Whitehill v. Halbing , 98 Conn. 21 ( 1922 )

The majority opinion states the question at issue and then says: "In deciding this question we are governed solely by the statute of wills of this State which was enacted in 1821." It holds that § 6 of Chapter 1 of Title 32, Rev. 1821, p. 200, was copied from § 6 of the English statute of frauds, which is true, and it interprets the language that "no devise of real estate shall be revoked, otherwise than by . . . some other will or codicil in writing," to mean by some other operative will or codicil. And it holds that the present language of our statute (§ 4946): "No will or codicil shall be revoked in any other manner except by . . . a later will or codicil," has not changed the meaning of the statute of 1821, and that "a later will or codicil" means an operative will or codicil. It argues that our legislature adopted the common law of England which had been established by the interpretation placed by the judges of the Court of King's Bench of England upon § 6 of the English statute of frauds. In the course of the opinion the majority depart from the announced purpose, and endeavor to show that Lord Mansfield's rule, that a revocation must be by an operative will, is the correct rule, and that the opinion of our court in James v.Marvin, 3 Conn. 576, is wrong in principle and wrong in authority.

I differ with this interpretation of our statute, but if my brethren had limited the discussion to the mere construction of the statute, this dissent might have been confined to a comparatively small compass. Since, however, it expressly overrules the principal point decided in James v. Marvin, which is one of the notable contributions of constructive legal reasoning in our reports, in justice to the court of that day I must attempt to demonstrate that the doctrine of James v. Marvin is established by the overwhelming weight of authority in this country, judicial and legislative as well, and is fundamentally sound.

I purpose discussing, first, whether the express clause of revocation in the second will revoked, at its execution, the first will, or whether the clause of revocation remained ambulatory and inoperative until the death of the testatrix. If in fact the revocation occurred at the execution of the second will, it is difficult to see how the first will could be revived save by its re-execution. If the revocation was, with the will, ambulatory, it never took effect and the first will never was revoked. In the discussion of this subject which treats the revocation as ambulatory, the destruction of the second will is frequently said to revive the first. But this is a misuse of terms. There is no revival, since there has been no revocation. Having considered first the law irrespective of our statute of wills, I shall then determine the effect of our statute of wills, General Statutes, § 4946. The precise question came before this court in James v. Marvin, 3 Conn. 576, and the court, speaking by HOSMER, C. J., said: "An express revocation is a positive act of the party, which operates, by its own proper force, without being at all dependent on the consummation of the will in which it is found, and absolutely annuls all precedent devises." The CHIEF JUSTICE quotes from Powell on Devises, p. 551, that "if a prior will be made, and then a subsequent one expressly revoking the former, in such case, although the first will be left entire, and the second will afterwards cancelled, yet the better opinion seems to be, that the former is not thereby set up again." The court further said: "The reason has been already assigned. It is because an express revocation is a positive act of the party, independent of the will which may happen to contain it, and operating instantaneously, and per se. As a clear consequence resulting from this principle, all prior wills are recalled or reversed, — the proper meaning of the word, revoked, — and must remain in this condition, until revived by republication. . . . A deed of revocation, separate from a will, has the effect of annulling a prior will, instantaneously; and the operation is the same, whether the revoking clause be in deed or will; for it is never a necessary part of the latter. . . . By the express revocation, the will in question was destroyed; and never having been revived by republication, it is of no legal validity." James v. Marvin has never been overruled. Its doctrine was recognized as the unquestioned law of the State from 1821 for over sixty years, and remained thereafter unimpaired except for the intimation in Peck's Appeal, 50 Conn. 562, in 1883, that it had been changed by the statute, now § 4946. Its doctrine that the revocatory clause of a later will acts instantaneously, and therefore the revocation of the later will cannot revive the earlier, has become the accepted law of the very great majority of the States, and forms a part of their law either in judicial opinion or by statute. Few opinions of this court have had as large an influence in shaping the law of other jurisdictions. This is all the more remarkable because it has had to contend with the doctrine attributed to Lord Mansfield, that the revocatory clause of the second will was, like the will, ambulatory, and became operative when the testator deceased. Lord Mansfield's rule originated inGoodright v. Glazier, as reported in 4 Burr. 2512. This report was before CHIEF JUSTICE HOSMER when he wrote the opinion in James v. Marvin. He points out that the case decided by Lord Mansfield was one of an implied revocation and not that of an express revocation, and upon the face of this report it so appears to have been. The Supreme Court of Maryland reached a like conclusion, and so have other jurists in reading the report of this case. CHIEF JUSTICE HOSMER'S distinction between the express and the implied revocation is today generally accepted as sound. In Buller's Introduction to the Law, Nisi Prius, p. 266, and in the reporter's note in Lofft's report of cases in Chancery, Goodright v. Glazier is referred to as a case where the second will contained an express clause of revocation. And this interpretation of this case seems to have been finally generally accepted, and this rule, known as Lord Mansfield's, been adopted as the rule of the common-law courts of England, and so remained until changed by the statute of 1837.

The ecclesiastical courts of England adopted a different rule, and one which finally settled into the rule that the revival of the earlier will would depend upon the intention of the testator, to be gathered from any circumstances in the case. These two rules created confusion in the English courts, and finally, having had a long experience with them, and having before it the example of a number of American States which had adopted by judicial decision or statute the rule of James v. Marvin, the English Parliament, in 1837, enacted that no will or codicil, or any part thereof, which should be in any manner revoked, should be revived, otherwise than by the re-execution thereof, or by a codicil executed as required by the Act, and showing an intention to revive the same. 1 Victoria, Chap. 26, § 22. Under this statute "it has been steadily held that after the execution of a subsequent will containing a revoking clause, or provisions inconsistent with those of a prior will, such former will cannot be revived by the simple cancellation or destruction of the latter will." Gardner on Wills (2d Ed.) p. 242. A number of American States, at least thirteen, have passed similar statutes. Of the other States, the great majority of courts which have passed upon the point have adopted the rule of James v. Marvin, or the ecclesiastical rule or a modification of it. In only a few States has the so-called common-law rule of Lord Mansfield been adopted, viz: Illinois, Rhode Island, New Jersey, Vermont and North Carolina. Viewing the law of the country as a whole upon this subject, as found in judicial decision and statute, I must agree with the Supreme Court of Nebraska in its opinion that Lord Mansfield's rule has been thoroughly disapproved in this country as well as in England. A similar opinion has been frequently expressed. See 1 Scheduler on Wills (5th Ed.) § 415; 21 Yale Law Journal, note, p. 672; Bohanon v. Walcot, 1 How. (Miss.) 336. The doctrine of CHIEF JUSTICE HOSMER, that "an express revocation is a positive act of the party, which operates, by its own proper force, without being at all dependent on the consummation of the will in which it is found, and absolutely annuls all precedent devises," is the accepted rule except in the few States which follow the rule of Lord Mansfield. The doctrine of James v.Marvin as to the effect of an express revocation in a later will, has been generally approved in those States which have adopted the rule of revivor of the earlier will by intention. I quote from a few of the opinions which adopt this rule of revocation. "Therefore, where a second will is drawn and executed with the formality required by the statute, and containing an unlimited revocatory clause, all former wills are wiped out and held for naught. The operation of the revocatory clause is immediate and absolute. It is an act done solemnly and deliberately for present effect, and not one contemplating that future circumstances are to determine whether it shall have force. . . . By the great weight of authority in this country the destruction or revocation of the subsequent will containing the revocatory clause does not have the effect of reviving the former will." In re Noon's Will, 115 Wis. 299, 301,91 N.W. 670. The court says in Cheever v. North,106 Mich. 390, 392 (64 N.W. 455): "The great weight of authority is to the effect that the execution of a subsequent will, containing an express clause revoking the former will, operates as a revocation at once." InBlackett v. Ziegler, 153 Iowa 344, 353, 133 N.W. 901, the court thus expresses itself: "A will once executed may be revoked by the execution of an instrument of revocation or cancellation, and this instrument may be a new will, containing an express clause of revocation, or by an instrument of revocation alone. . . . It is the execution of the instrument in proper form which effectuates the revocation. This view is sustained by reason and the weight of authority, although disapproved by a minority of the courts." Colvin v.Warford, 20 Md. 357, 391, relying upon James v. Marvin, upholds its doctrine of revocation in these terms: "But a clause in a subsequent will, which in terms revokes a previous will, is not only an expression of the purpose to revoke the previous will, but an actual consummation of it, and the revocation is complete and conclusive, without regard to the testamentary provisions of the will containing it." The leading case adopting the ecclesiastical rule of revivor and pushing it to its logical conclusion, is Pickens v. Davis,134 Mass. 252, 256, and this is what the court said of the clause of revocation in the second will: "The clause of revocation is not necessarily testamentary in its character. It might as well be executed as a separate instrument. The fact that it is inserted in a will does not necessarily show that the testator intended that it should be dependent on the continuance in force of all the other provisions by which his property is disposed of. It is more reasonable and natural to assume that such revocatory clause shows emphatically and conclusively that he has abandoned his former intentions, and substituted therefor a new disposition of his property, which for the present, and unless again modified, shall stand as representing his wishes upon the subject." The following authorities sustain this doctrine. Barksdale v. Hopkins, 23 Ga. 332; Wallis v. Wallis,114 Mass. 510; Lane v. Hill, 68 N. H. 275, 277, 44 A. 393; McClure v. McClure, 86 Tenn. 173, 179, 6 S.W. 44; Kern v. Kern, 154 Ind. 29, 37, 55 N.E. 1004; In re Cunningham,38 Minn. 169, 172, 36 N.W. 269; Melhase v.Melhase, 87 Or. 590, 601, 171 P. 216; Hairston v.Hairston, 30 Miss. 276, 305; Lively v. Harwell,29 Ga. 509, 514; Matter of Thompson, 11 Paige Ch. (N. Y.) 453; Williams v. Miles, 68 Neb. 463, 94 N.W. 705, 96 id. 151. The authority in this country holds overwhelmingly with CHIEF JUSTICE HOSMER the first question decided in James v. Marvin, that a clause in a will expressly revoking former wills takes effect immediately, and that there is no difference between the express revocation in the will and that in any other writing. The will is ambulatory, but the revocation is not dependent on the operation of the will but is the positive act of revocation of the party and operates instantaneously when made. The majority opinion holds that the distinction made by CHIEF JUSTICE HOSMER, that the implied revocation cannot take effect until the death of the testator because the will is ambulatory while the express revocation in a will takes effect instantaneously, has "no foundation except the dictum of judges." This distinction has been made by our own court in James v. Marvin and by the very great weight of judicial opinion in this country. The express clause of revocation of former wills is a positive statement showing conclusively the intention of the testator to abandon his former will and substitute for it a new one. It is thus a positive, substantial act expressive of such intent. This is the natural and the ordinary interpretation of such a clause in a will. The destruction of the second will and the preservation of the first will is said, in Peck's Appeal and approved in the majority opinion, to be satisfactory evidence of the testator's intention to revive the first will. This view is contrary to almost all opinion, including that which has adopted the intention rule. The majority opinion also quotes with approval Peck's Appeal, that the weight of authority seemed to be in accordance with the quotation from Redfield to the effect that the revocatory clause was ambulatory. My examination of the authorities leads me to exactly the opposite conclusion. Space forbids further discussion of the majority opinion upon this point. I leave this subject with this suggestion. If the express clause of revocation in a will does not become effective until the will becomes operative, it is a nugatory clause in the will, since the last will of a testator possessing testamentary capacity, when duly executed and without undue influence, revokes all former wills upon his death. And yet as Schouler says: "No well-drawn testament omits at the present day a clause of revocation." 1 Schouler on Wills (5th Ed.) § 417.

The next question is whether the statute of 1821, now General Statutes, § 4946, changed the rule of James v.Marvin in its doctrine that an express clause of revocation of former wills in a later will revokes an earlier will, and that the revival of the earlier will cannot be had save by republication. The study of our statute satisfies me that its framers did not intend to change either of the points decided in James v. Marvin, and did not in fact do so. The purpose of the statute was quite different. Mr. Sherman, in his brief in Witter v. Mott, 2 Conn. 67, correctly and illuminatingly states the situation of the law in England and in Connecticut. He says: "In England, previous to the statute of frauds, devises of land by custom, or pursuant to the statute of wills (32 Hen. 8, C. 1, and . . . 35 Hen. 8, C. 5) were revocable by words only, without writing. . . . Our statute of wills, so far as it extends, is a transcript of the English statute of frauds; but our legislature have omitted the 6th section of the latter statute, which requires a revocation by an express declaration to be in writing, signed by the divisor, in the presence of three witnesses. If this subject had simply been left free from legislative restriction, it would have been sufficient for the present purpose; but the rejection of the 6th section by our legislature, after adopting the 5th, shows a positive intention which cannot be disregarded." And because we had failed to include in our statute of wills § 6 of the English statute of frauds, which was a transcript of that statute as it related to wills except for its omission of § 6, wills in Connecticut could be revoked orally (Card v.Grinman, 5 Conn. 164) or in writing (Witter v. Mott,2 Conn. 67), when James v. Marvin was decided in June, 1821; and such continued to be the law until § 6, Chapter 1, Title 32 of the Revision of 1821 became the law, January 1st, 1822. Section 6 of the English statute of frauds was in part as follows: "VI. And moreover, no devise in writing of lands, tenements or hereditaments, nor any clause thereof, shall at any time after the said four and twentieth day of June be revocable, otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing or obliterating the same by the testator himself, or in his presence and by his directions and consent." Pickering's Stats., Vol. 8, p. 406. In England the revocation of a will devising land, except in the four specified ways, must under this statute be in writing; as to personality the statute did not apply. It never occurred to the English legislators until 1770, nor to their jurists, that the will whose revocation was provided for in this statute was intended to be an operative will and hence upon the destruction of a second will containing a clause of revocation the earlier will revived. This needs no further proof than that contained in the fact of the creation of Lord Mansfield's rule at this time, and to the development of the ecclesiastical rule and the subsequent enactment of the statute of revivor, 1 Victoria, Chap. 26; all, while § 6 of the statute of frauds continued an active and much referred to statute. The English statute of frauds contained no provision to meet a situation where the will containing a revocatory clause was itself revoked while an earlier will remained in existence. This was left to the rules established by the courts until both common law and ecclesiastical rule were swept aside in the enactment of the revivor statute, 1 Victoria, Chap. 26. Mr. Roberts, in his article in 39 Amer. Law Reg. 506, remarks: "The statute is silent as to the result of such revocation upon former wills. Its framers were careful to provide how a will might be revoked, but failed to provide any method for the revocation of a revocation. This was probably due to the fact that it was considered that a revocation of a revocation was itself really a new testamentary act." In 1821, Title 32, Chapter 1, § 6, we enacted § 6 of the English statute of frauds whose omission had been noted by Mr. Sherman. It read as follows: "No devise of real estate shall be revoked, otherwise than by burning, cancelling, tearing, or obliterating the same, by the testator himself, or in his presence, by his direction and consent; or by some other will or codicil in writing, declaring the same, signed by the testator, in the presence of three or more witnesses, and by them attested in his presence." "The statute of 1821 applied to every will containing devises of real estate and every will containing both devises of real estate and bequests of personal property."Goodsell's Appeal, 55 Conn. 171, 179,10 A. 557. In this respect it was identical with the English statute, § 6, and is copied from it, and its purpose was identical with that of its prototype, § 6. The only difference between the English statute and ours, was that our statute provided for a revocation by will or codicil, and the English statute provided, in addition, for a revocation by "other writing," and our statute provided that the witnesses should attest in the presence of the testator, while the English statute made no such provision. These differences did not affect the essential purpose of the two statutes. Our statute, like the English statute, governed the revocation of wills containing devises of lands, while the revocation of the disposition of personality continued to be controlled by our common law as announced in James v. Marvin. Our statute, like the English statute, did not attempt to meet the situation when the second will containing a revoking clause was destroyed leaving an earlier will in existence. Its purpose was not to serve as a statute of revivor and it never has been so understood. The statute of 1821 required a revocation by "will or codicil in writing, declaring the same," and this meant that the will itself should contain the express revocatory clause. Stetson v. Stetson, 200 Ill. 601, 66 N.E. 262. In America this section of the English statute of frauds has been enacted in most of the States and in substantially this form. So far as I can discover it has never been construed away from its purpose as a statute of frauds into a statute of revivor. My brethren say that Goodright v. Glazier, and the other decisions which made the rule of Lord Mansfield the common law of England, interpreted and declared the meaning of the words used in § 6 of the English statute of frauds, and that this was adopted as the common law of this State. My brethren are surely in error in this. My brethren also hold that in enacting § 6 as a part of our law in 1821, our legislature adopted the meaning attributed to them by the courts of England and accepted as our common law. But the opinion had already held that James v. Marvin stated our common law and that this was changed by statute; if this is sound, the statute could not have been adopted as expressing our common law. Moreover, our Supreme Court had never, prior to James v. Marvin, determined the principal point involved in that case. Our Superior Court had ruled in accordance with the subsequent opinion in James v. Marvin. That was the situation of our common law upon this point. We had never adopted the English rule of Lord Mansfield. And when we came to pass upon the rule we repudiated it. James v. Marvin was argued after the legislature had enacted in May the Revision of 1821, containing the section under consideration. The opinion was handed down late in September following. The Revision went into effect January 1st, 1822. My brethren argue that the revisors and legislature had before them in the interpretation of this section nothing except the decisions under the common law of England. The chairman of the Revision Committee was the preceding CHIEF JUSTICE, ZEPHANIAH SWIFT, and another member was Thomas Day, the Reporter of the Supreme Court. It is scarcely believable that a change in the law of so momentous a character as the majority attribute to this section, would have been made by these revisors, or if it was the legislative intent, that they would not have known of it, or that James v. Marvin would have been argued by Roger Minot Sherman, and the opinion of the court written by CHIEF JUSTICE HOSMER with no reference to the statutory adoption of Lord Mansfield's rule by the former CHIEF JUSTICE and the court's Reporter. The inference is not that which my brethren draw, but rather that their failure to refer to this statutory adoption of Lord Mansfield's rule is the clearest proof that the statute of 1821 intended no such thing. If the legislature intended, in enacting the statute of 1821, to make devises of realty which contained an express clause of revocation, merely revocable when the will became operative, and the testamentary disposition of personality was to be governed by the subsequent rule of James v. Marvin, and hence continued revocable upon the inclusion in will or codicil of an express clause of revocation, this would have made hodge-podge of our law, embarrassed the settlement of estates, and have run counter to the universal professional opinion which existed certainly as late as Peck'sAppeal, 50 Conn. 562-565. "Will" is used in the chapter on wills, in the Revision of 1821, usually as the instrument executed as a will, but occasionally as the operative will when probated. In § 6 it is used as the instrument executed as a will, just as it is in § 6 of the English statute of frauds. "Will" as used in this section, is an instrument which is "the legal declaration" of a person's mind or intention respecting the manner in which he would have his property or estate disposed of after his death. 2 Bl. Com. 499. And when the intention or will is expressed in writing in the form required by statute, it is a completed will. The majority opinion holds that the statute of 1821 changed the law of the State. This seems in conflict with the position to which I have referred, that our common law was the English common law as it had interpreted § 6 of the English statute of frauds. The argument that the revoking clause is as much a part of the will as any other clause, and one clause cannot take effect without the other clauses, does not, as I think, touch the position of CHIEF JUSTICE HOSMER that the insertion of a revocatory clause in a will duly executed is a substantive, positive act, declarative of the purpose of revocation. It is said our statute indicates plainly that it did not provide for an instantaneous revocation. Why not? Four methods of instantaneous revocation are provided, why should the fifth method be assumed to take effect on the decease of the testator? By providing for a revocation by will or codicil and excluding revocation by other writing or by oral word, the majority say the inference is clear that the legislature did not intend to continue to grant the privilege of instantaneous revocation. That is to say, three methods of instantaneous revocation were recognized by law before the statute, by will, by other writing, or by oral revocation. The legislature enacted that revocation might be had by one of these methods, viz: by will, therefore the majority hold its exclusion of the other methods indicated that it meant thereafter to confine the revocation by will to an operative will, and to deny the privilege of instantaneous revocation by will. The logic of this reasoning does not seem satisfying. I think it entirely conclusive that the statute of 1821 did not refer to the revocation of operative devises, but to the revocation of devises by will which expressly declared that former wills were revoked; neither did the statute contemplate the revivor of the earlier will upon the destruction of the later one. Its purpose was to thereafter prevent the revocation of wills orally, or in writing, save in the manner prescribed by the statute, and to make our law conform to § 6 of the English statute of frauds and to be in harmony with the law of our States which had enacted similar statutes.

The origin and history of this statute confirm this interpretation. The statute of 1821 remained in its original form until the Revision of 1849, p. 347, § 7, when the last clause, which read "or by some other will or codicil in writing, declaring the same, signed by the testator, in the presence of three or more witnesses, and by them attested in his presence," was made to read "or by some other will or codicil, duly executed according to this Act." The purpose of the revisors was to express the same meaning in shorter form. The will or codicil, by § 2 of this Act, was required to be in writing and executed with certain formalities. When the revisors provided that it should be duly executed according to this Act, it was the same as if they had recited at length the formalities required by § 2. When they omitted "declaring the same," they eliminated an unnecessary amplification of the statute. These words meant that the revocation should be expressed in the will. There was no occasion for inserting these words. The statement that the will should declare the revocation was unnecessary, for to effect the revocation under our law of James v. Marvin, the express revocatory clause was essential. A will which did not declare the revocation did not come within the statute as a will which revoked a former will, and hence a will without such clause could not under the statute of 1821, and under General Statutes, § 4946, revoke a former will. The will could be revoked by an express or an implied revocation. Manifestly the statute does not refer to an implied revocation. The omission of this phrase was for the sake of brevity. This section is in the same form in the Revision of 1866 as in the Revision of 1849. So our law remained until the Revision of 1875. The Revision of 1875, Chapter XI, p. 370, § 7, changed the last clause of § 8, p. 403, of the Revision of 1866, which read as did § 7, p. 347, of the Revision of 1849, "or by some other will or codicil, duly executed according to this Act," to "or by a later will or codicil." Prior to this Revision our law provided that wills devising real estate could be revoked by a will or codicil duly executed according to the Act (Tit. 20, Chap. 1, Rev. 1866). Since by this Act all wills and codicils must be in writing and executed according to a certain form, this provision was the same as if § 2, p. 402, Revision of 1866, had been incorporated in this section. It could not be a completed will by the Act unless it was executed according to the Act. So that the change in the phraseology obviously did not change the meaning; it did what the Revision of 1875 frequently did, it made expressions briefer and more precise. At this time dispositions of personal property could be revoked by an express revocation in will or codicil, or other writing, and were not controlled by statute. James v.Marvin, 3 Conn. 576. The substantial change in the law made by the Revision of 1875 was in substituting in place of "no devise of real estate," "no will or codicil," thus making the provisions of our revoking statute applicable not only to devises of real estate, but to all wills and codicils. It in this way provided that the revocation of the will of personal property as well as the devise of real estate, might be by "a later will or codicil." It brought all dispositions of property by will within the section of the statute of wills, which had theretofore been confined to devises of real estate. The terms of this section in the Revision of 1875 have remained unchanged except that a comma was omitted in the Revision of 1888, before "or by later will or codicil." With the exception of this inconsequential change, the statute is as enacted in the Revision of 1875. Peck's Appeal, 50 Conn. 562-566, agrees with this conclusion that the meaning of "later will or codicil" is identical with the meaning of the last clause of § 6, p. 200, of the Act of 1821, and the majority opinion takes this view. The statute of 1821 has not been changed so far as its provisions of revocation are concerned, but these have been made to apply to dispositions by will of personality, as well as dispositions by will of realty. The General Assembly never could have intended, in the Revision of 1875, to overturn the doctrine of James v. Marvin which had been regarded as the law of the State since 1821, and to restore the common-law rule of Lord Mansfield, especially since at this time it had been thoroughly discredited in its own home, disapproved throughout most of the States, and especially when James v. Marvin had been the base upon which the law of England and of the United States had been builded. If the legislature had intended to change the law as announced in this case, would it not have changed the language of this section to conform to its intent in some one of these revisions of the statutes?

The record presents a further question. The appellees offered evidence to prove the intention of the testatrix to revive the first will by showing the declarations of the testatrix that it was her intention and belief that in destroying the second will she did so with the intention that her first will was to be her last will. The court excluded this evidence, and the appellees in their bill of exceptions present this question for decision. If the bill of exceptions had not raised this point there would have been no occasion for re-examining the second point decided in James v. Marvin, that upon the destruction of the first will by the revocatory clause in the second, the first will could not be revived save by republication. For in the agreed statement of facts the only fact from which the intention of the testatrix might be claimed, is that the second will containing a clause revoking all former wills was destroyed and the first will found among the valuable papers of the testatrix. The authorities generally concur in holding that the intention to revive the first will cannot be found from the mere fact of the destruction of the second will. This fact alone would furnish too slight a basis upon which to find the testator's intention. Blackett v. Ziegler, 153 Iowa 344,133 N.W. 901; Williams v. Miles, 68 Neb. 463, 94 N.W. 705, 96 id. 151; McClure v. McClure, 86 Tenn. 173, 179,6 S.W. 44; Lane v. Hill, 68 N. H. 275, 44 A. 393; In reGould's Will, 72 Vt. 316, 319, 47 A. 1082; 1 Schouler on Wills (5th Ed.) § 415. The leading case in this country upholding the admissibility of such evidence is Pickens v. Davis, 134 Mass. 252. I state briefly my chief reasons for thinking this ruling wrong. If parol evidence be admitted for this purpose, there is no stopping place. The conclusion of the Massachusetts courts is the only logical one to make. Whatever the rule of revivor might be in jurisdictions "where no statutory method of revocation is prescribed and where no formality is necessary to the making of a will," the rule ofPickens v. Davis cannot be justified in jurisdictions where there is a statutory method of revocation and one for the execution of wills. If the first will has been revoked there is nothing to revive. And if the statute prescribes formalities for the execution of a will, these should be strictly observed and no revivor of a will once revoked be permitted unless the will shall be republished with all the statutory sanction. To permit the oral declarations of the testatrix in proof of her intention to make the first will her last will, is in effect to republish the first will. If the will can only be made in a prescribed way it should not be republished, that is, re-executed, unless in the same way. To hold otherwise is to violate a provision of the statute of wills which has been deemed, and is, of supreme importance.

In my opinion there was error in directing a verdict for the appellees.