Two inconsistent wills of are both void. Phipps v. 7 Bro. Parl. Judges, that the said devise was not revoked. It was therefore ordered and adjudged, that the judgment given in the Court of King's Bench, reversing the judgment given in the Court of Common Pleas, should be affirmed. 15. It has been held by all the judges in the House the same date of Lords, that two inconsistent wills, of the same date, neither of which could be proved to be last executed, were by the common law of England void for uncertainty, so far as they were inconsistent; and would let in the heir, if no act of the testator, subsequent to the publication of the wills, explained them; so as to reconcile what otherwise would appear inconsistent. A second unattested will re Ante, c. 5. § 56. 16. It has been already stated, that where a will, duly vokes legacies. attested, charges the real estates of the testator with the payment of debts and legacies, a subsequent unattested will or codicil, giving legacies, will be sufficient to pass such legacies. It has been determined upon the same principle, that in a case of this kind a second unattested will or codicil shall be sufficient to revoke legacies given by the first will. Brudenell v. $57. MS. Rep. Infra. 17. Thus in a case which has been already stated, one of the questions was, whether the charge laid on the land by the first will, and the legacies thereby given, were revoked by the second will. Lord Hardwicke." By the statute of frauds, no land can pass by will, unless the will be executed according to the provisions of that statute. The same of money charged originally upon land, because it is considered in this Court as part of the land, and can only be raised by sale or disposition of the land. It is like a devise of the profits of land, which is a devise of the land itself; and if so, the rule of revocation must be the same, in case of such charges, as in revocations of lands themselves, devised by will. But still there are several revocations not within the statute; virtual revocations, as by parting with or extinguishing the thing given by the will; and wherever that is done by the testator, the devise falls to the ground. These are out of the statute, and remain as they were at law. Selling the land by the testator, is a revocation; or making any other conveyance inconsistent with the disposition made by the will. Suppose the testator charges his land with a debt, or with a portion of 2007. for his daughter, who marries in his lifetime, and he gives her the 2001. upon her marriage; this is a revocation of the charge, though not by such instrument executed according to the form prescribed by the statute. In our case the words of the will do indeed create a charge upon the land; but that is only upon failure of the personal' estate, for the legacies were originally charged upon that, and the land is but a security; and whatever takes away the thing secured, must necessarily free the security. It was insisted, indeed, that the real estate was charged originally by the testator with the ment of his debts and legacies; but plainly it is not, and was designed only for a subsidiary fund to the personal estate; so that if the legacies be revoked, the land is discharged. And the case of Hyde v. Hyde is Infra, § 26. an authority in point, that where there are two wills, though the latter be not a sufficient revocation of the first, as to the lands within the statute of frauds; yet the legacies in the former, which are revoked by the latter, are extinct; and consequently the charge upon the land likewise. And I should have been of this opinion, even if the case of Hyde v. Hyde had never happened." pay 18. The second mode of revoking a will is by a 11. A codicil. codicil duly executed according to the statute of frauds, which has the same effect, in revoking a devise, as a subsequent will, where it contains express words of revocation, or makes a different disposition from that contained in the will. And it has been stated that a codicil, though not executed according to the statute Ante, § 16. of frauds, may operate as a revocation of legacies. 19. The third mode of revoking a will is by a writing III. A written Egglestone v. Speake, 1 Show. 89. 3 Mod. 258. Onions v. 2 Vern. 741. declaring an intention of revoking such will, signed in the presence of three witnesses. And it is observable that the statute of frauds (§ 5.) requires that, in devises of lands, the three witnesses should subscribe the will in the presence of the testator. But the clause relating to revocations (§ 6.) only requires that the devisor should sign in the presence of three witnesses, without requiring that the witnesses should subscribe in the testator's presence. Upon the construction of this clause, it has been held, that although a will may be revoked by a written declaration, without being attested by three witnesses subscribing the will in the testator's presence; yet that a second will, though containing a clause revoking all former wills, shall not operate as a revocation of the first will, unless it is executed in such a manner as to operate as a devise. 20. J. S. by a will executed according to the statute, devised the lands in question to A. Afterwards the testator published another writing as his last will, in the presence of three witnesses, revoking all former wills; but the witnesses to the second will did not subscribe their names in the presence of the testator. The second will, not being valid as a devise of lands, the question was, whether it was good as a writing, within the statute of frauds, to revoke the first will. And the Court resolved, that it was not. 21. A person, by a will duly attested, devised lands to trustees, to several uses. He afterwards made another will of the same lands, devising them to other trustees, but to the same uses; and there was a clause in this last will, revoking all former wills; but although it was subscribed by the testator, and attested by three witnesses, yet the witnesses did not subscribe their names in the presence of the testator; upon which the testator's heir claimed the lands. And the question was, whether the last will, being void as a devise of the lands, should yet be a good revocation of the former will. Lord Cowper declared, that if the testator had by his second will barely revoked the first, without declaring by the same act his intention to dispose of his lands to the same purposes to which they were devised by the former will, the second will had been a good revocation of the former, as to the lands devised; but here was a disposition of the same lands, in the second will, to the same purposes as in the first will; which showed he did dot mean to revoke his first will, as to the devise of those lands, unless he might by the second will (at the same time that he revoked the former) set up the like devise, so as to take effect by virtue of his second will; and that his second will never being so perfected as to make the devise of the lands therein to be good, the same devise stood unrevoked by the former will. And that upon the like reason the courts of law had determined with great justice in the cases cited. And it was plain the testator did not mean to revoke his Infra. former will by cancelling; but by substituting another perfect will in lieu thereof. 22. In the case of Ellis v. Smith, one of the ques- Ante, c. 5. tions was, whether the will, not being signed by the testator in the presence of the witnesses, but only acknowledged, was a good revocation under the sixth section of the statute. Lord Ch. B. Parker thought it was, and that a revocation might be by any will exe- 1 Ves. Jun. 12. cuted according to the fifth section of the statute. For the words "signed in the presence of three witnesses, &c." related only to the preceding words—" any other writing." The clause was to be construed in the disjunctive; viz. either by will, codicil, &c., or by writing signed before three witnesses. And the other judges were of the same opinion. 23. A declaration by a devisor that he has revoked a particular devise in his will, though reduced into writing, and attested by three witnesses, will not operate as a revocation, unless it be signed by the testätór. Hilton v. King, 3 Lev. 86. IV. Cancelling. 24. A person devised certain estates to his daughters, D. and S. Afterwards the testator, having an intention to revoke the will as to D., directed the following words to be written on his will:-" We whose names are underwritten do testify, that the abovenamed A. (the testator) did, the day of the date hereof, publish and declare that the several clauses and devises in his will any way relating to his daughter D. should cease and be void; she being since married, and her portion paid. In witness whereof, we have hereunto set our hands. &c." And the same was subscribed by four witnesses, in the presence of the testator; but he did not sign the same, nor any other person by his direction. Adjudged, that this was not a revocation. 25. The fourth mode of revoking a will is by cancelling, that is by obliterating or defacing the signature of the testator; or by burning, tearing, or otherwise Cowp. R. 52. destroying it. But Lord Mansfield has observed, that cancelling is in itself an equivocal act; and in order to make it a revocation, it must be shown quo animo it was cancelled; for unless that appears, it will be no revocation. As if a man were to throw ink upon his will instead of sand, though it might be a complete defacing of the instrument, it would be no cancelling: or suppose a man having two wills of different dates by him, should direct the former to be cancelled, and through mistake the person should cancel the latter, such an act would be no revocation of the will: or supposing a man having a will consisting of two parts, throws one unintentionally into the fire, where it is burnt, it would be no revocation of the devises contained in such part. It is the intention, therefore, that must govern in such cases. Hyde v. Hyde, 1 Ab. Eq. 409. 26. A person made a will, and intending to make some alterations in it, sent for a scrivener, and gave directions for another will. The scrivener accordingly drew a draft of another will, which the testator signed; and then, thinking he had made a new will, he pulled |