the Statute.

72. A will made in a foreign country, of lands in Wills made England, must be executed in the same manner, and abroad within attested by the same number of witnesses, as if made in England.

to

Coppin v.
Coppin, 2 P.
Wms. 293.

The Execu

tion of a

Will may be

Chancery.
Colton v.

3 P. Wms.

192.

73. It has been a common practice for a long time, where a title depends upon a will, to prove the execution of it per testes in Chancery. But Lord proved in King has said that this is not absolutely necessary, make out the title, any more than it would be to Wilson, prove the execution of a deed in equity, by which the estate was settled from the heir at law, after the ancestor's death. The will prevents and breaks the descent to the heir, as much as a deed; and the hands of the witnesses to the will may be as well proved, as those to a deed. Now, as it would be no objection to a title, if a modern deed, on which the title depended, was not proved in equity; why should it be so in the case of a will, where the same appears to be duly attested by three witnesses, whose names are mentioned to have been subscribed in the Fearne's presence of the testator.

Opin. 234.

TITLE XXXVIII.

DEVISE.

CHAP. VI.

Of the Revocation of Devises.

SECTION 1.

All Devises ALTHOUGH a devise of lands differs in many respects from a testament of personal estate, yet

are revocable.

there are some circumstances common to both; one

of which is, that a devise is revocable at any time during the life of the devisor; so that although a

person should declare his will to be irrevocable in the Bac. Max.19. strongest terms, yet he may revoke it; because his 8 Rep. 82 a. own acts or words cannot alter the disposition of the law, so as to make that irrevocable, which in its own

nature is revocable.

Revocations.

2. Devises of lands made in pursuance of the of express particular customs of boroughs, or by virtue of the statutes of wills, might have been revoked by words only, without writing; the statutes of wills giving power to any person seised in fee of lands, to devise them by writing; but being silent as to revocations. This was remedied by the sixth section of the statute of frauds, by which it is enacted, "That no devise in writing of any lands, tenements, or hereditaments, or any clause thereof, shall be revocable, otherwise than by some other will, or codicil, in writing, or other writing declaring the same; or by burning, cancelling, tearing, or obliterating the same, by the testator himself, or in his presence, or by his directions and consent. But all devises and bequests of lands and tenements shall remain and continue in force, until the same be burnt, cancelled, torn, or obliterated, by the testator, or by his directions, in manner aforesaid; or unless the same be altered by some other will, or codicil, in writing; or other writing of the devisor, signed in the presence of three or four witnesses, declaring the same.”

3. Under this statute there are three express modes of revoking a will: 1°. By a subsequent will, or codicil duly attested according to the statute. 2. By an express declaration in writing, that the testator means to revoke his will; and, 3°. By burning, cancelling, tearing, or obliterating it.

A subsequent

Will revok

4. A subsequent will operates as a revocation of a ing or incon- former one, in all cases where it contains an express sistent with clause revoking all former wills, or where it makes a different and incompatible disposition of the lands devised by the former one.

a former one.

1 Roll. Ab. 614.

Roper v. Rat

5. The intention of a testator to revoke a will, is the circumstance which constitutes the revocation; and when that appears in a subsequent will, it is sufficient; though such subsequent will should not take effect, from any disability in the devisee.

6. Thus where a person devised lands to A. B., and afterwards devised the same lands to the poor of the parish of C., which was void; they not having the capacity to take; yet it was held to be a revocation. So a devise to a corporation, though void, was held to be a revocation of a former devise.

7. In a subsequent case it was held, that a devise cliffe, 10 Mod. to a Roman catholic, who was at that time incapable of taking by devise, should notwithstanding operate as a revocation of a former will.

233.

Otherwise both Wills are good. Just. Inst. lib. 2. tit. 17. § 2.

8. By the Roman law a subsequent will operated in all cases as a revocation of a former one. Posteriori quoque testamento, quod jure perfectum est, superius rumpitur. The reason of this rule was, because the essence of a Roman testament consisted in the institution of an heir, who took the whole property of the testator; so that two wills could never subsist at the same time, as there could not be two distinct. ViniusComm. owners of the same thing. Quicunque testamentum facit,

censetur de omnibus bonis disponere, ut non magis duo testamenta simul consistere possint, quam duo domini ejusdem rei in solidum constitui. But although the law of England has adopted the principles of the Roman law, respecting wills of personal property`; vet Lord Mansfield has said, that a devise of lands is

90.

looked upon in a very different light, being considered Cowp. Rep. as an appointment of lands to a particular person; from which it followed, that a man might as well dispose of part of his lands, by his will, as of the

whole.

9. In consequence of this principle it has been determined, that where a second will has not a clause of revocation of all former wills, and does not make any disposition inconsistent with a former will, it does not operate as a revocation of such former will, but both are good.

Marshall,

Cro. Eliz.721.

10. A person devised lands to his younger son and Coward v. his heirs. He afterwards married, and by another will in writing, devised the same lands to his wife for life, paying yearly to his younger son and his heirs a certain rent. Anderson and Glanville held it to be no revocation, but that both wills might stand together, the latter not being contrary to the former; and there being no express revocation. The intention of the testator being only to provide for his wife, and not to alter the devise to his son; for the giving him a rent, showed he intended that he should take the reversion.

11. Where a jury found that a testator had made a second will, the contents of which were unknown; such second will was held not to operate as a revocation of the first; because it did not appear, either that it contained a clause revoking the first will, or that it made a different disposition of the same lands.

Hungerford
Nosworthy,
Hitchins v.

Hard. 374.

12. In ejectment the jury found a special verdict, that Sir H. Killigrew being seised in fee, made his will in writing, and afterwards made another will in writing; but as to the contents thereof, they were entirely ignorant; and the Court of King's Bench Salk. 592.

Bassett,
3 Mod. 203.