dissenting. — I am unable to concur in the conclusion reached by the majority of the court. All of the writings offered for probate, as wills, should have been refused. The Register properly declined to probate the mutilated will of 1927, as well as the executed carbon copy of the will of 1926, the original of which, under the proofs submitted, having been presumptively destroyed by the decedent. The probate of the will of 1924 was in error, because I am of opinion that the evidence offered of the res gestee and of all the facts and circumstances surrounding the mutilation and cancellation of the latest will (1927) established the fact that the decedent did not intend to revive the will of 1924 (the one probated), but, upon the contrary, intended to die intestate.
Briefly summarized, the undisputed facts are: The decedent, a widower, with an only son, had been highly successful in business and had amassed a large fortune. Obviously, he was a most vigorous and dominating character, his likes and dislikes being especially intense. His son was associated with him in his business, and until the time of the son’s marriage, relations between the father and son were harmonious. Decedent violently disliked his daughter-in-law, and this attitude persisted until his death. He did everything within his power to separate the son and his wife, and did, in fact, succeed in so doing for a brief period of several months. When the son chose to return to his wife in 1921, and against the wishes of the decedent, this caused an absolute estrangement between the father and son, which continued until February, 1924. Through the intercession of a friend, the son and father became slightly reconciled. Friendly relations thereafter grew progressively more cordial, and at the time of decedent’s death, on March 22, 1928, their relations were most friendly. Decedent was over eighty years of age when he died, and Leighton, his son, was about fifty-three.
After the break in the family relations between the father and his son, the decedent determined that his son should not participate in any manner in his *97estate. Decedent became a lonely, disappointed and embittered old man. His express desires and wishes had been defied and denied by his only son. He still persisted in his disaffection for the son’s wife. The expression of his feelings and animosity was crystallized in the preparation of his various wills. From the evidence it appears that during the above period a number of wills were prepared and executed, of which the legal record of but the three wills now in question survives.
Decedent’s principal testamentary object became his interest in apple growing. He determined to found a school of pomology. This principal object was not deviated from in the wills of 1924, 1926 and 1927. Changes were made in the details and methods of carrying his purpose into effect, as well as the persons or institutions who should be charged with the execution thereof, but his main testamentary object remained unaltered.
It is worthy of note that in the latest will, that of 1927, the decedent for the first time remembers his son. He provided a $5000’ annuity for him. In neither of the other two wills is the son remembered.
It is also of importance to remember that the decedent told the scrivener, at the time he executed the 1927 will, that he had no other wills. It was this will of 1927 which the decedent kept by him in his home and placed in his locked bureau drawer.
In February, 1928, the decedent had entered upon his last illness. He was confined to his home, attended by physicians and nurses. It is apparent he was contemplating and reviewing his life and the purposes and objects of life generally. He discussed with his physician, Dr. Wilson (page 99), the affection he had for his son, and then, for the first time, disclosed the question which had arisen in his mind as to the wisdom of substantially disinheriting his only son and using his vast residuary estate in establishing a school to teach apple growing. His words are significant: “I have just been thinking. What is it to die and have an apple named after you? . . . Yes, when I only have one son, he is my blood. Why should I die and have an apple named after me?”
This was the ancient call of blood; it was a natural and normal parental instinct breaking through the wall of hatred, spite and reprisal which decedent had been so long in building to shut out and punish his only son. The germination of this thought apparently convinced the decedent of the fallacy and manifest injustice of his contemplated testamentary act, because, at 3 o’clock in the morning of March 17, 1928, he awoke and was talking about “will” and “Leighton;” at 4.30 A. M., he requested his nurse to call his private secretary, who lived at the same apartment with him. The secretary came into the room and decedent directed him to get his will, which he did. This was the will of 1927. Decedent then told the secretary to turn to the last page. Decedent then took the will in his own hands and tore and crum'pled his signature. He then handed it to his secretary and said: “Tear it and tell Leighton he is all I’ve got.” The secretary did as directed. This testimony is corroborated by the nurse.
Because of the foregoing facts and circumstances, I have formed the opinion that the appellant very clearly and legally established that such mutilation and cancellation of the will of 1927 was accomplished by the decedent with the intent to die intestate.
Still desperately ill, bedfast and in great suffering, the decedent lived five days after the cancellation of his will and died on March 22, 1928.
*98The three wills now in question were respectively offered for probate. The will of 1927 contained an express clause revoking all former wills. As this will was revoked by mutilation, as stipulated in the Act of 1917, I agree with the majority of the court that it should not have been probated.
The will of 1926 (also containing an express clause of revocation) was proved to have been executed in duplicate, the original having been taken by the testator. I agree with the majority of my colleagues that the legally presumed destruction of the original copy by the testator was a revocation of both copies, and, therefore, the executed carbon copy cannot be probated as a will. This writing was, therefore, properly rejected.
The next will offered for probate was the will of 1924. This is the will which, in accordance with his custom, the assistant title officer had carefully preserved along with countless other wills of which his trust company was custodian. He was interested in its preservation because the trust company was the executor named therein for the settlement of this large estate. It does not appear that he ever gave the decedent a written receipt therefor. It is also to be remembered that this is the document that had been twice theretofore revoked in writing, by the decedent, in the two wills above mentioned. Also, that in 1927 when the latest will was prepared and executed decedent told the scrivener that he had no other wills. From the facts and surrounding circumstances unquestionably decedent believed this to be true.
The opinion of the majority of the court rests upon the theory that the will of 1924 was revived as a matter of law upon the cancellation of the will of 1927. Because the will was discovered in its pristine condition, unrevoked by any probatable will or writing, and not mutilated or otherwise burned, canceled, obliterated or destroyed, as provided by section 20 (a) of the Wills Act of 1917, they find as a matter of law that the will of 1924 stands as the decedent’s last will and testament, and must be probated as such.
It is with this conclusion that I disagree.
It seems inharmonious with reason, and against authority, to admit parol testimony to establish the fact of mutilation, cancellation or revocation of the later wills, and at the same time to shut out all evidence of the surrounding facts and circumstances connected with such mutilation, &e. The one act of tearing and obliterating created all the resultant effects. Surely, all the facts and circumstances ought to be freely admissible to ascertain the testamentary intent. That quo animo concerning the cancellation of a will, containing a written revocation of prior wills, may be established by parol is an established principle under our Pennsylvania law. The cases in this Commonwealth are few, but the principle seems to have been consistently maintained and applied. The latest case is Manning’s Estate, 46 Pa. Superior Ct. 607. The Pennsylvania rule is, when a will containing an express revocation of all former wills is revoked (as provided by the statute), leaving an earlier will in existence, the earlier will is revived, unless there is an intent not to revive it. Expressed in other words, there is a presumption of revival, but such presumption may be met by proof that testator intended to die intestate.
In Manning’s Estate, supra, the testatrix left an earlier will with her husband for safekeeping. She subsequently destroyed, by burning, a later will, and stated that she intended to have a new will prepared. It was held that the evidence was sufficient to establish that in so revoking her will she intended to die intestate, and not, ipso facto, to revive, by operation of law, her former will. See, also, Kerchner’s Estate, 41 Pa. Superior Ct. 112; Wulff’s Estate, 26 Dist. R. 144; Stephenson’s Estate, 6 Pa. C. C. Reps. 628, and Flintham v. Bradford, 10 Pa. 82.
*99While it is true that there is one lower court decision by an eminent Orphans’ Court judge, to wit, McCartan’s Estate, 58 Pitts. L. J. 364, apparently to the contrary, it is interesting to note that the legal effect of the opinion is somewhat impaired by his finding of conspiracy and perjury in the testimony. While he promulgates a contrary rule, in effect, he considered and applied the testimony.
The majority opinion brushes aside Manning’s Estate, supra, and Kerehner’s Estate, supra, because both, it is claimed, relied on Forquer’s Estate, 216 Pa. 331, which the Supreme Court said in Holmes’s Estate, 246 Pa. 537, 544, was dictum as to republieation by parol.
I do not feel that the authority of these cases can be so lightly discarded. The underlying principles rest upon a much firmer and broader foundation than dictum as to parol revocation of wills. I concede that revocation may not be by parol; Seiter’s Estate, 265 Pa. 262. Manifestly such procedure would violate the very purpose of the Statute of Frauds, written into the Wills Act of 1917.
This will of 1924 has been twice revoked in writing by the decedent himself; first, by the will of 1926; and, secondly, by the will of 1927. Both of these writings are still in existence, and part of this- record. To automatically revive, by operation of law, and without opportunity to establish quo animo concerning the destruction or mutilation of the revoking will, certainly gives a much wider effect to the statute than is warranted by its terms, or what the framers have intended.
Before dealing with the results of the most able and exhaustive antiquarian researches of the Register of Wills, and of the majority of the court, concerning the question herein involved, attention is directed to two cases where parol testimony is unquestionably admissible, and which may affect a writing offered for probate, viz., parol evidence relating to animus testandi and animus revocandi.
A paper, perfect in the form as a will and with a genuine signature of a decedent annexed, may, I take it, be shown by parol to have been executed in jest, or for some other reason, and was not in truth and in fact, nor was it ever intended to be, the last will and testament of the decedent. If such testimony were sufficiently firm and abundant, I do not think there is any question but what the lack of animus testandi may be proved: Gardner on Wills (2nd ed.), page 15; Page on Wills (2nd ed.), § 43.
And, conversely, a will torn or mutilated may be shown to have been the result of fraud, accident and mistake, and lack of such animus revocandi may likewise be established. Certainly, such proof violates no principle in the Statute of Frauds, as contained in our Wills Act, and neither does the proof offered in the present case: Brock’s Estate, 247 Pa. 365.
It is true that the question concerning the revival of the prior will by the revocation of a later will has always proved a difficult problem. As pointed out in an extremely well written note to Whitehill v. Halbing, 28 Am. Law Reps. 911, there are five possible theories which may be adopted, viz.:
1. The earlier will is revived as a matter of law.
2. The earlier will is revived unless an intention to the contrary appears.
3. The earlier will is not revived.
4. The earlier will is not revived unless an intention to revive it appears.
5. The question is one of intention without any presumption for or against revival.
Owen J. Roberts, Esq., of this Bar, has written an excellent article upon the subject, published in 48 Am. L. Reg. 565.
*100All five theories have variously been accepted in different states of the United States and in England. The subject is undoubtedly confused by the differences in historical origin between English common law, effected by the Statute of Frauds, and the decisions of the Ecclesiastical Courts.
The first theory: That the earlier will is revived as a matter of law is the accepted common law view. The basic reason for the rule is that a will is ambulatory until death, and, therefore, a will which is itself revoked can have no effect as a revoking instrument. This was the rule anciently applied in England. It had its inception (as pointed out by Mr. Roberts) in an opinion by Lord Mansfield in Goodright v. Glazier, 4 Burr. 2512 (1770). It is interesting to note that, irrespective of the ultimate result of Lord Mansfield’s decision, the court at that early date felt that the ascertainment of intention was important as bearing on the question of the revival of the former will.
However, after the principle became engrafted upon the common law, England discarded it. By Act of Parliament, 1 Victoria, ch. 26, § 22 (1837), it was provided that the earlier will once revoked could only be revived by a republication. The old common law rule was wisely changed because of its manifest miscarriage in the ascertainment of the real testamentary intent. Mr. Roberts approves of such a rule and says in his article (page 521) : “The statute of 1 Victoria was suggested by long experience in England and has been found quite satisfactory in its operation.”
Our Pennsylvania courts, always alert to preserve and enforce, wherever possible, a testamentary intent, have rejected the common law rule and have accepted the second theory mentioned in the foregoing annotation, to wit, the earlier will is revived unless an, intention to the contrary appears.
It may be that the legal philosophy of the rule is not founded upon exact and scientific legal reasoning, yet the rule is practical and sound. It follows the common law to the point where it raises a presumption that the earlier will is revived, but allows the presumption to be met by evidence to establish the intent of the decedent. Perhaps our rule has reflected in it traces of the ecclesiastical decisions, but, as Mr. Roberts observes, the ecclesiastical rule “has the merit of getting at the justice of the case,” which, in the end, is the primary function of any judicial tribunal.
In the instant case, the decedent, in writings under his hand, twice revoked the present writing probated as his will. True it is that neither of such writings may be probated as wills, but they remain as an indelible record of decedent's intention that the will of 1924 was not intended as his last will and testament. These written evidences of intention may well be “other writings declaring the same” under the Act of 1917. It seems anomalous to me to admit evidence of actual mutilation and at the same time to decline to receive all the evidence and surrounding circumstances which so clearly reveal the reasons and intent of the cancellation. To revive an earlier will by operation of law and to disregard the manifest and provable intent of the decedent is too harsh and hard a rule to be applied in this Commonwealth. The evidence is clear and undisputed that the motive and reason in his mutilation was that the decedent desired to die intestate and to pass his estate to his only son.
To reject this evidence and deny proof of quo animo concerning the cancellation of his will, to my mind, not only violates the existing law of Pennsylvania, but disregards the plainly expressed testamentary intent of the decedent, and will be productive of the gravest injustice to his only son and heir-at-law. I, therefore, record my dissent.
NOTE. — For valuable opinions of the Register in this case, see Appendix.