It would be against the spirit of our statutes to hold that, because a man is blind, or because he is obliged to keep his eyes bandaged, or because, by an injury, he is prevented from using his sight, he is deprived of the right to make a will. The statute does not make the test of the validity of a will to be that the testator must see the witnesses subscribe their names; they must subscribe "in his presence;" but in cases where he has lost or cannot use his sense of sight, if his mind and hearing are not affected, if he is sensible of what is being done, if the witnesses subscribe in the same room, or in such close proximity as to be within his hearing, they subscribe in his presence; and the will, if otherwise duly executed, is valid. In a case like the one before us, there is much less liability to deception or imposition than there would be in the case of a blind man, because the testator, by holding the will before his eyes, could determine by sight that the will subscribed by the witnesses was the same will executed by him. We are of opinion, therefore, that the codicil was duly attested by the witnesses. The facts in regard to the attestation of the original will do not materially differ from those as to the codicil. The witnesses signed the will at a table nine feet distant from the testator, which was not in the same room, but near the door in an adjoining room. The door was open, and the table was within the line of vision of the testator, if he had been able to look, and the witnesses were within his hearing. The testator could hear all that was said, and knew and understood all that was done; and, after the witnesses had signed it, and as a part of the res gestae, it was handed to the testator, and he read their names as signed, and said he was glad it was done. For the reasons before stated, we are of opinion that this was an attestation in his presence, and was sufficient. The result is, that the decree of the justice who heard the case, admitting the will and codicil to probate, must be affirmed. Decree affirmed. REVOCATION BY BURNING, TEARING, CANCELING, CHEESE V. LOVEJOY Court of Appeal, 2 P. D. 251 (1876) This was an action to obtain probate in solemn form of the will, dated the 3d of July, 1849, of John Harris, who died on the 13th of May, 1876, with three codicils, one dated the 3d of July, 1849, and the two others the 21st of September, excluding from the probate all the alterations and interlineations appearing on the will. That those instruments were originally well executed was not seriously contested. The plaintiff under the will was a beneficial legatee of a considerable part of the testator's personal estate and a devisee of considerable part of his freehold estate. The heir at law and next of kin contended that the testamentary instruments had been revoked. The evidence as to revocation was to the following effect: The will and codicils were at the testator's death found upon the kitchen table. The testator had drawn a pen through the lines of some part of the will, leaving the words perfectly legible, and had written on the back, "All these are revoked." A housekeeper, who had been nine years with the testator and left in January, 1876, stated that she had heard the testator speak about his wills, and say he had made two or three, but that he had cancelled them and they were good for nothing, and that the testator had in her presence taken up this will and thrown it among a heap of waste papers on the floor. The housemaid deposed that she had first seen the document about eleven years ago in the testator's sitting room under the cushion on the sofa. That about seven or eight years ago the testator kicked it into a corner of the sitting room among a quantity of other papers, and that she took it out of the sitting room, where it was lying by the coal box along with other scraps of paper, and took it into the kitchen, where she put it on the table. That it was sometimes on the table, sometimes on the kitchen window, and sometimes on a chair, just where she chose to put it, but the testator never asked for it, nor was it produced to him again. The judge, being of opinion that there was no evidence of revocation within the 20th section of the Wills Act, directed the jury to find a verdict for the plaintiff. The principal defendants excepted to this ruling in order to bring the case before the Court of Appeal. JAMES, L. J. We cannot allow the appeal in this case. It is quite clear that a symbolical burning will not do, a symbolical tearing will not do, nor will a symbolical destruction. There must be the act as well as the intention. As it was put by Dr. Deane in the court below; "All the destroying in the world without intention will not revoke a will, nor all the intention in the world without destroying; there must be the two." Baggallay and Cotton, L. JJ., concurred. WILL TEARING A WILL AMOUNT TO A REVOCATION? DOE D. PERKES V. PERKES 3 B. Ald. 489 (1820) Ejectment for messuages and lands in the parish of Walsall. Plea, Not guilty. At the trial before Holroyd, J., at the last assizes for the county of Stafford, it was admitted that the lessor of the plaintiff, as the brother and heir at law of one Charles Perkes, deceased, was entitled to recover, unless the defendants could establish the will under which they claimed. The will had been duly executed by the testator to pass real property, and the only question was, whether he had not revoked it by tearing it, and upon that point it was proved by one Joseph Worrall, that in August, 1816, the testator, having had some quarrel with one of the parties who was a devisee named in his will, in a fit of passion, took his will out of his desk, and said to Worrall: "Joe you shall see if I have done anything for the rascal or not. I have made him a gentleman." He then began to tear the will, and tore it twice through; the witness then laid hold of his arms and entreated him to abate his passion. The devisee then, who was present, put his hands together, as if in an attitude of prayer, and said: "Consider my family. I beg your pardon for what I have said. Had I been worthy to have known what had been done for me, I should have been satisfied." Upon this, the testator became calm, and the witness let loose his arms. The testator then folded up the will, and put it in his pocket, and afterwards pulled it out again, and said, "It is a good job it is no worse," and after fitting the pieces together, he added, "there is nothing ripped that will be any signification to it." The will was found after the death of the testator, in four parts. Upon this evidence, the learned judge left it to the jury to say whether the testator had done all he intended, or whether he was not prevented from completing the act of destruction he intended. The jury found a verdict for the defendants, establishing the will; and now W. E. Taunton moved for a new trial. ABBOTT, C. J. Upon the evidence, it appears, in the present case, that the testator, being moved with a sudden impulse of passion against one of the devisees under his will conceived the intention of cancelling it, and of accomplishing that object by tearing. Having torn it twice through, but before he had completed his purpose his arms were arrested by a bystander, and his anger mitigated by the submission of the party who had provoked him; he then proceeded no farther, and after having fitted the pieces together, and found that no material word had been obliterated, he said, "It is well it is no worse." Now if the cancella tion had been once complete, nothing that took place afterwards could set up the will. But it was a question for the jury to determine whether the act of cancellation was complete. They have found that it was not, and that it was the intention of the testator, if he had not been stopped, to have done more, in order to carry his purpose into effect. I can see no reason to think that verdict wrong. BAYLEY, J. I think this verdict right. If the testator had done all that he originally intended, it would have amounted to a cancellation of the will; and nothing that afterwards took place could set it up again. But if the jury were satisfied that he was stopped in medio, then the act not having been completed will not be sufficient to destroy the validity of the will. Suppose a person having an intention to cancel his will by burning it were to throw it on the fire, and upon a sudden change of purpose, were to take it off again, it could not be contended that it was a cancellation. So here, there was evidence from which a change of purpose before the completion of the act, might properly be inferred. The jury have drawn that inference, and I see no reason to disturb the verdict. HOLROYD, J. I was of opinion, at the trial, that if the act of tearing was completed nothing that took place afterwards was sufficient to set up the will again. The Statute of Frauds says "that no devise in writing of lands shall be revocable, otherwise than by some other will, or by burning, cancelling, tearing, or obliterating the same by the testator," etc.; but, in order to effect this, the act of tearing, etc., must be complete. I left it to the jury to say, whether that was so, and they were of opinion, that the testator had not completed the act he had intended, and I thought that they drew the right conclusion from the evidence. BEST, J. I am of opinion, that the verdict is right. Tearing is one of the modes by which a will may be cancelled; but it cannot be contended that every tearing is a cancellation: for if it were, a testator, who took his will into his hands with intent to tear it, must, if he should tear it in the smallest degree and then stop, be considered as having cancelled it. The real question in these cases is, whether the act be complete. If the testator here, after tearing it twice through, had thrown the fragments on the ground, it might have been properly considered, that he intended to go no further, and that the cancellation was complete; but here there is evidence, that he intended to go farther, and that he was only stopped from proceeding by an appeal made to his compassion by the person who was one of the objects of his bounty. The case in Blackstone is very distinguishable; for there the testator completed his purpose, although the will was not destroyed. I see no reason, therefore, for disturbing the verdict. Rule refused. WHERE THE SIGNATURES TO A WILL HAVE BEEN CAN NOT BE PROBATED IN RE GOODS OF MORTON L. R. 12 P. D. 141 (1887) Henrietta G. Morton, late of Newcastle-on-Tyne, deceased, died January 26, 1887, having duly executed a last will, bearing date September 16, 1853. After her death the will, which had remained in her possession, was found in a trunk with the signatures of the testatrix and the attesting witnesses scratched out as if with a penknife. At the bottom of the will there was a memorandum in the handwriting of the deceased, dated "November, Saturday, 1861," but not executed, whereby for reasons given the will was declared to be cancelled. Searle, moved for a grant of administration to Sarah Francis Morton, the sole surviving sister and next of kin of deceased, as in case of intestacy. BUTT, J. I do not think there is any difficulty in the case. What the testatrix did may be regarded as a lateral cutting out. The paper is not pierced, but the signatures are scratched away. I think the will has been revoked, and I grant administration to the applicant. A LATER WILL DOES NOT NECESSARILY REVOKE A WILL CADELL V. WILCOCKS High Court of Justice, Probate Division, page 21 (1898) SIR F. H. JEUNE, President. The question in this case is, which of three wills made respectively on April 26, 1890, July 5, 1894, and September 5, 1895, by the testatrix, Mrs. Lucy Biddulph, should be admitted to probate. The father of the testatrix, Robert Bickerstaffe, left £16,000 among his four daughters in equal shares for life, with power of appointment to each of them by will amongst her children, and, in default of appointment, to her children equally. At the time of the will of 1890, the testatrix had two daughters, Anne, then married, and Gertrude, then a widow, and three sons, Middleton, Assheton, and Franc. By the will of 1890, the testatrix, after revoking all previous wills, gave her daughter Gertrude "the sum |