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a solemnity nearly similar is requisite for revoking a devise by writing: though the same may be also revoked by burning, cancelling, tearing, or obliterating thereof by the devisor, or in his presence and with his consent (10); as like


visor in trust will pass, unless, from 2 Ves. sen. 458.) For, however sinthe context of the will, or from a dis- gular the difference between the fifth position not consistent with a limited and the sixth sections of the statate right, and the nature of trust pro- of frauds may appear; and though it perty, it can be collected that he did be difficult to suppose the legislature not mean to pass such estates. (Lord meant to institute one mode of revoBraybroke v. Inskip, 8 Ves. 435 ; cation so nearly approaching, and yet Attorney General v. Vigor, 8 Ves. not exactly conformable to, the mode 276 ; Ex parte Morgan, 10 Ves. 103; prescribed for making a disposition of Wall v. Bright, 1 Jac. & Walk. 498.). lands; still, as it has specified what -Ed.]

shall be sufficient to revoke, the enact. (10) The 6th section of the statute ment is conclusive. And there is cerenacts, that no devise of lands shall tainly nothing repugnant to the combe revocable otherwise than by some mon law, in declaring that an act which other will or codicil in writing, or might not be sufficient to give, shall other writing, declaring the same ; or be sufficient to revoke. (Ex parte by burning, cancelling, tearing, or the Earl of Ilchester, 7 Ves. 372; obliterating the same by the testator Ellis v. Smith, 1 Ves. jun. 13.) himself, or in his presence and by his But where the revocation of a dedirection and consent; but all devises vise is attempted to be effected by and bequests of lands and tenements an instrument purporting to be also shall continue in force, until the same a will, disposing of the property ; be burnt, cancelled, torn or obliterated if it be not duly executed as such, by the testator, or by his direction ; within the fifth section of the staor unless the same be altered by some tute of frauds, although such instruother will or codicil in writing, or ment contain express words of reother writing of the devisor signed in vocation, it will not let in the heir ; the presence of three or four wit- for, the meaning of a second will must nesses, declaring the same. This be to give to the second devisee what clause has been construed disjunc- it takes from the first, without any tively; and it is settled that, although consideration had to the heir; and if three witnesses are required to attest the second devisee, owing to the deand subscribe a revocation of a pre- ' fectiveness of the disposition in his vious will, when such revocation is favour, can take nothing, the first desought to be effected by a subsequent visee will lose nothing. (Onions v. will or codicil; yet if, by any other Tyrer, 1 P. Wms. 345 ; S. C. Prec. writing, the testator intends barely to in Cha. 460; Eccleston v. Speke, revoke his will, without more, he Carth. 80.) may do this effectually by a writing There can be no doubt that the consigned in the presence of three wit- tents, or substance, of a testamentary nesses, who need not subscribe their instrument may be established, though names in his presence, as they must the instrument itself cannot be proto a will of real estate. (Eccleston v. duced, upon satisfactory proof being Speke, Carthew, 81; Hoil v. Clark, given that it was duly made by the 3 Mod. 220; Grayson v. Atkinson, testator, and was not revoked by him ;

wise impliedly, by such a great and entire alteration in the

the last point may be disposed of, Where a testator has executed dueither by showing that the instrument plicates of his will, and retained one existed after the testator's death; or part only in his own possession ; if he that it was destroyed in his lifetime destroyed that part, the legal prewithout his privity or consent. (Davis sumption would be, that he intended to v. Davis, 2 Addams, 224; Foster v. revoke his will altogether; and the duFoster, 1 Addams, 408.) It is also plicate left in the hands of another well settled, that, in legal considera- would not avail. (Sir Edward Seytion, a will may be cancelled without mour's case, cited 3 P. Wms. 345.) If being revoked. The cancelling is an the testator himself had possession of equivocal act, and, in order to operate both parts, the same presumption as a revocation, must be done animo would hold, though it would be weaker. revocandi. (Burtonshaw v. Gilbert, And even if, having both in his posCowp. 52; Johnstone v. Johnstone, session, he altered one, and then de1 Phillim. 466 ; Scruby and Finch v. stroyed that which he had altered, there Fordham, 1 Addams, 78.) Thus, also, it has been said, the presumption cancelling a former will, on a pre

of intended total revocation would exsumption that a latter, devising the ist; but still weaker and more capable same lands to the same uses, was ef- of being rebutted. (Pemberton v. fective, would be no revocation of the Pemberton, 13 Ves. 310.) former, if the latter proved to be void. Lord Mansfield considered it settled, (Onions v. Tyrer, 3 P. Wms. 345.) that, if a man by a second will revokes But, although the cancellation of a a former, yet, if he keeps the first will will does not necessarily infer an in- undestroyed, and afterwards destroys tentional abandonment of the dispo- the second, the first will is thereby retions contained therein, nor, conse- vived: (Harwood v. Goodright, Cowp. quently, any intended revocation of 91 :) considerable doubt, however, the will ; still, this is the ordinary has been judicially expressed on this inference : and in order to bar its ap- head; and it seems that it must be plication to any particular case of treated as a question of intention, to be cancelling, two things at least are re- decided according to the circumstances quisite; first, it must be proved that of each particular case. (Moore v. Metthe cancelled paper once existed as a calfe, Phillim. 400, and on appeal befinished will ; or at any rate one finally fore the court of delegates, ibid. 419; approved, if not completely executed, Hooton v. Head, 3 Phillim. 32; Usby the testator. (Roose v. Moulsdale, ticke v. Bawden, 2 Addams, 125; Bra1 Addams, 131; Warburton v. Bur.

Burchell, 3 Addams, 268.) A rows, 1 Addams, 388 ; see, however, codicil added merely for a particular Popple v. Cunison, 1 Addams, 381 ;) purpose (such, for instance, as changsecondly, it must be clearly shown ing an executor, but confirming the will that the testator adhered to it through in all other respects,) will not have the out in mind and intention, notwith- effect of setting up again a part of the standing the cancellation : (Lord will which a former codicil had reJohn Thynne v. Stanhope, 1 Addams, voked. - (Crosbie v. M.Doual, 4 Ves. 54 :) restricting, however, this latter 616, and see post, p. 379, note.) dictum, to a certain extent, by the The obliteration of part of a will, qualification established in Onions v. operates as a revocation only pro tanto. Tyrer, in cases where a substituted (Larkins v. Larkins, 3 Bos. & Pull. 21; will becomes inoperative.

Short v. Smith, 4 East, 429; Scruby

ham v.


circumstances and situation of the devisor, as arises from marriage and the birth of a child (9) (11).

(9) Christopher v. Christopher, mot, De Grey, and Parker. See pag. Scacch. 6 Jul. 1771; Spragge v. Stone, 502. at the Cockpit, 27 Mar. 1773, by Wil.

and Finch v. Fordham, 1 Addams, 78.) to have this effect, it must be shown But, the obliteration of a codicil may that, the disposition of the property have the effect of cancelling an interli- made by the two wills is inconsistent. neation in a will, if it clearly appear It would be an assumption of what is that the testator, by obliterating the not a necessary consequence, to say codicil, intended to renounceits object, that, by his second will, the testator and not merely the mode of effecting it. must have intended either to confirm, (Utterson v. Utterson, 3 Ves. & Bea. or to revoke, the dispositions con123.) And as a codicil is, prima facie, tained in the first will: there is a third dependent on the will, cancellation of proposition,-he might not have conthe will is, generally, an implied revo- templated to do either, but to make a cation of the codicil : there have, in- mere collateral disposition. (Thomas deed, been cases where a codicil has v. Evans, 2 East, 494.) appeared to be so independent of, and Certainly, where a testator has by unconnected with, the will, that, under a codicil expressly revoked the whole circumstances, the codicil has been es- of a previous devise, and has declared tablished, though the will has been held over again all the trusts, it is in his invalid. Such cases have turned upon new disposition alone that the testaplain intention, repelling the legal pre- mentary title to his property must be sumption, and showing that the testa- sought. There may be strong ground tor designed to leave the codicil opera- for supposing, that it was by a mere tive, notwithstanding the revocation slip he omitted to dispose of part by of the will. (Medlycott v. Assheton, the codicil as he had done by his will; 2 Addams, 231.)

but this omission no court can supply. A second will being no revocation (Holder v. Howell, 8 Ves. 103.) of a former one, further than as it is However, where an instrument reinconsistent therewith, (Harwood v. voking bequests, bears, upon the face Goodright, Cowp. 90; S. C. in Dom. of it, evidence that it was entirely Proc. 7 Br. P.C. 349, fol. ed.,) it will grounded upon misinformation or not be enough to prove that a second mistake, the bequests made by the will was made, without producing it, will remain good. (Campbelly. French, and showing it to be not merely dif- 3 Ves. 323. See 1 Hovenden on Frauds, ferent from, but incompatible with, 296, et seq., where the doctrine of rethe former. Otherwise, the fraudu. vocation is treated more at length.) lent suppression of a second will, (11) Revocations of wills disposing which was intended merely as a con- of lands, may be implied by operation firmation, might be made to ope- of law, notwithstanding the statute of rate as a revocation. (Hitchins v. frauds, and without reference to the Basset, 3 Mod. 208, affirmed in Dom. intent of the testator. (Cave v. HolProc. Show. P. C. 149.) It would ford, 3 Ves. 653; Brydges v. Duchess be an untenable position, to maintain of Chandos, 2 Ves. jun. 430.) Thus, that a devisor, by making a second the least alteration or new modelling will in terms large enough to include of the devised estate, subsequently to all his property, must, necessarily, the will, operates as a revocation. have meant to revoke a former will : (Sparrow v. Hardcastle, 3 Atk. 802 ;

Decisions on the construction of the statute.

In the construction of this last statute, it has been adjudged that the testator's name, written with his own hand,


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Williams v. Owens, 2 Ves. jun. 599.) à security for money, Vawser v. Jef-
And if a devisor, after making his fery, 2 Swanst. 273; Brain v. Brain,
will, puts the whole interest in the 6 Mad. 228,) this will not revoke a
lands devised out of himself, by any previous devise of the estate so con-
conveyance whatever, it is a revoca veyed, further than is necessary for
tion, although he immediately takes that express purpose. (Parsons v.
back the very same estate ; (Parsons Freeman, 3 Atk. 748.) Upon this
v. Freeman, 3 Atk. 747 ; Vawser v. ground, a devise of real estate is not
Jeffery, 2 Swanst. 274. See ante, held to be revoked merely because a
p. 357, note (13) to chapter 21 ;) or, commission of bankruptcy has issued
although without express limitation, against the testator; for, the bank.
it results to him. (Harmood v. Og- rupt laws take the property out of the
lander, 6 Ves. 222 ; Cave v. Holford, bankrupt only for the purpose of
3 Ves. 659. See ante, p. 296, with paying his creditors ; and from the
note (1) to chapter 20.) Upon the moment the debts are paid, the assig-
same principles, a binding contract nees are mere trustees for the bank-
for the sale of lands devised is, in rupt. (Charman v. Charman, 14 Ves.
equity, as much a revocation as a 585.) Thus, also, if a person mort-
conveyance of the lands would be at

gage an estate which he has devised,
law. (Cotter v. Layer, 2 P. Wms. although such mortgage be not merely
624; Attorney General v. Vigor, 8 by lease and release, but by fine, this,
Ves. 289.) The will, it seems, would in equity, will be a revocation only
not be set up again, even by an aban- pro tanto. (Casborne v. Scarfe, 1 Atk.
donment of the contract in the testa- 606; Rider v. Wager, 2 P. Wms.
tor's lifetime. (Bennet v. Earl of 334.) Even a mortgage in fee to the
Tankerville, 19 Ves. 178.)

devisee, does not revoke the devise.
It should be observed, that, if the (Baxter v. Dyer, 5 Ves. 664.) Upon
owner of an unqualified equitable fee similar reasoning, a subsequent lease
devises it by will, and afterwards does not revoke, though it qualifies,
takes a conveyance of the unqualified a previous devise of the property.
legal fee, this is no revocation, be- (Lambe y. Parker, 2 Freem. 284;
cause the conveyance was incident to Doe v. Wegg, 6 T. R. 710.) The
the equitable fee ; just as a partition case would be the same, although
is no revocation, because incident to such lease were made to the devisee
the estate of tenants in common; (see himself ; for the devisor might natu-
ante, p. 185 ;) though, as before ob rally choose to reserve a rent during
served, any qualified conveyance of his lifetime: but this reason would
the legal fee, or the least addition to fail if the lease were made to com-
the mere object of partition, however mence after the testator's death ;-
slight the modification, would operate that would be a revocation of the de-
a revocation. (Ward v. Moore, 4 Mad. vise in toto, for the two dispositions
372; Rose v. Conynghame, 11 Ves. would be altogether inconsistent.
554 ; Knollys v. Alcock, 7 Ves. 564; (Coke v. Bullock, Cro. Jac. 49; Hodg-
Rawlins v. Burgess, 2 Ves. & Bea. kinson v. Wood, Cro. Car. 24.)

A feoffment of lands, previously
If a conveyance be intended only devised, may fail, for want of due
for a particular limited purpose, (sup- livery of seisin ; yet, the intent of the
posing that purpose is merely to give feoffor being apparent, the devise will

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at the beginning of his will, as, “ I, John Mills, do make “this my last will and testament,” is a sufficient signing,


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be revoked. (Ex parte the Earl of N. brought before him by appeal ; (see chester, 7 Ves. 370.) The same rule 3 Brown, 157 ;) Lord Alvanley, howholds as to a bargain and sale, which, ever, remained firm in his opinion ; though not enrolled before the testa. (Harmood v. Oglander, 6 Ves. 215; tor's death, is a revocation. (Sparrow Ex parte the Earl of Ilchester, 7 Ves. v. Hardcastle, 3 Atk. 802 ; Vawser 374 ;) and Lord Eldon appears to v. Jeffery, 2 Swanst. 274.) Even a have inclined in favour of the same grant, which, from the incompetency doctrine. (Attorney General v. Vigor, of the party in whose favour it was 8 Ves. 283.) made, cannot take effect, may ope- Generally speaking, a devise of a rate as a revocation of a previous will, leasehold interest is revoked, if, after disposing of the same subject ; (Beard such devise, the testator surrenders v. Beard, 3 Atk. 72 ;) and if, after a the old lease and takes a renewal ; devise, a man convey his freehold (Marwood v. Turner, 3 P. Wms. 170; estate, by lease and release, to trus- Rudstone v. Anderson, 2 Ves. sen. tees, to the use of himself and his 419; Hone v. Medcraft, 1 Br. 263; heirs until his marriage, and, after his Abney v. Miller, 2 Atk. 597 ;) but marriage, to himself for life, with the the context of the will may, it seems, usual remainders; though the party control this construction : (James v. should die before marriage, this will Dean, 11 Ves. 390, and 15 Ves. 239; amount to a revocation. (Earl of Lin- Carte v. Carte, 3 Atk. 176; S. C. coln's case, 2 Freem. 202, confirmed Ridgw. 222 ; Stirling v. Lidyard, 3 on appeal, in Dom. Proc. Show. P.C. Atk. 199 :) the question in these 154 ; Arthur y. Bockenham, Fitz. cases turns upon the intention of the Gib. 241 ; and see Doe v. Pott, 2 testator, to be collected from the lanDougl. 722 ; Goodtitle v. Otway, 7 guage of his will. (Slatter v. Noton, T.R. 220.)

Manby, A conveyance, or other instrument, 6 Mad. 84 ; S. C. on appeal, 2 Russ. obtained by such fraud and covin as 252.) would render it a nullity even at com- Where a single man, after devising mon law, cannot, of course, revoke a his whole estate, marries, and has will ; (Hicks v. Morse, Ambl. 215;) issue, a revocation of the will has but, in what cases a deed, though been presumed, where the devisor has liable to be impeached in equity, and left his widow and issue unprovided ordered to be delivered up as impro- for; (Kenebel v. Scrafton, 2 East, perly obtained, may, notwithstanding, 542; Wilkinson v. Adam, 1 Ves. & operate a revocation, is, perhaps, Bea. 465; Moore v. Moore, 1 Phil. hardly settled. Where the party exe. lim. 433; Wright v. Surmuda, 2 cuting thought that by such convey- Phillim. 267, n. ;) this presumption, ance his will was revoked, and where however, like all others, may be rea re-conveyance would be necessary butted. (Gibbens v. Cross, 2 Addams, to remedy the fraud, Lord Alvanley 455.) Both the principles and pracwas of opinion that the impeached tice apply equally in favour of a postinstrument, though set aside and made humous child. (Doe v. Lancashire, ineffectual for other purposes, would 5 T. R. 59.) But it rather seems, still be a revocation. (Hawes v. Wyatt, that neither marriage alone, nor the 2 Cox, 268.) Lord Thurlow thought birth of children alone, will, without differently, when the same case was other special circumstances, revoke a

16 Ves. 201 ; Colegrave v.

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