Doe v. Danvers, marks to entertain a doubt upon the subject. He was clear therefore that the will passed the copyhold. 7 East, 299. 2 P. Wms. 261. Tuffnel v. Page, 2 Atk. 37. Goodwin v. Kilshaw, Amb. 684. Hussey v. Amb. 299. Ante, c. 4. Or of terms for years. 68. Mr. Peere Williams states it to have been laid down by Sir Joseph Jekyll, that if a copyholder be entitled only to the trust, or equity of redemption of a copyhold, and devises such trust or equity of redemption, there must be three witnesses to the will; for here can be no precedent surrender to the use of the will, to pass this trust; and the trust and equity of redemption of all lands of inheritance are within the statute of frauds; otherwise great inconveniences would arise therefrom. But in a subsequent case, Lord Hardwicke was of opinion that the trust of a copyhold would pass by a will not attested according to the statute of frauds; as a copyhold surrendered to the use of a will would do; for that equity ought to follow the law, and make it at least as easy to convey a trust, as a legal estate. 69. If the surrender of a copyhold to the uses of a will, requires that the will should be attested by three witnesses, a devise of such copyhold must be so attested; otherwise, it will be void. 70. A devise of customary freeholds, where there is no custom to surrender them to the use of a will, must be executed according to the statute of frauds; and a trust estate in them must be devised in the same manner. 71. Where a copyhold estate is disposed of by will without a surrender to the use of the will, as may now be done under the statute 55 Geo. III. c. 192., it seems doubtful whether such will must be attested according to the statute of frauds, or not. 72. As terms for years already created were disposable by testament before the statutes of wills, they are not comprehended within the statute of frauds, and may therefore be disposed of by any kind of will or testamentary disposition; but it has been already observed, that a term for years in lands cannot be created by a will which is not executed according to the statute of frauds. 73. All wills relating to terms for years must be proved in the ecclesiastical courts having jurisdiction over the place where the lands lie; for otherwise they will have no effect, as to the terms. attendant on the inheritance. Tit. 12. c. 3. § 28. Whitchurch, 74. If however a term of years becomes attendant Except terms on the inheritance, it is then considered as part of the inheritance, not a chattel real, and can only be disposed of by such a will as would pass the inheritance. 75. Thus where Ed. Whitchurch, having purchased Whirchurch v. a term in the name of a trustee, and the inheritance in 2P.Wms. 236. his own name, by a will not executed according to the statute of frauds, devised the premises to the son of a younger brother; the heir at law of the testator brought her bill in Chancery, in order to compel the executor and devisee to assign over the term to her. It was objected for the defendants, that the executor had assented to the devise; and that the will, though not attested by three witnesses, was good at law to pass the term. But decreed, that as this was a term which would have attended the inheritance, and in equity have gone to the heir, and not to the executor; in which respect it was to be considered as part of the inheritance; so the will, which was not attested by three witnesses, as the law required it to be when land was to pass, should not carry this term. Though it was true, such a will as in the present case would be sufficient to pass a term in 2 Atk. 72. gross, yet should it not pass the trust of a term attendant on the inheritance, nor consequently the term itself. abroad within 76. A will made in a foreign country, of lands situate Wills made in England, must be executed in the same manner, and attested by the same number of witnesses as a devise of lands made in England. 77. 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 King has said that this is not absolutely necessary, to make out the statute. Coppin v. Coppin, 3 P. Wms. 293. A devise of proved in Chancery. lands may be Colton v. Wilson, 3 P. Wms. 192. Fearne's the title, any more than it would be to 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 presence of the testator? All devises revocable. ALTHOUGH a devise of lands differs in many respects from a testament or will of personal estate; yet 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 strongest terms, yet he may revoke it; because his own acts or words cannot alter the disposition of the law, so as to make Bacon's Max. that irrevocable which, in its own nature, is revo- 8 Rep. 82. a. cable. 19. cations. 2. Devises of lands made under the particular cus- Express revo- ! toms 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 29 Car. 2. c. 3. was 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, and 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." to the statute. 3. Under this statute there are four express modes of revoking a will. 1. By a subsequent will. 11. By a codicil, both of which must be duly attested according III. By an express declaration, in writing, that the testator means to revoke his will. v. By burning, cancelling, tearing, or obliterating the will. 4. A subsequent will operates as a revocation of a former one, in all cases where it contains an express clause revoking all former wills; or where it makes a 1 Roll. Ab. 614. Roper v. different and incompatible disposition of the ands devised by the former one. 5. The intention of a testator to revoke his 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 to a 10 Mod. 233. Roman catholic, who was at that time incapable of taking by devise, should notwithstanding operate as a revocation of a former will. Otherwise both Just. Inst. lib. 2. Vinius Cowp. R. 90. same. 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 owners of the 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, yet Lord Mansfield has said that a devise of lands is looked upon in a very different light, being considered as an appointment of lands to a particular person; from which it followed that a person might as well dispose of part of his lands by 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 |