Wyoming Law Journal

Volume 19 | Number 3 Article 4

February 2018

Revival of Revoked Wills

Greg Greenlee

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Recommended Citation
Greg Greenlee, Revival of Revoked Wills, 19 Wyo. L.J. 223 (1965)
Available at: https://repository.uwyo.edu/wlj/vol19/iss3/4

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Comments REVIVAL OF REVOKED WILLS
In re Stringer's Estate
as construed by
In re Wilson's Estate

Assume: In 1949, the testator executed a valid will. In 1952 he executed

another will which contained an express revocation of all prior wills and codi-
cils. Subsequently, the testator physically destroyed the 1952 will. The 1949
will was in existence at his death.

Question: Was the 1949 will revived by the destruction of the revoking will?
In response to this situation in 1959 in In re Stringer's Estate,' the Wyo-
ming Supreme Court answered "No," reasoning that:

The legislative silence relative to the question of revival does not in-
cline us to believe a presumption is created that a will revoked in one
or the other of the ways authorized by express statute is brought back
to life. If any presumption at all is indicated, it seems more reason-
able to us that it should be that the presence in our laws of an express
statute prescribing ways in which a will may be revoked, without there
being further statute providing for revival of such a revoked will,
manifests that the legislature has intentionally spoken its last word
concerning the existence of such a revoked testament."

Assume: On December 26, 1961, the testatrix executed a valid will. Early in
1962 she executed a holographic will which disposed of her entire estate. Later
in 1962, the testatrix executed a codicil to the 1961 will, making no reference
to the holographic instrument, declaring "I hereby reaffirm and readopt the
provisions of my Last Will and Testament dated December 26, 1961."
Question: Was the 1961 will revived by the execution of the codicil?

Responding to this situation in December of 1964 in In re Wilson's Estate,3

the Wyoming Supreme Court had this to say:

"[T]he subsequent codicil of April 11, 1962 would have the effect of
reviving the December 26, 1961 will, which has been shown still to be in exis-
4
tence."

In commenting upon counsel's reliance on the language of In re Stringer's

Estate to mean that "there is no revival of once revoked wills in Wyoming," the
court continued.

It is hard for us to realize how counsel could go so far afield and

1. In re Stringer's Estate, 80 Wyo. 389, 343 P.2d 508, modified, 80 Wyo. 426, 345 P.2d
786 (1959)
2. Id. at 343 P.2d at 516.
3. In re Wilson's Estate, 397 P.2d 805 (Wyo. 1964).
4. Id. at 809. In arriving at this conclusion, the court assumed the validity of the holo-
graphic instrument, although its validity was in serious doubt. The court reasoned
that it would make no difference anyway, as the codicil to. the 1961 will effectively
revoked the intermediate holographic will.
 WYOMING LAW JOURNAL Vol. 19

read into the Stringer opinion what he attempts to read into it. The
author, Justice Harnsberger, commented that legislative silence rela-
tive to the question of revival does not incline the court to believe a
presumption is created that a will revoked is brought back to life-the
meaning being, brought back to life by the subsequent destruction of
a later will.
If counsel had read the opinion with ordinary care, he would have
noted that the discussion related to whether or not there was sufficient
evidence to raise a presumption that the destroying of the 1952 will
by a testator was done with the purpose of re-establishing or reviving
a 1949 will. There was found not to be sufficient evidence to raise
such a presumption.
Justice Harnsberger's opinion clearly recognizes that courts have ac-
cepted the theory that, in the absence of statutes, the subsequent de-
struction of a revoking will does not have the effect of reviving the
former will unless there is evidence that it was the intention of the
testator to revive the former will. The principle was accepted that the
question of revival is one of pure intention without there being any
presumption either for or against revival arising by virtue of the de-
struction of the revocatory will. 5 (Emphasis is that of the court.)
Thus, the Wyoming Supreme Court twice attempted to deal with the problem
of revival of a once revoked will. Based on the language and reasoning of the
Wyoming cases cited and on other authority, it is the purpose of this article to
comment on this relatively simple, but highly misunderstood area of the law of
wills.
Assuming a revoked or otherwise invalid will, there are five methods by
which it might be revived.'
The most obvious method, of course, is to totally redraft the will, executing
it with the proper statutory formalities. This is not, technically, a revival of a
once revoked will, but simply an execution of a new instrument, which replaces
the one revoked.
Second, the will may be revalidated by re-execution of the testamentary
formalities; such re-execution to include a re-signing by the testator and at-
7
testation by the requisite number of witnesses.
Third, revival may be affected by dependent relative revocation." This
is a revival by operation of law, not by any overt act of the testator, which doc-
trine may or may not be recognized by the various jurisdictions.9

Fourth, where the prior will is still in existence, but is invalid because re-

5. Ibid.
6. It is somewhat of a misnomer to state that a will which has never been valid for one
reason or another may be revived, since a document which has never been valid cannot,
technically, be revalidated or revived. This, however, is the language used by many
courts, including Wyoming. In re Nelson's Estate, 72 Wyo. 444, 266 P.2d 238 (1954)
See also ATKINSON, WILLS §90 (2d ed. 1953).
7. Ellerbeck v. Haws, 1 Utah 2d 229, 265 P.2d 404 (1953).
8. 2 BOWE-PARKER: PAGE ON WILLS §21.57 (1960).
9. If the reader is interested in this phase of revival, an excellent starting point is 2
BOWE-PARKER, supra note 8, at §§21.57 through 21.65.
1965 COMMENT

yoked by operation of law or by a later instrument, it may be revived, or as

some courts and authorities say, "re-published" by the execution of a codicil.'"
Finally, where the prior will is still in existence, revocation of a revoking
will might revive the former testament."
This article will be limited to a discussion of the latter two methods by
which a once revoked will may be revived. Only a cursory examination will be
given to revival of a will by codicil as this area of the law is well settled, while
revival by revocation of the revoking instrument will be dealt with in some
detail.

REVIVAL BY CODICIL

In the course of the opinion in In re Wilson's Estate, the Wyoming Court

cited at length the Annotation in 33 A.L.R. 2d 922, part of which states:
Although in many of the cases collected herein it has been held
for any number of reasons, that the codicil in question did not
effect the revival of a prior revoked will or codicil, no case has been
found in support of the proposition that the revival of a will or codicil
which has been revoked but which12is in existence, cannot be effected
by means of a subsequent codicil.
With perhaps the exception of the language in In re Stringer's Estate, be-
fore the clarifying opinion in In re Wilson's Estate, no authority was found in
disagreement with the above quotation, either before the date of the above cited
3
quotation (1954) or afterward.
It is therefore well settled that a codicil, so long as it is executed with the
applicable statutory requirements, can effectively revive or validate a will which
has been revoked or is otherwise invalid, so long as the revoked or invalid will
is still in existence. As will he seen later, it may be the only method available
4
to revive a revoked will.'
To say, however, that a codicil can revive a revoked will is not to say that
such a codicil will do so.
In order that a codicil may effectively validate a revoked instrument there
must be a showing of intent to revive' 5 and the codicil must describe sufficient-
ly the will to be validated. 1
10. In re Wilson's Estate, supra note 3.
11. In re Stringer's Estate, supra note 1.
12. Annot., 33 A.L.R.2d 922, 925 (1954).
13. Blacken v. Ziegler, 153 Iowa 344, 133 N.W. 901, 37 L.R.A. 291 (1911) ; Derr v. Derr,
123 Kan. 681, 256 Pac. 800, 53 A.L.R. 515 (1927) ; Florey v. Meeker, 94 Ore. 257,
240 P.2d 1177 (1952); In re Nelson's Estate, 72 Wyo. 444, 266 P.2d 238 (1954);
Second National Bank v. United States, 222 F.Supp. 446 (D.Conn. 1963) ; Alden
v. Lewis, 248 Miss. 663, 160 So.2d 181 (1964).
14. See infra at page -.
15. Fuller v. Nazal, 259 Ala. 598, 67 So.2d 806 (1953) ; Taft v. Stearns, 234 Mass. 273,
125 N.E. 570 (1920); Gooch v. Gooch, 134 Va. 21, 113 S.E. 873 (1922); See gene-
rally 2 BoWE-PARKER, supra note 8, at §23.6.
16. Fifth Third Union Trust Co. v. Athenaeum of Ohio, 169 N.E.2d 707 (Ohio 1959);
In re Kerner's Will, 14 Misc.2d 545, 179 N.Y.S.2d 122 (1958) ; Grotts v. Casburn, 295
111. 286, 129 N.E. 137, 14 A.L.R. (1920) ; See generally 2 BOWE-PARKER, supra note 8
at §23.7.
 WYOMING LAW JOURNAL Vol. 19

The Wyoming court, impliedly at least, recognized both of these requisites

in In re Wilson's Estate wherein they stated that it was necessary to concern
themselves with any presumption one way or another as to revival because "the
codicil clearly and unequivocally declared that the testatrix reaffirmed and re-
adopted the provisions of her will dated December 26, 1962.17

In summary, as to revival by codicil, the general, if not the universal rule,

is that a will, still in existence, which has been revoked either expressly, by in-
consistency, or by operation of law, may be revived or validated by the execu-
tion of a valid codicil, so long as the codicil indicates an intent on the part of
the testator to revive the revoked will and so long as the revoked will is suffi-
ciently described.

REVIVAL BY REVOCATION OF THE REVOKING INSTRUMENT

In 1911, the Iowa Supreme Court lamented: "Does the destruction or can-
cellation of a second will, containing an express revocation of a former one in
itself revive the first or former one? Upon no subject in the law of wills are
the authorities in such hopeless and irreconciable conflict."' 8

The Wyoming Supreme Court agreed, at least as to the existence of a con-

flict, in 1959, when it said in In re Stringer's Estate responding to counsel's
citation of diverse authority on the subject: "the sum total of which merely
illustrates there is a wide difference of opinion in different jurisdictions as to
the reviving effect of the revocation of a subsequent will which is relied upon
as having revoked a former will."' 19

Numerous courts and authorities have commented, some with a seeming

dispair, on the various theories which are said to prevail over this area of the
law of wills. Annotations in American Law Reports enumerate five theories as
set forth below; 20 Page on Wills recognizes three basic theories with variations

17. In re Wilson's Estate, supra note 3, at 809. The reader is cautioned at this point not
to confuse the terms revival, and republication relative to a finding of intent. Al-
though some courts have stated that in the absence of a showing of a contrary intent
a revoked will is revived by a validly executed codicil, it is "doubtful whether such
a statement represents the conclusion that it is not necessary that the codicil indicate
an intention to revive; that is in other words, that a codicil revealing nothing as to
the intention of the testators to the revival will operate to revive." Annot., 33
A.L.R.2d 932, n. 13 (1954). "Revival" by codicil results in republication of the re-
voked will as of the date of the codicil and, as pointed out above, requires a showing
of intent. 2 BOWE-PARKER, supra note 8, at §23.5. The term "republication," how-
ever, usually refers to the effect upon a valid will by a later codicil. Annot., 33 A.L.R.
2d 928 (1954). In the case of a republication of a valid and existing will, it is the
general rule that intent to republish the existing will is presumed unless a contrary
intent appears. In re Herbert's Estate, 131 Cal. App.2d 666, 281 P.2d 57 (1955);
In re Gibbon's Estate, 192 Okla. 372, 137 P.2d 928, 146 A.L.R. 1361 (1943). Most
courts, however, use the term "republication" interchangeably to apply both to re-
publication of a valid will and revival of a revoked will where such revival is accom-
plished by execution of a codicil.
18. Blackett v. Ziegler, supra note 13.
19. In re Stringer's Estate, supra note 1, at 515.
20. Annot., 28 A.L.R. 911 (1924); Annot., 162 A.L.R. 1072 (1946).
1965 COMMENT

of each; 21 Atkinson on Wills lists four possibilities; 2 2 and Corpus Juris Secun-
dum and American Jurisprudenceagree substantially with Page on Wills. 2 3

Inasmuch as the Annotation in Volume 28 of American Law Reports, relied

upon by the Wyoming court in In re Stringer's Estate, includes all of the
theories discussed by the various authorities, it is used here as the starting point
24
of this discussion.

The first is the strict common law theory that the former will is revived
"as a matter of law," when the revoking will is destroyed or itself revoked. The
view at common law was that wills are ambulatory until the death of the testator.
While the testator is living, it does not matter what he does as to his testamen-
tary declarations since any will or codicil will not become operative until his
death. Therefore, revocation of the revoking will during the testator's lifetime
prevents it from taking effect as a revoking instrument because it, as well as
25
the first will, is ambulatory.

Second, the Annotation states that there is another group of cases which
hold "that the earlier will is revived unless an intention to the contrary

21. BOWE-PARKEII, supra note 8, at §§21.49 through 21.56. After outlining the history
of the common law rule and the ecclesiastical rule Page states that the "American
rules" in the absence of statute fall into the classic categories of the common law
view and the ecclesiastical view while some hold with no revival unless the former
will is re-executed or republished. Other jurisdictions "distinguish between the
cases in which the later will contains an express revocation clause, and the cases in
which it operates as a revocation only because it is inconsistent with the earlier will."
Citing relatively' early cases from Alabama, Delaware, Iowa, Maryland, Michigan,
New York, Pennsylvania and South Carolina, Page states categorically that the de-
struction of the will which has revoked the former by inconsistency, serves to revive
the prior will. For some reason, perhaps because of the unusual statutes in Louisi-
ana and the construction given to them, Page lists the Louisiana rule as a separate
rule, although in effect, Louisiana follows the common law rule that a will does not
l)-come effective until death, and should the testator die with both wills in existence,
only then is the first one revoked.
22. ATKINSON, supra note 6, at §92. Under the heading "American Rules," Atkinson
states that "In the absence of statute, there is a great divergence of viewpoint among
the American cases. . . . Some jurisdictions follow the common law rule in general,
others that of the ecclesiastical courts, but often there are qualifications or variations
of these two." Atkinson's two other theories which he says are followed by other
jurisdictions are revival "unless the testator intends not to do so," and revival only
by republication. Contrast Atkinson's statement "Most jurisdictions do not recognize
this distinction and apply the same rule of revival regardless of whether or not there
in an express clause of revocation in the second will" with Page's statement (supra
note 21), as to jurisdictions which distinguish between revocations by inconsistency
and express clause.
23. 95 C.J.S. Wills §298 (1957) ; 57 AM.Jut. Wills §619 (1948).
24. Annot., 28 A.L.R. 911, (1924).
25. Id. at 912. It should be pointed out that although many courts and some authorities
speak of reviving a former will as a matter of law when the later will is revoked, the
term "revival" is not technically correct because of the theory on which the rule is
based. The theory of revival as a matter of law comes from the conmon law pro-
position that wills are ambulatory until death. Since, by this theory, death is the
only event which will bring into operation testamentary documents written during
the testator's lifetime, a revoking instrument later destroyed would be considered as
never having had any effect upon the will because the will itself has no operative
effect until death. Therefore, there would be nothing to revive. See 2 BOWE-PAJIKER
supra note 8, at §21.54.
 WYOMING LAW JOURNAL Vol. 19

appears." 26 In other words, there is a presumption that the first will is revived
unless it is shown that the testator intended to die intestate.
' 27
Third, the theory is propounded "that the earlier will is not revived,
meaning that the only methods of revival would be re-execution or republica-
tion.
Fourth, "that the earlier will is not revived unless an intention to revive it
appears," 28 meaning, apparently, that there is a presumption against revival.
Finally, the Annotation recognizes that in many jurisdictions "the question
is one of intention without any presumption for or against revival."' 29 This
fifth theory was the view of a majority of the English ecclesiastical courts.
To compound the problem, it is said that courts have varied the rules
when revocation is by inconsistency of the later will, rather than by an express
revocation clause. 30 Furthermore, it is not clear what the courts mean when
they speak of the existence of presumption as to revival. Page on Wills sug-
gests that, when courts say that there is no presumption one way or the other,
"Possibly this merely means that there is no strong inference of fact either
3
way." '
Considering all of these theories and variations thereof, enumerated and
perpetuated by eminent authority, it is no wonder that courts in reviewing these
authorities have found "irreconcilable conflict."
It is submitted, however, that the conflict does not exist in fact and is but
of historic significance; that the five classifications set forth by the American
Law Reports, and the intricate variations of the "common law rule," and the
"ecclesiastical rule" are for, the most part, no longer applicable.
The classifications, it is submitted, should be limited to three categories,
two of which are relatively insignificant except, perhaps, to emphasize the great
weight of authority. These classifications are:
I. Revival where intention to do so is clear, which will be termed the
"American Rule" for the purpose of this article.
II. Revival as a matter of law upon revocation of the revoking instrument.
III. Revival only by re-execution or republication.
26. Annot., 28 A.L.R. 91 (1924).
27. Ibid.
28. Ibid.
29. Ibid.
30. Id. at 911, 912; See also BOWE-PARKER, supra note 8, at 21.54.
31. Examples of unclear language regarding the existence and effect of presumptions may
be found in both the In re Stringer's Estate, supra note 1, and In re Wilson's Estate,
supra note 3. The reader is referred to the quotation from those opinions set forth
at the first of this article. In both opinions, the court states that there is no pre-
sumption for or against revival; however, the Wilson opinion indicates that "suffi-
cient evidence" might raise a presumption that the former will is revived. Does the
court simply mean that if evidence is introduced indicating that the testator intended
to revive the former will by revocation of the revoking intrument, revival will depend
upon the strength of that evidence? It is suggested that the answer to that question
is and should be "yes," and that no amount of evidence would ever "raise a presump-
tion" within the legal meaning of that phase.
1965 COMMENT

I. The American Rule

Eighteen states provide.by statute that a revoked will is not revived unless
32
it appears that it was the testator's intention to revive the first will. New
Mexico has a similar statute which does not allow revival by revocation of the
'' 33
revoking will "unless the validity of the first will be acknowledged. What
34
amounts to an "acknowledgment" is unknown as there are no reported cases.
35
Of the ten states which by case law follow the "American Rule," nine
hold either that a will is not revived unless intent is shown, or, like Wyoming,
that whether or not the former will is revived will depend entirely upon a show-
ing of intent, there being no presumption either for or against revival. It ap-
pears to make no practical difference in these nine states whether the courts
use "no revival without intent" or "no presumption either way," since by the
cases, if no intent to revive is shown, revocation, standing alone, will not revive
the former will.

The tenth non-statute state using intent to resolve the matter of revival is
Maryland whose courts have stated that the cancellation of a revoking will is
prima facie evidence of an intention to revive a former will. This is the only
36
state found which clearly holds that there is a presumption of revival. Since
the presumption is rebuttable, the testator's intention may still be said to be
controlling, and therefore Maryland is numbered among those states holding
with the "American Rule."

II. Revival As a Matter oj Law

Four states, 37 by judicial decision reach the result that the former will is
revived as a matter of law when the revoking will is destroyed or revoked. These
states, recognizing the ambulatory character of wills, follow the strict common

32. Rees, American Wills Statutes, 46 VA. L. Rev. 856, 890 (1960). The eighteen states are
Alabama, Alaska, California, Idaho, Indiana, Kansas, Missouri, Montana, Nevada,
New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Utah
and Washington.
33. N.M. STAT. ANN. §30-1-9 (1953).
34. Intent, which probably is inclusive of New Mexico's "acknowledgement," is said to be
shown from all of the surrounding circumstances including careful preservation of
the former will; McClure v. McClure, 86 Tenn. 173, 6 S.W. 44 (1887) ; and from the
declarations of the testator at the time of revoking the later will; Blackett v. Ziegler,
supra note 13.
35. IOWA: In re Farley's Estate, 237 Iowa 1069, 24 N.W.2d 453 (1946); MASSACIUSETTS:
Pickens v. Davis, 134 Mass. 252, 45 Am.Rep. 322 (1883) ; MINNESOTA: In re Tibbett's
Estate, 153 Minn. 53, 189 N.W. 401 (1922) ; NEBRASKA: Williams v. Miles, 68 Neb.
463, 94 N.W. 705, 62 L.R.A. 383, 110 Am-St.Rep. 431, rehearing denied 68 Neb. 463,
96 N.W. 151, 62 L.R.A. 383, 110 Am.St.Rep. 431 (1903); NEW HAMPSHIRE: Lane v.
Hill, 68 N.H. 275, 44 Atl. 393, 73 Am.St.Rep. 591 (1895); NEW JERSEY: In re Davis'
Estate, 134 N.J.Eq. 393, 35 A.2d 880, reversing 132 N.J.Eq. 282, 28 A.2d 72, reversing
18 N.J. Misc. 665, 15 A.2d 895 (1914) ; TENNESSEE: Wrinkle v. Williams, 37 Tenn.
App. 27, 260 S.W.2d 304 (1953) ; VERMONT: In re Gould's Will, 72 Vt. 316, 47 Atl.
1082 (1900) ; WYOMING: In re Stringer, supra note 1; In re Wilson, supra note 3.
36. Rabe v. McAllister, 77 Md. 97, 8 A.2d 922 (1939).
37. CONNECTICUT: Whitehill v. Halbing, 98 Conn. 21, 118 Atl. 454, 28 A.L.R. 895 (1922);
DELAWARE: Dawson v. Smith, 3 Houst. 92 (Del. 1865) ; RIODE ISLAND: Bates v.
Hacking, 28 R. I. 523, 68 Al. 622, 14 L.R.A.(N.S.) 937, 125 AmSt.Rep. 759 (1908);
SOUTH CAROLINA: Kolloch v. Williams, 131 S.C. 352, 127 S.E. 444 (1925).
 WYOMING LAW JOURNAL Vol. 19

as
law theory. Statutes in two states require revival, although it has taken court
39
decisions to construe the statutes to reach this result.

III. Revival By Republication or Re-execution

Of the twelve states which do not allow revival except by republication or
40
re-execution after a will has been at one time revoked, nine, have statutes
specifically requiring re-execution or republication. One state, Texas, has a
section in its probate code which states that in order to obtain probate of a will,
the proponent must prove "to the satisfaction of the court.., that such will has
'' 41
not been revoked by the testator. This section has been construed to preclude
42
revival except by republication or re-execution.
The two remaining states in this catagory 43 reach this result (revival
only by re-execution or republication), without the benefit of a statute, the
courts reasoning that since the statutes specifically prescribe how a will is to
be executed, a will, once revoked, may not be brought back to life except by
those methods.
In summary it is found as to revival of a former will by revocation of the
revoking instrument that (a) twenty-nine states, nineteen by statute and ten by
court decision, have required that revival of the former will by revocation of the
revoking instrument depends upon the intent of the testator; (b) only six states,
two by statute and four by court decision, reach the conclusion that a former
will is automatically revived by revocation of the revoking will; (c) twelve
states, ten of which are governed by statute, require that a once revoked will
may only be revived by republication or re-execution, and finally (d) only three
states, Arizona, Colorado and Maine have neither statutes nor decisions on the
subject. Based on these facts, it is suggested that the textbook authorities and
the annotators of American Law Reports and the encyclopedias should reconsid-
er the law of revival with a view toward discontinuing the intricate distinctions
among and within the three basic theories as set forth above. A review of
the statutes and cases indicates that these distinctions are no longer applicable
as examples of existing law on the subject, and if used at all should be limited
to historical background.
The perpetration of the distinctions serves only to unnecessarily lengthen
the discussion of the subject in the cases, because, almost without exception,
the courts in those states deciding the question for the first time write at length
about presumption and the other intricate distinctions propounded. In the
last analysis, however, these same courts put all the nice distinctions aside,

38. LOUISIANA: LA. Civ. CODE, art. 1644, 1645 and 1646 (Slovenko 1961); MICIcAN:
MICH. STAT. ANN. §27.3178(96) (1962).
39. Succession of Dambly, 191 La. 500, 186 So. 7 (1938) ; Dingman v. Dingman, 199
Mich. 384, 165 N.W. 712 (1917) ; In re Leech's Estate, 277 Mich. 299, .269 N.W. 181
(1936) ; In re Francis' Estate, 349 Mich. 339, 84 N.W.2d 782 (1957).
40. Rees, supra note 32: Arkansas, Florida, Georgia, Hawaii, Illinois, Kentucky, North
Carolina, Virginia, and West Virginia.
41. TEx. PROB. CODE ANN. §88 (1956).
42. Brackenridge v. Roberts, 114 Tex. 418, 267 S.W. 244 (1924).
43. MississipPI: Bohanon v. Walcot, 2 Miss. (1 How.) 336, 29 Am. Dec. 631 (Miss. 1836)
WISCONSIN: In re Eberhardt's Estate, 1 Wis.2d 439, 85 N.W.2d 483 (1957).
1965 COMMENT

choosing one of the three theories above, that is, the "American Rule," revival
as a matter of law, or revival only by republication or re-execution. This is
exactly what the Wyoming court did in the course of the Stringer opinion. Al-
though the language leaves something to be desired, it is clear that the court
first reviewed the authorities, second, talked of presumption and the other dis-
tinctions set forth by the Annotation in volume 28 of the American Law Reports
and then, called upon their old friend, "intention of the testator" as the con-
trolling factor. This reasoning process was again evident in the dicta of the
Wilson opinion, where the court more clearly set forth the law to be applied in
this state to revival of revoked wills by destruction of the revoking instrument.
As to which of the three theories should be applied, it is clear that the
"American Rule" operates to preserve the controlling philosophy of the entire
law of wills, i.e., the testator's desires are to be protected through a finding of
his intent. Neither of the other rules provide such protection, as they must
operate regardless of intent.
Still, the authorities in the field continue to promote and preserve the vari-
ous intricate theories set forth above. Considering this review of the statutes
and the cases, it would seem that the authorities have yet to catch up with the
"lawmakers," both in the legislatures and in the courts.
Greg Greenlee