7. Thomson v. Royall
1. Fact
Mrs. Kroll prepared her will with Coulling, an attorney, on Sep.4, 1932 and signed the typewritten five sheets of legal cap paper and H.P. Brittain, the executor named in the will, kept it. On Sep. 15, 1932, a codicil was signed by Kroll in the presence of two subscribing witnesses. On Sep. 19, 1932, Kroll directed to destroy both the will and the codicil. But, instead of destroying them, a memorandum with the notion that this will null and void was attached, signed by Mrs. Kroll and Brittain. On Dec.2, 1932, Krill died. The trial court ordered to probate the will and codicil. And the heirs appealed.
2. Issue
Whether the will which had been directed to be cancelled but not destroyed can be revoked.
3. Rules
(1) Section 5233 of the 1919 Code
No will or codicil, or any part thereof, shall be revoked, unless (1) by a subsequent will or codicil, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is required to be executed, or (2) by the testator, or some person in his presence and by his direction, cutting, tearing, burning, obliterating, canceling, or destroying the same, or the signature thereto, with the intent to revoke
(2) Warner Warner's Estate, 37 Vt. 356
A notion, with the reading and the signature, is sufficient for the intention and the act to revoke.
(3) Evans' Appeal, 58 Pa.St. 238
The torn will was defacement, making it cancellation.
(4) Will of Ladd, 60 Wis. 187, 18 N.W. 734, 50 Am. Rep. at pp. 362-3
The statue provides certain ways of revoking and it must be done so in order to a valid revocation, regardless of intent.
4. Application
(1) Appellant argued that though the notations of Sep. 19 are neither wholly in the handwriting nor attested by subscribing witnesses, the extended meaning of “cancelling” can be applied. (Because no subsequent will exited and the codicil was not executed in the same manner as the will with two witnesses.)
(2) The court refused to follow Warner Warner’s Estate that just a line of notion can be an act to revoke.
(3) A will, under Evan’s Appeal, is revoked if marks or lines across the written parts of the instrument, or a physical defacement, or some mutilation of the writing itself, with the intent to revoke, exist. However, the will and the codicil do not include such a physical destroy.
5. Conclusion
The will cannot be revoked.
6. Feedback
A will can be revoked if the intended words to mutilate, or erase, or deface, must be placed or physically come into contact with the written portion.