delivered the opinion of the court:
In the case at bar, Jesse Stetson died testate on April 27, 1899, leaving a will, dated December 3,1897, and executed by him on that day in accordance with the statute in such cases made and provided. This will was found after his death uncanceled and among his papers in the Citizens’ National Bank of Princeton in Bureau county, with which bank the deceased was in the habit of dbing business in his lifetime. The will, when found in the bank, was in an envelope, which was sealed. After the death of the testator it was taken by the president of the bank to the judge of the county court, where the envelope was opened, and the will was filed. It was duly admitted to probate on June 5,1899; and the present bill in chancery to set aside the probate thereof was filed May 2, 1901, about a month before the expiration of the two years, allowed by the statute for filing a bill in chancery to contest the validity of the same.
The sole ground, upon which the validity of the will of December 3, 1897, duly admitted to probate, is contested, is that a subsequent will was executed by the testator, containing a clause revoking all former wills. Such subsequent will, alleged to have been executed between September 1,1898, and the death of the testator,' has been lost or destroyed; or, at any rate, it was not found in' the possession of the testator, and has never been produced, either for probate in the county court, or otherwise. •
The question, presented for our consideration, and raised by the refusal of the court below to hold as law the propositions submitted by the appellants, and by the ruling's of the court below in the admission and exclusion of evidence, is two-fold in its character, and, as formulated in the briefs of counsel on both sides, may be thus stated: If the second will, made by Jesse Stetson, contained an express clause of revocation, did such clause operate at once and of its own force to immediately revoke and annul the first will, made on December 3, 1897; and did the loss or destruction of the second will, containing such clause of revocation, even though such loss or destruction was the act of the testator himself, operate to revive the former will dated December 3,1897?
Perhaps, in no branch of the law is there more conflict among the decisions of the courts than in that, which relates to the revocation of a former will by a subsequent will, and to the effect of the cancellation of a subsequent revoking will in reference to the revival or non-revival thereby of the first will.
There are cases, which hold, and many of the text books endorse and sustain the holdings of such cases, that, where a person, having made a will, afterwards makes another will, containing a clause expressly revoking all former wills, and afterwards destroys the second will, and dies, leaving the former will uncanceled, the revoking clause operates instantaneously to effect a revocation, and that, consequently, the destruction of the second will does not revive the former one. (1 Underhill on Wills, sec. 266; Schouler on Wills, secs. 412-418; James v. Marvin, 3 Conn. 577; Scott v. Fink, 45 Mich. 241; Cheever v. North, 106 id. 390; Hawes v. Nicholas, 72 Tex. 481; Pickens v. Davis, 134 Mass. 252; Barksdale v. Hopkins, 23 Ga. 332). Many of the cases, which thus hold that the loss or destruction by the testator himself of a subsequent will, containing a revoking clause, does not revive a former will, though found in the possession of the testator uncanceled at his death, are based upon statutes dissimilar to the Illinois statute upon this subject, and upon considerations which have no force or application in this State, and under our decisions".
In England, what is known as the Statute of Victoria, passed in 1837, provided, (chap. 26, sec. 22), that “no will or codicil or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same," etc. (29 Am. & Eng. Ency. of Law, p. 289, note 2). Some thirteen of the American States have adopted either the Statute of Victoria, or a similar statute, upon this subject. But no such statute was ever passed or adopted in this State.
In some of the cases a distinction is drawn between a subsequent will, whose provisions are inconsistent with the former will, thereby operating to effect a revocation by implication, and a subsequent will, which contains a clause expressly revoking all former wills. This distinction, however, is done away with under the terms of the Illinois statute. Section 17 of the Illinois Statute of Wills provides as follows: “No-will, testament or codicil shall be revoked, otherwise than by burning, canceling, tearing or obliterating the same, by the testator himself, or in his presence, by his direction and consent, or by some other will, testament or codicil in writing, declaring the same, signed by the testator or testatrix, in the presence of two or more witnesses, and by them attested in his or her presencé; and no words spoken shall revoke or annul any will, testament or codicil in writing, executed as aforesaid, in due form of law.” (3 Starr & Curt. Ann. Stat.—2d ed.—pp. 4044, 4045). By the terms of this statute, the subsequent will, which shall have the effect of revoking a former will, must be a will “declaring the same;” that is to say, must be a will which, upon its face and by its terms, declares a revocation. If the will must expressly contain a clause revoking all former wills, the question as to any inconsistency between the provisions of the later will and the former will is immaterial.
Again, many of the cases are based upon statutes, which authorize the revocation of a will to be made by a subsequent writing, which is not necessarily a .will, or testamentary in its character. A large part of the American legislation upon this subject has its basis in the English Statute of Frauds, by one of the provisions of which, “no devise in writing of lands, tenements or hereditaments, nor any clause thereof, shall be revocable otherwise than by some other will or codicil in writing, or other writing declaring the same,” etc. (1 Underhill on Wills, sec. 247). It will be noticed that, by the terms of this statute, a devise in writing of lands, etc., may be revoked, not only by some other will or codicil in writing, but by some “other writing declaring the same.” In other words, the writing, declaring the revocation, may be some other writing than a will or codicil. Where the instrument of revocation is not necessarily, by the terms of the statute, a will, it may have the effect of operating instantaneously, so as to effect a revocation before the death of the testator; and if the instrument of revocation may be in writing, it will make no difference that its terms are embodied in a will rather than in some other writing, 'which is not a will.
For example, one of the cases, relied upon by counsel for appellants to support their contention upon this subject, is the case of In re Cunningham, 38 Minn. 169, where the court say: “The testator might effectually revoke his former will by a writing so declaring, and executed as this instrument was executed, (Gen. Stat. 1878, chap. 47, sec. 9,) as he might also by other means.” By reference to section 9 of chapter 47 of the General Statutes of Minnesota of 1878, it is found that a will may be revoked “by some will, codicil or other writing signed, attested and subscribed in the manner provided for the execution of a will.” By section 17, however, of the Illinois Statute of Wills, the revocation must be by a will declaring such revocation, and not by some other writirig than a will, which may not be testamentary in its character.
So, also, in Gheever v. North, 106 Mich. 393, it appears that, by the terms of the Michigan statute, a former will may be revoked not only by a subsequent will, but “by some other writing signed, attested and subscribed in the manner provided in this chapter for the execution of a will.” The case of Scott v. Fink, 45 Mich. 241, is based largely upon the case of James v. Marvin, 3 Conn. 576; but the latter case of James v. Marvin has been materially weakened, if not actually overruled, by the subsequent case of Peck’s Appeal from Probate, 50 Conn. 562. In Peck’s Appeal from Probate, supra, the criticism of James v. Marvin, supra, made by Redfield in his work on Wills, is referred to and quoted; and, there, the Supreme Court of Connecticut say: “The weight of authority seems to be in harmony with the views expressed by Mr. Redfield. * * * The testatrix by executing the second will evinced no intention to become intestate, but rather a contrary intention. By destroying the last will and carefully preserving the first she affords satisfactory evidence that she intended until the very last to die testate, and that that should be her will. In the absence of an express provision to that effect we cannot presume that the legislature intended that the mere execution of a will should in all cases revoke a prior will. Such a construction would in many cases defeat the manifest intention of the testator. The statute requires a ‘later will or codicil. ’ We think that means an operative will or codicil. * * * We would say, however, that we have carefully examined the cases cited by the counsel for the appellees, and find that many of them are cases in which the later wills became operative as wills; and of course the language of the courts must be interpreted with reference to that circumstance, and cannot properly be applied to a case like this.”
So, also, in the case of Barksdale v. Hopkins, 23 Ga. 340, it appears that under the statute of Georgia a will may be revoked “by some other will or codicil in writing, or other turiting of the devisor signed in the presence of three or four witnesses declaring the same.” Under the Georgia statute, not only may the revocation be by an instrument not testamentary in its character, but Georgia is one of the States which has adopted the Victoria statute, or a statute similar to the Victoria statute above quoted. In Virginia, also, section 22 of the Statute of Victoria, 1837, is in force. (Budisill’s Exr. v. Rodes, 29 Graft. 148). In Texas, also, where the doctrine seems to prevail that the destruction of a duly executed will, containing an express revocation of a former will, does not have the effect of reviving the former will, the statute provides that a will may be revoked “by subsequent will, codicil or declaration in writing executed with like formalities,” etc. (Hawes v. Nicholas, 72 Tex. 483).
It being established then that, under section 17 of the Illinois Statute, of Wills, a former will can only be revoked by a subsequent will declaring the revocation of all former wills, and not by a subsequent instrument in writing not testamentary in character which declares the revocation of the former will, it cannot be said that, in this State, the destruction of a duly executed will, con-' taining an express revocation of a former will, does not have the effect of reviving the former will.
We have held that “a will takes effect at the death of the testator.” (Scofield v. Olcott, 120 Ill. 362). Indeed, the general doctrine is, that a will is ambulatory, and has no effect until the death of the testator. It follows, that a testamentary paper, which the testator permits to survive him, must be his will. A will is inoperative and ineffectual, and has no legal existence, until it is consummated by death. (Taylor v. Taylor, 2 N. & M. (S. C.) 483).
In Marsh v. Marsh, 3 Jones’ L. (48 N. C. 78,) it is well said: “As wills are ambulatory and have no operation until the death of the testator, it is difficult to 'See how the execution of a second will, which is afterwards destroyed by the testator, 'can in anywise affect the validity of the will previously executed. Both are inactive during the life of the testator, and the cancellation of the second, it would seem, must necessarily leave the first to go into operation at the testator’s death. Nor is it perceived how the fact, that the second contained a clause of revocation, can alter the case; because that clause is just as inactive and inoperative as the rest of it, and so continues up to the time that the whole is canceled. This principle is settled in the common law courts in England, in regard to devises.” In Taylor v. Pegram, 151 Ill. 106, we said: “As a general rule, if a will is traced into the testator’s possession, and, at his death, cannot be found, the presumption is, (in the absence of circumstances tending to show a contrary conclusion,) that he destroyed it animo revocandi.”, “Where a testator has a will in his own custody, and that will cannot be found after his death, the presumption is that he has destroyed it himself—it cannot be presumed that the destruction has taken place by any other person without his knowledge or authority, for that would be presuming a crime.” (Rickards v. Mumford, 2 Ph. 24; 29 Am. & Eng. Ency. of Law, p. 292, note 3). (See also Boyle v. Boyle, 158 Ill. 228). In Boyle v. Boyle, supra, it was held that a will will be presumed to .have been destroyed by the testator himself, or at his direction, where he took it from the custodian, with whom it had been for several months, and carried it away, and it could not be found after his death.
In the case at bar, the will, which is said to have been executed by Jesse Stetson between September 1, 1898, and Ms death on April 27, 1899, is shown by the testimony of the appellants to have been taken possession of by him as soon as it was executed, and to have been carried away by Mm from the office of the attorney, who is said to have drawn it; nor could it be found among his papers or elsewhere after his death. It is to be presumed, therefore, that Jesse Stetson destroyed this will animo revocandi. If he destroyed it with the intention of canceling' or revoking it, it was canceled or revoked as an entirety; so long as Jesse Stetson was alive, this second will was merely ambulatory, and had no operation, and could have no operation until his death. While it was thus ambulatory, and before his death, the presumption is that he destroyed it, and if he destroyed it, the clause contained in it, which revoked all former wills, was canceled and revoked, as well as the balance of the will. It necessarily results that the former will of December 8, 1897, was revived when the subsequent will, containing the revoking clause, was canceled or destroyed. Upon this subject Redfield in his work on Wills (1 Redfield on the Law óf Wills, marg. p. 328,) says: “It has been held in some of the American courts, that a subsequent will containing a clause of revocation, executed with due solemnity for the purpose of revoking an existing will, operates, proprio vigore, and instantaneously, as a revocation, and consequently, that the destruction of the second will did not revive the former one. This doctrine has an air of plausibility, from the fact that an instrument of revocation alone would unquestionably have this effect, so long as it was allowed to remain operative. But that would show a present purpose of becoming intestate, carried into effect as far as practicable before death. But the making of a will, with a revocatory clause, is very different. It is but substituting one will for another. And the revocatory clause is made dependent, in some sense, upon the subsequent will going into operation. And there is, ordinarily, no purpose of having the revocatory clause operate, except upon that condition. .The whole instrument is, therefore, ambulatory, and when destroyed it all ceases to have any operation. And the same is true of the destruction of a will merely revocatory of former wills. By such destruction, the former wills, if in existence, become revived.” (Peck’s Appeal from Probate, 50 Conn. 566).
In Flintham v. Bradford, 10 Pa. St. 90, the Supreme Court of Pennsylvania say: “All wills are in their nature inchoate and ambulatory until testator’s death, at which time, and not before, the testament becomes operative and complete. The will of 1824 was an inchoate intention, mutable and inconstant, and, by the willful and deliberate act of cancellation on the part of the testator, it became as if it never had been. The prior will of 1821, being preserved by the testator entire, and without intentional or apparent blemish, became the will for the time being, which would be consummated at the testator’s death, unless before that time he manifested a change of intention, according to the rules of law.” So, in the case at bar, the second will, alleged to have been made by Jesse Stetson, was inchoate and ambulatory until his death; and, as he is presumed to have destroyed it for the reasons already stated, “it became as if it never had been.” The prior will of December 3, 1897, having been preserved by him entire and without intentional or apparent blemish, has become his will.
At common law, where the later of two inconsistent wills was revoked by the testator in his lifetime, the earlier will became thereby revived, “and, unless after-wards revoked by some subsequent act, came into operation on his decease, whether the later will contained an express clause of revocation or not.” (29 Am. & Eng. Ency. of Law, p. 288). In Harwood v. Goodright, Cowp. 92, Lord Mansfield said: “If a testator makes one will and does not destroy it, though he makes another at any time virtually or expressly revoking the former, if he after-wards destroy the revocation,-the first will is still in force and good.” (29 Am. & Eng. Ency. of Law, p. 289, note 3).
In Goodright v. Glazier, 4 Burr. 2513, Lord Mansfield said: “Here, the intention of the testator is plain and clear. A will is ambulatory till the death of the testator. If the testator lets it stand till he dies, it is his will; if he does not suffer it to do so, it is not his will. Here, he had two. He has canceled the second; it has no effect, no operation; it is as no will at all, being canceled before his death. But the former, which was never canceled, stands as his will.” In the same case Mr. Justice Yates concurred with Lord Mansfield and said: “A will has no operation till the death of the testator. This second will never operated; it was only intentional. The testator changed his intention; and canceled it. If by making the second the testator intended to revoke the former, yet that revocation was' itself revocable; and he has revoked-it.”
In Schouler on Wills (3d ed. sec. 413) it is said: “The English common law tribunals laid down a rule, under Lord Mansfield’s lead, which has been thought more inflexible than that favored by ecclesiastical courts, viz., to the effect, that, if a testator keeps his first will undestroyed and uncanceled, makes a second will virtually or expressly revoking it, and then destroys or cancels the second will only, thus repealing his revocation, the first will thereupon revives and continues in force.” “In the ecclesiastical courts it was held that the revocation of the later will raised no presumption in favor of the revival of the earlier will, but that the question depended upon the intention of the testator, as shown by the peculiar facts and circumstances of the case, and was open to decision either way.” (29 Am. & Eng. Ency. of Law, pp. 288, 289).
But “by the common law the first will is presumed to be restored to its active energy by the canceling of the second.” (Taylor v. Taylor, supra). The common law rule best harmonizes with the course of legislation and judicial decisions in this State, for the reason that the common law of England, so far as the same is applicable and of a general nature, is considered as of full force in this State where it is not repealed by legislative authority. (Hurd’s Stat. 1899, p. 399). The rule above stated, as adopted by the ecclesiastical courts, is derived from the civil, and not the common law. (Taylor v. Taylor, supra). In Randall v. Beatty, 31 N. J. Eq. 643, where a testatrix executed several wills, all of which she destroyed, except one executed in 1870, and where by a will made in 1873 she expressly revoked all former wills, but after-wards canceled the will of 1873, and where after her death the will of 1870 was found-carefully preserved among her effects, it was held that the cancellation of the will of 1873 revived that of 1870, the court saying: “The rule on the subject of the revival of a prior will by the revocation of a later one containing words of revocation, was, up to 1838 (when by the enactment of a statute—1 Viet, chap. 26—the question was put at rest,) different in the courts of common law and the ecclesiastical courts in England, the former holding that the revocation of the later will, of itself, worked a revival (Jarman on Wills, 122, 123), while the latter held that, whether there was a revival or not, was a question of intention. (Usticke v. Bawden, 2 Addams, 116). The will of 1870 was never canceled. * * * The will of 1870 was, at her death, found among her effects in an envelope, with a copy of her deceased husband’s will. It was entirely in her own handwriting. The law declares the manner in which a will is to be revoked. It must be by burning, canceling, tearing or obliterating it by the testator, or in his presence and by his direction and consent, or by a writing executed with the same formalities as a will. No proof of declarations of revocation, made by the testator, will avail. * * * The will of .1870 is produced uncanceled. It is admitted that there is no revocatory will or writing extant, but it is alleged that all such instruments subsequently made by the testatrix, have been canceled. The execution qf the will of 1873 was not attended or followed by the cancellation of the will of 1870. Notwithstanding the revocatory clause in the will of 1873, the will of 1870 was retained by the testatrix uncanceled up to the day of her death. The fact, that she so kept the will, is the most cogent evidence of her intention that it should be revived by the cancellation of the will of 1873. * * * The true rule on the subject is, that, where one will is revoked by another, the revocation is testamentary, and the revocation of the latter will revives the former.”
In Lawson v. Morrison, 2 Dal. 289, it was said: “It has been often determined that a will revoked by a subsequent will, but not canceled, was re-established by the cancellation of the subsequent will.”
Our conclusion is that, inasmuch as the later will executed by the testator, Jesse Stetson, must be presumed to have been destroyed by him in his lifetime, this loss or destruction has operated as a revival of the former will of December 3, 1897, although the later will contained a revocatory clause. For this reason the court below committed-no error in dismissing the. bill of the complainants.
Some other points are made by the appellees. One is that a court of chancery has no jurisdiction to admit a will to probate or establish it. Certainly, if this could be considered a proceeding to establish or admit to probate the second will, alleged to have been made by Jesse Stetson, a court of chancery would have no jurisdiction in the matter. In Wild v. Sweeney, 84 Ill. 213, this court held that a court of chancery has no jurisdiction to admit a will to probate, that being conferred upon the county court. It is furthermore claimed on the part of the ajDpellees that, if the appellants were justified in setting up the second will as a revocation of the first, they should have attempted to do so when the will of Decernher 3,1897, was offered for probate, the appellants having had notice of the application to probate the former will in accordance with the provisions of section 21 of the Statute of Wills, adopted in 1897. (Hurd’s Stat. 1899, p. 1750). We deem it unnecessary, however, to discuss the question of jurisdiction, or the question whether the appellants here are estopped from their present contention by reason of their failure to set up the revocation when the original will was offered for probate in the county court. If the evidence establishes all that the appellants claim in regard to the existence of the second will and its contents, its presumed loss or destruction operated to revive the will of December 3,1897, and, therefore, the consideration of the other questions is unnecessary and immaterial.
The decree of the circuit court is affirmed.
Decree affirmed.