mere general partnership relation, which he may have supposed to be still existing, did not authorize Comes to give the note of the partnership for a debt which had become his own personal obligation to pay. While the note, taken under those circumstances, would not be obligatory on the other defendants, it would be enforceable against Comes, and would be effectual, as between the plaintiff and Comes, as a new contract, to extend the time for the payment of the debt: Wheaton v. Wheeler, 27 Minn. 464; and that would release the other defendants (see authorities above cited), even though there be no proof as to what, if any, injury the sureties may have suffered: Rees v. Berrington, 2 Ves. Jr. 540; Miller v. MeCan, 7 Paige, 451; Calvo v. Davies, 73 N. Y. 211, 216; 29 Am. Rep. 130. It may be that if the plaintiff had not known of the agreement between the defendants, and if he could be deemed to have supposed that the note was rightfully given as the note of the partnership, the result would have been different: Agnew v. Merritt, 10 Minn. 242 (308).

The finding of the court being, as we consider, erroneous in the particulars above stated, a new trial must be granted.

We observe a variance between the proof and the answer, in that the note given appears to have been intended to express the obligation of the defendants' former partnership, and not, as alleged, the obligation of a new partnership, of which Comes and Schneider were members. There was no evidence of the existence of any such partnership. It is not claimed that this variance is material, and probably it was not. It is only adverted to here so that any doubt concerning it may be avoided if thought necessary.

Order reversed.

PARTNERSHIP-POWER OF PARTNER AFTER DISSOLUTION. As to the power of one partner after dissolution of the partnership to bind his former copartners, see Chardon v. Oliphant, 3 Brev. 183; 6 Am. Dec. 572, and note; note to Van Keuren v. Parmelee, 51 Am. Dec. 330-332. A new note made by one partner in the firm name, and within the scope of the partnership business, and after dissolution, binds the firm until the payee of such note has notice of the dissolution: Clement v. Clement, 69 Wis. 599; 2 Am. St. Rep. 760, and note.

GRAHAM V. BURCH.

[47 MINNESOTA, 171.]

WILLS. — THE REVOCATION OF A WILL cannot be accomplished except by the performance of some one of the acts designated by the statute, and this rule continues applicable though such performance is prevented by some fraudulent device of a third person interested in the will. WILLS, DESTRUCTION PREVENTED BY FRAUD. — Where a testator demanded his will for the purpose of destroying and thereby revoking it, and when it was given to him placed it, inclosed in an envelope, in a stove with kindlings not yet ignited, intending it to be destroyed when the fire should be lighted, but a person present, with a design of thwarting the purpose of the testator, and during his temporary absence, took the will out of the envelope and secreted it, and it was thereby saved from destruction without the knowledge or consent of the testator, it was held that the will had not been revoked.

WILLS - REVOCATION. A CONVEYANCE SET ASIDE as having been obtained from the grantor by undue influence cannot operate as an implied revocation of his will.

TRUSTS. A PROBATE COURT HAS NO JURISDICTION to determine whether a devise should be held in trust. Its functions are limited to inquiring and determining whether or not the instrument presented to it as the last will of the decedent was executed by him in the manner prescribed by statute, and when he was legally competent to execute it.

John D. O'Brien and Armand Albrecht, for the appellant.

Thompson and Taylor, for the respondent.

VANDERBURGH, J. Upon the eighth day of January, 1887, one James Burns, of the city of St. Paul, duly executed and published his last will and testament, whereby he devised his estate, consisting of a lot in the city of St. Paul, with buildings thereon, to his two daughters, who are the parties to this action. Upon his decease, Mrs. Burch, the defendant, who is named as executrix in the will, petitioned the probate court for its allowance. Her application was denied, and an appeal taken by the executrix to the district court, where, upon a full hearing, the court reversed the decision of the probate court, and directed the will to be admitted to probate.

The legal questions involved in the case arise chiefly upon the following facts found by the district court: After the execution of the will, the decedent demanded of Mrs. Burch, who had custody of the will, that it be delivered to him to be destroyed. Upon its delivery to him, he placed it, inclosed in an envelope, in a stove with kindlings not yet ignited, with the intention of destroying the will by burning when the fire should be lighted. The facts were found by the court as fol

lows: 1. "This was done in the presence of said Bridget F. Burch, and with the express and actual intention on the part of said decedent to destroy said will by burning when said fire should be lighted. Said decedent then stepped for a moment out of the room, and thereupon said proponent Burch, fraudulently, and with the purpose of thwarting the said intention of decedent, and without his knowledge or consent, took the will out of the envelope, and secreted it, leaving the envelope in the stove, to all appearances as though it still contained the will. Within two hours thereafter the fire in said stove was lighted, either by said decedent or by said Birch, and said envelope burned. Said will was thereafter kept secreted by said proponent Burch, and the decedent ever after supposed the same had been then and there burned as he intended. Said will was not in fact revoked by any of the methods specified by statute." 2. "That on the sixth day of May, 1887, the deceased, James Burns, executed, acknowledged, and delivered to said Bridget Frances Burch, a deed of conveyance of the northerly seventy-five (75) feet of lot numbered one (1), in block numbered fifty (50), of Dayton and Irvine's addition to St. Paul, Ramsey County, Minnesota, being the same property given and devised by the decedent to the said Bridget Frances Burch in the third paragraph of the will of said decedent presented for probate in this proceeding; that said deed was afterwards, in an action brought in this court by said Mary Graham against said Bridget Frances Burch and others for that purpose, set aside, upon the ground that the same was procured by reason of undue influence and restraint exercised over said decedent by the said Bridget Frances Burch at the time of the execution thereof, and the judgment of this court in said action was duly entered accordingly."

The statutory provisions in respect to the revocation of wills are as follows (Gen. Stats. 1878, c. 47, sec. 9): "No will, or any part thereof, shall be revoked, unless by burning, tearing, canceling, or obliterating the same, with the intention of revoking it, by the testator, or by some person in his presence and by his direction; or by some will, codicil, or other writing, signed, attested, and subscribed in the manner provided for the execution of a will; but nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator." In this case, the purpose of the testator to burn his will is clearly shown, but the will remains intact.

It was

not scorched or mutilated in any degree. The testator did not persist in carrying out his expressed purpose, nor see to it that it was actually burned, wholly or partially. The acts which the statute declares shall constitute an express revocation were none of them done. If, in any case, in the absence of any of the acts specified in the statute, the fraud of the devisee could be held to supply the place of such acts, the record before us perhaps presents such a case. But we cannot vary or dispense with the statutory rule, which the legislature has, for wise reasons, established on account of the fraud of an interested party. The statute requires that the will itself should be destroyed, or bear some of the marks of defacement or spoliation, manifesting the intent to revoke. The act and intent must concur, and there must be proof of both, though the intent may be inferred from the facts and circumstances. The law will not permit the formalities of the execution of a will to be dispensed with because of fraudulent interference, and the same rule must be applied in respect to the statutory requisites of revocation: 4 Kent's Com. 520, 521. In Dan v. Brown, 4 Cow. 483, 15 Am. Dec. 395, Woodworth, J., says: "There must be a canceling animo revocandi. Revocation is an act of the mind, which must be demonstrated by some outward and visible sign of revocation. The statute has prescribed four. If any of them are performed in the slightest manner, joined with a declared intent to revoke, it will be an effectual revocation": Gains v. Gains, 2 A. K. Marsh. 190; 12 Am. Dec. 375; Bibb v. Thomas, 2 W. Black. 1043; Doe v. Harris, 6 Ad. & E. 209; Jackson v. Betts, 9 Cow. 208; Blanchard v. Blanchard, 32 Vt. 62. But the failure to perform some one of the acts designated by the statute cannot be excused, though such formal act of revocation be defeated or prevented by fraudulent devices: Kent v. Mahaffey, 10 Ohio St. 204; Hise v. Fincher, 10 Ired. 139; 51 Am. Dec. 383; Malone v. Hobbs, 1 Rob. (Va.) 346; 39 Am. Dec. 263; Clingan v. Mitcheltree, 31 Pa. St. 25; Gains v. Gains, 2 A. K. Marsh. 190; 12 Am. Dec. 375.

Under the clause saving revocations, "implied by law from subsequent changes in the condition or circumstances of the testator," it is claimed that the conveyance to Mrs. Burch, above referred to, and which was set aside by the court on the ground of undue influence, must be construed as an implied revocation of the will in question. Of course, a sale of the estate devised must operate as a revocation, for the will

cannot thereafter take effect on it; and it is admitted that if the deed had been valid and effectual to convey the premises, it would have worked a revocation; but the respondent insists that the rule is not applicable to a deed adjudged invalid, and not the deed of the grantor, for fraud or undue influence. If, in opposition to the allowance of a will in probate proceedings, a revocation in writing, executed in due form by the testator, had been produced, clearly the proponent would not be concluded from showing that it was not the voluntary act of the testator, but that it was procured by fraudulent devices and undue influence: O'Neall v. Farr, 1 Rich. 80. But we can see no distinction in this respect between such an instrument and a deed which is claimed to work a revocation by implication, if the deed was not the act of the testator, and the existence of the deed is due to fraud and undue influence, especially where, as in this instance, the fact is already adjudicated that the instrument, though in form the testator's deed, is no deed. "Whoever orders it to be delivered up declares it to be no deed," says the chancellor in Hawes v. Wyatt, 3 Brown Ch. 156. The general rule is, that no revocation can be good which is procured by fraud, or where the testator was unduly influenced to make it: Schouler on Wills, sec. 184. It is true, as Chancellor Kent observes (4 Com. 528), that not only contracts to convey, but inoperative conveyances, will amount to a revocation if there be evidence of an intention to convey. But in such cases, where the title does not in fact pass, the intention must be manifest. Mr. Greenleaf, however, seems to recognize the distinction insisted on by the plaintiff's counsel here (2 Greenl. Ev., sec. 687), for he says: "The rule [i. e., implied revocation] does not apply to a conveyance which is void at law on account of fraud or covin; yet if the deed is valid at law, but impeachable in equity, it will be held in equity as a revocation"; citing Simpson v. Walker, 5 Sim. 1. The same distinction is recognized in other English cases, though Lord Thurlow held differently in Hawes v. Wyatt, 3 Brown Ch. 156. And Mr. Redfield, in noticing these authorities (1 Redfield on Wills, sec. 344), is of the opinion that if the deed in such cases is void, it should not be allowed an incidental operation by way of revocation. In Smithwick v. Jordan, 15 Mass. 113, a case resembling this on the facts, the court held that a deed found o have been obtained by fraud and imposition, after the execution of the will, was no revocation.