, and directions for a new will, were not included in one entire act of the mind; they were not parts of one declaration, and therefore make a very different ease from that of Onions v. Tyrer ; and even in this case, relief was afforded by the Lord Chancellor, on the ground of accident. The recent case of Pringle v. M'Pherson, 2 Des. 524, is still more distinguishable from this case. There the testator exhibited no disposition to make another will; he appears to have thought that he could, by interlineations, subsequent to execution, alter a devise in his will; the alterations attempted were small; the will was neither burnt, cancelled, torn, nor obliterated; the statutory symbols were not only wanting, but the animus revocandi did not exist. Upon the whole, I am satisfied that the revocation was unconditional, and that the decree of the Ordinary ought to be reversed.

Colcocic, Nott and JohnsoN, JJ., concurred.

Post. 482; Harp. 314; 2 McC. 521; 3 MoC. 282. 
      
       5 Stat. 107, 5 3.
     
      
       2 Stat. 526, § 6.
     
      
       2 Brev. 279.
     