Opinion
5 Div. 44.
December 19, 1929. Rehearing Denied March 20, 1930.
Appeal from Probate Court, Tallapoosa County; J. Percy Oliver, Judge.
Fred T. Farnell, of Dadeville, and P. B. McKenzie, of Tallassee, for appellant.
A subsequent will does not necessarily revoke a former will, in the absence of an intention of the testator to do so; and, where no intention to revoke the first will is shown by the latter will, such latter will should be construed as a codicil to the first, even though not so styled by the testator. Kohlenberg v. Shaw, 198 Ala. 571, 73 So. 932; Knox v. Knox, 95 Ala. 495, 11 So. 125, 36 Am. St. Rep. 235; Kelly v. Richardson, 100 Ala. 584, 13 So. 785; 40 Cyc. 1093, 1177; 1 Schouler on Wills, 506, 507. A legal revocation is an act of the mind plus some act demonstrated by some outward and visible sign. The two must concur to make a legal revocation. Woodruff v. Hundley, 127 Ala. 640, 29 So. 98, 85 Am. St. Rep. 145; Allen v. Scruggs, 190 Ala. 654, 67 So. 301.
Jas. W. Strother, of Dadeville, for appellee.
An instrument which appoints an executor may be valid as a will, although it makes no disposition of property; and such a will operates and has the effect of revoking a will previously made. 40 Cyc. 1078; Mulholland v. Gillan, 25 R.I. 87, 54 A. 928, 1 Ann. Cas. 366; Re Hickman, 101 Cal. 609, 36 P. 118; Blacksher v. Northrup, 176 Ala. 190, 57 So. 743, 42 L.R.A. (N.S.) 454; Conoway v. Fulmer, 172 Ala. 283, 54 So. 624, 34 L.R.A. (N.S.) 963; Barker v. Bell, 49 Ala. 284; Bruce v. Sierra, 175 Ala. 517, 57 So. 709, Ann. Cas. 1914D, 125; Wilson v. Bostick, 151 Ala. 536, 44 So. 389; Code, 1923, § 10600.
While this court, in the case of Bruce v. Sierra, 175 Ala. 517, 57 So. 709, Ann. Cas. 1914D, 125, was constrained to hold, under the weight of our former decisions, that even in the absence of a revoking clause a subsequent will revoked the former one, and whether repugnant thereto or inconsistent therewith or not, we meant a will in the ordinary conception of the term and as defined by the authorities, and not by a mere testamentary nomination of an executor such as the instrument of 1919. "A will is an instrument by which a person makes a disposition of his property, to take effect after his decease, and which is in its own nature ambulatory and revocable during his life." Blacksher v. Northrop, 176 Ala. 190, 57 So. 743, 42 L.R.A. (N.S.) 454, Rice v. Rice, 68 Ala. 216.
The instrument of 1919 made no disposition of the testator's property, but is, at most, a mere testamentary appointment of a representative, and while entitled to proof and probate if properly executed, Conoway v. Fulmer, 172 Ala. 283, 54 So. 624, 34 L.R.A. (N.S.) 963, is not such a will as would, by its own force and effect, revoke the will of 1909. True, such instruments are entitled to probate and have been loosely mentioned as wills, yet we do not think that our statute intended that such instruments should ipso facto revoke a former will and which should be more properly designated as a "testamentary nomination."
We think the trial court erred in holding that the instrument of 1919 revoked the will of 1909, but, if the last instrument was legally made so as to entitle it to probate, it should be treated as a codicil to the will of 1909. Kohlenburg v. Shaw, 198 Ala. 571, 73 So. 932.
The decree of the probate court is reversed, and the cause is remanded.
Reversed and remanded.
SAYRE, THOMAS, and BROWN, JJ., concur.