JONES and Others against HARTLEY and Others, 2 Whart. 103

The opinion of the Court was delivered by Sergeant, J. It is the opinion of this Court, that there was error in refusing to permit the will to be read to the jury. The rule of law is, that the republication of a will must be accompanied by the same solemnities as were necessary to the publication in the first instance, (2 Binn. 419;) but no others are required.

Hence, in England, since the statute of frauds, requiring a will to be in writing signed by the party, and to be attested and subscribed in his presence by three witnesses, a parol republication is not good; but in Pennsylvania, the witnesses to a will need not be subscribing witnesses. If there be a will in writing, signed by the testator, it is sufficient that it be proved by any two witnesses who can establish the fact, whether they attested as witnesses or not. As therefore the original proof of the will may be by parol, so may the proof of republication; but the number of witnesses must be the same.

In this respect, our law stands on the footing of the English law, under the statute 32 Hen. 8th, prior to the statute of frauds; and under the statute of Hen. 8th, the decisions'in England were uniform in favour of receiving parol evidence of the republication of a will in writing; and it was held that any thing which expressed the testator’s intention that the will should be considered as of a subsequent date, was sufficient. 1 Ves. jr., 497. 1 Vern. 330. 2 Vern. 209. 2 Roll. Ab. 618. 1 Freem. 264. 2 Ch. Rep. 138, 140.

This is indeed not an open question now; for those principles were all recognised and acted upon by this Court in the case of Havard v. Davis, (2 Binn. 406,) in which the subject was fully discussed by counsel, and carefully considered by the court. In -that case, declarations by a testator, not long before his death, that a will dated in August, 1806, was his last will, were held to be evidence-of republication of it, so as to produce a revocation of a will dated in September, 1806, revoking all prior wills, and to set up the first will in its stead.

That was a stronger case than the present, for it- was to revoke a will deliberately made, and when the intention of the testator to revoke it was undoubted; here the revocation is rather a presumed or implied one. In principle, however, the cases are the same, and I think that decision must be considered as settling the doctrine that parol evidence of republication is proper injPennsylvania, with the requisition however, that the proof of the républication be by the same number of witnesses, and be as conclusive of the fact as would be required to establish an original will.

The animus republicandi must be shown, that is, it must be shown that it was the intention of the testator at that time, that the will in question was and should be his will. The identity of the will must be shown, or in other words, that the will produced is the same will to which the testator referred his declarations. The witnesses need not be called for the purpose, for that is not required in order to establish an original will; nor need the will be present at the time of such declarations. In Havard v. Davis, only ’ one of the two witnesses saw the will, and that not by the testator’s directions.

In Colton v. Colton, (2 Vern. 209;) 1 Freem. 264; 2 Ch. Rep. 138, 140, S. C.; the testator’s declarations were made in conversation, the will not being redelivered nor present. Nor need declarations be at the same time to the witnesses; they may be to one on one day, and to another on the next. It is sufficient if they satisfactorily show that after .the date of the revocation, the testator declared his intention that the writing was his last will, and that fact is proved by two competent witnesses to the satisfaction of the jury.

The evidence however, ought to be clear and satisfactory, to establish this intention, as well as the identity of the writing referred to ; as the fact is to depend on parol evidence, and there is no written evidence to establish the republication. 2. On the other point, we are of opinion that the deed was a revocation of the will. The general principle on this subject, will be found in the case of Skerrett v.

Burd, lately decided by this Court, (1 Whart. 250.) It has been strongly urged, that the present being a conveyance in trust for the payment of debts, and then to result to the grantor, was such a partial disposition of the estate, as brings it within the excepted cases.

And if the alleged purpose of the conveyance appeared on the face of the deed, it would be so; but the difficulty here is, that this grant and disposition of the estate is on the face of the deed absolute; the trust is no more than an understanding between the parties at the time, which it is alleged was omitted in the deed by mistake, and which is to be established by parol proof.

We have, it is true, uniformly admitted parol evidence of what passed at the time, to vary or explain a deed or writing, in cases of mistake, fraud or trust, and even to reform the deed or writing accordingly, where the justice of the case required it. But this has been done only between the parties, for the purpose of obtaining justice between them. It has not been done where the dispute was between third persons; as in this case where one side claims under the will, and the other side by inheritance.

We cannot in such case convert a deed which is absolute on its face into a conditional deed or deed of trust, and thus alter its nature and character to effect the interests of others: as to them it must remain what it purports to be.

It is then, if the parol evidence be made out, an entire disposition of the whole estate; an absolute parting with the owner’s interest, reserving an equity on his part which he might enforce or not at his pleasure, of compelling the grantor to account, and to enforce recovery when the trust should be fulfilled; but it is not the case of a mortgage or conveyance for the partial purpose, on its face, of payment of debts, which are excepted cases, because they amount to no more than a charge on the estate, not a transfer of it.

Here there is a transfer, and a total alienation, and the right to set up a trust by parol between the parties, if they choose to do so, but not necessarily existing as to third persons, whose rights depend on the character of the conveyance. Being then a complete alienation of the real estate after the date-of the will, it is a revocation of the will so far as relates to the property thus conveyed. But on the first point the judgment must be reversed. Judgment reversed, and venire facie de novo awarded.