#### Malone’s Adm’r and Others v. Hobbs and Others.

November, 1842,

Richmond.

[39 Am. Dec. 263.]

(Absent Cabell, P., and Allen, J.)

Wills — Bill Contesting Validity , of—Allegations.*— Where a will has been admitted to probat, and a person interested appears within seven years afterwards and files a bill in chancery under the act 1 Rev. Code of 1819, ch. 104, § 13, it is sufficient in such bill to aver in general terms that the writing of which probat has been received is not the will of the decedent.

Same—Same—Misjoinder of Plaintiffs—Objection in Appellate Court.—An answer to a bill* contesting the validity of a will states, that some of the plaintiffs had accepted legacies and devises under the will; and the fact appears to be so by exhibits filed with the answer. After verdict and decree ag&inst the will, the objection is taken in an appellate court, that those parties had precluded themselves from disputing the validity of the will, and that as they are improperly joined with the other plaintiffs, the suit cannot be sustained. Held, the objection will not avail.

Same—Same—Devisavit Vel Non†—Evidence—Declaration of Legatee—Competency.—On the trial of an issue whether a writing, admitted to probat as a will, be the will of the decedent or not, the evidence against the will consists of statements by witnesses, of what a legatee told them had passed on one occasion when he and the decedent were together. That legatee is one of many defendants, and it does not appear that he refused to testify. The admissibility of such evidence questioned before the appellate court by counsel, but not decided.

Same—Same—Same—Revocation—Destruction of Codicil.—On the trial of an issue whether a writing, admitted to probat as a will, was the will of the decedent or not, it appeared that the decedent had made a codicil to his will, and that the codicil was afterwards destroyed by his direction. The evidence tended to *shew that the will was written on one sheet of paper, and the codicil on another; that the will was left with one person, and the codicil with another; and that the will and codicil were with those persons respectively, at the time the codicil was destroyed. The circuit court instructed the juryr that if they believed from the evidence, that the decedent intended, at the time of destroying the codicil, thereby to destroy or revoke the will, in that case the destruction of the codicil was a revocation of both the will and codicil. Held, this instruction was erroneous.

Same—Revocation—Direction to Destroy.‡—Although a testator has directed his will to be destroyed, and believes that it has been destroyed as requested, yet if it be not in fact destroyed, such direction and belief will not operate as a revocation of the will, even in relation to the personal • estate.

David M. Malone of Greenesville county made his will on the 29th of April 1833* whereby, after desiring* that all his just debts might be paid, he devised a tract of land on which he lived to be equally divided between his aunt Elizabeth Wyche’s children and his aunt Sally Davis’s, that is, one moiety to his aunt Wyche’s children, and the other half to his auntDavis’s children. He bequeathed his negro man Peter to William H. Hobbs senior, and his two negroes Charlotte and Mason, with their future increase, to Franky Wilkins; and he also made devises and bequests to Edmunds Mason, Frances Mason his wife, John Y. Mason, George Mason, Eliza the wife of James B. Mallory, Lawrence G. Heath, James E. Mason and James M. Wall. At the time of making this will, the testator was unmarried; but afterwards; ,to wit, in November 1834, he married Ann Wilson. There was no child born of the marriage; and in January 1837 the testator died. On the sixth of March 1837, the will was proved in the court of Greenesville county by M. H. Hobbs and William F* Hobbs the two attesting witnesses, and admitted to record; and John Y. Mason the *277executor named in the will having declined the executorship, administration with the will annexed was granted to Edmunds Mason. The testator’s widow died soon after, and in May 1837 administration on her estate was granted to Baxter R. Wilson. *Thornton P. Wyche and others, as children of Elizabeth Wyche, filed a bill in the court of Greenesville county against Elizabeth Malone and others, as children of Sally Davis, setting forth the devise to the children of Elizabeth Wyche and of Sally Davis, and asking a decree for a division of the tract of land devised, or for a sale of the same and a division of the proceeds. The bill was duly answered, and the cause being heard, a decree was pronounced in October 1837, under which a sale was made and the proceeds divided; and the report of the sale and division was confirmed in November 1837.

The negroes Charlotte and Mason were, under an order from Prances Wilkins of the 5th of October 1837, delivered to William Wilkins the 1st of January 1838.

In July 1839, a bill'was filed in the circuit court of Greenesville, under the act in 1 Rev. Code of 1819, p. 378, § 13, contesting the validity of the will. The decedent having left no descendants, no father, mother, brother or sister, no descendant of his mother or of any brother or sister, and no grandfather or grandmother, the suit was brought by uncles and aunts and their descendants, to wit, by William H. Hobbs and Martha his wife, and others. Among the plaintiffs were Franky Wilkins and the children of the decedent’s aunts Elizabeth Wyche and Sally Davis. The only allegations in the bill impeaching the validity of the will, were in these terms: “Your complainants deem it unnecessary to refer your honour to the various bequests contained in said paper, or to allude to the remarkable fact that a sensible man should die with such a will, his wife living, and not the least preparation of any kind made for her comfort and support. Your complainants think it only necessary to state their thorough conviction, and they therefore charge, that said paper was not the will of David M. Malone.” The prayer of the bill was for an issue devisavit vel non, and that the court would set aside the will. Edmonds Mason as administrator with the will annexed and in his own right, Prances Mason *his wife, John Y. Mason, George Mason, James B. Mallory and Eliza his wife, Eawrence G. Heath, James E. Mason, James M. Wall, and Baxter R. Wilson administrator of the widow, were made defendants.

Edmunds Mason answered, saying, he was unable to comprehend from the bill on what ground the validity of the will was contested ; stating the acts before mentioned of mrs. Wyche’s children, mrs. Davis’s children, and Franky Wilkins, (which were proved by exhibits filed with the answer,) and relying upon those acts as a recognition of the validity of the will. He then proceeded to set forth such circumstances as he knew in relation to the testamentary dispositions of the testator. John Y. Mason also, in his answer, detailed such circumstances as were in his knowledge. But these answers not being evidence in favour of the defendants,* it is not deemed necessary or proper to narrate the circumstances set forth by them.

None of the other defendants answered except Baxter Wilson the brother and administrator of the widow, who stated that Edmunds Mason, the principal legatee in the will of Malone, did, soon after the death of Malone, by deed of gift (which respondent filed with his answer) generously convey to the brothers and sisters of mrs. Malone all the slaves which Malone acquired by his marriage.

The cause (after a previous trial elsewhere, on which the jury disagreed) was removed to the circuit court of Petersburg, and an issue was directed to be tried on the common law side of that court, to ascertain whether the writing purporting to be the will of Malone was in fact his valid will. The trial took place on the seventeenth and eighteenth of November 1841.

At the trial, the bill, answers and exhibits were read to the jury, and on motion of the plaintiffs the court instructed *the jury that the answers were not evidence for the defendants, except so far as they were responsive to the bill. The defendants, in support of the issue on their part, adduced the following evidence : 1. The will and the probat thereof. 2. They proved by the subscribing- witnesses to the will, that at or about the date thereof, and when the testator was unmarried, he came to their store, one morning before breakfast, from the direction in which he lived, produced the writing, and requested them to witness it ; which, upon due acknowledgment thereof by him, they did, by subscribing their names thereto in his presence. One of the said witnesses further stated that D. M. Malone lost his parents when quite young ; that he went to live with Edmunds Mason who was his guardian, and remained there till of age ; and that he always expressed great affection and respect for mr. Mason.

The plaintiffs then introduced the following witnesses :

1. Jarrett Weaver; who deposed, that he was sent for to see the testator in his illness, and after some conversation about his situation, between the testator and witness, and between testator and dr. Parham, witness asked him, “Have you made that disposition of your property which you wish if you should die ?” He said, he had not. Witness then asked him if the law would dispose of his property as he wished ? He replied, it would not. Witness then urged him to make his will without losing any time. He said he would do so the 'next morning. But he died before it was done. The next morning, witness went over to the testator’s, and found E. Mason there. Witness said' to him, “I *278suppose judge” (meaning the testator,) “has died without making any provisions for his wife, as he has left no will.” E. Mason replied, “Yes, he has ; there is a will in John Y. Mason’s handsand then went on to remark, that after the making of the will, the testator *purchased two negro boys of David Watkins ; that, being taken ill at William Hobb’s, testator sent for him (E. Mason) to see him; that he went down, and the next day testator was carried back to his (E. Mason’s) house; that, at his house, testator requested him to write a will giving him (E. Mason) those two boys ; that he (Mason) told him, he did not know that it would be worth while to write a will, saying, “You have a will, and a codicil will answer to which testator assented, whereupon he (E. Mason) wrote a codicil giving to himself those two boys, and testator had the codicil witnessed: that the first time Malone came, after his marriage (which he did shortly thereafter), ■ to his (E. Mason’s) house, he (E. Mason) took the paper or papers (witness did not remember whether he said paper, or papers) in his hand, and coming into the room where the testator was, said in a jocular way, “Well, judge, you are married now, I suppose we may as well destroy those papers.” Testator replied, “Yes, destroy them; they are of no force nowand he (E. Mason) threw the codicil into the fire. Witness is certain that the expression which E. Mason told him he used to the testator was, “I suppose we may as well burn those papers,” and that the reply he said the testator made was, “Destroy them ; they are of no force now.” The witness mentioned that dr. Parham and himself were called on by John Y. Mason at the time the will was proved, to go before the court, and testify to what they had heard-the testator say. He also mentioned an expression of the testator, disapproving the conduct of a man who had not made, as he thought, proper provision for his wife.

2. Thomas Jones ; who deposed to similar expressions by the testator about that same person, and a declaration by him that he would rather his wife should have what he had, than any other person. He never heard testator speak of having a'will. *3. B. R. Wilson, one of the defendants ; who deposed to a conversation with testator shortly before his death, in which he said, “that he had made no preparation for this world or the next; that he wished witness to take charge of his affairs and further deposed as follows : “The day after Malone’s death, very early in the morning, mr. E. Mason came to Malone’s. In the course of that day or the next, he shewed me the will of mr. Malone; that is, I took it to be his will, not having my attention drawn to the fact. Mr. Mason spoke of it as a will. I heard, I think, from him or some other person, that he (mr. Mason) had sent for it to John Y. Mason’s. I saw mr. Mason’s old servant ride up, before I saw the will. I did not see any communication between him and mr. Mason. I never heard Malone speak of having a will.”

4. Dr. Thomas Parham, the attending physician of the testator in his last illness, who had been living in testator’s family for several years before his death. He heard testator say, about four or six weeks before his last illness, that he intended to leave all his property to his wife. The night before his death, after some conversation about his situation, he remarked that he would not die without a will, or making a will, (witness does not recollect which,) for some large sum of money which he named. Witness then offered to bring pen, ink and paper, that one might be written. He said he would put it off till the next morning, when he would do it the first thing. But he died just before light the next morning. After mentioning the terms on which he and the testator were, and the happy manner in which the testator and his wife lived together, the witness deposed, that in a ■ conversation which took place between himself and E. Mason at David M. Malone’s residence, the day after his death, Mason asked the witness if David M. Malone had done any act which would revoke a will? stating that there was a will in the possession of J. Y. *Mason. Witness told him he did not know what was sufficient to revoke a will; but went on to tell him what had passed the night before D. M. Malone’s death, as above mentioned. In that conversation mr. Mason told witness, that David M. Malone had made a codicil to his will, which disposed of negroes acquired after making his will, and that the first time he came to his (E. Mason’s) house a few weeks after his marriage, he (Mason) said to testator, in substance, (witness cannot depose to the words), “I suppose the paper or papers are of no use now,” and that testator replied, “Yes, destroy or burn them,” (witness does not recollect which,) “I have got somebody else to leave my property to now.” Witness never heard Malone speak of having a will. He also stated a remark made by Malone, some ten or twelve months before his death, indicating that he thought it possible his wife was pregnant.

5. John Ezell ; who deposed to a conversation with testator after his 'marriage, at a time when (using the language of the witness) he was “a little drinky,” in which conversation testator asked witness if he had made a will,- and witness saying no, testator replied, “Nor I either, but I intend to-make one ; for every man ought to have a will.”

6. John Powell; who deposed that in the spring before testator’s death, he heard testator say that he intended to give all his property to his wife in case of his death. He-also mentioned a remark by the testator on some occasion, disparaging to E. Mason.

7. William Lucas; who mentioned a conversation with the testator after his marriage; in which he intimated that he thought the Mason family did not like his marrying,, and declared that if he were to die, he would give his wife every thing he had.

8. H. L. S. Batte ; who mentioned a conversation between him and the testator, in which, the witness having informed him *279that he had a will by which he left *all his property to his wife in case she had no children, testator said, he did not have a will, but intended to make one to the same effect, as he thought it a good will.

9. Baxter E. Wilson, Thomas E. Jones, M. H. Hobbs and William H. Hobbs; who stated that they had heard the testimony of Jarrett Weaver, and that he made statements to them to the same effect, soon after Malone’s death.

The defendants on their part, to rebut the evidence of the plaintiffs, then introduced the following:

1. The deposition of Nathaniel Young, who, since giving it, has died. This -witness deposed, that in the last week of November 1835, he was at the house of John Y. Mason in the county of Southampton, and David Malone came to said Mason’s, where he spent the day and staid all night. He slept in the same bed with deponent. While in bed, Malone asked deponent what could be the reason that his wife would not have a child? to which deponent said, “The reason is that you are deficient and cannot perform your part.” Malone replied it was not his fault, but there was a defect or disease about his wife that would certainly prevent her from breeding, and he had made up his mind never to alter his will unless his wife had a child. Deponent then asked him if he kept a will by him, to which Malone answered, “Cousin John Y. wrote my will before I was married, and had it to take care of for me, and I am determined never to take it out of his possession or alter it, unless my wife shall have a child; for there is a blamed set of folks gaping around me for what they think I will give them, but they shall be disappointed.” Deponent then, in a joking manner, asked Malone if he had remembered him (deponent) in making his will? He replied no, he had given his property to those who had been his best friends ; and stated that he had given his cousin John Y. some negroes, to doctor *George Mason a boy and his old horse Baptist, to Eliza Mallory wife of colonel J. B. Mallory, a negro man, to James M. Mason of Tennessee some negroes and a debt due him, to Lai Heath he had given his hounds and rifle and some other property; that he had given his lands to two of his aunts, and he had given mr. W. Hobbs a legacy, and all the rest of his estate of every kind he had given, as he had always intended, to his uncle Edmunds Mason, who had been a father to him.

(After the reading of this deposition, the plaintiffs proved that Young, in a former trial, had stated in his evidence, that after he and Malone had gone to bed, testator mentioned the circumstance of his wife’s health, and said he thought she would never have a child, and did not think she would live long. The plaintiffs examined several witnesses to prove that mrs. Malone was in good health until a few months before her death. And the defendants admitted that Young was about 60 or 70 years old, and the brother of mrs. Edmunds Mason.)

2. Josiah Holleman ; who deposed to mr. Young’s being a man of unexceptionable character, and of uncommonly tenacious *memory as to*dates, places, names and circumstances. Mr. Young was the clerk of Isle of Wight county until his death.

3. Eobert M. Boykin ; who was at John Y. Mason’s on the occasion referred to by mr. Young. His statement is as follows: “I retired about 11 o’clock. On ascending the stairs, I heard mr. Malone and mr. Young in conversation. I did not understand on what subject they were conversing. I well recollect waking several times during the night, and at each time they were in conversation. I recollect distinctly asking mr. Young what he and mr. Malone could find to talk about on the occasion alluded to ; and added, that they could not have slepU any that night. Mr Young replied that they did not sleep much ; for David was telling him, nearly *the whole night, of his will, and of an affection of his wife. I do not recollect the precise time that these questions were propounded to mr. Young, but believe it was the next day.” Boykin stated that he was a son in law both of mr. Young and of Edmunds Mason.

4. Nathaniel P. Young; who was also at John Y. Mason’s on the occasion referred to by his father. He stated that about 9 o’clock at night, Malone asked his father to walk out with him. They left the room. His father soon returned, said that David wished to sleep with him, and went off to bed. Shortly afterwards, doctor George Mason and the witness retired to a *room*adjoining the one in which his father and Malone were. The statement of the witness is then as follows : “They were in conversation when we retired, and continued it so long as I was awake. When my father and myself arrived at home, I enquired what could have engaged him and David so much in conversation when they slept together at judge Mason’s. His answer was, that David (or the judge, as he called him) was talking of his will. This was in my father’s chamber. He said nothing of the provisions of Malone’s will, or the disease of his wife, as there were ladies present.

5. William H. E. Merritt; who travelled to Mississippi with Malone in the winter of 1832-3. Malone, he said, frequenlly spoke in terms of great affection and respect of Edmunds Mason and his family ; and the witness, from what he saw (being with him at the houses of two of his relations) thought that he had unkind feelings towards some of his relations there.

6. Benjamin Myrick; who deposed, that he heard Malone say before his marriage, that there was a set gasping after his property ; that Malone spoke of giving a negro girl to a little daughter of witness, and witness said, “You had better give me Jim for a gardener.” Malone replied, “I can’t do that; aunt Mason would blow me up.” He said he had promised him to his aunt Mason (meaning the wife of Edmunds Mason). *7. Norphlet L. Pond ; whose respectability and character for veracity were *280deposed to by dr. Orris A. Brown and Benjamin Myrick. Pond deposed, that while at work at E. Mason’s on a cotton gin, before D. M. Malone was married, witness was sent for and requested by testator to witness a paper. Heandmr. Mason’s overseer (Davis) witnessed it. It was on a small piece of paper, and witness saw nothing but the name “Cynthia.” He did not know what it was. In March before testator’s death, witness went to his house to have a settlement with him, and witness and testator went hunting. Testator advised witness to get married, saying he had been much happier since he was a married man, and would be more so but for his wife’s situation. In the course of the evening, testator said he had a will, and did not intend to be without one, (he did not say where his will was;) that there were a set of fools gasping after his property, who should never have it. He did not say who they were. He said, he never expected his wife to have a child. After testator told witness he had a will, witn ess asked him what the paper was he had witnessed ? He said, it was a codicil to his will, but it was then of no account, as it had been burnt or destroyed.

After which the plaintiffs read a deposition previously given by Pond, in which, in answer to the question whether he was ever called on by David M. Malone to attest any testamentary paper or writing, he said, “ I witnessed a piece of paper, about the size of the caption of this deposition, which he after-wards told me was a codicil to his will, and which devised certain negroes after he had made his will. This paper was executed before the marriage of the said David M. Malone, and bequeathed those negroes to the defendant E. Mason.” And now upon cross examination, being asked by the plaintiffs’ counsel, how it was that in his deposition he stated that the paper he witnessed bequeathed certain *negroes to E. Mason, and that he now states he does not know what was in it (the paper), he said in answer, that he had no explanation ; his deposition and evidence would speak for themselves.

In the same deposition, being asked whether he ever had any conversation with Malone about his will after his marriage, he said, “ I did. About 10 or 12 months before" his death, he was advising this deponent to get married, said he had been happier since his marriage, that there were some people gasping after his property who should never have it, that he had made his will and never intended to be without one. He did not designate who they were, or call any names. The said Malone’s wife was in bad health, and he told this deponent that he never expected any child. Mrs. Malone was very ill when David M. Malone died, and survived him but a few weeks. David M. Malone was much attached to E- Mason and E. *G.*Heath, which attachment was never interrupted.” And now upon cross examination, being asked by the plaintiffs’ counsel, whether mrs. Malone was in bad health when he and the testator went hunting ? and having answered that he did not know whether she was or not, the witness was then asked to account for the fact that he had stated in his deposition that she was in bad health at that time. He answered, that he did not know any thing about it, except that David M. Malone told him.

In the same deposition, being asked whether he ever heard from Malone where his will was, or any thing about his will, he said, “I never did. I heard him say he had one.” And being further asked how often did he ever hear David M. Malone speak of his will, he said, “ Never but once, and that as stated above.” And now upon his cross examination, being asked by the plaintiffs’ counsel, if he did not say, on the first trial of this cause, that he had had several conversations with Malone on the subject of his will, he replied that he might *have said so. If he did, he meant that they were all the same evening. He does not recollect, whether he said they were all on the same evening or not, at the first trial, because he does not recollect that the question was asked.

In the same deposition, being asked whether D. M. Malone ever told him what became of the codicil, he answered, “ He never did. He told me after his marriage that that paper was then of no account.” And being further asked whether he gave any reason why the codicil to his will was then of no account, he answered, “He did not.” And now upon his cross examination, being reminded of his stating that Malone told him that the codicil was burnt or destroyed, and being asked how he accounted for having sworn in his deposition positively that he did not tell what had become of it, he answered, that after giving his deposition, in reflecting, he recollects that Malone did tell him the codicil was burnt or destroyed.

The defendants moved the court to give the two following instructions to the jury : 1. If the jury believe that the will was written on a sheet of paper, and the codicil on another sheet or piece, then the mere destruction of the codicil did not revoke the will. 2. If the jury believe that the testator intended, at the time of destroying the codicil, to destroy or revoke the will, but reserved the destruction or revocation thereof as matter to be afterwards carried into effect, and did no further act to revoke or destroy it, in that case the destruction of the codicil, though done with the intention thereafter to revoke or destroy the will, did not amount to a revocation or destruction of the will. And the plaintiffs opposed the same. But the court gave both instructions.

The court, however, on the motion of the plaintiffs, added the following:—But if the jury believe from the evidence, that Malone directed the will to be destroyed, and thought that it was destroyed as requested, the *court then instructs the jury that the said will, so far as it related to the personal estate, was revoked in law, although it might not in fact have been destroyed. Moreover, if they shall believe from the evidence, that Malone intended, at *281the time of destroying the codicil, thereby to destroy or revoke the will, in that case the destruction of the codicil was a revocation of both the will and codicil. To the instruction so added by the court, the defendants excepted.

On the 19th of November 1841, a verdict was found against the validity of the will. When the jury rendered their verdict, they requested permission to state in open court, and did state, that they did not design or intend by their said verdict to cast the least censure on the conduct or character of Edmunds Mason or John Y. Mason, but that their verdict resulted from the opinion, unanimously held by them, that David M. Malone, in the act of destroying the codicil to his will, intended thereby to revoke or destroy the will also. And the court, uniting with the jury in exempting Edmunds Mason and John Y. Mason from all censure, did, with the consent of parties, make a memorandum to this effect part of the record.

The defendants, after the rendition of the verdict, moved the court to certify that the verdict was against evidence ; but the court overruled the motion, and the defendants excepted to the opinion. The evidence was spread upon the record ; and the same was, by consent, taken as a statement of the facts proved on each side.

On the 4th of December 1841, the defendants moved the court for a new trial of the issue ; but the court overruled the motion. Whereupon the cause coming on to be heard, the court decreed that the paper admitted to record in Greenesville county court, at March term 1837, as the last will and testament of David M. Malone, be set aside and declared null and void.

Erom this decree an appeal was allowed.

*Robinson for appellants.

The general rule is, that a will once executed remains in force unless revoked by some act done by the testator animo revocandi; such as burning, cancelling, making a new will or the like. 1 Williams on Executors 92. By what act has the will of the decedent in this case been revoked ? Not by making a codicil to it; for even if that had made a disposition of any part of the estate different *from*the will, it would only be a revocation pro tanto. Not by the marriage ; for that without the birth of a child is no revocation. And not by any verbal declarations of the testator ; for even if the will were of personalty merely, it would be protected by the provision *in*the statute declaring that “no will in writing or any devise therein of chattels shall be revoked by a subsequent will, codicil or declaration, unless the same be in writing.” 1 R. C. 1819, p. 377, § 9. In the language of judge Roane, in Cogbill v. Cogbill &c , 2 Hen. & Munf. 512, the will submitted is to prevail unless a posterior will was not only contemplated but actually executed. “In the case,” says he, “of a will of personalty, such a will remains in force under our statute, until legally revoked by another will in writing, conforming in other respects to the law as established on the subject. The question is therefore not whether the wiil submitted for probat is the last will the testator intended to execute, but whether, being once sanctioned as a will, it has been nullified by any subsequent act or testament.”

In Jackson v. Kniffen, 2 Johns. Rep. 31, the will was one of lands, but the principle adjudged is equally applicable to a will of personalty ; for, as Spencer, J., said, (p. 36,) “a will, whether of real or personal estate, cannot be revoked since the statute of 29 Charles II. by words alone.” The declarations by the testator, of which evidence was offered in that case, were of the most solemn character, but the evidence was rejected *as inadmissible, because such declarations could have no effect against the will.

Where, after a will is made, the circumstances occur of marriage and the birth of a child, the revocation of the will takes place in consequence of a rule or principle of law, independently altogether of any question of intention of the party himself, and consequently no evidence is admissible to shew an intention that it should not be revoked. Such is the unanimous opinion of the judges of England, pronounced after the profoundest argument and the maturest deliberation, in the late case of Marston v. Roe, 8 Adolph. & Ell. 14; 35 Eng. Com. Daw Rep. 303. Where the only circumstance occurring after the will is that of marriage, and no revocation takes place in consequence of any rule or principle of law, parol evidence must be equally inadmissible to shew an intention to revoke. In the language of sir William Eollett in the case just referred to, (p. 315,) “since the statute of frauds, the most direct expression of an intent to revoke avails nothing unless intimated by the means there pointed out.” “ Suppose,” says Alderson, B. (p. 313), “the testator, after marriage, has clearly declared his intention that the will shall be revoked, and he afterwards changes his mind and declares his intention that it shall take effect, is the will ambulatory in the mean time ? and where are such changes to stop ?” “If,” says Tindal, C. J., (p. 325,) “ against the intention to revoke, which is presumed by law, parol evidence of a contrary intention could be admitted, such as evidence of conduct of the testator leading to the inference that he meant the will to stand, or of declarations to that effect, then it would be but reasonable to allow such evidence to be met and encountered by evidence of conduct of the testator leading to a different inference and of declarations contradictory to the former. And again, the admission of such evidence leads to this further difficulty, *that if the testator changes his first intention and adopts a contrary one, which of the two intentions is to prevail ? Is it to be the first, which is clearly proved, or is the latest formed intention, like the last will, to be allowed to predominate ? It was precisely to preserve *us from*the perplexity and uncertainty of such conflicting evidence, *282both in the making and revoking of wills, that some of the provisions of the statute of frauds where expressly framed.”

It is true that in the case of Marston v. Roe, the question related to the revocation or non-revocation of a will devising real property; and it may be said that in a case of personalty, where the question is as to what shall or shall not be a testamentary paper, or what shall or shall not amount toa revocation of a will, the evidence bearing on those points is frequently composed, in part, of the declarations of the party. The reason is, that under the law of England, and under the law of Virginia as it formerly stood, a will of chattels might be made or revoked by a writing not signed by the party or subscribed by any witness. Glasscock v. Smither &c., 1 Call 479. And declarations and other evidence were necessarily let in to shew that at the time of the writing there was the animus testandi or the animus revocandi. The writing offered as a will could not be valid where there was not the animus téstandi, and the writing offered as a revocation could not be valid as a revocation where there was not the animus revocandi. So too where the will is alleged to be revoked by the testator’s destroying, cancelling or obliterating the same, or causing it to be done in his presence, whether the will be of realty or personalty, two things must concur: there must first be shewn an act of destroying, cancelling or obliterating, and then it is secondly to be ascertained whether this act was done animo revocandi. And in all such cases the declarations of the testator, accompanying the act, are evidence to shew the quo animo. This view *of the ground on which such declarations are admitted is adverted toby Woodworth, J., in Dan &c. v. Brown &c., 4 Cow. 490. “The execution of the will,” he observes, “being established, the next question is, whether there was any evidence that it was cancelled. On this point, I lay no stress upon the declarations of the testator. They were made long after the execution of the will, and shortly before his death. They are not evidence unless they relate to the res gesta, or to an act done, as where by mistake the will is torn or thrown into the fire. The declaration of the testator are in such cases evidence, where they shevv the quo animo. The act of cancelling is in itself equivocal, and will be governed by the intent.” Moreover, if there was formerly any difference between the admissibility of parol evidence to shew a revocation of a will of realty, ,and the admissibility of such evidence to shew a revocation of a will of personalty, that difference must now be considered at an end, since the act-of the 4th of March 1835. Sess. Acts. 1834-5, p. 43, ch. 60; Sess. Acts 1839-40, p. 50, ch. 57, § 2. Opinion of Stanard, J., in Barksdale v. Barksdale, decided in March 1842.

There being in this case no writing of any kind offered as a revocation of the will, one of the grounds above alluded to for admitting parol evidence, viz. to shew the intent at the time of the writing, is of course inapplicable to this case. And before the evidence can be received to shew the animus with which an act of destroying, cancelling or obliterating was done, such an act must be first established. The intent to destroy, cancel or obliterate will not suffice, unless the'intent be carried into execution. Perkes v. Perkes &c., 3 Barn. & Aid. 489 ; 5 Eng. Com. Eaw Rep. 353; Winsor &c. v. Pratt &c., 2 Brod. & Bingh. 650 ; 6 Eng. Com. Eaw Rep. 299 ; Read v. Harris, 6 Adolph. & Ell. 209 ; 33 Eng. Com. Eaw Rep. 57 ; Jackson v. Betts, 9 Cow. 208 ; Means &c. v. Moore &c., Harper 314; 3M’Cord282. In a note at *the end of the case of Reed v. Harris, it is stated that in a subsequent case between the same parties, upon nearly the same evidence, it was decided that the will was revoked as to copyhold lands. That subsequent case is in 8 Adolph. & Ell. 1; 35 Eng. Com. Eaw Rep. 299 ; and the reason of it is that the statute of 29 Car. 2, ch. 3, has been held not to apply to copyhold lands. See Attorney General v. Barnes & wife, 2 Vern. 597 ; Tuffnell v. Page, 2 Atk. 37 ; Doe v. Danvers, 7 East 299. But the reason for this decision as to copyhold lands does not apply in Virginia to any kind of estate known here, our statute declaring, as before mentioned, that no will in writing, even of chattels, shall be revoked -by any subsequent declaration unless in writing. Accordingly, in Boyd &c. v. Cook, 3 Eeigh 32, where the testator was a blind man, and the parties contesting the probat offered to prove an admission bj' a daughter of the testator, who had written his will, that she had been directed by her father to destroy the will, and that he believed it was done, the court of appeals held this not to be proof of revocation, and admitted the will to full probat as well in respect of personal as of real estate. Carr, J., said, “ Mere parol directions given to a person ,to destroy the will can never satisfy the requisitions of the statute; and to suffer them, would be to incur the very danger the statute meant to avoid.”

This decision of the court of appeals, and the other authorities before cited, have been disregarded by the circuit court. Eor the circuit court instructed the jury that if they believed from the evidence, that Malone directed the will to be destroyed, and thought that it was destroyed as requested, then the will, so far as it related to the personal estate, was revoked in law, although it might not in fact have been destroyed. And in this instruction the appellants insist there is manifest 'error.

The other instruction is a very curious one, in reference to the evidence, which tended to shew that the *will was written on one sheet of paper, and the codicil on another, that the will was left with John Y. Mason and the codicil with Edmunds Mason, and that the will and codicil were in these places respectively at the time the codicil was destroyed. The instruction is, that if the jury believe from the evidence, that Malone intended, at the time of destroying the codicil, thereby to destroy or revoke the will', in that case the destruction of the codicil was a revocation of both the will and *283codicil. Now, if the two papers, instead of being a will and codicil, had been duplicates of the same will, and the court had instructed the jury that if they believed that the decedent, at the time of destroying one copy, intended thereby to revoke the will, the destruction of one copy was in such case a revocation of the will, such an instruction would be intelligible enough. But when the two papers, in different places, are of wholly different tenor, when one is a will and the other a codicil, and the paper destroyed is not the will but the codicil, it is difficult to comprehend how the destruction of the codicil can be a revocation of the will. If the will were destroyed, then the codicil being prima facie dependent on the will, the cancellation of the will is an implied revocation of the codicil. 1 Williams on Executors 76. But there is no foundation for the converse of this proposition A will is not dependent on the codicil, and the cancellation of the codicil, so far from being a revocation of the will, is evidence rather that the will was intended to remain as it was before that codicil was made. If the intention to destroy a will be not sufficient to revoke it without an act destroying it, and if the destruction of a codicil in one place does not of itself destroy the will in a different place, it follows that the destroying the codicil, no matter with what intention, is not a revocation of the will. Yet the circuit court instructed the jury otherwise. And it was this instruction which caused the verdict that was found. *Eor the jury have declared that their verdict resulted from the opinion that the decedent, in the act of destroying the codicil to his will, intended thereby to revoke or destroy the will also.

With the verdict that was found, the court of chancery ought not to have been satisfied. It was without evidence to support it. The declarations of the testator, deposed to by the witnesses of the plaintiffs tended merely to shew that after his marriage he considered his will as not in force, and intended to make a will providing for his wife. They do not shew that there was any new will made, or any valid act of revocation. And the only other evidence adduced against the will consists of statements by Weaver and dr. Par-ham, of what Edmunds Mason told them had passed on one occasion when he and the decedent were together The admissibility of such evidence as this is very questionable, Osgood v. The Manhattan Company, 3 Cow. 623 ; The Hartford B mk v. Hart, 3 Day 493, especially as it does not appear that Edmunds Mason was called on and refused to testify. See opinion of Bayley, J., in The King v. The Inhabitants of Hardwick, 11 East 590. But whether admissible or not, the statements are too vague and uncertain to have much weight against Edmunds Mason, and they are entitled to still less against the other legatees. They certainly ought not to be concluded by a verdict found upon the statements of one out of many legatees under the will, detailed secondhand, when even according to those! statements there was no act destroying, I i cancelling or obliterating the will. But the case is not merely one in which there is an absence of evidence on the part of the plaintiffs to establish a revocation of the will. The testimony of several corroborating witnesses, adduced by the defendants, and relating to different times and conversations, shews the sense of the testator, long after the act of destroying the codicil, that the will was a subsisting will. Bates *v. Holman, 3 Hen. & Munf. 502. Now we do not admit that the will is invalidated by an intent to burn it, even if such intent were established, (the will itself remaining in existence). But suppose the testator did intend it should be burnt, yet if he afterwards knew that it was in existence, and intended that it should stand for his will, evidence of this removes the effect of the other evidence shewing a previous intent to destroy the will. Burns v. Burns, 4 Serg. & Rawle 297.

In every aspect of the case, the decree should be reversed and the verdict set aside. And then the question will be whether a new trial shall be directed, or the bill dismissed.

The bill ought to state such facts as, admitting them to be true, are sufficient in law to make the will invalid; and this bill stating no such facts, we insist that it is for that reason defective, and ought therefore to be dismissed. Moreover, the plaintiff Eranky Wilkins, and the children of mrs. Wyche' and mrs. Davis, having by such cogent acts recognized the validity of the will, and the hill stating nothing to avoid the effect of those acts of recognition, those plaintiffs cannot be entertained in a court of equity. And then the objection arises, that the other plaintiffs having joined with themselves, as coplaintiffs, parties who are not entitled to sue, the suit cannot be sustained. Cuff v. Platell, 4 Russ. 242; 3 Cond. Eng. Ch. Rep. 651 ; Makepeace v. Haythorne,4 Russ. 244 ; 3 Cond Eng. Ch. Rep. 652 ; The King of Spain and others v. Machado and others, 4 Russ. 225 ; 3 Cond. Eng. Ch. Rep. 643.

Seddon for appellees. The instructions of the circuit court to the jury declare, that there being a will and codicil, the mere destruction of the latter does not prima facie involve the destruction or revocation of the former, nor will a destruction of the codicil, with intent at some future time to destroy the will, revoke the will; *but that a destruction of the codicil, with a design by such act of destruction to vacate and cancel the whole instrument, will as well as codicil, will revoke and cancel both will and codicil. This principle applies as well to wills of realty as of personalty. Under the third section of our statute of wills, 1 Rev. Code, p. 376, which follows as to this matter the sixth section of the english statute of frauds, we admit that no mere declaration of intention to revoke is sufficient; that the strongest declaration by words in praesenti will not answer ; and that the intention to revoked though prevented from being carried into execution by fraud, will be wholly unavailing. We admit, in short, that there must be either a written *284revocation, or an act destroying, cancelling or obliterating the will. But an act may be an effectual revocation, though the will be neither totally destroyed nor wholly obliterated ; there may be a slight act, only cancelling a part or obliterating a clause, which will yet operate to revoke the will, because done with that intent: while, on the other hand, the most positive act destroying or obliterating the whole instrument will be insufficient, if the intent to revoke be wanting. Instances of total cancellation are furnished in the cases of Scruby v. Fordham and others, 1 Add. 74 ; 2 Eng. Eccl. Rep. 34, and Moore &c. v. Moore &c., 1 Phill. 375 ; 1 Eng. Eccl. Rep. 109, of partial cancellation, in the cases of Sutton v. Sutton, Cowp. 812 ; Swinb. Pt. 7, §16; Earkins and others v. Earkins and others, 3 Bos. & Pul. 16 ; Short v. Smith, 4 East 419. In all the cases, cancelling is regarded as an ambiguous act. Burtenshaw v. Gilbert, Cowp. 52 ; Smith &c. v. Cunningham, 1 Add. 448, 455 ; 2 Eng. Eccl. Rep. 175 ; Swinb. Pt. 7, § 16. It may consequently be explained by parol evidence. Opinion of Roane, J., in Bates v. Holman, 3 Hen. & Munf. 526. And the slightest act will revoke, where it appears to be done animo revocandi. Bibb v. Thomas, 2 W. Bl. 1043 ; Boyd &c. v. Cook, 3 *Eeigh 32. The conclusion from all the cases is, that there must be some act of cancellation; that whether such act be a revocation or not, depends on the intent; and that it shall either be a total or a partial revocation, as the testator intended. Now a codicil is part and parcel of the will, a substantive part of it, united to it, whether it be on the same or on a separate piece of paper. Swinb. 15 '; Bates v. Holman, 3 Hen. & Munf. 525; Acherley v. Vernon, Comyn 381 ; Hill v. Chapman, 1 Ves. jun. 407 ; Westcott and others v. Cady and. others, 5 Johns. Ch. Rep. 334. The codicil republishes the will, and gives by implication new life and vitality to it. The effect of the codicil is to make the will speak as of the date of the codicil. Beckford v. Parnecott, Cro. Eliz. 493; 1 Wms. Saund. 277, e. ; Crosbie v. MacDougal, 4 Ves. 616. And the will and codicil are so united that the cancellation or revocation of the will revokes prima facie the codicil. 1 Williams on Ex’or s 76. But this presumption may be repelled, as in Medlycott v. Assheton, 2 Add. 229 ; 2 Eng. Eccl. Rep. 280. The destruction, then, of the codicil must be placed on the same ground as the destruction of a substantive and independent clause of a will. And as the destruction of part of the will, though a revocation prima facie of only that part, may, by shewing the intent, operate as a revocation of the whole, so, though the destruction of the codicil is prima facie a revocation of the codicil only, yet upon shewing the intent, it may operate as a revocation of the will, as well as of the codicil. This intent sometimes appears from the nature of the provisions. If, for example, there be a particular provision in the will, and the codicil contain the same provision, a destruction of the codicil will be a destruction of that provision in the will. Utterson v. Utterson, 3 Ves. & Beam. 122. Here the codicil in respect to the slaves has the same effect as the residuary clause, and the testator at least intended a revocation pro tanto. The intent *may also be to revoke the whole, and may be shewn by circumstances. If in any case the destruction of a codicil with intent to revoke the will, can, upon shewing such intent, have the effect of revoking the will, it must have that effect here; for the jury have found such intent.

II. The circuit court has declared that the solemn direction by a testator that his will should be destroyed, and his belief that it was destroyed accordingly, are in law a revocation of a will of personalty. Before the statute of frauds, words were sufficient to revoke a will either of realty or personalty. 1 Wms. Saúnd. 278, h.; Simpson v. Kirton, Cro. Jac. 115. The provisions of the english statute are in 1 Williams on Ex’ors 59, 60. The Virginian statute is more brief, but’to the same effect; 1 R. C. p. 377, *\*9. Under these statutes, something more is necessary than mere words; but less will do than would be required to revoke a will of realty. Words accompanied by conduct shewing an intent to revoke, are still sufficient to revoke a will of personalty. The whole effect of the statute is to prevent a revocation of such a will by words importing a present intent to revoke; but the direction to destroy the will, and the belief that it is destroyed accordinglj', will still revoke it. Here the direction was to burn the papers (wilt as well as codicil), and the codicil was actually burnt. Such a direction applicable to both papers, and believed to have been complied with, would operate as a revocation of a will of personalty in England, and must have the same effect here. Doe v. Harris, 8 Adolph. & EU. 1; 35 Eng. Com. Eaw Rep. 302. This, it is true, was a case of copyhold lands, which do not strictly come within the statute of frauds relating to realty; but what will revoke a will of copyholds will revoke a will of personalty. The decisions in the ecclesiastical courts shew clearly, that though words will not revoke, yet intention manifested bjr conduct will. Walcott v. Ochterlony, *1 Curteis 58,0; 6 Eng. Eccl. Rep. 398. And on this subject the ecclesiastical law is our law. Redford’s adm’r v. Peggy and others, 6 Rand. 316; Worsham’s adm’r v. -Worsham’s ex’or, 5 Eeigh 589. In t'he case of Boyd &c. v. Cook, 3 Eeigh 32, relied upon on the other side, the attention of judge Carr was confined to the clause of the statute relating to wills of realty, and the case does not overrule the doctrine of the ecclesiastical courts, that conduct, with present intention to revoke, will amount to revocation.

It is not proper to consider the act of 1835, (Sess. Acts 1834-5, p. 43, ch. 60,) as changing the mode of revocation. At common law, every instrument not under seal was capable of being orally dispensed with. After a will was required to be in writing, it might have been revoked *285by words until the statute of frauds. 1 Roberts on Wills, ch. 2, p. 193. And it must still be capable of being revoked in any manner which the statute allows. The requisition of greater formalities in the execution cannot of itself impose greater formalities in the revocation.

III. Parol evidence is clearly admissible to shew the intent with which an act was ¡ done; and for this purpose declarations ac- i companying the act, or made subsequently, ! may be received. Then as to the declarations of Edmunds Mason, though it is true tha"t a party to a suit cannot be compelled to give evidence, .yet declarations of any party contrary to his interest may be received. The King v. Inhabitants of Harwick, 11 East 578; Burton &c. v. Scott &c.,

3 Rand. 399. Such evidence is received on the principle that the statements are against the interest of the party, and that he cannot be compelled to testify.

IV. This being a case of conflicting evidence, was peculiarly proper for a jury. The verdict should not be set aside merely because the judges would, if on the jury, have found differently.

*V. There was no necessity to set forth in the bill the grounds of the proceeding. All that is necessary is to set forth what entitles the plaintiffs to the relief required. Besides, there was no demurrer on this ground, but an answer. Had there been both demurrer and answer, the answ'er would have overruled the demurrer. Jones v. Earl of Strafford, 3 P. Wms. 81; Clark v. Phelps and others, 6 Johns. Ch. Rep. 214.

VI. It is no objection to a suit that the title of one of the plaintiffs is destroyed, provided there remains on the record a plaintiff whose title to relief is consistent with the claim of the other, and is not affected by its failure. The authorities cited on the other side are not applicable, because there the plaintiffs claimed a joint demand arising out of contract, and either the claim had no existence, or it was joint. Such cases are analogous to those at common law, where plaintiffs suing on a contract alleged to be made with them jointly, must sustain the demand as alleged. But here there are separate and distinct interests, and the utmost that would be proper would be to dismiss the bill as to the party having no interest. But in fact there is an interest existing in all the plaintiffs, either as devisees and legatees, or as heirs and distributees. The ground is merely that there is an equitable bar, not that any of the plaintiffs ought not to be parties. And the objection moreover is not made by plea, but only by the answer. It is like the case of an answer setting up that one of the plaintiffs is paid. Story’s Eq. PI. $ 203; Wilkinson v. Parry, 4 Russ. 272; 3 Cond. Eng. Ch. Rep. 662. The case of Dickinson v. Davis and others, 2 Eeigh 401, is also an authority against the objection.

Robinson adverted to the two cases relied upon as establishing that words accompanied by conduct shewing an intention to revoke are sufficient. He remarked, that from the opinion in Doe v. Harris, 35 Eng. C. E. R. *302, it ajjpeared, that the statute of frauds was held not to apply, and the conduct in that case was considered as equivalent to words, and as revoking because words w'ould have been sufficient to revoke. The other case, (Walcott v. Ochterlony, 6 Eng. Eccl. Rep. 398,) he said must have been decided upon the ground that there was such a writing as satisfied the requisitions of the statute ; the ecclesiastical courts going farther in holding particular writings sufficient, than the courts of Virginia would go. But here there is no writing, and it is conceded that mere words will not do.

Gholson for the appellees.

Though the 3d section of our statute points out the only modes which a will of realty may be revoked, it is not true that every way in which a will of personalty may be revoked is prescribed by the 9th section. This section only declares that a subsequent will, codicil or declaration, in order to revoke, must be in writing; which is, in substance, that a will of personalty shall not be revoked by words only. The destruction of a will of realty must be in the presence of the testator. Will it be contended that the burning a w'ill of personalty by direction of the testator, though not in his presence, is not a valid revocation? Surely not. The mere declaration “I revoke my will,” the mere attempt to make a nuncupative will, will not revoke a will of personalty. These are mere words. But a positive direction to destroy is the act of the testator, and if carried into effect, is, so far as relates to personal estate, a valid revocation. And a testator having the right to revoke in this way, if a fraud be practised upon him, the will nevertheless will stand revoked as to chattels. It is certain that Malone burnt, or caused to be burnt in his presence, the codicil to his will. This was no declaration ; it was a solemn act. Was this act done in obedience to his orders to destroy his will? If so, upon what principle can it be contended "*that this would be a revocation by words only? or in what respect would this revocation violate either the letter or spirit of the 9th section? It was no will, no codicil, no declaration, but an act of the most unequivocal character. The remark quoted from the opinion of judge Garr in Boyd &c. v. Cook, 3 Eeigh 32. is made upon the 3d section, and the attention of the court in that case was not directed to the 9th section. The question, moreover, judge Carr said would be considered still open. Walcott v.. Ochterlony, 6 Eng. Eccl.’Rep. 398, should therefore have the weight to which it is entitled, unimpaired by the opinion in Boyd &c. v. Cook. And the point of that case is, that there was a present intention absolutely to revoke, manifested by something more than mere words.

Then as to the other instruction. No witness (except Young, whose testimony was disregarded by the jury) proves that the *286will had ever been in John Y. Mason’s possession at all, and he does not prove that it was there at the destruction of the codicil: But wherever the will might in fact be, it is certain that Malone thought the will, as well as the codicil, was in the possession of Edmunds Mason, when he ordered him to destroy “those papers.’’ Malone thought so on the very night of his death, when he called upon his brother in law to take charge of his affairs. He thought so on the occasions when he told his friends and companions he had no will. Is the instruction wrong? A codicil being part of the will, and the destroying a part of the will animo revocandi being a sufficient revocation of the whole, it follows that the destroying the codicil, with intent to revoke the will as well as codicil, is a revocation of both. Where there, are duplicates of a will, and one is in the possession of the testator and the other in possession of a friend, the fact that the one is missing from the testator’s possession works a revocation of the other. 4 Kent’s Comm. 531; Colvin v. Fraser &c., 2 Haggard 266; *4 Eng. Eccl. Eep. 113; Boughey v. Moreton, 2 Bee 532; 6 Eng. Eccl. Eep. 231; Onions v. Tyrer, 2 Vern. 742; S. C. ; 1 P. Wms. 346. Much stronger is the case where a codicil is destroyed with the belief and for the purpose of revoking and destroying the will.

Upon the other points, Gholson enforced the views presented by Seddon. If the instructions of the court were right, the verdict of the jury, he insisted, was not without evidence to sustain it. The bill was clearly sufficient; for upon it the court was obliged to direct the issue, and the decision of the question could not be withdrawn from the jury, by demurrer to evidence or in any other way. And there was no such improper joinder of plaintiffs as had been objected. Suppose, he said, all the legatees of an estate sue an executor, and he files with his answer receipts in full from several of the plaintiffs, this surely would not cause the bill to be dismissed as to the others. The principle contended for only applies where a plaintiff joins with him others who, according to their own shewing, are not entitled to sue.

Macfarland, in reply, argued, that this case strikingly vindicated the wisdom of the law which protected last wills and testaments from the frail memories and the machinations of witnesses. There was in truth nothing to authorize a grave suspicion that the testator intended to destroy his will, or directed it to be destroyed. The only foundation for such an opinion was the report by one of the witnesses, of a conversation held by him with a legatee; and even that was to be sought for, not in the general accuracy of the report, but in its minute and exact precision as to the terms employed by the legatee. It would be better to annul the law, than admit of exceptions broad enough to sanction such an experiment. The admissions of the legatee were not evidence. But admitting them, and granting the instructions, *the evidence was not only too loose and imperfect to justify a verdict against the will, but should have induced an opposite finding.

2. Parol evidence, he said, was admissible to ascertain the intent of an equivocal cancellation or partial destruction, so as to determine whether the act was done for the purpose of revoking the will altogether or only in part, or was accidental, and so was not designed to have either operation. But an app irent partial destruction was necessary, to lay a foundation for the admission of such evidence; which had never been received to dispense with the factum of destruction, or to make it out when the instrument exhibited no traces of it. To allow evidence to impeach a will as destroyed, whilst the appearance of the instrument refuted the pretension, would leave it wholly at the mercy of witnesses. The necessity of an apparent act, tending to destruction, was shewn by all the cases. It was sufficient to refer to Eead v. Harris, 33 Eng. Com. Baw Eep. 57, when they are collected.

The general rule was admitted; but it was still contended that the destruction of the codicil, to which the testator assented, furnished the act or factum required to let in the evidence; upon the ground that the codicil was part of the will, and that the rule, properly understood, required nothing more than some significant act with which to connect the evidence. The answer was, that the factum which alone authorized a recourse to evidence, was something which had impressed itself on the will, and naturally suggested an enquiry as to the intent wherewith it was done; not something which the evidence brought to light, and which, without it, would be unknown. Any other hypothesis involved the absurdity of admitting evidence to prove the factum, at the same time that the ascertained existence of the factum was a prerequisite to the admission of evidence. The argument ran in a circle. It was plain that there *was no practical, sensible restriction on the introduction of evidence, unless it be confined to marks or indications of destruction apparent on the wilt. So the rule had hitherto been expounded; and every consideration of policy was opposed to any relaxation of it. The argument founded on Doe v. Harris and Walcott v. Ochterlony had been already answered; and he enforced the views taken by Eobinson of those cases. The idea of a factum, of which there was no trace on the instrument, serving to let in parol proofs, implied the efficiency of typical cancellation and destruction. It had no foundation in authority or principle. •

It was not denied that a codicil was part of a will. Still the will was independent of the codicil, and would remain effectual notwithstanding its cancellation. Such was the general rule. In the present instance the will and codicil were on different papers, committed to separate custodies, *287and when the codicil was burned, it was not in the power of the testator to destroy the will if he had so wished. The will bore no marks of the testator’s dissatisfaction with any of its provisions, and was to all appearance exactly such as might have been expected if the testator remained contented with it. Upon its face it was a complete and perfect instrument. The simple act of destroying the codicil raised no presumption against the efficacy of the will. And then the question was, whether it was admissible to prove the intent or impression of the testator as to the will, so as to extend the act of destruction to that? in other words, whether the evidence of witnesses, unaided by any inherent indications, was competent to prove that the will had been renounced? The question could admit of none but a negative answer. The case of Htterson v.‘ Utterson, relied upon by the opposite counsel, was in perfect harmony with the rule. It proceeded on the ground that the cancellation of the codicil evinced a change in the testator’s purposes towards his disinherited *son; and that the intent to provide for him, implied thereby, ought to prevail over the correlative clause of the will. The cancellation of the codicil connected itself by internal evidence with the will; and the case, therefore, was not an authority for the appellees.

3. He insisted that the bill was imperfect in respect to all the requisites of a bill in equity, and ought to have been dismissed.

*

WiIls—Bill Contesting Validity of—Allegations.— The principal case is cited in Dower v. Church, 21 W. Va. 45, to the point that the bill need not set out as fully the facts on which the plaintiff claims that the paper which has been probated as the will, is not the will of the decedent, as it would have to do under the general rules governing equity pleadings; but that it will suffice in such a bill to aver in general terms, that the writing of which probate has been received is not the will of the decedent.

†

Devisavit Vel Non—Object of Issue.—The principal case is cited in Penn v. Ingles, 82 Va. 65, to the point that, in ordering an issue *devisavit vel non,*the chancellor does not exercise any of the ordinary powers of a chancery court, but acts in obedience to the express mandate of the statute: the object of the issue being to ascertain, by means of a jury trial, whether or not the will admitted to probate is, in whole or in part, the will of the decedent. When that question is decided the function of the suit is exhausted, and the verdict is binding upon the court, unless for good cause shown it is set aside, either at the trial or afterwards, on a bill of review.

The principal case is cited in this connection in Connolly v. Connolly, 32 Gratt. 663; Kirby v. Kirby, 84 Va. 629, 5 S. E. Rep. 539; Lamberts v. Cooper, 29 Gratt. 66; Dower v. Church, 21 W. Va. 44; French v. French, 14 W. Va. 486. See Coalter v. Bryan, 1 Gratt. 18. *Set footnotes*to Lamberts v. Cooper, 29 Gratt. 61; Coalter v. Bryan, 1 Gratt. 18.

‡

wills—Revocation.—Tbe opinion of Judge Baldwin in tbe principal case, discussing tbe subject of tbe revocation of wills, is quoted in Dower v. Seeds, 28 W. Va. 135, 136, 137, 138.

Same—Same—Belief as to Destruction.—In a note in 29 Am. & Eng. Enc. Law (1st Ed.) p. 273, it is said : “Tbe fact that tbe testator was deceived into believing that tbe will was destroyed, as required by tbe statute to work a revocation, will not revoke it if sucb was not tbe case. Clingan v. Mitcheltree, 31 Pa. St. 25; Boyd v. Cook, 3 Leigh 32; *Malone v. Hobbs,*1 *Rob.*366; Hise v. Fincher, 10 Ired. (N. Car.) 139.”

Thus, it was beld in Boyd v. Cook, 3 Leigb 32, that where a blind testator ^orders a will made by him to be destroyed, and believes it is destroyed accordingly, but it is not destroyed, and no act towards destruction done, this is not a revocation by destruction or cancellation, within the statute, 1 Rev. Code, ch. 104, § 3. At least, a court of probate cannot consider this as amounting to a revocátion.

*

See opinion of Camm,. J., in Kincheloe v. Kincheloe, 11 Tjeigti 398, and of STANABD, J„ in S. C. 403.—-Note in Original Edition.

BAEDWIN, J.

The spirit of our statute law in regard to the making and revocation of wills, is, to restrain parol testimony on the subject within the narrowest practicable limits. Hence the solemnities of writing, signature, attestation. Revocations by cancelling or destroying the instrument arise naturally from the custody, control and dominion of the testator. Prescribed formalities in regard to them would be of little value, and would involve the necessity, in the event of nonobservance, of resorting to parol testimony for the purpose of setting up and establishing the ruined instrument; one of the very evils intended to be guarded against. Still, however, the statutes are not without their efficacy in relation to these as well as the other modes of revocation, by excluding the evidence of witnesses as to the conduct and declarations of the testator, except so far as they bear upon the permitted acts of revocation. This is obvious from the consideration, that, as nothing can supply the want of the acts of revocation, so nothing can extend them beyond the legal import and effect of the acts themselves. The act, however, of cancellation or destruction necessarily presents enquiries calling for or permitting the examination of parol proofs to a very considerable extent. The mere act most usually establishes itself; for if a will which had been executed by the testator, and retained in his custody, be found cancelled at his death, or after diligent, enquiry cannot be found at all, the legal presumption *is that it was cancelled or destroyed by himself. But then this presumption is liable to be repelled by proof that the act of cancellation or destruction was done bj' some one else, without his knowledge and consent. So too, as the mind of the testator must accompany his physical act, every such case is open to proof of a mistake in point of fact: as if he were to throw ink upon his paper instead of sand, or, having two wills by him of different dates, should direct one of them to be cancelled or burnt, and the person so directed should through misapprehension or inadvertence cancel or burn the other. Still further, if the act in question be not a substantive, independent act, but dependent upon another, the whole forming together one transaction, we must look to the entire design and purpose, in order to ascertain whether a revocation has been accomplished. Thus, where a testator knowingly cancels or destroys his will, but with the belief that he has substituted or is about to substitute another in its place, which consequential or preliminary object is defeated by some accident or mistake, preventing the execution, or the complete and perfect execution, or the valid effect of the new will; in such cases, the work of revocation is incomplete and ineffectual. The purpose must concur with the act. And in this sense it is that there must be the animus revocandi; the purpose to revoke by the adopted mode of revocation. But the purpose alone is unavailing, without performance of the act itself. A general intent of the testator to alter his will, or change the disposition of his estate; a particular design to cancel or destroy it; an abortive attempt to do the very act in question, even though prevented by accident, fraud or violence, do not affect the legal validity of the instrument. The will must be can-celled or destroyed. How far the work of destruction must proceed, is not yet settled. It would seem that where the testator has done all that he designed to do for the purpose of actual *destruction, and believes that he has accomplished it, a literal compliance with the statute is not indispensable, Moore &c. v. Moore &c., 1 Phill. 375. A slight tearing and burning -were held sufficient in Bibb v. Thomas, 2 W. Black. 1043. A mere scorching of the envelope, not extending to the will it embraced, was held insufficient in Reed v. Harris, 33 Eng. Com. L. R. 57. However this may be, I think it clear that a cancellation or destruction, to effect a revocation of the whole instrument, must be directed against the whole, or an essential part of it; otherwise it can amount only to that partial cancellation or obliteration so well established as being a revocation pro tanto only. Swinb. Pt. 7, *§*16; 1 Williams on Ex’ors 73; Scruby v. Fordham &c., 1 Add. 78. If a will, whether written on one sheet of paper or several sheets, be torn up by the testator, or thrown into the fire, then it is manifest that the act of destruction is directed against *288the whole instrument, though only a part be destroyed, and that part a codicil only; but if the testator cancels or obliterates a particular clause, or destroys one of the sheets, retaining and preserving the rest, then his purpose to destroy a part only is equally clear, and the sole question is as to the validity and effect of what remains uneradicated; a question which may occur as to the whole residue of the instrument, or (as in Sutton v. Sutton, Cowp. 812; Larkins &c. v. Larkins &c., 3 Bos. & Pull. 16; Short v. Smith, 4 East 419,) as to the residue of a particular clause.

In the case before us, it was physically impossible that the act of destruction in question, the burning of the codicil, could have been directed against the bill, inasmuch as the will was not present but in a different custody. And yet the court instructed the jury, that if the testator intended, at the time of destroying the codicil, thereby to revoke the will, in that case the destruction of the codicil was a revocation of both the will and the codicil. If this be correct, it must be either ^because a codicil is so essential a part of a will that its revocation necessarily involves the revocation of the will, (a ground too palpably wrong to require discussion, and not assumed by the appellees’ counsel, nor by the circuit court); or because the destruction of a codicil, without any the slightest destruction of the will, or any attempt to destroy it, or even an intent to destroy it, must have the effect of revoking the will, if so intended by the testator. This last proposition, it seems to me, requires but little consideration after wha,t has been already said. To place it in the strongest light for the appellees, let us suppose that the testator, at the time of burning the codicil, expressly declared that he did it with intent thereby to revoke the will. Could it have that effect? The will itself was in no wise cancelled or destroyed, but remained perfect and entire, indestructible and intangible by the act in question. Then is it not obvious, that if revoked, it must have been by the sole efficacy of the testator’s parol declaration, directly in the teeth of the statute?

The argument of the appellees’ counsel is, that the question of revocation is in some degree a question of intention, and the act of cancellation or destruction an equivocal act, which must be done with an intention to revoke; and therefore, that though a partial cancellation or destruction is prima facie a partial revocation, yet bjr the intent of the party it may be extended to a total revocation. The premises are true, but do not warrant the conclusion. The intent to revoke must concur with the act of revocation, but cannot go beyond it, being limited by law to the act itself. We must not confound the intent to do the physical act of cancellation or destruction, with the intent to produce thereby the legal effect of revocation. When the intent to do the physical act concurs with the act itself, it then becomes an act of revocation; and when the intent to revoke concurs with the act of revocation, if then becomes *a legal revocation. When the concurring physical act and intent to do it are partial only, we have merely a partial act of revocation, and, as regards that act, the testator designs to do no more; and thus the question is presented, whether a partial act of revocation can accomplish a total revocation? a question which is answered by merely stating it.

In this view of the subject, it avails the learned counsel nothing to prove, from reason or authority, that a codicil is to be taken as a part of the will; for still it is’-a case of partial revocation. The argument is, however, stronger against total revocation, where the act of cancellation or destruction is applied to the codicil, than where it is applied to a part only of the will; for the part of the will cancelled or obliterated may be essential to the validity of the rest, which can never be as regards the codicil relatively to the will. The codicil is a part of the will for construction and testamentary disposition, but not for execution, nor for revocation, when that is applied to the codicil. It is a branch not essential to the existence of the tree, but which can have itself no distinct vitality.

In my opinion, therefore, the instruction in question violates both the letter and the spirit of the statute, and is fraught with all the evils of parol revocations. There can be no stronger illustration of the mischievous effects of such a doctrine than is furnished by this very case, which was made to turn upon the hearsay testimony of two witnesses to prove admissions, by one of the devisees, of expressions used by the testator, which derive their whole force from the very looseness of the terms employed.

The attempt to sustain this doctrine by authority has completely failed. No case has been produced in which it has been held that a revocation of a codicil, with whatever intent or in whatever mode, has operated as a revocation of the will. The case cited of *Utterson v. TJtterson, 3 Ves. & Beam. 122, it seems to me is not in point. There a father, after having made his will, being displeased with his son, by an interlineation of his will excluded him from all share in his property but one shilling, and also by a codicil, made for that purpose, declared his determination to the same effect; but afterwards being reconciled to his son, the testator cancelled the codicil by drawing his pen across it, but the interlineation was left standing in the will: and it was held that the cancellation of the codicil had the effect of cancelling the interlineation. The obvious principle of this decision, I think, is, that the interlineation and the codicil were parts of the same transaction, and to be regarded as an entire act for the same identical purpose; and that the revocation of the codicil was as much a revocation of the interlineation, as the revocation of a will is of its counterpart.

*289Another instruction given by the court on the trial of the issue was, that if the jury believed from the evidence, that the testator directed the will to be destroyed, and thought that it was destroyed as requested, then the will, so far as it related to the personal estate, was revoked in law, although it might not in point of fact have been destroyed. As this instruction, if erroneous, ought not to be repeated on another trial of the issue, I think it proper to express my ojunion upon it. The proposition which in its broad terms it announces, is, that if the testator directed the will to be destroyed, whether in praesenti or in futuro, and whether the will was present or absent at the time, and believed, whether then or at a subsequent period, that it was destroyed, then the will, as relates to the personal estate, was revoked, though not in point of fact destroyed. I need not consider the proposition thus stated, as I do not believe the court intended to be so understood, and as the counsel for the appellees have chosen to construe the instruction in reference to the instructions which had already been *given on the motion of the defendants, and to the evidence on the trial. Passing by anjr objection founded on an apparent clashing of the instructions, or an ambiguous hypothesis of the facts, let us suppose that the court had in its contemplation the undisputed facts disclosed by the evidence; to wit, that the will was not present at the time of the destruction of the codicil, but in a different custody; that the destruction directed by the testator was in praesenti; and that if the direction extendea to the will, it was under a misapprehension on his part, not occasioned by any fraud or mistake of the person directed, that the will was actually present. Let us further suppose that there was evidence tending to prove that the direction, under such misapprehension, extended to the will as well as the codicil. Then the case presented is that of a destruction of a codicil in the testator’s presence and by his direction, and a further direction at the same time to destroy the will together with Ihe codicil, under a mistaken belief of the testator that the will was then actually present. The instruction concedes that the will was not revoked as to the realty, and the question is whether it was revoked as to the personalty. I waived the enquiry whether the act of 1835, placing wills of personal property on the same footing as wills of real estate in regard to authentication, is to be consequently construed as placing them on the same footing in regard to revocation. Let the negative be conceded; Still we have a statute of long standing, taken from the english statute of frauds, prohibiting parol revocations of wills of personalty. Of what avail then was the parol direction to destroy the will, when in fact it was *not*destroyed, and moreover could not at that time have been destroyed? There is nothing more certain than that a direction to cancel or destroy a will, if it be not complied with, is not a cancellation or destruction. Revocation by cancellation or destruction, equally applicable to wills of personalty *and realty, is recognized by the english statute of frauds, and our statute of wills, in regard to revocations of devises of real estate. And in the language of Coleridge, J., in Reed v. Harris, 33 Eng. Com. Law Rep. 61, “the kind of construction which has been insisted upon would lead to a repeal of the statute on this subject, step by step. The statute, for wise purposes, does not leave the fact of cancellation to depend on mere intent, but requires definite acts. In the making of a will, if the proper signatures were not affixed, no explanation of the want of signatures could be received; and so where a will has been made, to revoke it there must be some act coupled with the intention, to bring the case within the sixth section.” The learned judge of course refers to the acts of cancellation or destruction mentioned in the 6th section of the english statute. The counsel for the appellees, however, contend that the statute prohibiting verbal revocations, that is to say, requiring revocations by words to be in writing, does not apply to acts evidencing an intention to revoke, though falling short of cancellation or destruction. There is no argument for this, founded in reason or policy; and no authority that I am apprized of. The cases cited do not warrant the proposition. That of Walcott v. Ochterlony, 6 Eng. Eec. Rep. 398, was one of written directions to destroy a will, which were treated as an actual revocation in writing. Reed v. Harris, 35 Eng. Com. Law Rep. 301, was a case of copyhold, which was held not to be within the statute of frauds, and therefore the will liable to revocation, as at common law, by words of present revocation, or acts equivalent thereto.

And here again this case strongly illustrates the danger of parol revocations of wills. This part of the case was made to turn upon the testator’s unfounded belief, supposed to be proved by the hearsay evidence of loose expressions above alluded to. that the will was ^'actually present at the time, so as to connect that belief, and the inferred direction in relation to the will, with the burning of the codicil. If we were to lose sight of the legal barriers, that is to say, the solemn forms and decisive acts prescribed by law, what security could we have against the corruptions, and blunders, and inaccuracies of witnesses in relation to the testamentary dispositions of estates?

Without considering the objection made by the appellants’ counsel to the evidence, given without opposition ' on the trial, of the admissions made by mr. Mason, one of the devisees, in regard to statements of the testator in conversation with him, I am of opinion that the judge of the circuit court, sitting as chancellor, ought not to have been satisfied with the verdict of the jury, because of the misdirections above *290stated; and therefore that the decree ought to be reversed, and the cause remanded.

It remains to enquire what further - proceedings ought to be had in the cause. The appellants’ counsel contend that the bill should be dismissed, on two distinct grounds. One is that the bill does not state such facts as, admitting them to be true, are sufficient in law to make the will invalid; it merely, by a sweeping allegation, charging that the paper propounded is'not the last will and testament of the alleged testator. My* present impression is that this objection could only be property taken by a demurrer to the bill; but I will briefly consider it upon its merits.

The question of devisavit vel non is a common law question, and in Virginia most usually a mere question of probat. After a will has been admitted to record, it cannot, with us, be controverted incidentally ; as it frequently is in the english common law courts, and sometimes (through the intervention of a jury) in their court of chancery, in' consequence of the want of a court of probat in- relation to wills of real estate. The ^sentence of our courts of probat cannot be drawn in question, unless in an appellate foriim, except in the mode prescribed by our statute of wills, 1 R. C. p. 378, *\*13, which provides, “that when any will shall be exhibited to be proved, the court having jurisdiction may proceed immediately to receive the probat thereof, and grant a certificate of such probat. If, however, any person interested shall within seven years afterwards appear, and by his or her bill in chancery contest the validity of the will, an issue shall be made up whether the writing produced be the will of the testator or testatrix or not, which shall be tried by a jury, whose verdict shall be final between the parties; saving to the court a power of granting a new trial for good cause, as in other trials: but no such party appearing within that time, the probat shall be forever binding;” with a saving in favour of persons labouring under disabilities. The 14th section also provides, that “in all such trials by jury, the cetificates of the oath of the witnesses at the time of the first probat shall be admitted as evidence, to have such weight as the jury shall think it deserves.” Thus the statute provides a supplemental tribunal to revise the decision of the court of probat, if in favour of the will; and that tribunal is a jury, to be impanelled for trial of the issue of devisavit vel non, to be directed by a court of chancery. The jurisdiction, such as it is, so conferred on the chancery courts is no part of the original jurisdiction of the courts of equity, which will not, (in the language of the books) in 1 an adversary way, take jurisdiction to determine the validity of a will. It is a pro-bat jurisdiction, to be exercised not by the chancellor, but by the jury; and his only province is to convene the proper parties, and cause the prescribed issue to be made up and tried, with the incidental power to grant a new trial, and to remove impediments and furnish facilities to a full and fair trial of the merits before the jury. The issue is *directed by the mandate of the law, in order to the final probat of the will propounded; and not to inform the conscience of the chancellor, whose conscience is not at all concerned in the matter, except to prevent injustice from being done by the verdict of the jury. The issue is not that made up by the bill, answer and other pleadings in the chancery proceeding, but is a new and separate issue, which, when drawn into technical form, is the result of feigned pleadings in a supposed action at law. The issue covers the whole ground (at least so far as required by the parties) whether the paper propounded is the last will and testament of the testator or not. When the jury are impanelled upon the issue, the parties are then in a legal forum, which looks only to the question that the jury have been sworn to try, without regard to the chancery pleadings. Those pleadings cannot enlarge or contract the issue before the jury, nor the evidence adduced at the trial. Of what avail then would it be, to require the chancery pleadings to be ramified into details of the facts that are to be the subject of evidence on trial before the jury? No such unprofitable controversy is required at the first probat, and why should it be at, the last? It could not have been contemplated by the statute, the object of which was to allow an opportunity ‘ ‘ to contest” the validity of the will, to all who had not enjoyed it in the court of probat, where the propounding was usually ex parte; and to allow it, not in a more formal, but a more substantial manner, the probat court not-having the power to convene the necessary parties, and trying the case itself without the aid of a jury, supposed by our law to be a more competent tribunal for the decision of such matters. The legislative mind has since been more fully developed by the act of 1838, which, by a happy expedient, authorizes the whole controversy, at the election of the propounder of the will, to be finally adjudicated in an original court of probat; *which is clothed with the same powers-of convening the parties, directing the issue, granting new trials &c. as are' vested in the chancery court by the original statute of wills; and without any formality of pleading, unless it be the fictitious or supposed common law pleading, employed, or conjectured, to raise the broad issue of devisavit vel non. No inconvenience is felt in this mode of proceeding, from the want of schedules of controverted facts, in the form of bills and answers, which serve rather to perplex than elucidate the cause, by multiplying subordinate and irrelevant issues. Upon the whole, I cannot perceive the propriety of requiring the plaintiff to do more in his bill, (besides shewing his interest in the subject and making the necessary parties) than to “contest the validity of the will,” by averring in general terms that it is not the last will and testament of the alleged *291testator, or, at his election, by a brief statement of his grounds of objection thereto, the briefer the better upon a mixed question of law and fact, which it is not the province of the court to separate, and which must be submitted in general terms to the decision of the jury.

It only remains for me to notice the other objection to the bill, that some of the plaintiffs, by accepting their legacies and devises under the will, have precluded themselves from disputing its validity, and that the other plaintiffs, having joined with them those so precluded, are not entitled to sue. This objection comes too late (Dickenson v. Davis &c., 2 Leigh 407), not having been made by plea, nor even relien upon as a bar by vray of answer. But it could have availed nothing in any form; the correct rule, as I conceive, being that of the ecclesiastical courts, that the acquiescence of the next of kin in the grant of a probat in common form (which corresponds with our ex parte probat), even though they receive legacies as due them under the will, does not preclude them from calling for proof in ^solemn form (which is analogous to our final pro-bat under the issue of devisavit vel non), unless under peculiar circumstances, and laches by long acquiescence. 1 Williams on Bx’ors 193. With us, no laches can be imputa ted to those who come within the period prescribed by law.

My opinion therefore is, that if the cause be remanded, it should be with directions to set aside the verdict of the jury, and award a new trial of the issue, on which new trial the instructions given at the former trial on the motion of the plaintiffs are not to be repeated.

The other judges concurring, the opinion of the court of appeals was declared to be, that the instructions given by the circuit court to the jury, upon the motion of the appellees, on the trial of the issue of devisavit vel non, were erroneous; and therefore that the judge of that court, sitting as chancellor, ought not to have been satisfied with the verdict of the jury. The decree was reversed with costs, and the cause remanded to the circuit court, with directions to award a new trial of the issue, on which new trial the instructions aforesaid were not to be repeated.