2 U.S. 286 (____)

2 Dall. 286

LAWSON, Appellant, versus MORRISON, et. al. Appellees.

Supreme Court of United States.

Attorney(s) appearing for the Case

For the appellant, two propositions were stated, and the corresponding authorities cited: — 1st. That the Will of 1777, was a revocation of the Will of 1775, in act, as well as intention, either of which is sufficient. Moore 177. 3 Mod. 260. Dy. 143. Off. of Ex. 20. Swinb. 15. 525. Cowp. 90. God. Or. Leg. 51. 54. Cro. I. 115. 1 Roll. Abr. 614. 2 Eq. Abr. 771. — 2d. That the mere cancelling of a latter Will, much less the mislaying or loss of a latter Will, is not a revival of a former Will: The cancelling may be done with a view to die intestate; and the mislaying may be accidental; and the Will of 1777, being in writing, can only, by the act of Assembly, be annulled by writing. 3 Atk. 799. Doug 36. Cowp. 49. 1 P Wm. 343. 345. 4 Burr 2513. Lost. 465. 470. Pow. Dev. 534. 535. 1 vol. Penn. L. (Dall. Edit.) p. 53. sect. 2. 6.

For the Appellees, the case was considered in various points of view. 1st. Does the law of Pennsylvania permit the revocation of a Will by parol, or must it be in writing? The act of Assembly declares that it shall be in writing. 1 Vol. Dall Edit. p. 55. s. 2. 6. In England, it is true, a Will might have been altered by parol; but it must have been express, not intentional, in the present, and not in the future, tense. God. Or. Leg. 51. 54. Swinb. 531. Cro. I. 115. The evidence here is not positive; it is mere supposition, that the Will of 1777 in express terms revoked all former Wills. 2d. Is the act of making a subsequent Will (even where its contents are unknown) sufficient in itself, as a revocation of a former Will? The authorities directly disaffirm the position, where the subsequent Will does not alter the whole disposition of the estate; and if the same solemnities are necessary to revoke, which are required to make a Will, there is not, in the present cases, proof by two witnesses of the contents of the Will of 1777. Besides, the paper called a subsequent Will, does not appear to be more than a codicil, as it is not proved that any Executors were constituted; and both might, therefore, stand together. There is no proof that the latter Will disposed of the personal estate differently, but only that it increased the legacies. Perk. 179. God. Orph. Leg. 53. 12. 3, Cro. E. 721. Pow.Dev. 538. Swinb. 532. Cro. E. 721. Cro. Car. 23. 4 1 Show. 537. 534. Salk. 592. Sho. P.C. 149. Hardr. 375. Cowp. 87. 8. 3 Wil. 497. 2 Bl. Rep 937. S.C. — 3dly. Does the destruction of the latter, revive the former, Will? The intention of the party is undoubtedly material upon this question. The testatrix sent for the Will; but whether she cancelled it, with a view to die intestate, or James Lawson destroyed it, with a view to claim the whole estate as heir at law, can only be explained by the circumstances; and there is one circumstance that is strong indeed, to shew that the never meant to give to him the whole; namely, that James Lawson had arrived in Cumberland County before the making of the latest Will, and yet she therein bequeathed to other persons, legacies to a considerable amount. The cancelling of a latter Will, under circumstances less forcible, has been deemed the revival of a former one. 4 Burr. 2712. — 4thly. Is there any difference between the revocation of a Will in Pennsylvania, and in England, since the statute of frauds and perjuries? The doctrine in the act of Assembly (1 vol. Dall. Edit. p. 640.) is the same as the doctrine in the statute, 29 Car. 2 a. 3 and the effect should be equally uniform.

For the appellant, in reply. All the cases cited by the opposite counsel, relate to real estate in England, subsequent to the statute of frauds and perjuries. But our position is, that a subsequent Will, or Testament, does, of itself, revoke all prior Wills of personal estate. A latter Testament, says Swinb. 15 always infringes a former one; but a codicil is different; and the distinction between a Testament and Will is established in Cowp. 90. The present Will was not found (nor was any other Will found) in the possession of the Testatrix; and the presumption, therefore, is, that she cancelled the Will of 1777, with an intention to die intestate.

CHEW, President, delivered his opinion, in general terms, in affirmance of the sentence of the Register's Court.

McKEAN, Chief Justice.

There has been no case or precedent cited, which comes up to this, in all its parts; but there are several cases, which depended upon the same principle.

Before the statute of 29 Car. 2 ch. 3. Wills in England might be revoked by any express words, without writing; and so it was in Pennsylvania, until altered by positive...

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