their services is sufficient the government goes no further. But if there are not enough volunteers the government uses force. It commands you to become a soldier. You may insist that you are not a man of blood and have no taste for war. Excuses are unavailing. You are dragged into the army. You are placed face to face with death on the battle-field. More than this, if the army is in danger aud it becomes necessary to send out a forlorn hope or to sacrifice a portion of the troops for the preservation of the remainder, you may be among those selected and devoted to certain death. You are offered up for the good of the State. The government puts you to death not because you have forfeited your life or have done any wrong, but because your death tends to protect society.

In taking the life of a human being, society, if it expects to justify itself, should proceed without hatred and without malice. Punishment should bring no pleasure to him who inflicts it. It is right to pity the offender. But care must be taken that the heart do not gain the mastery of the head. Society should permit its action to be influenced by neither anger nor pity. It should determine what is essential to its safety, and do that and nothing more; and it should reach its decision in the same spirit which actuated Brutus when he was considering in what way Rome could be saved from the danger of Cæsar's power. It must be by his death; and for my part I know no personal cause to spurn at him, But for the general,"

Let me in conclusion state the case in its strongest possible form. Suppose that this society of ours, which has travelled all the way up from barbarism by a pathway of blood and suffering, were in danger of travelling back again, and that the danger could be averted in only one way the death, by slow torture of the most beautiful, the most loving, the most holy human being who inhabits the earth. If the sacrifice were voluntary it would be well. If the sacrifice were not voluntary none the less must it be made. Every thing that is essential to the preservation of society must be performed. J. H. HOPKINS.

FOREIGN DIVORCE.

ILLINOIS SUPREME COURT, MAY 12, 1882.

ROTH V. EHMAN.

R., a subject of Wurtemberg residing in Illinois, married in that State M., a subject of France. This marriage was void under the laws of Wurtemberg because R. had procured no license therefor from the King of that country. Thereafter R. and M. went to Wurtemberg and resided there. While so residing, in proceedings duly had there in which R. and M. both appeared, the marriage was declared void by the courts of Wurtemberg. Held, that the decree declaring the marriage void would be recognized and given effect in that State by the courts of Illinois. ILL to obtain partition of an estate. The facts appear in the opinion.

BILL

MULKEY, J. The record in this case shows that John George Roth,a subject of the kingdom of Wurtemberg, came to this country and settled in Chicago at an early day, and there accumulated a large amount of property, consisting chiefly of real estate, which is the subject of controversy in this suit; that in 1855 he married in Chicago, Madelaine Moser, a native and subject of France, who had a short time before accompanied him on a return visit from that country to this; that in 1856 they returned to Europe, and on their arrival in that country or shortly afterward, owing to certain difficulties and misunderstandings a separation took place between them, resulting in her returning to reside with her father in Alsace, France, her former domicile and residence, and in his

establishing a new residence in Schorndorf in the said kingdom of Wurtemberg, where he continued to reside until the time of his death, which occurred on the 12th of July, 1876; that in 1862 his wife returned to this country and instituted proceedings for a divorce, where she was shortly afterward followed by her husband, and through his influence induced to abandon the divorce suit and return with him to Schorndorf, where they again resumed marital relations. which were continued until October, 1870, when he commenced legal proceedings in the proper court at their domicile in Wurtemberg to procure a decree of nullity of their marriage, on the ground that it had been entered into on his part in violation of the laws of the kingdom of Wurtemberg, of which he was at that time a subject; that on the 24th of April, 1873, the cause was brought to a final hearing, both parties being present and represented by their respective counsel, resulting in a decree declaring the marriage a nullity on the ground just stated; that the court in which the decree was rendered had jurisdiction both of the parties and the subject-matter of the suit, and under the laws of Wurtemberg had full power and competent authority to enter the decree; that on the 9th of September following, in consideration of $8,000 in U. S. bonds paid to her by Roth, Madelaine, his former wife, released to him all her interests whatever they might be in the property in controversy; that on the 27th of November following, Roth contracted a second marriage with Amelia Staehle, who now claims the estate in controversy; that after the marriage of Amelia and Roth, on the 28th of March, 1874, they entered into an agreement known to the laws of Wurtemberg as a marriage and inheritance contract," by which it was provided they were to hold the property belonging to them respectively during their joint lives, as common property with the right of survivorship to the longer liver, subject to the payment of their debts, the education and marriage portion of their children and to the payment by her in he event she survived him of certain legacies to his relations amounting altogether to 80,000 florins, which contract was duly approved and confirmed by the proper court of that country. That immediately before his death, and with a view of enabling his wife to carry out the contract just mentioned, Roth conveyed, or attempted to convey, the property in controversy to her brother Albert Staehle, but that whatever interest passed by it was subsequently re-conveyed by him to Amelia; that after Roth's death on the 25th of September, 1876, Madelaine visited Schorndorf, and while there spent much of her time with Amelia, and accepted from her various presents, etc.; that on the 26th of the same nonth, Madelaine, in consideration of ten thousand marks, released to Amelia all claims to and upon her late husband's estate, and on the 3d of October following, executed to her a deed to the property in controversy; that Roth at the time of his death left no child or children, or descendants thereof.

Under these circumstances, in 1878, the present bill was filed by Madelaine in the Superior Court of Cook county, against Amelia and the heirs at law of Roth, in and by which she claims that the marriage between her and Roth was a legal and valid marriage; that the decree of the Wurtemberg court and all the proceedings upon which is is based were and are null and void, and that she is therefore the lawful widow and heir of her said husband, and as such entitled to a partition and division of his estate under the statute. Amelia answered the bill, and also filed a cross-bill setting up the facts above recited, and relying on them to establish her right as the survivor and lawful widow of Roth to the property in dispute. A cross-bill was also filed by the heirs of Roth, setting up their rights in the premises. The court found the equities with Amelia upon her cross-bill, and entered a decree dismissing

the original bill and directing the heirs of Roth to be paid the amount due them under the "marriage and inheritance contract." The decree has been performed as to the heirs of Roth, and Madelaine Roth alone brings the case by appeal to this court for review.

In the view we take of this case we do not deem it necessary to follow counsel in the wide range their exhaustive and elaborate arguments have taken; but shall confine ourselves to one or two of the topics discussed in the briefs which we regard as conclusive of the controversy, whatever may be our views with respect to the other issues in the case.

So far as the marriage between him and Madelaine Moser is concerned, we have no hesitancy in saying that for all purposes in this State it was a legal and valid marriage, notwithstanding Roth at the time was a sub, ject of the kingdom of Wurtemberg, and had not obtained a license authorizing such marriage from the sovereign of that kingdom as required by the laws thereof. As both of the parties were domiciled here at the time of its celebration, it is not important to determine whether the validity of a marriage depends upon the lex domicilii or the lex loci contractus; for whatever the conclusion which might be reached upon that question, the result would be the same so far as this case is concerned, both laws being identical; if the marriage was in conformity with either it must necessarily have been with the other also, and as it seems to have been solemnized in strict couformity with our statute regulating the subject, and as the parties were manifestly competent under our own laws to contract the relation, it follows, as before stated, the marriage was valid and binding.

While this marriage was clearly valid here for all purposes whatsoever, it does not follow that upon the return of the parties to the country of their nativity, and of which they were still subjects, it would or ought to be held equally valid there; for it is clearly settled by the decided weight of private international law so called, that every State has the power to enact laws which will personally bind its citizens or subjects when sojourning in a foreign jurisdiction, provided such laws in terms profess to so bind them when thus circumstanced. It is true such laws have no extraterritorial effect so as to authorize their enforcement in a foreign country, and may therefore so far as their execution is concerned, be said to remain dormant till the return of those violating them, when they will be enforced in the same manner and to the same extent as if their infraction had occurred within the State enacting them.

Nor does it follow that the status or relation created by the marriage could only be annulled by our own courts, or that it could only be annulled by other courts for such causes as would be recognized as sufficient for that purpose under our own laws. When the parties returned to Wurtemberg and acquired a new domicile there, so far as their personal rights and relations are concerned, our laws and government ceased to have any power over them or concern with them. Personally the State had no claims on them and they owed it no allegiance or duty.

Whether the kingdom of Wurtemberg on their return and acquiring a new domicile there would recognize the status or relation which they had contracted here depended upon its own laws, and not upon ours. That kingdom in 1808 adopted an ordinance or law, which was in full force at the time of the marriage in Chicago, declaring all such marriages in a foreign State, without the license of the sovereign absolutely null and void. It was therefore, according to the general current of authority on the subject, entirely competent for the courts of that kingdom, having jurisdiction of such matters, to give effect to that law by annulling and setting aside the marriage upon a proper application for that purpose, which was done in this case.

Ordinarily where a party upon a change of domicile goes into another State or country, the personal status which he carries with him will be recognized by the courts of the latter country.

This is certainly the general rule, but it is subject to certain well-recognized exceptions. If for instance such status has been acquired as in the present case by a violation of express provisions of the positive law of the State in which its recognition is asked, or if it be contrary to the genius and spirit of its institutions, as a title of nobility would be here, or if it is opposed to its settled policy, or to the good order and well-being of society, or to public morality and decency, in all such cases the status would not and should not be recognized by the courts of the latter State. Assuming the compromises of appellant with Amelia and Roth respectively, relating to her interest in the latter's estate, were made by her in ignorance of her rights, and that they were effected through the fraud and misrepresentation of them and others acting in concert with them, as is claimed by her, of which we express no opinion, at least for the present, it follows the result of this case must depend chiefly upon the legal effect which must, under the circumstances stated, be given by the courts of this State to the decree rendered by the Wurtemberg court annulling the marriage, and this we regard as the vital question in the case. The general rule unquestionably is, where it affirmatively appears that the court of a foreign State has jurisdiction of the parties and subject matter of the suit, its judgment or decree will be conclusive on the parties, their legal representatives and privies, in all countries where the matters litigated are again drawn in question, and this is particularly true with respect to judgments or decrees affecting the status of a person; for they are in the nature of judgments in rem, which are binding on the whole world. Wharton's Conflict of Laws, §§ 800, 801-2-815-16-17-22-23; Bigelow on Estoppel, 170178; Freeman on Judgments, § 528.

The above rule is also fully recognized by this court. Baker v. Palmer, 83 Ill. 568. The limitation to this rule is that it may be shown that such judgment or decree was obtained by means of fraud, or some gross abuse of the process of the court, or'flagrant departure from the ordinary course of judicial procedure, as for instance, that a pafty in interest sat as a judge in the

cause.

While it is claimed by counsel for appellant, in general terms, that the court rendering the decree in question acted without jurisdiction, and that the same was obtained by fraud, yet we fail to discover any thing in the record to warrant either of these charges. It is not sufficient, as it has often been held by this court, for the purpose of successfully assailing a transaction on the ground of fraud, to charge fraud generally; but the complaining party must state in his pleading and prove on the trial the specific acts or facts relied on as establishing fraud. That has not been done in this case; so far as we are able to discover, the trial was perfectly regular, and conducted with the utmost fairness, and we see no ground to question the jurisdiction of the court. The depositions of persons learned in the law of that country have been taken in this case, and they clearly show the several courts through which that case passed during its pendency were by the laws of that country the proper tribunals to take cognizance of cases of that character in the manner it was done; and it is further shown that both parties appeared in the cause by themselves and counsel; hence, as before stated, we see no ground for questioning the jurisdiction of those tribunals.

We are of opinion therefore the decree of nullity must be given in the courts here the same effect which would be given to it by the courts of the country in which it was rendered. The effect of the decree

there, as we understand it, was not merely to establish conclusively the nullity of the contract of marriage, or of the marriage itself, but also to annul and terminate the status or marital relations of the parties, which arises from a de facto as well as a de jure marriage, so as to leave them in precisely the same condition as if no marriage had ever taken place between them. This being the effect of the decree there it must be given the same effect here.

Such then being the legal operation of the decrce, it follows that the appellant was not at the time of Roth's death his wife, either de facto or de jure, and hence she is not his widow, for no one answers that description who was not his wife at the time of his death, and consequently she has no right, as such, to succeed to his estate.

For the same reason it follows that the subsequent marriage between Roth and Amelia was lawful and valid, and that relation having continued up to the time of his death, it results that she, and not appellant, is his lawful widow, and as such is entitled to his estate.

It is true the "marriage and inheritance contract" did not upon his decease have the effect of clothing her with the legal title to the real estate in controversy as his survivor, as it doubtless would have done had the property been situated in the kingdom of Wurtemberg instead of here; for it is not competent for parties here or elsewhere by mere agreement to change the manner of transferring real property in this State, but the agreement in question upon his decease operated as an equitable assignment of the estate to her, which was properly enforced by the decree in this cause. Having reached the conclusion stated with respect to the decree of nullity, it is therefore unnecessary to discuss the effect of the compromises above alluded to and relied upon as an estoppel by appellee. Whatever our views might be with respect to that matter, we are of opinion the law is with the appellee on the grounds already stated.

Decree affirmed.

SCOTT, J. I do not concur in this decision.

WALKER, J. dissenting: The parties were domiciled in this State, where the marriage was consummated. Under our laws they were competent to enter into the contract, and they did, in strict conformity to all of the requirements of the laws of this State, and it is on all hands conceded that it was valid according to our laws. All contracts lawfully made confer rights that must be enforced by our laws. Among the rights conferred by that contract was the right of the wife to dower in her husband's real estate, and to become his heir to onehalf of the real estate of which he might die seized. leaving no children living or descendants of such children, These were the vested rights she acquired by this contract, and she cannot be divested of them by the contract being declared void, but by the tribunals of this State. The foreign court had no power to construe and give authoritative judgment against the validity of contracts made under our laws, and we are not bound by the decree of nullity.

Had any court having competent jurisdiction granted a divorce, thereby abrogating the marriage contract, she would have lost her rights to dower and heirship, because the contract was destroyed in all of its parts, and the parties absolved from its performance and all rights under it destroyed and ended. But in this case there was no divorce, but it was decreed in the very teeth of our never-doubted laws to have been void. The tribunals of this State are not bound by the decree of the foreign tribunal. That government has no pretense of power to control the title to or the descent of property in this State. As the power of controlling the rights and descent of property by that kingdom is absolutely wanting, it cannot, under any

circumstances, control rights of persons in this State under our laws. As well contend that had the laws of that kingdom been that none of its subjects should purchase or hold real estate without the consent of the king, and deceased had purchased this property as he did, and had died, his heirs could not inherit his property because he had not procured the consert of his king. I apprehend no one would contend for such a doctrine, and the effect of this case is to so hold. I am therefore unable to concur in the conclusion reached in this case.

NOTE BY COUNSEL: The following authorities were before the court in the determination of said cause: Text books-Story Conf. L., §§ 18, 25, 37, 38, 200, 230 a, 595, 228, 229, 229 a, 229 b, 230 a, 114 d, 117, 98. 244, 595, 597; 2 Kent Com. 457, 458, 107, 118; 1 Bishop Mar. & Div. §§ 3, 667, 367, 368, 369, 354; 2 id., §§ 126, 140, 141, 155, 156, 754, 767, 690; Wharton Conf. L., §§ 161, 211, 213, 220, 800, 226, 227; Foote Priv. Int. Jur. 272, 273, 442-472, 473, 474; 1 Burge Col. Law, 106; Lawrence's Wheaton, 172; 4 Phill. Int. Law (ed. 1861), 29, 529, 268, 284, 671; 4 id. (2d ed.), 729, 731, 732, §§ 12, 24, 25; Piggott For. Judgts. 167, 168, 171, 172; Wharton Conf. L. (2 ed.), §§ 1, 2, 3, 207, 165, 671, 205, 211, 223, 219, 132; Savigny Priv. Int. Law (Guthrie's ed.) pp. 524, 38, 40, 248, 373; Dicey on Domicile, pp. 16, 225, 234, 239, 240, 156, 242, 351, 355; Westlake's Priv. Int. L. (new ed.), p. 24 et seq., 79, 80, 311; Hubback on Succ. 335; Bigelow on Estoppel, 159, 160; 2 Story Eq. Jur. 1576-1584; Freeman on Judgments, §§ 579, 588; Fred. Harrison, in Fortnightly Rev. Oct-Nov. 1879. American Decisions Barber v. Root,

10 Mass. 265; Medway v. Needham, 16 id. 157; Commonwealth v. Lane, 113 id. 458; Commonwealth v. Hunt, 4 Cush. 49; Hunt v. Hunt, 72 N. Y. 228; Kinnier V. Kinnier, 45 id. 535; Van Voorhis V. Brintnall, 86 N. Y. 18; Cheever v. Wilson, 9 Wall. 108; Kinney's case, 30 Gratt. 858; Dupree v. Boulard, 10 La. Ann. 411; Ditson v. Ditson, 4 R. I. 87; Strader v. Graham, 10 How. 82; Dorsey v. Dorsey, 7 Watts, 349; Stevenson v. Gray, 17 B. Monr. 193; Monroe v. Douglas, 4 Sandf. Ch. 134; Lazier v. Westcott, 26 N. Y. 146; Rose v. Himely, 4 Cranch, 267; Christmus v. Russell, 5 Wall. 299; Baker v. Palmer, 83 Ill. 568; Hood v. Hood, 110 Mass. 463; Burlin v. Shannon, 115 id. 438; Gould v. Crow, 57 Mo. 200; Ross v. Ross, 129 Mass. 243; Bank of Augusta v. Earle, 13 Pet. 518; Cin. Mut. H. A. v. Rosenthal, 55 Ill. 19. English Decisions Harvey v. Farnie, L. R., 5 P. D. 153; L. R., 6 P. D. 55; Sussex Peerage case, 11 Cl. & F. 85; Sottomayer v. DeBarross, L. R., 3 P. D. 5; Mette v. Mette, 1 Sw. & Tr. 416; Brook v. Brook, 9 H. L. Cas. 193; Warrender v. Warrender, 2 Cl. & F. 529; Doe. dem. Birthwhistle v. Vardill, 7 Cl. & F. 895; Forbes v. Cochrane, 2 B. & C. 448; Fenton v. Livingston, 3 Macq. 497; Potter v. Brown, 5 East, 124; Shaw v. Gould, L. R., 3 H. L. 56; Udney v. Udney, L. R., 1 Sch. App. 441; Roach v. Garvan, 1 Ves. Seu. 185; Cottington's case, 2 Swanst.* 326; Lolley's case, 2 Cl. & Fin. 568; Simonin v. Mallac, 2 Sw. & Tr. 67; Goddard v. Gray, L. R. (6 Q. B.), 159; Castrique v. Imrie, L. R., 4 H. L. 428; Scott v. Pilkington, 2 Best & S. 11; Bank of Australia v. Nias, 16 Q. B. 717; Ricardi v. Garcias, 12 Cl. & F. 368; Crawleys v. Isaacs, 16 L. T. (N. S.), 529; Ochsenbein v. Paperlier, L. R., 8 Ch. App. 695; Hobbs v. Henning, 17 C. B. (N. S.), 821; Doglioni v. Crispin, L. R., 1 Eng. and I. App. 301; Brissac v. Rathbone, 6 H. & N. 301; Zyclinski v. Zyclinski, 2 Sw. & Tr. 420.

DESTRUCTION OF WILL BY TESTATOR IN-
DUCED BY UNDUE INFLUENCE.
MAINE SUPREME JUDICIAL COURT, NOV. 28, 1881.

RICH V. GILKEY.*

The destruction of a will by a person not possessing testamentary capacity, is not a revocation of it. There must

* Appearing in 73 Maine Reports.

The will was dated April 9, 1872. In March, 1879, he made a codicil giving his niece, Mary K. Gilkey, the income of ten thousand dollars during her life. On the sixteenth of March, 1880, the testator destroyed this codicil and made another disposing in a different way of the property given by the former codicil in trust for Miss Gilkey. The testator died on the eighteenth of April, 1880. The judge of probate sustained the first codicil and admitted the same to probate.

The cause came on for trial at the October term, 1881, when by mutual agreement the following entry was made:

"Referred to the presiding judge, who may decide all questions upon the merits as affected by considerations of expediency and compromise, including costs, and enter all and any decrees necessary to carry his decision into effect."

The material facts are stated in the opinion. The case was beard at nisi prius, but the other members of the Supreme Court were consulted upon the questions discussed and agreed with the views expressed in the opinion.

A. W. Paine and John Varney, for the plaintiffs.
Barker, Vose and Barker, for the defendant.

PETERS, J. When this cause was referred to me for decision, in view of the fact that the jury trial might be broken off by the sickness of a juror, I hardly comprehended the extent of the duties which have been cast upon me. I had supposed my office would be performed by the recommendation of some sum which the estate had better pay and the other party had better receive, in a spirit of compromise, than to pursue the case to an end upon the strict application of legal principles and a close sifting of all the facts that might be produced in evidence. Had I anticipated that the respective parties would adhere so closely as they have to supposed legal rights, I should not have so readily taken upon myself a self-imposed responsibility. Having however examined and considered all the issues of law and fact sufficiently to form as satisfactory conclusions as it is probable I ever could arrive at, I file in the case the following opinion.

There is no doubt that Captain Rich, the testator destroyed the codicil in favor of Mary Gilkey in his lifetime.

The questions of facts are these: First, was the testator at the date of the destruction of the codicil possessed of testamentary capacity? Second, if he had testamentary capacity, was he induced to do the act by undue influence? It would not be inconsistent to find that a testator was not possessed of sufficient mental capacity to make a will, and also that he was operated upon by undue influence.

The questions of law are: First, whether, if the codicil was destroyed by the testator while lacking the possession of testamentary capacity, it can be legally upheld aud probated by means of oral evidence? And secondly, whether the same result follows if the destruction was induced by undue influence alone.

An examination of the questions of law comes first in the natural order.

I feel clear in the belief that a person who has not testamentary capacity cannot revoke a will in any manner whatever. He can neither make nor unmake a will. A codicil stands upon the same footing as a will. A will legally made stands until legally revoked.

It cannot be revoked by any act of destructiou, nnless the act is done with an intention to revoke; and a person not having testamentary capacity cannot have an intention to revoke a will; he is legally incapable of it. In such case the burning of the will can have no effect whatever, provided the contents can be clearly and certainly proved by other evidence. The written instrument may be burnt, the surest and best evidence of the will may be thus destroyed, but the will itself, if a draft of it can be proved, outlives the act of destruction, and the testamentary dispositions stand.

This is a common principle in the law, applicable to the loss or destruction of papers and records generally. For instance, A. gives B. a deed of land. The deed is lost or accidentally destroyed; but the conveyance stands if the contents of the deed can be proved by satisfactory evidence.

It is said that this opens a wide field for error and fraud to establish wills upon oral evidence. To my mind many more frauds would be committable if the contrary rule were admitted. It is upon proof, complete and undoubted, and not upon less than proof, that wills may be orally established, it is to be noticed.

The counsel for the executors contend that if a will destroyed after a testator's death can be upheld and established by oral evidence, one destroyed before his death cannot be. I do not concur in this view of the learned counsel. I do not find the distinction admitted by the authorities, excepting possibly where the law is so enacted in one or two of the States. Nor do I see the force of any such attempted distinction. I cannot well perceive that the act of wrongfully destroying a will five minutes before death would be valid, and the same act be not valid if done by the same hand and in the same way five minutes afterward.

It is said that a wrongful or accidental destruction of a will might take place many years before a testator's death, and in the meantime the testator might become satisfied with the fact of destruction and in his mind ratify the act, and still the instrument be established as his will after his death if this doctrine be tenable. But the answer to this apprehension of danger consists in the requirement of the law that any person propounding for probate a will destroyed in the testator's life-time, has upon himself the burden to prove that notwithstanding destruction the will continued to be the will of the testator unrevoked up to the testator's death. The presumption would be that the will was destroyed animo revocandi, and the burden would be upon the proponent to show, by circumstances or otherwise, that the will was not revoked by the destruction or by a ratification of the destruction while the testator lived.

I think these views are sustained by the great current of authority. The English cases earlier and later are that way. The old work on Wills by Swinburne, who compiled his book as long ago as during the reign of Queen Elizabeth, gives this exception to the cases where a will becomes void by cancelling or defacing: "Where the testament was cancelled by the testator himself unadvisedly, or by some other person without the testator's consent or by some other casualty." Jarman, the best authority on Wills, English or American, vol. 1, p. 130, says: "The mere physical act of destruction is itself equivocal, and may be deprived of all revoking efficacy by explanatory evidence, indicating the animus revocandi to be wanting." He further says: "Thus, if a testator inadvertently throws ink upon his will instead of sand, or obliterates or attempts to destroy it in a fit of insanity, or tears it up under the mistaken impression that it is invalid, it will remain in full force, notwithstanding such accidental or involuntary or mistaken act." Mr. Bigelow, the American editor of Jarman's work, in his notes fully approves the doctrine quoted, citing many American

cases in its support. The same doctrine is maintained by Prof. Greenleaf in his work on Evidence, § 681, vol. 2, and notes. Redñeld, in his treatise on wills, in many places restates the same rule, and upon page 323 of volume 1 (1st ed.), says: "The soundness of the mind and memory is requisite to the valid revocation of a will, as to its execution. It follows of course that the performance of the mere act of tearing, cancelling, obliterating, burning, etc., without the animo revocandi, and which could not exist unless the testator were in his sane mind, could have no legal operation upon the instrument.

In Bacon's Abridgment (vol. 10, p. 546,) it is laid down that "the destruction of a will, even by the testator himself, does not amount to a revocation, if the testator had not capacity. Though the instrument is not in being, if the contents are known it can be proved." Mr. Wharton expresses it this way: "Revocation will not be complete unless the act of spoliation be deliberately effected on the document animo revocandi. This is expressly rendered necessary by the will act, and is impliedly required by the statute of frauds."

In Smith's Probate Law, a Massachusetts work of merit, at p. 51, the author says: "It may be that the will was destroyed by the testator in a fit of insanity, or that it was lost or accidentally or fraudulently, destroyed. Such accidental or fraudulent destruction will not deprive parties of their rights under its provisions if they can produce the evidence necessary to establish the will."

In Clark v. Wright, 3 Pick. 67, a codicil fraudulently destroyed in the testator's life-time was established upon parol proof of its contents, by the Massachusetts Supreme Court of Probate. The same doctrine was affirmed by the same court in the case of Davis v. Sigourney, 8 Metc. 487, and reaffirmed in Wallis v. Wallis, 114 Mass. 510. In Newell v. Homer, 120 id. 277, the petitioner was held to prove a destruction of the will after the death of the testator, merely because he in his petition had so alleged the fact. The New York cases are in accord with the foregoing

cases.

In Smith v. Wait, 4 Barb. 28, it was ruled that if a testator was incompetent to make a will, he was incompent to revoke a will made before, and that an insane man can have no intent such as is necessary to revoke a will. In Idley v. Bowen, 11 Wend. 227, it was held that a revocation by burning the will by the testator could be impeached by showing the incompetency of the testator at the time of the act. Schultz v. Schultz, 35 N. Y. 653, is an instructive case to the same effect. In Nelson v. McGiffert, 3 Barb. Ch. 158, Chancellor Walworth held it was competent to show that a will had been destroyed by a testator when his mind had become so far impaired that he was incompetent to perform a testamentary act.

The case of Johnson's Will, 40 Conn. 587, strongly supports the same view. So does the case of Collagan v. Burns, 57 Maine, 449, as far as it goes. Many other cases in the State Courts do.

Late cases in the English court of probate are emphatical in the same direction. In one case it is said, "the act done (burning a will) by the testator can in no sense be his act, for he was out of his mind." In another case the court said, "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." In another case, the famous case involving the will of Lord St. Leonards, decided as late as 1876, the late Chief Justice Cockburn said, "the consequences of a contrary ruling would be in the highest degree mischievous. To disallow oral proof might lead to the defeating of justice in many, if not in as many instances as might arise, from the court acting upon such testimony." Much more could be profit

ably quoted from late English cases in elucidation of this legal question, did these limits allow. The English cases have gone so far as to decide that a revocation of a will by spoliation may be of a conditional character. A testator destroyed a codicil, not knowing that it disturbed a previous will. The court said: "Where there has been a physical destruction of a testamentary paper, the court has often been called upon to form an opinion as to the intention of the deceased at the time he did the act. In this case we have come to the conclusion that the testator destroyed the codicil with no intention of revoking the will, and that the court should give no more effect to the act than it would do if the testator had destroyed the paper under a mistake as to the instrument he was destroying. It was not done animo revocundi." The following cases will verify the foregoing propositions. Brunt v. Brunt, L. R., 3 Pro. and Div. 37; Cheese v. Lovejoy, L. R., 2 P. D. 251; Sugden v. Lord St. Leonards, L. R., 1id. 154; James v. Shrimpton, L. R., 1 Pro. and D. 431; Brown v. Brown, 8 Ell. and Bl. 876; Powell v. Powell, 1 Pro. and D. (L. R.) 209.

I therefore have no doubt that a will destroyed by a person not possessing testamentary capacity is not a revocation of such will. There must be animus revocandi; and such a person does not and cannot possess an intention of revocation any more than an insane

man can.

As to the question of law secondly stated, namely, the effect of the exercise upon the mind of the testator of undue influence, although at first having doubts about the point, I am of the opinion that the same result follows where the act of destruction is produced by undue influence, as where incapacity exists. There can hardly be a logical difference whether the act of destruction be accomplished by a testator who has no mind to exercise, or having a mind of his own, is prevented from exercising it. Insanity takes away testamentary capacity, while undue influence does not allow it to act. There must be animus revocandi. In the one case providence prevents it; in the other case it is prevented by the wrongful act of man. In each case the hand of the testator acts, but the mind does not go with the act. The hands survive the head. If the rule were otherwise the law would allow one man to cancel another man's will without his consent. It must be borne in mind that where undue influence is practiced the testator's will is overpowered and subverted, and the will of another is substituted in its stead. He is not his own master. He does not act voluntarily, for his own volition does not play a part. Proper influences merely persuade the will, while undue influences take it away. The first are an appeal, the last are an usurping and conquering force. The old tree, forsooth, sends out its life, but the graft incorporated upon it turns it into unnatural fruit.

This is the more apparent from another view of the same facts. A man makes a legal will. In a codicil he undertakes to cancel the will. But if he has not mental capacity, or if he is induced by undue influences to attempt a revocation, the codicil is of no avail and the will stands unrevoked. Suppose however instead of revoking the will by a codicil the attempt is made to do it by destroying the will. Must not the act in this way be as free and unconstrained as if done in the other way? Does not the same principle apply? If the mind or will of the testator be held in imprisonment by undue influence, can it revoke a will in one way when it cannot in another? Can a testator accomplish, by burning, what under the same conditions he cannot do with pen and ink? I think not. The question in this phase has not so often arisen as in the form first discussed, namely, a want of capacity, but no particular distinction between the two is found in the cases, nor does in my judgment a valid distinction exist.