A will is not revoked by any act of spoliation or destruction not deliberately done animo revocandi. 28 R. C. L. 169.

The question under annotation, in one aspect at least, relates to the significance, as bearing upon such intention, of the fact that the will was executed in duplicate, and that one of the duplicates is in existence uncanceled, unless the cancelation of the other has the effect to cancel it also.

As a general rule, where a testator intentionally destroys, or is presumed to have destroyed animo revocandi, the copy of his duplicate will retained in his possession, in the absence of proof to the contrary, that copy and the duplicate in another's hands will be held revoked. Re Field (1919) 109 Misc. 409, 178 N. Y. Supp. 778; Re Schofield (1911) 72 Misc. 281, 129 N. Y. Supp. 190; Asinari v. Bangs (1885) 3 Dem. (N. Y.) 385; Biggs v. Angus (1885) 3 Dem. (N. Y.) 93 (formal cancelation); RE BATES (reported herewith) ante, 294; Boughey v. Moreton (1758) 2 Lee, Eccl. Rep. 532, 161 Eng. Reprint, 429; Rickards v. Mumford (1812) 2 Phill. Eccl. Rep. 24, 161 Eng. Reprint, 1066; Colvin v. Fraser (1829) 2 Hagg. Eccl. Rep. 266, 162 Eng. Reprint, 856; Burtenshaw v. Gilbert (1774) Cowp. pt. 1, p. 49, 98 Eng. Reprint, 961. And see Pember

ton v. Pemberton (1807) 13 Ves. Jr. 291, 33 Eng. Reprint, 303.

The rule is recognized in O'Neall v. Farr (1844) 30 S. C. L. (1 Rich.) 80, but not applied, because it did not sufficiently appear that the will was executed in duplicate.

Where a testatrix executed duplicate wills, one of which was in her possession a year prior to her death, at which time she said that she expected to change her will, and after which time that duplicate was never seen, the court held that probate of the other duplicate (a carbon copy) would be denied, applying the presumption that a will proven to have had existence, and not found on the death of the testatrix, was destroyed animo revocandi. Re Field (N. Y.) supra. It does not appear who had possession of the copy offered for probate, but it is implied that it was not in the possession of testatrix at the time of her death.

In Re Schofield (1911) 72 Misc. 281, 129 N. Y. Supp. 190, supra, where one of two duplicate wills was kept by the attorney who drafted them, and there was no proof that the testator actually destroyed the duplicate retained in his possession, but uncontroverted evidence showed that he removed it from his safe and placed it in his pocket a month before his

death, and that the will had not been seen since then, it was held that the will was revoked by the testator in his lifetime, and that probate of the other duplicate would be denied. The court said: "In this cause there is no proof that the testator actually detroyed the example in his custody, but it was not found at his death, nor was it produced at the hearing in this proceeding. It has disappeared. There

can be no doubt that to such a state of facts we must apply the established presumption that a will proved to have had existence and not found at the death of testator was destroyed animo revocandi.'”

In Asinari v. Bangs (1885) 3 Dem. (N. Y.) 385, supra, it was held by a surrogate's court that a decree denying probate would be entered, where it was found that one of the duplicate wills proved to have been executed by a testatrix was torn in pieces by her, animo revocandi, there being no evidence of her having had possession of the other copy after its execution. The court, after commenting on the above lack of evidence, said: "It must, therefore, be presumed, in the absence of evidence to the contrary, that the destruction of that one of the two papers which was within her reach was intended to nullify the other."

In the reported case (RE BATES, ante, 294), where duplicate wills consisting of an original and carbon copy were both signed by the testator, who retained possession of the original until his death, when it could not be found, it was held that the presumption, in absence of proof to the contrary, that he intentionally destroyed the instrument, applied, and that the revocation of the original in the testator's hands revoked the carbon duplicate in the other party's possession. The court stated that the duplicate would be revoked by the revocation of the original, "regardless of where kept or found."

Where a testatrix executed duplicate wills, delivered one into the possession of the proponent, and retained possession of the other, which latter was found in her trunk after her

death, canceled, it was held that the other duplicate was also canceled, and that she died intestate. Boughey v. Moreton (1758) 2 Lee, Eccl. Rep. 532, 161 Eng. Reprint, 429, supra. It is to be noted that the court gave the proponent until the succeeding term to seek evidence to the effect that the testatrix did not cancel the will animo cancellandi, but accidentally, or that it was done by someone else.

In Rickards v. Mumford (1812) 2 Phill. Eccl. Rep. 24, 161 Eng. Reprint, 1066, supra, where the court had the strongest confirmation of the presumption that a testator had intentionally destroyed the copy of a duplicate will retained in his possession, and not to be found at his death, from statements that he was going to burn it, and that he had burned it, with strong pleading with the deponent to accompany him to another town for the purpose of having a lawyer make another will, it was held that the testator had destroyed the will in his possession, and thereby had revoked it and the other duplicate will in the possession of another.

Where one original of a duplicate will executed in India was traced to the possession of the testator in England, until his death, when it could not be found, the court acted on the prima facie presumptions that he detroyed it himself, and that he thereby intended to revoke the other original in India, and, there being no sufficient evidence to rebut such presumptions, the deceased was pronounced dead intestate. Colvin V. Fraser (1829) 2 Hagg. Eccl. Rep. 266, 162 Eng. Reprint, 856, supra.

In Burtenshaw v. Gilbert (1774) Cowp. pt. 1, p. 49, 98 Eng. Reprint, 961, supra, where one original of a duplicate will, retained in the possession of the testator, was destroyed by him, and a later will canceled, it was held that the other duplicate was also revoked, even though it was found among the testator's papers after his death, when the facts evidenced his firm intention to revoke it, although the jury did not determine how or when the second duplicate was returned to the testator's possession,

from the possession of the one to whom it had been intrusted. Another report of this case under the name Berkenshaw v. Gilbert, leading to the same result, is found in Lofft, 466, 98 Eng. Reprint, 750.

And see Onions v. Tyrer (1716) 2 Vern. 741, 24 Eng. Reprint, 418, where the adverse result apparently turned on a cancelation by mistake.

Seymour's Case (Eng.) (cited in Onions v. Tyrer (Eng.) supra) apparently held that a cancelation of one duplicate will, by the testator, with the intention of destroying the will, was a good revocation of the whole will. No report of this case is available, but the statement made in court as to its holding was not challenged by anyone.

In Pemberton v. Pemberton (1807) 13 Ves. Jr. 291, 33 Eng. Reprint, 303, supra, Lord Chancellor Erskine said: "If a testator cancels that part which is with him, the legal presumption is that the duplicate in the possession of another is not to prevail. My opinion goes farther; that, if the testator himself has possession of both, the presumption holds, though weaker; and farther, that even if, having both in his possession, he alters one, and then destroys that which he had altered, there is also the presumption, but still weaker. But all these cases, according to Burtenshaw v. Gilbert (Eng.) supra, are matter of evidence." In the Pemberton Case, however, probate was granted, where two duplicate originals were among the testator's papers at his death, one canceled, there being affirmative evidence that he did not intend to revoke the will.

In Re Walsh (1917) 196 Mich. 42, 163 N. W. 70, Ann. Cas. 1918E, 217, where a will was executed in duplicate, the destruction of one copy by the testator was held to raise a presumption of revocation, which, however, was not irrebuttable.

It was

also held a question for the jury, under the evidence, to determine whether there was a revocation of the will, under instructions to the effect that if one duplicate copy was destroyed previous to the time when the testator put the other copy into the possession of an executrix, there could be no

conclusive presumption of destruction with intent to revoke. Probate was granted, the court saying that the evidence showed the testator's affection for the beneficiaries up to the time of his decease; that his property did not change so as to give him any reason for changing his will; and that the testator, while handing a draft of the will to an executrix, said: "Keep this, lady; you may want them some day."

In Managle v. Parker (1908) 75 N. H. 139, 24 L.R.A. (N.S.) 180, 71 Atl. 637, Ann. Cas. 1912A, 269, where two wills, practically duplicates, were executed by a testatrix, who destroyed one, after having given the other to a friend, to whom she intrusted it for five years, it was held that a want of intention to revoke the will could be found, there being evidence that she said she destroyed the will because some relatives had "made a fuss," but later declared that she was very fond of the residuary legatee, and was going to take care of and provide for her if it lay in her power, and that "that was fixed." In connection with this, the court said: "From the facts surrounding the execution of the two documents by the deceased, it could be found that she intended them for duplicate wills, and that she understood that the copy left with her neighbor would continue to be her will, no matter what was done with There the copy she herself retained. is no evidence (other than by way of presumption) that the testatrix ever had a different understanding. It is true that there was evidence that at the time she destroyed the copy of the will in her possession she said she did not like it and would not have it. Undoubtedly, this was sufficient evidence to support a finding that she intended to revoke her will, but it was not a preferred class of evidence of intent. Taken in connection with the evidence of her understanding as to the force and effect of the other copy, and considering the fact that she allowed that copy to continue in the custody of her near neighbor and friend for five years after the destruction of the copy she herself had, the evidence of intent

to revoke the existing copy is of a dubious sort; that is, there are facts in evidence from which different inferences may be drawn." The court recognized the presumption of an intent to revoke the same, arising from the testatrix's act in destroying the copy in her custody, but said that that was not an irrebuttable conclusion, but a mere inference of fact.

So, the presumption that a testatrix has destroyed a will with the intention of revoking it, when it is traced to her possession during her life, but cannot be found upon her death, was rebutted satisfactorily to admit to probate another of the trip licate originals executed by the testatrix, when the testatrix, in the presence of three witnesses who were looking in her safe for her will, said that the wills were at Williams College, and the treasurer of that institution produced one of the triplicates for probate. Re Pattison (1912) 78 Misc. 699, 140 N. Y. Supp. 478, affirmed in (1915) 170 App. Div. 926, 154 N. Y. Supp. 1136.

In Roberts v. Round (1830) 3 Hagg. 'Eccl. Rep. 548, 162 Eng. Reprint, 1258, where both originals of a duplicate will were found in the possession of the testatrix at her death (one of them partially destroyed, the other unharmed), it was held that the will was not revoked and should be admitted to probate. The court said: "There being two papers, both in the deceased's possession, the presumption of law would be that by the preservation of one duplicate entire she did not intend a revocation of these particular devises; otherwise she would have mutilated both duplicates. The construction, then, to put upon this act of mutilation (for it clearly appears to have been her own act), is that, at most, it was a preparation for a projected alteration to which she had not finally made up her mind, or which she had abandoned; and therefore she preserved entire the duplicate which she had always retained in her own possession, and on which she had written the word, 'Mine.'"

In a case wherein both duplicates were found in the possession of the

testator at his death, the court, in referring to the fact that only one will was altered, both having been equally accessible to him, and that the unaltered will seemed to have been kept with the greater care, said: "These, undoubtedly, were circumstances very fit to be taken by the jury into their most serious deliberation, in coming to a conclusion as to the intention with which the alterations were made. If the unaltered part had been found in London, instead of at Boynton, that unquestionably would have strengthened the presumption of intention to alter both parts. All that can be said, however, is that these were matters very fit to be observed upon; and the jury must be taken to have fully considered them." Doe ex dem. Strickland v. Strickland (1849) 8 C. B. 724, 137 Eng. Reprint, 693.

"I

In Slade's Goods (1869) as reported in 20 L. T. N. S. (Eng.) 330, where one duplicate will retained by the testatrix was found canceled at her death, the court refused to grant a motion to call in letters of administration and to probate the other duplicate will, which the bankers of the testatrix brought forward subsequent to her death. Sir J. P. Wilde said: must point out that the opinion of the court is only expressed on motion, and the only way to deal with this motion is to reject it. There is nothing at present before the court which could justify it in calling in probate. The paper which was found in the repositories of the deceased was undoubtedly mutilated, and now another paper has been found which the court has no hesitation in saying is a duplicate of that which was found in the repositories of the deceased, and revoked by tearing off the signature. Under these circumstances the court has not a state of facts before it which would warrant it in granting the motion. The motion must, therefore, be refused."

In Jones v. Harding (1887) as reported in 58 L. T. N. S. (Eng.) 60, where a will was executed in duplicate, and the part retained by the testatrix could not be found at her death, Butt, J., while holding the other

duplicate in the lawyer's possession revoked also, said: "I am not at all clear upon the matter. If you show that a will was in the possession of the maker thereof, and cannot be found after his or her decease, there is a presumption that such will has been destroyed by the testator or testatrix, animo revocandi. But where there is a duplicate, known by the maker of the will to be in existence, does the presumption arise, or is not a stronger presumption required in such cases than where there is no duplicate? The question is, Does the presumption arise on the bare fact of one of the duplicates having disappeared? If a testatrix intends to revoke her will, the presumption is that she would write to the banker or solicitor who has the duplicate, which she knows to be equally effectual, as a will, as the one in her own possession, and would intimate to him her intention of revoking it. Would she not say to herself: 'I know my solicitor has an equally effective duplicate; I must take care to destroy that also,'" The court then decided against its own reasoning, on the strength of an unreported case, said by counsel to be "on all fours" with the case at hand.

And see Atkinson v. Morris, L. R. [1897] Prob. (Eng.) 40-C. A., where the court in an interesting opinion tried to hold that a second original duplicate will was revoked when the first was destroyed by the testator, but could not, on account of a technicality not relating to the matter under discussion.

In the cases thus far dealt with, it will be observed that the duplicate that remained in the possession of the testator, or, at least, one of the duplicates remaining in his possession, had been actually or presumptively canceled.

But, in Snider v. Burks (1887) 84 Ala. 53, 4 So. 225, it appeared that the testator executed his will in duplicate, retaining one copy in his possession and giving the other one to the proponent, and it did not appear what the latter had done with her copy, but it was not shown that it ever went back to the testator's possession. It was held that there could be no presumption of its revocation by him, the fair inference from the evidence being that the will sought to be probated was the one retained by the testator. F. G. M.

Damages, § 151 telegraphs

no

tice of importance of message. 2. Notice of the importance of a message, sufficient to enable the sendee to recover his actual damages

for failure promptly to deliver it, is imparted to a telegraph company when it is sent by one doctor to another, and requests a call on phone immediately. [See 26 R. C. L. 604.]