wards surrendered the same to the use of his will; all which stamp duties, fees, fine, or sums of money due as aforesaid, shall be paid in addition to the stamp duties, fees, fine, or sums of money due or payable on the admittance of such persons so entitled or claiming to be entitled to the same real estate as aforesaid:" (sect. 4.)

Wills or extracts of wills of customary freeholds and copyholds to be entered on the court rolls.]—And it is also further enacted, "that when any real estate of the nature of customary freehold or tenant right, or customary or copyhold, shall be disposed of by will, the lord of the manor or reputed manor of which such real estate is holden, or his steward, or the deputy of such steward, shall cause the will by which such disposition shall be made, or so much thereof as shall contain the disposition of such real estate, to be entered on the court rolls of such manor or reputed manor; and when any trusts are declared by the will of such real estate, it shall not be necessary to enter the declaration of such trusts, but it shall be sufficient to state in the entry on the court rolls that such real estate is subject to the trusts declared by such will; and when any such real estate could not have been disposed of by will if this act had not been made, the same fine, heriot, dues, duties and services shall be paid and rendered by the devisee as would have been due from the customary heir in case of the descent of the same real estate, and the lord shall, as against the devisee of such real estate, have the same remedy for recovering and enforcing such fine, heriot, dues, duties and services, as he is now entitled to for recovering and enforcing the same from and against the customary heir in case of a descent:" (sect. 5.)

CHAPTER XIV.

OF THE REVOCATION OF WILLS.

I. PRELIMINARY REMARKS.

II. OF THE REVOCATION OF WILLS BY SUBSEQUENT WILL OR CODICIL.

III. BY DESTRUCTION OF THE INSTRUMENT.

IV. ALTERATIONS, ERASURES, OBLITERATIONS, AND INTERLINEA

TIONS.

V. SUBSEQUENT DISPOSITION OF THE DEVISED PROPERTY.

VI. REVOCATION OF WILL BY ALTERATION OF THE CIRCUMSTANCES OF THE TESTATOR'S FAMILY.

I. PRELIMINARY REMARKS.

How a will may be revoked.]-The liability to revocation forms one of the inseparable properties of a will, which no terms or expressions it may contain can either restrain or mollify. A revocation may be either express or implied. An express revocation, is where a will is revoked either by another will, or codicil, or other writing declaring that intent, or by the destruction of the instrument itself. An implied revocation, is where the operation of the instrument is defeated by some act of the testator inconsistent with, or contrary to, its dispositions, from which it must necessarily be inferred that he does not intend it shall continue in force; as, where a man, after making his will, and thereby devising his lands, conveys away the same lands to a third party so as to leave nothing in his possession upon which the will can operate, or such a total alteration takes place in his family circumstances, as to lead to the necessary inference that he no longer intended the dispositions contained in his will

made previously to the happening of those events should still remain in force.

Operation of the Statute of Frauds as to the revocation of wills.]-Previously to the Statute of Frauds (29 Car. 2, c. 3), a will might have been revoked by mere word of mouth (Cranwell v. Sanders, Cro. Jac. 497); but by the 6th section of that statute it was enacted, "that no devise in writing of any lands, tenements, or hereditaments, nor 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 direction and consent; but all devises of lands and tenements shall remain and continue in force until the same shall 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, or other writing of the devisor, signed in the presence of three or more witnesses declaring the same." With respect to wills of personal estate, the same statute provides, "that no will concerning any goods or chattels or personal estate shall be repealed, nor any clause, devise, or bequest therein be altered or changed by any words, or will by word of mouth only, except the same shall be in the life of the testator committed to writing, and after the same writing thereof read to the testator and allowed by him, and proved to be so done by three witnesses at the least."

Alterations effected by Wills Act, 1 Vict. c. 26.]-Since the Wills Act, 1 Vict. c. 26, has come into operation, an instrument, although its sole object is to revoke an existing will, must be executed with precisely the same formalities as the will itself, otherwise it can have no operation whatever; a rule of law which now extends as well to bequests of personal property as to devises of real estate; for, by the 20th section of the act, "no will or codicil or any part thereof shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner herein before required, or by some writing declaring an intention to revoke, and executed in the same manner in which a will is hereinbefore required to be executed, or by burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same."

II. OF THE REVOCATION OF WILLS BY SUBSEQUENT WILL OF CODICIL.

Of revocation by subsequent will.]-The act of Victoria does not seem to make any alteration whatever in the law with respect to the operation of a subsequent will. In this respect therefore the law remains unaltered by that act. In order, however, that a subsequent will may revoke a prior one, it is essential that there should be an inconsistency between the dispositions contained in the two instruments, or else the latter instrument must revoke the prior one in express terms; consequently, if a man makes first one will and then another, and the latter contains no express clause of revocation, it will only have the effect of revoking the former one, so far as the dispositions in the two instruments are inconsistent with each other: (Seymour v. Nosworthy, Show. Parl. Cas. 146.) But if the second will contains a clause of revocation, then it will revoke a prior will, whether the dispositions in the two instruments be inconsistent with each other or not: (Burtonshaw v. Gilbert, Cow. 49, 55.)

Will declaratory of a future intent will be insufficient to revoke a prior disposition.]—A declaration by a testator that he intends to make a future disposition of his property will not of itself be sufficient to revoke a prior testamentary disposition of this property. To have this effect, a disposition must be actually made, or the will itself must be revoked in express terms. From a very early time indeed a distinction appears to have been taken as to whether the intention to revoke was present or future: (Burton v. Goswell, Cro. Eliz. 306.) And since the passing of the Statute of Frauds it has been held that what would not have been a revocation before the statute, will not be so since, though reduced into writing with all the formalities required by that statute: (Griffin v. Griffin, 4 Ves. 197, n.)

Whether destruction of a subsequent will sets up a prior will which the latter had revoked.]—Previously to the act 1 Vict. c. 26, if a prior will had been revoked by a subsequent one, and the latter had contained no clause of revocation, and had afterwards been destroyed by the testator, the prior will would have been thereby revived: (Harmood v. Goodright, Cow. 92.) But it seems that this doctrine was only applicable to wills of real estate; for the ecclesiastical courts required some stronger circumstances than the mere destruction of a subsequent will to set up a prior one; and

in order that a prior will, revoked by one subsequently made, might have been revived by the destruction of the latter instrument, it was necessary that, in addition to the latter circumstance, there should be some act of republication, or some revival by necessary implication, or something plainly to indicate that intention; and this might have been proved, either by declarations of the testator or other parol evidence which was admissible in those courts (although the rule was otherwise with respect to devises of real estate in courts of common law), or by the nature and contents of the instruments themselves: (Lady Kircudbright v. Lord Kircudbright, 1 Hag. 326.) All questions on this subject are now however set at rest by the Wills Act, 1 Vict. c. 26, with respect to all wills coming within the operation of that statute, viz. all wills made after the commencement of the year 1838, for it is thereby enacted, "that no will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner herein before required, and showing an intention to revive the same; and when any will or codicil shall be partly revoked, and afterwards wholly revoked, shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless a contrary intention shall be shown:" (sect. 22.)

Of revocation by codicil.]—A codicil, as we have previously remarked, ante, p. 930, only revokes a will so far as there is an inconsistency in the dispositions contained in the two instruments, leaving every other disposition in the will untouched. Hence, where a testator by will devised lands to A., subject to a rentcharge to B., and afterwards, by a codicil, revoked the devise of the land to A. and gave it to another, without noticing the rentcharge, the latter was still held to be a charge upon the devised lands in the hands of the substituted devisee: (Becket v. Harden, 4 Man. & Selw. 1.) So, where a testator, by his will, devised lands to A. in fee, and afterwards, by a codicil, devised the same lands in fee to the first son of B., who should attain the age of twenty-one years and assume the testator's name, it was held that the devise in the will was only revoked quoad the interest comprised in the executory devise in the codicil; and that, consequently, until B. had a son who should attain his majority and assume the testator's name, the property would pass to A. under the devise in the will: (Duffield v. Duffield, 3 Bligh, N. S. 261.) In another case also, a tes