1. This is a suit for declaration that an alleged adoption of the 2nd defendant by the 1st 'defendant, the widow of one Venkatrama Piilai, is invalid.
2. On September 8, 1889, Venkatrana Pillai made a will (Ex. 1). The will stated that he had selected, or nominated, as his adopted son one Chiranjeevi Venkatakristna Pillai, the son of his daughter Rajammal, and that in case he should die before completing the adoption, his wife should complete the necessary ceremonies. The will directed that all the testator's properties should go to Chiranjeevi Venkatakrishna Piilai. It further directed that in case Chiranjeevi Venkatakrishna Piilai should die during the lifetime of the testator's widow she should, according to her wishes, adopt one of the other sons of the testator's daughter, Rajammal, and give the properties to him.
3. On February 9th, 1890. Venkatarama Pillai adopted Chiranjeevi Venkatakrishna Piilai,
4. On March 21st, 1890, he made another will. This will makes no reference to the earlier will. The will directs that on the death of Chiranjeevi Venkatakrishna Pillai the property disposed of by the will should go to his issue, and that if he dies without issue, it should go to the issue of Rajammal that is to say, to Chiranjeevi Veukataktishna Pillai's brother.
5. On June 4th, 1891, Chiranjeevi Venkatakrishna Pillai died. The second will was proved. The first was not. The second will which purports to dispose of the joint family properties of the testator and Chiranjeevi Venkatakrishna Pillai was, by a decree of this court dated November 20th, 1894, held to be void.
6. The widow, purporting to act on the power conferred by the first will, on August 13th, 1906, adopted another son of Rajammal, the 1st defendant's daughter. The plaintiff, who is the reversioner, alleges that the widow had no authority to make the adoption and claims on the footing of an intestacy.
7. Mr. Justice Wallis held, and we agree with him, that the second will was inconsistent with the first and that if the second will had been operative, there would have been a clear revocation of the earlier will. There remains, however, the further question--and this was the main question argued in the appeal-does the second will, although inoperative as a testamentary disposition of the property with which it purported to deal, revoke the authority to adopt conferred by the first will Wallis J. answered this question in the negative, and, although the point is not free from difficulty, we have come to the conclusion that he was right.
8. The answer to the question we have to determine would seem to depend on whether what is termed in the books the doctrine of dependent relative revocation applies to this case. This doctrine is discussed in the last edition of Jarman on Wills on pages 148, 169 and 170 One would have thought that prima facie a devise which was inoperative as a disposition of property would have been inoperative as a revocation of an earlier disposition. But the courts have recognised a distinction between cases where the infirmity of the second will was apparent on the face of the will and the defect was intrinsic, and cases where the will was inoperative for reasons outside the instrument, i. e., where the defect was extrinsic. In the former case the second devise would not operate as a revocation of the earlier devise, In the second case, it would. In Tupper v. Tupper (1855) 69 E.R. 627 where a testator by his will bequeathed valid legacies to various persons and by a codicil revoked them 'and in lieu thereof ' bequeathed a legacy which failed under the Mortmain Acts, it was held the revocation took effect. (In this case, it is to be noted there was an express revocation). It has also has been held that where the second devise failed through the incapacity of the devisee, the prior devise was revoked (see the cases cited in Jarman on Wills page 170.) In Baker v. Story (1875) 23 W.R. 147 Sir G. Jessel held that, where a testator by his first will devised his real estate to his widow absolutely and by his second will, which contained no clause of revocation, devised his real estate to his widow for life and after her death to charity, although the devise to the charity was void the absolute devise to the widow was revoked. In Exparte Illchester (1803) 32 E.R. 142 it is said that where the second instrument failed of effect 'by some accident independent of the instrument,' it yet produced a revocation.
9. Instances of cases where the defect in the second instrument was a formal defect (e. g., non-compliance with the Statute of Frauds) apparent on the face of the instrument, and the courts have held that the earlier instrument was not revoked, are to be found in Onions v. Tyrer (1716) 24 E.R. 418 and Eilbeck v. Wood (1826) 38 E.R. 217.
10. It may no doubt be said with some force that a case where the second instrument though failing through the incapacity of the devisee, nevertheless operates as a revocation of an earlier instrument, is not easily distinguishable from the case like the present where the second instrument fails by reason of the fact that the property which the testator purports to dispose of cannot be made the subject-matter of testamentary disposition. The incapacity of the devisee, however, is not necessarily apparent on the face of the instrument, whereas in the present case the fact that the testator purports to dispose of ancestral property is apparent on the face of the will, and this, as it seems to us--if we are to decide this case with reference to this doctrine of dependent relative revocation--brings it within the class of cases where the defect in the second instrument may be said to be intrinsic and not extrinsic.
11. Wallis J. held, on the authority of the House of Lords decision in a Scotch case Alexander v. Kirkpatrick (1874) 2 Div. 397, that the second will in the present case did not operate so as to revoke the authority to adopt conferred by the first. Wallis J. observed : ' In that case a husband and wife executed a conveyance of the same property to others without any reference to the previous conveyance just as here. The 1ater conveyance was held inoperative for want of apt words and under these circumstances the House of Lords held that this inoperative conveyance did not revoke the earlier and effective disposition of the same property. The fact that in the present case the earlier will does not, strictly speaking, contain a disposition of property, but only an authority to adopt which, if exercised, would operate as a disposition of the property, does not appear to me to make any difference. Mr. Tirunarayana Charry for the plaintiff cited two English cases Tupper v. Tupper (1955) 1 K. & J. 665 and Quinn v. Butler (1868) 6 Eq. 225 both anterior to Alexander v. Kirkpatrick (1874) 2 Sc. Div. 397 Some of the English cases have held that the doctrine does not apply where the failure of the later instrument is due to the incapacity of the devisee to take a limitation which rests on the authority of a very old case, French's case, Roll's Abridgment Devise, 64 rather than on principle. This was pointed out by Lord Romilly in Quinn v. Butler (1868) 6 Eq. 225 who held that when the donee of a power expressly revoked an appointment made under the power and proceeded to make a fresh appointment which failed because it was not according to the power, the expressed intention to revoke must be given effect to This appears to me one of the English cases which Lord Cairns refers to in Alexander v. Kirkpatrick (1874) 2 Sc. 397 and distinguishes without expressing any opinion as to whether they were rightly dicided, on the ground that the later instrument contained an express revocation of the earlier. In Re Fleetwood Sidgreaves v. Brewer (1880) 15 Ch. D. 594 where a testatrix executed a fourth codicil containing dispositions inconsistent with those she had previously made, but the fourth codicil failed as it was attested by one of the beneficiaries under it, V. C. Hall observed : 'There is not in the fourth codicil any express revocation of the will and first, second and third codicils, and the fourth codicil being executed in order to create new interests which fail, the original instruments of disposition were unaffected on the principle of Onions v. Tyrer (1716) 24 E.R. 418 and other cases.' I may add that to let in the doctrine it is not necessary that the later instrument should fail altogether for in Onions v. Tyrer (1716) 24 E.R. 418 the later will was good as to personality, but bad as to reality.
12. In Alexander v. Kirkpatrick (1874) Sc. 397 Lord Cairns distinguishes between cases in which the later instrument contains express words of revocation as to which cases he says there may be some doubt and cases such as the present where there are no express words of revocation. As regards the latter, he says at page 493 ; ' It appears to me that no case has been produced and no case can be produced either in Scotland or in England where a mere alternative inconsistent disposition which is not valid or effectual in itself has been held to revoke an earlier disposition of the same property.' Lord Chelmsford takes the same grounds. Lord Hatherley who had decided the English case of Tupper v. Tupper (1885) 1 K. & J. 665 speaks of that class of cases in which a changed disposition having been intended to take effect but the changed disposition itself having failed to take effect the intention to revoke is not any further to be presumed from it ; and Lord Selborne says that the heir at law (here the reversioner) is bound to make out with a reasonable certainty a revocation of the prior independently of the disposition in the later. I think we must accept the law laid down by these high authorities as the rule of justice, equity and good conscience applicable by us.
13. No doubt the two instruments in question in Alexander v. Rirkpatrick (1874) Div. 397 were conveyances and no question of the intention of a testator to be gathered from the terms of a will arose. (This may account for the fact that we find no references to this case in Mr. Jarman's book or in Theobald's book). Lord Hatherley, however, in his judgment in Alexander v. Kirkpatrick (1874) Sc. 397 ' considered some of the will cases and observed : ' The court feels itself in this position according to the case cited by Mr. Pearson in Onions v. Tyrer (1716) 24 E.R. 418, (in P. William 343) that it can discover an intention to revoke only in the altered disposition which is attempted to be made by the second instrument ; and if that disposition fails, then also the court must fail to perceive an indication of an intention to revoke the first, the court not being able to find that there is in truth any inconsistent disposition at all in consequence of that which was intended to be such having wholly failed to take effect.' We are prepared to apply the principles of this decision to the cases before us and to hold that the authority to adopt was not revoked. The other points raised in the appeal were not very seriously pressed.
14. We are of opinion that the fact that the testator himself adopted, did not put an end to the authority to adopt, conferred by the first will, and we agree with Wallis J. that in a suit for declaration the earlier unproved will is admissible in evidence.
15. The appeal is dismissed with costs.