Revocation of Wills by subsequent Will. tent with each other. Cowp. 90. Harwood v. Goodright. As where a man devised to his youngest son and his heirs, and afterwards married, and devised the same land to his wife for life, paying annually to his youngest son and his heirs a certain rent; the second will was holden to be no revocation, but both might stand, although they were by several writings, unless the subsequent will were manifestly contrary to the first, or there were an express revocation therein; but they ought to stand together if they might, as if made by and in one and the same writing. And his intention appeared that he did not mean to alter it as to his son, but only to provide for his wife; and by appointing the rent to his son it appeared that his intent was that the reversion should be to his son. Coward v. Marshal. Cro. Eliz. 721. This case is recognized by Lord Hardwicke, in Willet v. Sandford, 1 Ves. 187. And upon the same principle it has been decided that a subsequent will is no revocation unless the contents of it are known; and it is not to be presumed from the mere circumstance of another will having been made, that it revoked the former. As where it was found by a special verdict that the testator, after the making of a former will, made another will in writing, but what the contents and purport of it were the jury did not know. The second will was holden not to be a revocation of the first, for the other will might concern other lands, or no lands at all, or be a confirmation of the former. Hitchins v. Basset, 1 Show, 537. 3 Mod. 203. 2 Salk. 592. And this judgment was affirmed in the House of Lords. Show. Cas. Parl. 146. Hence it seems to follow, that what Lord Hale is said to have laid down in a former case upon the same will (Seymour v. Nosworthy, Hardr. 376), namely, "that a second substantive inde"pendent will, though it does not by express words import a revo"cation of a former will, or pass any laud, amounts in law to a revocation," is either not correctly reported, or if it be, is overruled by the subsequent case of Hitchins v. Basset, 3 Wils. 512, per Blackstone, J. So in a more modern case it was found by a special verdict that the testator did make and duly publish another will in writing, in the presence of three subscribing witnesses, who duly attested the same; that the disposition made by the testator by the second will was different from the disposition in the former will, but in what particulars was unknown to the jury: but they did not find that the testator cancelled the second will, or that the devisee under the first will destroyed the same; but what was become of the second will the jury could not tell: It was adjudged in the K. B. on Revocation of Wills by subsequent Will. error, that the second will was no revocation of the first; and the judgment of the Court of C. B. to the contrary was reversed; Harwood v. Good right, Cowp. 87. 3 Wils. 497. 2 Black. 937; and the judgment of the K. B. was affirmed in the House of Lords. 7 Bro. P. C. 344 (a). It has been holden that the words, in the 6th clause of the Statute of Frauds, "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," are to be construed in the disjunctive; namely, that a (a) See, also, 11 C. B. N. S. 357. Dickenson v. Stidolph. However, in Plenty v. West, 1 Robert. 264, where a testator, by a paper purporting to be his "last will," disposed of a part only of his personal estate, and appointed executors, and did not expressly revoke a former testamentary paper, it was held by Sir H. J. Fust, that the earlier paper was nevertheless revoked by the later, notwithstanding the two were not wholly inconsistent. And it was said by that learned judge that he knew of no case where the testator called a will his "last will," in which the court had held former papers to be included. And this decision was recognized and acted on, after much consideration, by former will can only be revoked either by another will or codicil, or by some other distinct writing, not being a will or codicil, merely revoking the former will signed in the presence of three or four witnesses. For the words "signed "in the presence of three or four witnesses," are in construction adjudged to refer only to the preceding words "other writing," and not to the words "other will "or codicil in writing." For the statute having in the preceding section (5th) directed what was necessary to be done in order to make a good and valid will or codicil of land, uses only the words "some other will or codicil Sir J. Dodson, in Cutto v. Gilbert, 18 Jurist, 560. But the latter. case was reversed in the Privy Council, 9 Moo. P. C. 131. And the decision in Plenty v. West, was also disapproved of by the Lords Justices in Freemanv. Freeman, 5 De G. M. & G. 704. And in Lemage v. Goodban, 1 Law Rep. P. & D. 57, Sir J. P. Wilde regarded the case as overruled. See also the cases cited in 1 Wms. Exors. 156, 6th edition. Where there were two inconsistent wills, and a codicil referring to the first by date as the last will, it was held that such codicil cancelled the intermediate will, and that evidence of mistake was inadmissible. 4 Ves. 616. Crosbie v. M'Doual. Revocation of Wills. "in writing," which is as much as if it had said, by some other will or codicil made according to the requisites of the preceding section respecting the devise of land. And then the meaning of that part of the 6th clause seems to be, that if the testator intends barely to revoke his will without more, he may do so by writing signed in the presence of three witnesses, but who need not subscribe their names in his presence (b): but if the revocation arises from another will or codicil inconsistent with the first, such will or codicil must be executed according to the solemnities of the fifth section of the statute respecting devises of land, which requires that the witnesses should subscribe their names in the presence of the testator; or in other words, it must be an effective will or codicil within that section, otherwise it is insufficient to revoke the former will, although it contains express words of revocation, and is as if no second will existed. For it seems ridiculous to say that wills of revocation shall be executed in one way, and wills of devising in another. Hoil v. Clark, 3 Mod. 218. Grayson v. Atkinson, 2 Ves. 458. Ellis v. Smith, 1 (b) It seems not to be necessary that the witnesses should subscribe their names at all. Vin. Abr. Devise (R.) 4. Phillips on Evidence, vol. ii. p. 254. [By the Ves. jun. 11. Onyons v. It has been adjudged that a devise of lands void in respect of the incapacity of the devisee to take, as a devise to a Papist, who, by statute 11 & 12 W. 3, c. 4, s. 4, and before statute 18 Geo. 3, c. 60, could not take by devise, shall nevertheless revoke a former devise. Rooper v. Radcliffe, 1 Bro. P. C. 450. 10 Mod. 237. 2 P. Will. 4. So a subsequent grant to a person incapable of taking has been holden a revocation of a former devise. As where a husband had devised all his estate real and personal to his brother, and afterwards by a deed poll new Statute of Wills, the writing must be executed in the same manner in which a will is required to be executed. See post, p. 422, n. (d).] Revocation of Wills—Attestation of Wills. granted to his wife all his substance which he then had or might have, though this could not by law take effect as a grant to the wife, yet, being an act inconsistent with the will, it was adjudged to be a revocation of it. Beard v. Beard, 3 Atk. 72 (c). It has been decided that an acknowledgment by the testator before the three witnesses that his name in the will is of his (c) [See ante, p. 420, n. (a).] (d) [It was further held, that it was sufficient if the testator acknowledged in fact, though not in words, to the witnesses that the instrument was his will, even though such acknowledgment conveyed no intimation whatever, or means of knowledge, either of the nature of the instrument or the object of signing; and, consequently, that if the witnesses subscribed their names as witnesses, at the testator's request, without seeing his signature, or being informed of the nature of the instrument, the statute was satisfied. 6 Bing. 310. White v. Trustees of the British Museum. 7 Bing. 457. Wright v. Wright. 1 Cr. & M. 140. Johnson v. Johnson. The new statute (1 Vict. c. 26, s. 9.) enacts, that no will (or testament or codicil, or any other testamentary instrument) shall be valid unless the signature shall be "made or acknowledged by "the testator in the presence of handwriting, is a sufficient signing as well upon the 5th clause relating to the devise of lands, as upon the 6th respecting revocations, although the words "signed "in the presence of three wit"nesses are expressly mentioned in the 6th clause touching revocations (d). And it has been even holden that the three witnesses may subscribe their names separately at three different times; "two or more witnesses present "at the same time; and such "witnesses shall attest and shall subscribe the will in the presence "of the testator, but no form of attestation shall be necessary.” Where the testator produces the will, with his signature visibly apparent on the face of it, to the witnesses, and requests them to subscribe it, this is held a sufficient acknowledgment of his signature within this section. 3 Curt. 451. Gaze v. Gaze. 1bid. 547. Blake v. Knight. Ibid. 611. Keigwin v. Keigwin. Ibid. 756. In the goods of Ashmore. But not where they are unable to see the signature, and the testator merely calls them to sign, without giving them any explanation of the instrument they are signing. 3 Curt. 160. Ilott v. Genge (affirmed in Privy Council, 4 Moo. P. C. C. 265). 1 Roberts, 14. Hudson v. Parker. See also Doe v. Jackson, cited per curiam, in 3 Curt. 181, 182, 184. S. C. Nomine Faulds v. Revocation of Wills—Attestation of Wills. and if the testator acknowledges his name to be his handwriting before each, or signs before one and acknowledges before the rest, it is a sufficient signing upon both clauses. Lemayne v. Stanley, 3 Lev. 1. Skin. 227. Cooke v. Parsons, Prec. in Chan. 184. Peate v. Jackson, before the Privy Council. 6 Notes of Cases, suppl. p. 1. 3 Notes of Cases, 275. In the goods of Trinder. See further 3 Sw. & Tr. 90. In the goods of Hammond.] (e) [The new statute (see ante, p. 422, n. (d)) makes it necessary that both the witnesses shall be present at the same time when the signature is made or acknowledged by the testator. And they must attest it in the presence of the testator, though not of each other. 3 Curt. 659, per Sir H. Jenner Fust. And so held in the Privy Council. 6 Notes of Cases, suppl. p. 1. Faulds v. Jackson. Dea. & Sw. 1. In the goods of Webb. See contra, 5 M. P. C. C. 130. Casement v. Fulton (which appears bad law). But it has been held by the same learned judge that the Act is not complied with, unless both witnesses shall attest and subscribe after the testator's signature shall have been made or acknowledged to them when both are actually present at the same time. 3 Curt. 243. Moore v. King. lbid. 648. Cooper v. Bockett. 2 Curt. 331. Ougly, Com. Rep. 197. Dormer v. Thurland, 2 P. Will. 510, per Lord King. Stonehouse v. Evelyn, 3 P. Will. 254. Grayson v. Atkinson, 2 Ves. 454, 458. Ellis v. Smith, 1 Ves. jun. 11. See Hilton v. King, 3 Lev. 86 (e). With respect to a revocation In the goods of Allen. 2 Curt. 865. In the goods of Olding. 3 Curt. 79. In the goods of Simmonds. 2 Curt. 117. In the goods of Byrd. 3 Curt. 643, 647. Pennant v. Kingscote. 8 H. of L.160. Hindmarsh v. Charlton.] A will, attested by three witnesses, was written on the three sides of a sheet of paper, and concluded by stating, that the testator had signed his name to the two first sides, and his hand and seal to the last side. He did put his name and seal at the end of the will, but did not sign his name to the two first sides. It was urged that the will was invalid for want of sufficient execution, and the case of Right v. Price, 1 Doug. 241, was cited. In that case the will was in five sheets of paper, and the testator signed but two of them; it was held not duly executed. But in the present case the will was held good, on the ground that the testator did all he intended to do at the time of execution. 2 Brod. & Bing. 650. Winsor v. Pratt. [The making of a mark by the testator is a sufficient signing. 8 A. & E. |