In my view, this case turns on a cold question of law, as to the proper construction to be placed on the Wills Act of June 7, 1917, P. L. 403, 409-10, section 20 of which, quoted in the majority opinion, provides that "no will in writing, concerning any real estate, shall be repealed . . . . . . otherwise than by some other will or codicil *Page 200 in writing, or other writing declaring the [repeal], executed and proved in the manner hereinbefore provided." It seems clear to me that the expression "other writing" must be taken to mean a writing possessing the essential qualities of a testamentary document; such, for example, as a memorandum, or even a letter, containing words of revocation, but signed at the end in the manner required to entitle it to probate as a testamentary document, though not in the form of a will or codicil. To my mind, "proved," as above employed, means "probated" in the manner provided by the Wills Act; for wherever the word "proved" appears in the preceding sections of the Act of 1917, and in the Act of April 8, 1833, P. L. 249-51, from which section 20 of the present statute was taken, it plainly means proved for the purpose of probate. The leading law dictionaries show that "probate" and "prove" are synonymous terms in the law of wills: see the word "probate" in Bouvier's, Black's and Anderson's Law Dictionaries. When section 20 of the Act of 1917 is thus read, it becomes plain to me that, since the writing which appellants claim revoked the will of 1924 was itself so destroyed that it could not be probated in the manner required by law, there was present no provable revocation of that will, which situation is tantamount to no revocation at all; therefore I cannot concur in the majority order reversing the court below and setting aside the decree which admitted the will of 1924 to probate.
All judicial rules concerning wills are subject to legislative control, and of this there has never been any doubt in Pennsylvania. Our General Assembly having ordained what shall constitute a revocation of a will, and, incidentally, what shall not, it is my opinion that the courts must abide by the legislative stipulations in that regard, and it will not do to say, as the majority opinion does, that only the dispositive parts of the 1927 will were revoked when that instrument was destroyed by the present testator. The same section 20 of the Act of *Page 201 1917, quoted in the majority opinion, states, after the provision noted above, that a will may be revoked by "burning, cancelling, obliterating or destroying the same"; which, in the absence of anything specially showing a restricted destruction, I can only take to mean, revoked in full, and not merely as to its dispositive parts. When, as here, there is what amounts to a physical destruction of a testamentary instrument containing the revocation of a former will, in my opinion, all parts of the destroyed document are gone. It may be added that, as I view this case, the actual intention of the testator is not involved; the controlling question is purely one of statutory construction or legislative intention, and in that regard I note my dissent from the majority view.