A will, though

rendered inoper

circumstances,

may revoke a former will.

former will of the same lands, it will not have that effect unless it be completed as the statute directs in respect to a will of lands, although it be signed in the presence of three witnesses; because, being intended as a will, and to revoke as such, it cannot revoke but as a will, and by virtue of that mode which in the first part of the 6th clause is pointed out. And indeed, where a testator designs to revoke a former will by an instrument making new dispositions of his property, he discovers only a conditional intention to revoke, or in other words, his intention to revoke is so coupled in appearance with his new testamentary act, that, unless he completes such testamentary act by observing the formalities requisite to its perfection, he is not looked upon in law as manifesting a deliberate purpose of revoking.

But although the doctrine seems now to be settled ative by extrinsic as it was laid down in the case of Limbery v. Mason', viz. that if a testator designs to revoke by a new will, unless the instrument be effectual to operate as a will, it shall not amount to a revocation. Yet the words "shall be effectual to operate as a will" must be taken, as has been before observed, with reference only to those requisites to its validity which have been made necessary to it by the 5th clause of the statute; since if properly executed and attested to pass freehold lands according to the statute, though

с

it should be prevented from operating by the incapacity of the devisee, or any other matter dehors the will, the former will is nevertheless revoked by it (5).

In the case of Onions v. Tyrer, the testator by his second will disposed of the same lands to the same purposes as by the former, though to different trustees; the first will was executed and attested according to the 5th section; the second will, though subscribed by the testator and attested by three witnesses, was not subscribed by those witnesses in the presence of the testator: it was therefore invalid as a will of lands, but was executed agreeably to one of the modes of making a valid revocation prescribed by the 6th section of the statute. In that case the Chancellor observed upon the circumstance of the dispositions in both instruments being the same (6), by which it was demon

с

Roper v. Radcliffe, in dom. Proc. 1 Bro. P. C. 450. Vin. tit. Dev. (R 3) pl. 2. in Notis. di P. Wms. 342.

(5) Vez. jun. 370. per Lord Alvanley, et vid. Montague v. Jefferey's Moor, 4 Roll. Abr. 615. so a will devising lands in fee to the heir at law, though void as to the purposes of a will, yet operates as a revocation if attested according to the statute, per Lord Hardwicke, in Ellis v. Smith, 1 Vez. jun. 17.

(6) See the decree containing the reasons on which it was founded, stated from the register in Mr. Coxe's note to the case.

strated that the testator did not mean to revoke the dispositions of the same lands made by his first will; but his Lordship intimated that his judgment would not have been altered if the same lands had been given to other persons by the second will; taking, as it is presumed, the broad ground, that a will of lands is not to be revoked by a subsequent will, unless such subsequent will is effectual as a will under the statute; and the law seems now to be well settled, that though the dispositions of the second will be ever so inconsistent with those of the first, the first will shall stand unrevoked unless the second be signed by the testator, and also subscribed by three witnesses in his presence. The same consequence still holds though the second will contain an express revoking clause, and is also signed in the presence of three witnesses; for the revocation is then considered as being made in subserviency to the disposing part of the will; which being ineffectual, as not being subscribed by the witnesses in the testator's presence, the accessary must follow the fate of the principal. But where the revoking clause has not this connection with the disposing part of the will, as where the dispositions relate to other lands without affecting the subjects of the first will, or where the second will is only of personal estate, there seems to be no reason why, if it contain an express revoking clause and be signed by the testator in the presence of three witnesses, it should not revoke an antecedent will of lands; and such seems to have

been the opinion of Lord Chancellor Cowper, in the above-mentioned case of Onions v. Tyrer (7).

PART III.

Inconsistent Wills.

IN respect to the operation of a subsequent will of lands, with the ceremonies prescribed by the 5th section, as a revocation of a preceding will, it is material to be observed, that such effect is not produced by the subsequent will, merely as being the last will, unless its dispositions of the property are incapable of standing with those of the preceding will: and where there is any such inconsistency, the revocation produced thereby is confined in its extent to the subjects of the inconsistent dispositions. This seems to be well established in Hitchins v. Bassett, where the case upon the special verdict was as follows:-Sir Henry Killigrew was seised in fee

a 1 Show. 265. 2 Salk. 591.

(7) See the same doctrine and reasonings applied to the question of revocation upon the statute of 12 Car. 2. c. 24. 7 Vez. jun. 348. ex parte Ilchester.

of the lands in question, and on the 12th of November, 1644, made his will in writing, whereby, (amongst other hereditaments) he devised the premises to Mrs. Jane Berkely (his near kinswoman) for life, with remainder over to Henry Killigrew (testator's natural son) in tail, and made the said Mrs. Berkely sole executrix. They further found that afterwards, in 1645, the testator made another will in writing, but what was contained in the last mentioned will, or what was its purport and effect the jurors were ignorant. The argument for the heir at law, and in support of the last will as a total revocation of the first, rested mainly upon the construction of the maxim-that a man could not die with two wills; which the counsel on that side interpreted to mean, that if a man after having made a will of lands, makes and executes another will, calling it his last will and testament, and giving it the form and language of a substantive independent will, it must necessarily be a total revocation of the preceding will. It was admitted that a man might make several wills of particular subjects, but then they ought to be confined in expression to those particular subjects, for however different the subjects, yet if the subsequent will was published generally as a man's last will and testament, it must be held to be a revocation of the former will. It was also true that a testator might make as many codicils as he pleased, but there was a wide difference between wills and codicils, a codicil being an accessary to a will and not destructive, but con