dissenting.
R. S. section 7071 is as follows: “All wills by which any property, real or personal, is devised or bequeathed, shall be reduced to writing and signed by the testator, or by some one in his presence and by his direction, and attested in the presence of the testator, by two or more credible witnesses.”
Section 7072 as follows: “No will shall be revoked otherwise than by the subsequent marriage of the testator, or by burning, tearing or obliterating the said will, by the testator himself or in his presence, by his direction and consent, or by some other will or codicil in writing, declaring the same, signed by the testator in the presence of two or more witnesses, and by them attested in his pres*463ence, and no words spoken shall revoke or annul any will in writing, executed as aforesaid in due form of law.”
The testatrix left an instrument purporting to be her will, which contained testamentary matter and also the usual clause revoking all former wills. The effect of the majority opinion is that this instrument is not a valid will because the revocation is not executed according to section 7072, that the defect in the revocation makes the whole instrument invalid. I cannot assent to that proposition.
I think that the case of Freeman v. Hart, 61 Colo. 455, 158 Pac. 305, controls this one, and I do not think that the statement therein that section 7072 refers to wills whose sole purpose is revocation is a dictum. It is one of two reasons given for the decision. If one is a dictum the other is and then the decision is left without reason.
I agree that in order to revoke a previous will the revoking will must be signed in the presence of the witnesses, as provided by section 7072; but that section does not say that no will containing a revocation shall be valid unless so signed, but merely says that no revocation shall be valid unless so signed. If then, the witnesses sign in the presence of the testator, according to section 7071, the testamentary part of a will should be held valid, even though not signed by him in the presence of the witnesses, unless a previous will appears.
I cannot find any decision holding otherwise. The Illinois cases, as I read them, do not; and, if they did, while our section 7072 is like the corresponding Illinois section, yet their section corresponding to our section 7071 requires proof of the signature of the testator in the presence of the witnesses, and therefore, of course, the testamentary part of a will executed in violation of that requirement would be invalid, whether such will contained a revocation clause or not. Illinois decisions, therefore, cannot be in point in Colorado. Neither do I find that the Connecticut case, Peck’s Appeal, 50 Conn. 562, 47 Am. Eep. 685, supports the proposition, or that the Connecticut statutes are like ours.
*464It is said that the attempted revocation is prima facie evidence that a previous will existed. Whatever the general rule may be I cannot assent to that proposition in this case for several reasons:
1. It revokes all previous wills not a previous will. This shows that the testatrix was using the phrase in the ordinary perfunctory way in drawing wills, usual in printed forms. It is so improbable as to be incredible that more than one previous will existed unrevoked. She therefore does not intimate that a previous will existed at the date of the so-called attempted revocation.
2. But assuming that the said clause does amount to evidence of a previous will, it can only be of a will existing at the date of the execution of the subsequent one. If the revocation is evidence of a previous will it is at least equally cogent evidence of an intent and purpose to revoke it, and it is to stultify the clause itself to say that it is at once evidence of the existence at the former date of a previous will and an intention to revoke it and also of its existence at the testatrix’ decease.
3. The clause in question, then, so far from raising a presumption that such a will existed at her death, when taken with the fact that none was produced, is strong evidence that she had destroyed it, the most natural and probable thing for her to do with a will which she believed she had revoked.
These arguments show that the proposition that proof of search for the will is necessary to overcome the presumption of its existence is unsound in this case.
In the present case, then, we have an instrument purporting to be a will, executed out of the presence of the witnesses yet in accordance with section 7071. Such instrument without the revocation clause would be unquestionably valid. There is nothing in section 7072 to make the testamentary part of it invalid, even with the revocation, therefore it is all valid except the revocation. Assuming that the revocation indicates the existence of a previous will at the time of the execution of the present *465one, since that was not produced after the death of the testatrix, it must be presumed to have been destroyed by her after the execution of the supposed revocation, therefore she died, not intestate but testate, — testate by the present will if the previous will is not discovered, — testate by the previous will if it is discovered.
The majority opinion suggests that the proponents do not rely upon the point above expressed. We ought not to be controlled by their conception of the questions presented for determination. It is said we must not consider what they do not rely on. It should rather be said we may decline to consider it. Rule 34. Be that as it may, if we do not consider it we should not decide it, and the majority opinion does so and forecloses the question.
It is also claimed that since the will is insufficient as a revocation it is insufficient as a whole and the rule is invoked that a will insufficiently executed in one respect is entirely bad. This will, however, is sufficiently executed under section 7071, lacking nothing, and I am not willing to extend that rule to say that the insufficient execution of a formal clause of revocation destroys the whole will though no previous will appears.
In the last analysis the decision seems to me to say that because the testatrix left an unrevoked will she will be treated as an intestate.
I am authorized to say that Mr. Justice Teller and Mr. Justice Burke concur in this dissent.