Braley, J.
The testator, while he did not overlook his son, gave the appellant only a nominal pecuniary legacy. It was contended at the trial, that the will was procured through the undue influence of the executrix, the testator’s wife by a second marriage, and he offered evidence, which was excluded, that in bis presence some twelve years previous to the execution of the will, upon being charged by his mother, the first wife of the testator, with illicit relations, neither of the implicated parties denied their guilt. The will undoubtedly is largely beneficial to the widow, and if the jury believed this evidence a feeling of hostility on her part may have been engendered which if opportunity offered might have induced her to persuade the testator to discriminate unjustly against his son. A wife, however, lawfully may urge her husband to make a will in her favor, and the exceptions do not purport to recite all the evidence. It often happens that no direct proof of undue influence can be produced. It must be established by pro'of of circumstances. The evidence offered might have been admissible as tending to show the testator’s mental status if some foundation had been laid. Shailer v. Bumstead, 99 Mass. 112, 121. But if subsequent expressions of hostility were introduced which continued to the date of the will, and the testator’s death, no evidence appears of efforts on her part to induce him substantially to disinherit the appellant, and to make a will in her favor. The undisputed facts only showed the contents of the will, and that the executrix and principal legatee was the second wife of the testator, who married her in about a year after the death of his first wife and mother of his children. But of themselves these facts did not prove undue influence. Maynard v. Tyler, 168 Mass. 107, 114. The circumstances of each case are so varied that a rigid or uniform rule cannot be laid down, and how far evidence of this description should be admitted must be left very largely to the discretion of the presiding justice who has all the evidence before him. The period in the present case seems to have been so remote that the exclusion of the testimony cannot be deemed improper or unfounded. Jenkins v. Weston, 200 Mass. 488. Howes v. Colburn, 165 Mass. 385.
The person alleged to have exercised undue influence, even if [169]*169a beneficiary, is not an adverse party, and such person may be called as a witness either by the executor or contestant, and the failure of the proponent although present during the trial, to give evidence in support of the will which she was required to offer for probate, or to deny the accusations of the appellant, did not convert her silence into an inference of fact to be drawn by the jury, that if she had testified her testimony would have been prejudicial to its validity. Shailer v. Bumstead, 99 Mass. 112, 127. McConnell v. Wildes, 153 Mass. 487. Old Colony Trust Co. v. Wallace, 212 Mass. 335. The instructions requested on this point were properly refused, and those given were unexceptionable so far as they went, although.they well might have gone farther. Jones v. Boston & Northern Street Railway, 211 Mass. 552, 555.
It is declared by the testator in the beginning of the instrument, that it is his “last will and testament. ” But this is not conclusive, and the second issue presented the question whether it had not been revoked or cancelled by the testator. A will under the R. L. c. 135, § 8, cannot “be revoked except by burning, tearing, cancelling or obliterating it with the intention of revoking it by the testator himself or by a person in his presence and by his direction; or by some other writing signed, attested and subscribed in the same manner as a will; or by subsequent changes in the condition or circumstances of the testator from which a revocation is implied by law. ” It is only the clause, “ signed, attested and subscribed in the same manner as a will, ” upon which the appellant relies. If revocation were shown, he was not required to prove the provisions of a later will which could not be offered for probate. Wallis v. Wallis, 114 Mass. 510. See Tarbell v. Forbes, 177 Mass. 238, 243; Williams v. Williams, 142 Mass. 515. It does not seem to have been disputed that subsequent wills were prepared under his direction and duly executed, although one of the witnesses who attested the instruments testified that some of them possibly might have been codicils, but from his recollection he thought they were wills. The making of a new will, if on its face it purports to be the testator’s last will, operates to revoke all former wills without words of express revocation, and the intention to revoke and the act of revocation being coincident the statute is satisfied. Laughton v. Atkins, 1 Pick. 535. Brown v. Thorndike, 15 Pick. 388. It is not contended that any specific [170]*170provision or clause had been revoked by later wills, but that the entire will had been nullified.
While the evidence appears to have been slight, the jury were properly instructed that they could find some of the subsequent instruments described by the witnesses might have been codicils, and if they so found, what effect, if any, codicils, the contents of which were not shown, should have, either as a modification or revocation of the original will, was left to their determination. The mere intention to revoke and nothing more, as we have said, does not of itself constitute a revocation. But as the later wills were not produced, and neither party claimed that the wills ever had been taken from the testator’s possession or were in existence among his papers at his death, their disappearance raised a presumption of fact for the consideration of the jury, that with the intention to revoke he had destroyed them. Davis v. Sigourney, 8 Met. 487, 488. Pickens v. Davis, 134 Mass. 252, 257, 258. Williams v. Williams, 142 Mass. 515, 517. 40 Cyc. 1280, 1281, and cases cited.
The question whether, under these conditions, the declarations of the testator, to the admission of which the appellant excepted, were admissible is one where the cases are far from being uniform. The ground of exclusion is that the declarations are hearsay and nothing more. In re Shelton, 143 N. C. 218; 10 Am. & Eng. Ann. Cas. 531, note 535, 536, where many of the authorities are collected and compared. Throckmorton v. Holt, 180 U. S. 552, 586. But we are not prepared to qualify the carefully considered opinion of Mr. Justice Charles Allen, speaking for the court in Pickens v. Davis, 134 Mass. 252, which decides that such evidence is admissible to show the intention, state of mind, purpose or plan of the testator, and is in accordance with many well considered cases. Spencer’s appeal, 77 Conn. 638. Patterson v. Hickey, 32 Ga. 156. Burge v. Hamilton, 72 Ga. 568, 625. In re Page, 118 Ill. 576. McDonald v. McDonald, 142 Ind. 55. Collagan v. Burns, 57 Maine, 449. Lawyer v. Smith, 8 Mich. 411. Ewing v. McIntyre, 141 Mich. 506, 517, 518. Lane v. Hill, 68 N. H. 275. Collyer v. Collyer, 110 N. Y. 481. Behrens v. Behrens, 47 Ohio St. 323. Luis v. Muhrback, 49 Ore. 452, 469, 470.
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Braley, J.
The testator, while he did not overlook his son, gave the appellant only a nominal pecuniary legacy. It was contended at the trial, that the will was procured through the undue influence of the executrix, the testator’s wife by a second marriage, and he offered evidence, which was excluded, that in bis presence some twelve years previous to the execution of the will, upon being charged by his mother, the first wife of the testator, with illicit relations, neither of the implicated parties denied their guilt. The will undoubtedly is largely beneficial to the widow, and if the jury believed this evidence a feeling of hostility on her part may have been engendered which if opportunity offered might have induced her to persuade the testator to discriminate unjustly against his son. A wife, however, lawfully may urge her husband to make a will in her favor, and the exceptions do not purport to recite all the evidence. It often happens that no direct proof of undue influence can be produced. It must be established by pro'of of circumstances. The evidence offered might have been admissible as tending to show the testator’s mental status if some foundation had been laid. Shailer v. Bumstead, 99 Mass. 112, 121. But if subsequent expressions of hostility were introduced which continued to the date of the will, and the testator’s death, no evidence appears of efforts on her part to induce him substantially to disinherit the appellant, and to make a will in her favor. The undisputed facts only showed the contents of the will, and that the executrix and principal legatee was the second wife of the testator, who married her in about a year after the death of his first wife and mother of his children. But of themselves these facts did not prove undue influence. Maynard v. Tyler, 168 Mass. 107, 114. The circumstances of each case are so varied that a rigid or uniform rule cannot be laid down, and how far evidence of this description should be admitted must be left very largely to the discretion of the presiding justice who has all the evidence before him. The period in the present case seems to have been so remote that the exclusion of the testimony cannot be deemed improper or unfounded. Jenkins v. Weston, 200 Mass. 488. Howes v. Colburn, 165 Mass. 385.
The person alleged to have exercised undue influence, even if [169]*169a beneficiary, is not an adverse party, and such person may be called as a witness either by the executor or contestant, and the failure of the proponent although present during the trial, to give evidence in support of the will which she was required to offer for probate, or to deny the accusations of the appellant, did not convert her silence into an inference of fact to be drawn by the jury, that if she had testified her testimony would have been prejudicial to its validity. Shailer v. Bumstead, 99 Mass. 112, 127. McConnell v. Wildes, 153 Mass. 487. Old Colony Trust Co. v. Wallace, 212 Mass. 335. The instructions requested on this point were properly refused, and those given were unexceptionable so far as they went, although.they well might have gone farther. Jones v. Boston & Northern Street Railway, 211 Mass. 552, 555.
It is declared by the testator in the beginning of the instrument, that it is his “last will and testament. ” But this is not conclusive, and the second issue presented the question whether it had not been revoked or cancelled by the testator. A will under the R. L. c. 135, § 8, cannot “be revoked except by burning, tearing, cancelling or obliterating it with the intention of revoking it by the testator himself or by a person in his presence and by his direction; or by some other writing signed, attested and subscribed in the same manner as a will; or by subsequent changes in the condition or circumstances of the testator from which a revocation is implied by law. ” It is only the clause, “ signed, attested and subscribed in the same manner as a will, ” upon which the appellant relies. If revocation were shown, he was not required to prove the provisions of a later will which could not be offered for probate. Wallis v. Wallis, 114 Mass. 510. See Tarbell v. Forbes, 177 Mass. 238, 243; Williams v. Williams, 142 Mass. 515. It does not seem to have been disputed that subsequent wills were prepared under his direction and duly executed, although one of the witnesses who attested the instruments testified that some of them possibly might have been codicils, but from his recollection he thought they were wills. The making of a new will, if on its face it purports to be the testator’s last will, operates to revoke all former wills without words of express revocation, and the intention to revoke and the act of revocation being coincident the statute is satisfied. Laughton v. Atkins, 1 Pick. 535. Brown v. Thorndike, 15 Pick. 388. It is not contended that any specific [170]*170provision or clause had been revoked by later wills, but that the entire will had been nullified.
While the evidence appears to have been slight, the jury were properly instructed that they could find some of the subsequent instruments described by the witnesses might have been codicils, and if they so found, what effect, if any, codicils, the contents of which were not shown, should have, either as a modification or revocation of the original will, was left to their determination. The mere intention to revoke and nothing more, as we have said, does not of itself constitute a revocation. But as the later wills were not produced, and neither party claimed that the wills ever had been taken from the testator’s possession or were in existence among his papers at his death, their disappearance raised a presumption of fact for the consideration of the jury, that with the intention to revoke he had destroyed them. Davis v. Sigourney, 8 Met. 487, 488. Pickens v. Davis, 134 Mass. 252, 257, 258. Williams v. Williams, 142 Mass. 515, 517. 40 Cyc. 1280, 1281, and cases cited.
The question whether, under these conditions, the declarations of the testator, to the admission of which the appellant excepted, were admissible is one where the cases are far from being uniform. The ground of exclusion is that the declarations are hearsay and nothing more. In re Shelton, 143 N. C. 218; 10 Am. & Eng. Ann. Cas. 531, note 535, 536, where many of the authorities are collected and compared. Throckmorton v. Holt, 180 U. S. 552, 586. But we are not prepared to qualify the carefully considered opinion of Mr. Justice Charles Allen, speaking for the court in Pickens v. Davis, 134 Mass. 252, which decides that such evidence is admissible to show the intention, state of mind, purpose or plan of the testator, and is in accordance with many well considered cases. Spencer’s appeal, 77 Conn. 638. Patterson v. Hickey, 32 Ga. 156. Burge v. Hamilton, 72 Ga. 568, 625. In re Page, 118 Ill. 576. McDonald v. McDonald, 142 Ind. 55. Collagan v. Burns, 57 Maine, 449. Lawyer v. Smith, 8 Mich. 411. Ewing v. McIntyre, 141 Mich. 506, 517, 518. Lane v. Hill, 68 N. H. 275. Collyer v. Collyer, 110 N. Y. 481. Behrens v. Behrens, 47 Ohio St. 323. Luis v. Muhrback, 49 Ore. 452, 469, 470. In re Steinke’s Will, 95 Wis. 121. Boudinot v. Bradford, 2 Dall. 266. Fallon’s estate, 214 Penn. St. 584. Colvin v. Fraser, 2 Hagg. Eccl. 266. [171]*171Reed v. Harris, 7 Car. & P. 330. Keen v. Keen, L. R. 3 P. & D. 105. The statements of the testator, identifying the earlier will as the one he wanted and which he had requested his counsel to procure, were competent evidence for the consideration of the jury as indicative of his intention or plan to destroy the wills which could not be found, and to revive, or to select, the will propounded as his final will. Davis v. Sigourney, 8 Met. 487, 488. Pickens v. Davis, 134 Mass. 252, 257, 258. Williams v. Williams, 142 Mass. 515, 517. Lane v. Moore, 151 Mass. 87, 89, 90. Wigmore on Ev. §§ 112, 1737.
The requests upon the question of revocation were sufficiently covered by the instructions. The burden of proof rested on the appellant, and if the jury were left in doubt it had not been sustained. Giles v. Giles, 204 Mass. 383. It was proper to charge accordingly, and the instructions upon this portion of the case, and the presumptions as to the testator’s intention which they might draw from all the evidence, do not appear for the reasons stated to be open to the objections now urged.
Exceptions overruled.