Joseph Youse vs. Forman and wife and Trustees of Center College: be afterwards torn off, this will amount to a revocation, if so intended. In Smock vs. Smock, 3 Stockt., N, J., 156, it was held, where a party, in his lifetime, duly executed a will, which, after his death, was found in his private desk, wrapped in a newspaper, but with the scal and all his signature, except the first initial, cut off, this was presumed to have been his own act, done、animo revocandi. In volume 4, page 629, Comstock's edition of Kent's Commentaries, it is said: "The mere act of canceling a will does not amount to anything, unless it be done animo revocandi. The intention is an inference to be drawn from circumstances; and the fact of canceling may be, in many cases, an equivocal act. If, however, the will be found canceled, the law infers an intentional revocation; for it is prima facie evidence of it, and the inference stands good until it is rebutted. "The inference is the same, and it would require strong proof to rebut it, if a will be traced to the party's possession, and be not forthcoming at his death." In Calvin vs. Fraser, 2 Hagg., 266, a will was executed in India in duplicate. One part remained there; the other was brought to England by the testator, and it was not traced out of his possession, nor found at his death. It was held to be a prima facie presumption that the testator had destroyed the duplicate in his possession, intending thereby to revoke the other, and that this presumption must be negatived by the party setting up the will. There is a class of cases-to which, however, this does not belong-where the testator does an act of cancellation or mutilation with a view of having his will immediately changed or altered; where the act of cancellation and the reconstruction of the will are in Joseph Youse vs. Forman and wife and Trustees of Center College. tended as a part of the same transaction, and the reconstruction or republication of the will is not perfected, then the acts of cancellation are also to be disregarded as incomplete, because of the failure of the other essential acts. When all the facts in this case, with their logical and legal inferences, are considered, this case must stand at least as favorable to the heirs-at-law as though said paper had been found in its present mutilated condition among the decedent's papers on the first search. The paper is abundantly established as being wholly written, with all the obliterations and interlineations, in decedent's handwriting. He was the only custodian of it ever known to any witness of either party in this case. It has not been traced to any unfriendly possession, inferentially or otherwise. The original paper is before us, and the mutilation was obviously done with the intention of destruction, whether so done by the decedent or a spoliator. The presumption of law is that he did the act, and with the intent to revoke it. The extrinsic evidence corroborates this presumption of law rather than rebuts it. Our law secures the right of the testator to dispose of his property as seemeth good to him; but it disfavors the disinheriting lawful heirs in doubtful cases. It is said there is a conflict between the evidence of Miss Crutchfield and Mr. Durham; but we think not. The latter was only detailing his recollection of a conversation by her, saying it was substantially according to her evidence, save in one particular, which he details. Her recollection would probably be the more accurate, as she was an actor in the scene and Joseph Youse vs. Forman and wife and Trustees of Center College. conversation she was detailing; besides, with Mr. Durham's version, as his recollection is, the conversation would be unintelligible; but with her's it is quite intelligent. It is said in Redfield on the Law of Wills, chapter 7, section 25, paragraph 16, page 311: "We have before adverted to a recent case (Greenwood vs. Cozen, 5 Jur. N. S., 497, 1859), where it was decided that the codicils are dependent upon the will, and that the destruction of the latter was an implied revocation of the former; and that it is for the party applying for the probate of a codicil alone, to show that the deceased intended that it should operate separately from the will. This is sometimes susceptible of being determined with reasonable certainty from the frame of the codicil. If it be entire and intelligible in itself alone, and especially where it contains an effective distribution of all or most of testator's estate, and was found carefully preserved by the testator, in a place where he must or naturally would have been aware of its existence, it will afford very strong presumption of an intention to have it operate; but where these circumstances are wanting, or others, indicating a contrary purpose, exist, it may require different consideration, as where the dispositions of the codicil are so complicated with, and dependent upon, those of the will, as to be incapable of a separate and independent existence." This codicil is found on the margin of one of the leaves whereon is written a part of the body of the will, and is dated March 20, 1858, more than seven years before testator's death. 66 In conclusion, I respectfully enjoin on my friend and executor, after carrying out my wish and desire expressed in these pages, that my will is, that all my goods and effects, Joseph Youse vs. Forman and wife and Trustees of Center College. of every nature and description, after the decease of my dear wife, that can be realized, shall go into the treasury of Foreign and Domestic Board Missions--one equal half of the whole into each board, as a perpetual fund, to be invested in reliable stocks, and the interest only used-I mean the Old School Board of Missions." To which his name remained without obliteration. But as his name was cut from the body of the will, at the bottom of the leaf, upon the margin of which this codicil was written, there is as little doubt of the intention to revoke it as of the main body of the will. Without the main body of the will there is neither designated "friend" nor "executor" to execute it, and the provisions contained in the pages of the will are first to be carried out before the provisions of the codicil; when, therefore, they were destroyed, the codicil went with them; besides, it is perfectly impossible to execute this codicil without a resort to the provisions of the main body of the will. It cannot be set up as an independent will of itself; therefore, if it could be at all set up, the burden of proving that the testator intended it to operate as his will is on the propounders. Instead of such appearing, the extrinsic evidence repels this, and indicates that he intended to make a new will the more strongly indicated by the fact, that whilst this will and the codicil were written by himself, he intended to have a new will written by his friend and attorney. The codicils to the main paper, all being in the margins thereof, must share the fate of the body of the will; for these all depend upon, and are intimately interwoven with it, neither being sufficiently independent to be upheld and executed as a testamentary paper. Nor does the evidence indicate any intention of the testator to Stone vs. Riddell. have either of them sustained independent of the main body of the will. Wherefore, the judgment is reversed, with directions to the circuit court to reverse the judgment of the county court, and remand the case to it, with directions to reject. said paper, with all the codicils attached thereto, as not the last will and testament of M. G. Youse, deceased. CASE 13-PETITION ORDINARY-AGREED CASE-JUNE 15. Stone vs. Riddell. APPEAL FROM BATH CIRCUIT COURT. 1. Commonwealth Attorneys have no vested interest in forfeited recognizances until reduced to judgment, when, by law, they are entitled to thirty per cent. of the judgment, which cannot be remitted by the Governor. 2. The act to fix the fees of county attorneys, of February 21, 1868 (Segsion Acts, page 23), gave to county attorneys fifteen per cent. of all judgments on forfeited recognizances, in cases where they prosecuted the accused before the committing court, and aided the Commonwealth's Attorney in recovering judgment on the forfeited recognizance, to be deducted from his per centage. As said act took effect immediately, on such judgments thereafter rendered, the county attorney is entitled to his per centage, although the default occurred before the passage of such enactment. H. L. STONE, CITED For Appellant, Act of February 21, 1868, Session Acts, p. 23. Act of March 8, 1856, 1 Stanton, 190. Act of January 14, 1858, 1 Stanton, 191. 5bu349 119 550 119 551 |