175 S.E. 748 (Va. 1934)
Mrs. M. Lou Bowen Kroll signed her will on September 4, 1932. The will was typewritten on five sheets of legal cap paper with her signature on the last page attested by three subscribing witnesses, and H. P. Brittain, the executor named therein, was given possession for safekeeping.1 On September 15, 1932, she signed a codicil typed on the top third of one sheet of paper in the presence of two subscribing witnesses, and possession was given to Judge S. M. B. Coulling, the attorney who prepared both documents.2
On September 19, 1932, Judge Coulling and Mr. Brittain took the will and codicil to Mrs. Kroll's home at her request. She initially directed them to destroy both instruments, but upon the suggestion of Judge Coulling she decided to retain them as memoranda for use if she chose to execute a new will.3 Notations were written in Judge Coulling's handwriting on the back of the manuscript cover fastened to the will and on the back of the codicil sheet, each declaring the instrument null and void and to be held as a memorandum, and Mrs. Kroll signed both notations.4
Mrs. Kroll died on October 2, 1932, leaving an estate valued at approximately $200,000 and numerous nephews and nieces, some of whom were not mentioned in the will.5 On motion of some beneficiaries, the will and codicil were offered for probate, all interested parties including the heirs at law were convened, and the jury on the issue of devisavit vel non found that the September 4 and 15 instruments were her last will and testament.
The trial court sustained the verdict and probated the will, from which order this writ of error was allowed.6
Whether the notations written on the backs of the will and codicil constituted a valid revocation by cancellation under the statute?7
Under section 5233 of the 1919 Code of Virginia, no will or codicil shall be revoked unless by a subsequent will or codicil, or by some writing declaring an intention to revoke executed in the manner required for a will, or by the testator or someone in his presence and by his direction cutting, tearing, burning, obliterating, canceling, or destroying the same or the signature thereto with the intent to revoke.8 Revocation by cancellation requires marks or lines across the written parts of the instrument or some physical defacement or mutilation of the writing itself with the intent to revoke.9 If written words are used for cancellation, they must be placed so as to physically affect the written portion of the will and not merely appear on blank parts or the back of the document.10
No. The statute requires both an act of cancellation and the accompanying intent to revoke. The intent to revoke is clear from Mrs. Kroll's initial direction to destroy the documents and her approval of the notations.11 The notations appeared exclusively on the backs of the manuscript cover and the codicil sheet rather than on the faces of the instruments where the written provisions appeared. No physical evidence of cutting, tearing, burning, obliterating, or defacing exists on the written portions of the will or codicil.12
Because the writing did not come into physical contact with any part of the written words of the will, it cannot qualify as cancellation under the statute. The notations are equivalent to writings on separate sheets of paper, which the statute does not permit as a method of revocation.13