Cancellation

The act of crossing out a writing. The manual operation of tearing or destroying a written instrument; 1 Eq. Cas. Abr. 409. The statute of frauds provides that the revocation of a will by cancellation must be by the "testator himself, or in his presence and by his direction and consent." This provision is in force in many of the states; 1 Jarm. Wills (3d Am. ed.) *113 n. In order that a revocation may be effected, it must be proved to have been done according to the statute; Delafleld v. Parish, 25 N. Y. 79; Heise v. Heise, 31 Pa. 246; Spoonemore v. Cables, 66 Mo. 579; Barker v. Bell, 46 Ala. 216; declarations of a testator are not sufficient; Lewis v. Lewis, 2 W. & S. (Pa.) 455; Wittman v. Goodhand, 26 Md. 95; Jackson v. Kniffen, 2 Johns. (N. Y.) 31, 3 Am. Dec. 390. Cancelling a will, animo revocandi, is a revocation; and the destruction or obliteration need not be complete; 3 B. & Aid. 489; Avery v. Pixley, 4 Mass. 462; Card v. Grinman, 5 Conn. 168; Burns v. Burns, 4 S. & R. (Pa.) 567. It must be done animo revocandi; Schoul.

Wills 384; Wolf v. Bollinger, 62 111.

368; 'Dickey v. Malechi, 6 Mo. 177, 34 Am. Dec. 130; and evidence is admissible to show with what intention the act was done; Jackson v. Hollo way, 7 Johns. (N. Y.) 394; Hatch v. Hatch, 9 Mass. 307, 6 Am. Dec. 67; Botsford v. Morehouse, 4 Conn. 550; Corliss v. Corliss, 8 Vt. 373; Tomson v. Ward, 1 N. H. 9; Burns v. Burns, 4 S. & R. (Pa.) 297; Bates v. Holman, 3 Hen. & M. (Va.) 502; Carroll's Lessee v. Llewellin, 1 Harr. & McH. (Md.) 162; 4 Kent 531; Collagan v. Burns, 57 Me. 449; Harring v. Allen, 25 Mich. 505; Durant v. Ashmore, 2 Rich. (S. C.) 184; Patterson v. Hickey, 32 Ga. 156. Accidental cancellation is not a revocation; Smock v. Smock, was complete, was admitted to probate; L, R, 2 P. & D. 206. Partial cancellation, with proof of an animus revocandi, will revoke a will; Bohanon v. Walcot, 1 How. (Miss.) 336, 29 Am. Dec. 631; and when more than one-third of the items were cancelled, leaving the remainder unintelligible and repugnant, the will was held to be revoked; Dammann v. Dammann (Md.) 28 Atl. 408. Where the testator wrote on his will "This will is invalid," held a revocation; Witter v. Mott, 2 Conn. 67. Cancellation by an insane man will not revoke a valid will; In re Forman's Will, 54 Barb. (N. Y.) 274; Ford v. Ford, 7 Humphr. (Tenn.) 92.

See Laughton v. Atkins, 1 Pick. (Mass.) 535; Farr v. O'Neall, 1 Rich. (S. C.) 80.

In Louisiana it requires a written instrument executed with formalities to revoke a will, hence placing it among waste paper and refusal to receive it after attention was called to it, and an unsuccessful attempt to make a new will, were held to be no cancellation; Succession of Hill, 47 La. Ann. 329, 16 South. 819. There may be a partial obliteration, which works a revocation pro tan to; Clark v. Smith, 34 Barb. (N. Y.) 140; Bigelow v. Gillott, 123 Mass. 102, 25 Am. Rep. 32; Wolf v. Bollinger, 62 111. 368; Giffin v. Brooks, 48 Ohio St. 211, 31 N. E. 743; and a careful interlineation is not a cancellation; Dixon's Appeal, 55 Pa. 424. A cancellation by pencil is enough; 2 D. & B. 311; 6 Hare 39; L. R. 2 P. & D. 256; Estate of Tomlinson, 133 Pa. 245, 19 Atl. 4S2, 19 Am. St Rep. 637. Where a will is found among a testator's papers, torn, there is a presumption of revocation; Beaumont v. Keim, 50 Mo. 28; In re Johnson's Will, 40 Conn. 587; Idley v. Bowen, 11 Wend. (N. Y.) 227. Where after a person's death a will is found in an unsealed envelope which had been in his possession up to the time of his death and with lines drawn through his signature, the presumption is that he himself drew the lines for the purpose of revoking the will; In re Philp, 64 Hun, 635, 19 N. Y. Supp. 13. Perpendicular marks across a will are not "handwriting;" In re Hopkins, 172 N. Y. 360, 65 N. E. 173, 65 L. R. A. 95, 92 Am. St. Rep. 746. Mere cancellation of a deed does not divest the grantee's title; Devlin, Deeds 300, 305; Holbrook v. Tirrell, 9 Pick. (Mass.) 108; Fawcetts v. Kimmey, 33 Ala. 264; Botsford v. Morehouse, 4 Conn. 550; National Union Bld'g Ass'n v. Brewer, 41 111.

— App. 223; even though done before recording; Hall v. Mc Duff, 24 Me. 312; but it might practically have that effect between the parties by estoppel; Sawyer v. Peters, 50 N. H. 143;

— or by reason of the destruction of the only evidence of the transaction; Blaney v. Hanks, On a bill in equity for the re-execution of lost securities, which were held by a decedent in his lifetime and after his death were not found among his papers, a party alleging their destruction or cancellation by the decedent is bound to prove the fact to the satisfaction of the court.

The absence of the papers raises no presumption of such destruction or cancellation; nor is mere proof of an intention to destroy or cancel, or of the declaration of such intention, alone sufficient; Gilpin v. Chandler, 2 Del. Ch. 219. In the case of an insurance policy after death, the remedy of the company for fraud, etc., is at law by way of a defence to a suit on the policy; a bill in equity will not lie for revocation in the absence of special facts; Riggs v. Ins. Co., 12!) Fed. 207, 03 C. C. A. 365. See Deed; Insurance; Will; Lost Instrument; Revocation. CANDIDATE (Lat. candidatus, from Candidas, white. Said to be from the custom of Roman candidates to clothe themselves in a white tunic). One who offers himself, or is offered by others, for an office. One who seeks office is a candidate; it is not necessary that he should have been nominated for it Leonard v. Com., 112 Pa. 624, 4 Atl. 220.