[181]*181The opinion of the court was delivered, May 25th 1871, by
Sharswood, J.
This was an issue of devisavit vel non in the Court of Common Pleas on the precept of the register, before whom the copy of a paper-writing, alleged to have been lost, was propounded for probate as the will of John Yerkes, deceased. Ten errors have been assigned. We think that none of them have been sustained except the sixth and seventh. It will be unnecessary to consider the remaining assignments in detail. They present no questions which have not already been decided in McTaggart v. Thompson, 2 Harris 154, and Dean v. Negley, 5 Wright 312.
The plaintiff, however, was entitled to a direct affirmative answer to his third point. It was true, and the jury should have been so instructed, that the fact of the unlawful cohabitation of Catharine Rudy and John Yerkes was not, standing by itself without other evidence, sufficient to justify them in drawing the inference, that undue influence had been used by her to procure the execution of the will in question. However it might have been if the entire property or the bulk of it had been bequeathed or devised to Catharine Rudy, and John Yerkes’s own children disinherited in her favor — which was the state of the case in Dean v. Negley— yet the alleged will in this case was not of that character. John Yerkes undoubtedly believed David to be his own child, whatever the fact was. He always treated him as such, and calls him so in this paper. He was an idiotic, helpless boy — incurably so, beyond all hope of amendment — appealing, therefore, most strongly to every feeling of the heart of the parent to make such provision for the support and comfort of an unfortunate being whom he had been instrumental in bringing into the world. His estate was not large: real and personal it was only $2800; the interest of which, after deducting necessary charges, was not more than was required for this purpose. His other children were grown up, in the full enjoyment of their faculties — married and settled in life, and able to do for themselves. He directed the amount of his estate to be paid into the hands of a guardian to be appointed for his son, and if his son became competent to manage his own affairs one-half to be paid into his own hands, and after his death the balance to be equally divided between grandchildren — the children of his daughter Polly. It was a most reasonable, just and proper will under all the circumstances. Catharine Rudy had no personal interest in it, further than her natural affection for her child might prompt her to desire that some provision should be made for him. If she had brought it about by the influence of argument and persuasion, without the employment of undue means, it would have been unimpeachable on the mere ground of the unlawful relation she bore to the alleged testator. She could derive no interest from the bequest, except so far as it went to relieve her from the obliga[182]*182tion of support. No court would have appointed her the guardian without requiring from her ample security. The presumption of undue influence did not therefore arise, as it would have done had the testament been clearly inofficiosum. The answer of the learned judge to the plaintiff’s third point implied indeed that it was correct — but we think the plaintiff was entitled to an express affirmance of it. What was said in answer to it might with great propriety have been added as a qualification or explanation — that the relation Catharine Rudy bore to the alleged testator was well calculated to give her great influence over him, and, together with the evidence of her conduct towards him, might induce the belief that it had been unduly exerted in favor of her child.
We are of the opinion that the instrument dated August 31st 1869, was not evidence to the jury of revocation of the will now in contest, executed in 1865. It was no doubt rightly admitted when it was offered, objected to and bill of exceptions sealed. It was offered, for all that then appeared, as a valid subsequent will, revoking all prior wills, and of course that in regard to which the issue on trial was awarded. No one can well doubt its admissibility in evidence at that time. But when the plaintiff in rebuttal had produced the record of the former issue, directed by the Register’s Court to try its validity, and the verdict and judgment against that instrument, in which these defendants were the parties -contesting it, it was no longer available for the purpose for which it had been introduced, and the jury should have been so instructed.
It may be freely conceded that admission to probate by the register was not necessary to give effect to the instrument of 1869 as a revocation of that propounded as the will of 1865. Otherwise the question between two wills could never be tried. It would be a race which could first be presented for probate. In the issue on either, the claimants under the other could be admitted to contest; and those under the second could undoubtedly set it up against the first, and the claimants under the first could impeach its validity. The Act of Assembly of April 8th 1833, §§ 13, 14, Pamph. L. 250, provides in effect that no will in writing shall be repealed otherwise than by some other will or codicil in writing, or by other writing declaring such repeal, executed and proved in the same manner as is provided in the case of an original will. There are two modes of revocation here pointed out, besides cancellation, obliteration, &c. First: another subsequent will or codicil duly executed and proved; and second, some other writing declaring the revocation. It is implied that this other writing is not a will, that is, an act of disposition or declaration of what a man intends as to his property after his death. There may be a separate written revocation, not intended to take effect as a will or codicil, which need not therefore be propounded to the register for pro[183]*183bate. This is a very reasonable provision. A man may be absent from home at a distance from the place where his will is deposited, or it may be lost or mislaid, so that he cannot have access to it to cancel or destroy it. He may wish, however, simply to abrogate it without making another will, and so die intestate. In such case he may execute a paper declaring his intention, which provided it is signed by him and proved by two witnesses will be effectual. No probate of it in the register’s office is necessary. No letters testamentary or of administration cum testamento annexo are required to be issued upon it. But the case is different when the revocation is contained in what purports to be a will disposing of property. The words of the act point to this : “ other writing,” that is, writing other than a will. A subsequent will without a revoking clause as effectually repeals a prior will as with one. No doubt, as stated by the learned judge below, a will may be void in part and otherwise valid, or it may be wholly invalid. One bequest or devise may be good, whilst other parts may be avoided. But then it stands as a will for those parts which are good. A will propounded for probate may be contested in whole or in part. Had Catharine Budy obtained possession of the paper, and fraudulently inserted a clause in her own favor, the jury on the issue of devisavit vel non could have found against that clause, but that with that exception it was the will of John Yerkes. The paper would then have stood as his will, and by its own force, with or without a revoking clause, would have revoked all wills prior in date.
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[181]*181The opinion of the court was delivered, May 25th 1871, by
Sharswood, J.
This was an issue of devisavit vel non in the Court of Common Pleas on the precept of the register, before whom the copy of a paper-writing, alleged to have been lost, was propounded for probate as the will of John Yerkes, deceased. Ten errors have been assigned. We think that none of them have been sustained except the sixth and seventh. It will be unnecessary to consider the remaining assignments in detail. They present no questions which have not already been decided in McTaggart v. Thompson, 2 Harris 154, and Dean v. Negley, 5 Wright 312.
The plaintiff, however, was entitled to a direct affirmative answer to his third point. It was true, and the jury should have been so instructed, that the fact of the unlawful cohabitation of Catharine Rudy and John Yerkes was not, standing by itself without other evidence, sufficient to justify them in drawing the inference, that undue influence had been used by her to procure the execution of the will in question. However it might have been if the entire property or the bulk of it had been bequeathed or devised to Catharine Rudy, and John Yerkes’s own children disinherited in her favor — which was the state of the case in Dean v. Negley— yet the alleged will in this case was not of that character. John Yerkes undoubtedly believed David to be his own child, whatever the fact was. He always treated him as such, and calls him so in this paper. He was an idiotic, helpless boy — incurably so, beyond all hope of amendment — appealing, therefore, most strongly to every feeling of the heart of the parent to make such provision for the support and comfort of an unfortunate being whom he had been instrumental in bringing into the world. His estate was not large: real and personal it was only $2800; the interest of which, after deducting necessary charges, was not more than was required for this purpose. His other children were grown up, in the full enjoyment of their faculties — married and settled in life, and able to do for themselves. He directed the amount of his estate to be paid into the hands of a guardian to be appointed for his son, and if his son became competent to manage his own affairs one-half to be paid into his own hands, and after his death the balance to be equally divided between grandchildren — the children of his daughter Polly. It was a most reasonable, just and proper will under all the circumstances. Catharine Rudy had no personal interest in it, further than her natural affection for her child might prompt her to desire that some provision should be made for him. If she had brought it about by the influence of argument and persuasion, without the employment of undue means, it would have been unimpeachable on the mere ground of the unlawful relation she bore to the alleged testator. She could derive no interest from the bequest, except so far as it went to relieve her from the obliga[182]*182tion of support. No court would have appointed her the guardian without requiring from her ample security. The presumption of undue influence did not therefore arise, as it would have done had the testament been clearly inofficiosum. The answer of the learned judge to the plaintiff’s third point implied indeed that it was correct — but we think the plaintiff was entitled to an express affirmance of it. What was said in answer to it might with great propriety have been added as a qualification or explanation — that the relation Catharine Rudy bore to the alleged testator was well calculated to give her great influence over him, and, together with the evidence of her conduct towards him, might induce the belief that it had been unduly exerted in favor of her child.
We are of the opinion that the instrument dated August 31st 1869, was not evidence to the jury of revocation of the will now in contest, executed in 1865. It was no doubt rightly admitted when it was offered, objected to and bill of exceptions sealed. It was offered, for all that then appeared, as a valid subsequent will, revoking all prior wills, and of course that in regard to which the issue on trial was awarded. No one can well doubt its admissibility in evidence at that time. But when the plaintiff in rebuttal had produced the record of the former issue, directed by the Register’s Court to try its validity, and the verdict and judgment against that instrument, in which these defendants were the parties -contesting it, it was no longer available for the purpose for which it had been introduced, and the jury should have been so instructed.
It may be freely conceded that admission to probate by the register was not necessary to give effect to the instrument of 1869 as a revocation of that propounded as the will of 1865. Otherwise the question between two wills could never be tried. It would be a race which could first be presented for probate. In the issue on either, the claimants under the other could be admitted to contest; and those under the second could undoubtedly set it up against the first, and the claimants under the first could impeach its validity. The Act of Assembly of April 8th 1833, §§ 13, 14, Pamph. L. 250, provides in effect that no will in writing shall be repealed otherwise than by some other will or codicil in writing, or by other writing declaring such repeal, executed and proved in the same manner as is provided in the case of an original will. There are two modes of revocation here pointed out, besides cancellation, obliteration, &c. First: another subsequent will or codicil duly executed and proved; and second, some other writing declaring the revocation. It is implied that this other writing is not a will, that is, an act of disposition or declaration of what a man intends as to his property after his death. There may be a separate written revocation, not intended to take effect as a will or codicil, which need not therefore be propounded to the register for pro[183]*183bate. This is a very reasonable provision. A man may be absent from home at a distance from the place where his will is deposited, or it may be lost or mislaid, so that he cannot have access to it to cancel or destroy it. He may wish, however, simply to abrogate it without making another will, and so die intestate. In such case he may execute a paper declaring his intention, which provided it is signed by him and proved by two witnesses will be effectual. No probate of it in the register’s office is necessary. No letters testamentary or of administration cum testamento annexo are required to be issued upon it. But the case is different when the revocation is contained in what purports to be a will disposing of property. The words of the act point to this : “ other writing,” that is, writing other than a will. A subsequent will without a revoking clause as effectually repeals a prior will as with one. No doubt, as stated by the learned judge below, a will may be void in part and otherwise valid, or it may be wholly invalid. One bequest or devise may be good, whilst other parts may be avoided. But then it stands as a will for those parts which are good. A will propounded for probate may be contested in whole or in part. Had Catharine Budy obtained possession of the paper, and fraudulently inserted a clause in her own favor, the jury on the issue of devisavit vel non could have found against that clause, but that with that exception it was the will of John Yerkes. The paper would then have stood as his will, and by its own force, with or without a revoking clause, would have revoked all wills prior in date. The difficulty in the way of the application of the principles stated by the learned judge to the case in hand is twofold, in part technical and in part substantial. First: The verdict and judgment in the former issue were against the will of 1869 as an entirety, and, standing, unreversed, conclusive in this proceeding. The question of undue influence in obtaining that will, whether in whole or in part, could not be tried over again on this issue. Had it been found that any part of that paper was valid, not only the revoking clause but the appointment of the executor and the power of sale, it would establish it so far as a will, and overturn the former finding. If good as a will at all by the Act of 1833, it revoked the former will. This is the technical difficulty. The substantial one is still more serious. It cannot be known with any degree of assurance, sufficient to justify a legal judgment, that where there is a clause of revocation in a will making a certain disposition of property, that the testator really intended to revoke a prior will making a different disposition, except for the purpose of substituting in place thereof that contained in the second will. It would be making the testator die without any will at all, when it was clearly his intention, as drawn from his executing a paper purporting to be a will, not to do so. In Ex parte Ilchester, 7 Yes. Jr. 348, the appointment of a guardian was [184]*184revoked, and another guardian appointed by a will not executed according to law. By the English statute a guardian may he appointed either by deed or will. The Master of the Rolls, Sir William Grant, said: “ There can he no „doubt that part of the intention was to revoke the appointment. But the question is, whether that was the substantive direct object, or only as ah incidental and necessary part of the ultimate object, and, whether it would ever have been entertained except with reference to that.” And again: “ I cannot conceive how an instrument inoperative in its direct purpose'can give effect to an intention of which I know nothing but by that purpose.” The soundness of this reasoning was acknowledged and applied by the Supreme Court of Massachusetts in a case of an instrument set aside and refused probate as a will, on the ground of undue influence: Laughton v. Atkins, 1 Pick. 585. It has been found, and indeed is conceded, that undue influence produced the will of 1869. To make it effectual, it was deemed necessary expressly to revoke all former wills not in order, that John Yerkes might die intestate, hut in order to make way for that paper as an effective will. If that paper had been able to maintain its ground as a will, it would have repealed the will of 1865 without any revoking clause. It would have stood as the last declaration, complete in itself, and not an addition or codicil to any former instrument, of what disposition John Yerkes willed to be made of his property after his death. No revoking clause could make it stronger. If it was a will in whole or in part, it was his last will so declared to he, which necessarily overrode all prior ones. We know, however, that express clauses of revocation are inserted in most wills as a mere matter of form, the mere expression of which is inherently implied, as are many other parts, such as the direction that all just debts and funeral expenses shall be first paid and discharged. As evincing an intention on the part of John Yerkes to die intestate unless the will of 1869 went into effect, that paper — executed as it has been found under undue influence — the very act of execution not the free exercise of his own volition — was no ground upon which any legal judgment could be rested. The parol evidence of what took place at the time of the execution of the paper of 1869, did not help the case of the defendants. It had no tendency to show that unless that paper stood he wished only his lawful issue to have his property, according to the intestate laws, leaving his unfortunate illegitimate child wholly unprovided for. All that he said was that he wanted to make another will. If the execution of that paper was induced by the undue influence of Catharine Rudy, there is some difficulty in comprehending why this declaration made in her presence, and with the same view, is not within the same objection. There was no evidence to submit to the jury, either in the paper itself or any declaration made by him at the [185]*185time that John Yerkes had any other object in revoking the will of 1865, than to substitute the disposition made by the will of 1869 for it. He had no intention to die intestate, but the contrary. The case of Barksdale v. Hopkins, 23 Georgia 332, relied on by the counsel for the defendants, is not to the point, and does not sustain his contention. It holds merely that if a will is before a probate court for probate, and a second will is pleaded as a revocation of the first, the probate court may take notice of the second, although it may be that the second is one which has not been admitted to probate, and one which is not offering itself for probate: consequently the probate court may hear proof touching the execution of the second. That is a proposition, it seems, too clear to be doubted, but it has no application to the present case.
We conclude, therefore, that the learned judge below erred in submitting to the jury the instrument called the will of 1869 as evidence of the revocation of that of 1865, which was the subject-matter of the issue.
Judgment reversed, and venire faeias de novo awarded.