leases for years of houses for habitation, (e) which chattel [13] interests, it seems, they may dispose of by will: (ƒ) But the stat. 32 Hen. 3, c. 6, s. 13, makes void all leases of houses or shops to an alien artificer, or handicraftsman. And this law, however contrary it may appear to sound policy, and the spirit of commerce, is still in force; but in favour of aliens it has been construed very strictly. (g)

By stat. 5 Geo. 1, c. 27, British artificers going out of the realm to exercise, or teach their trades abroad, or exercising their trades in foreign parts, who shall not return within six months, after due warning given them, shall be deemed aliens, and incapable of taking any lands, and shall forfeit all their real and personal estates; consequently, their wills can have no operation here.

Secondly, a will of personal estate, and by the statute of frauds a will of lands, may be annulled by burning, cancelling, tearing, or obliterating the same, by the testator, or in his presence, and by his direction and consent. (h)

By the 1 Vict. c. 26, s. 20, the words of cancellation are "by the 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." And the mode in which any obliteration, interlineation, or alteration may be made in a will is provided for by the 21st sect. of the

same act.

Although a testator has made a will irrevocable in the strongest terms, yet he is at liberty to revoke it; for he shall [14] not, by his own act or expressions, alter the disposition of law, so as to make that irrevocable, which is of an opposite nature. (i) But from and after the 1st of January 1838,

a will can only be revoked either by another will or writing executed in the same manner as the original will, by cancellation, or any other act of the same nature, by the disposition of the property by the testator in his lifetime, or by marriage.

With respect to the revocation of a will by the act of cancelling, it is in itself an equivocal act; and in order to make it a revocation, it must be shewn quo animo it was cancelled; for, unless that appear, it will be no revocation. As, if A. were to throw the ink upon his will instead of the sand, although it might be a complete defacing of the instrument, it would be no cancellation: or, suppose A., having two wills of different dates in his possession, should direct B. to cancel the former, and through mistake he should cancel the latter; such an act would be no revocation of the last will; or, suppose A. 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: (k) or if A. upon a supposition that he had executed a second will, according to the statute of frauds, containing devises of the real estate precisely the same as those in the first, and to the same person, cancel such former will, the devises shall not be revoked, since the cancelling was upon an evident mistake. (1) And where a testator being angry with one of the devisees in his will, began to tear it with the intention of destroying it; and having torn it into four pieces was prevented from proceeding further, partly by the efforts of a by-stander, who seized his arms, and partly by the entreaties of the devisee, and upon that became calm; and having put by the several pieces, he expressed his satisfaction that no material part of the writing had been injured, and that it was no worse; upon the facts, the verdict of a jury in favour of the

(k) Hyde v. Hyde, 1 Eq. Ca. Abr. 409. 3 Ch. Rep. 155. S. C. Burtenshaw v. Gilbert, Cowp. 49. 8 Vin. Abr. 146, pl. 17.

(7) Onions v. Tyrer, 1 P. Wms. 343, 345. Burtenshaw v. Gilbert, Cowp. 52.

will, was supported. (7) It is the intention, therefore, that must govern in such cases, and parol evidence is admissible to explain it. (m)

If a will be destroyed during the lifetime of the testator, but without his knowledge, it will be substantiated upon satisfactory proof thereof, and of its contents. (n)

[15] In case there be duplicates of a will, one in the custody of the testator, the other not; and the testator, with an intention to revoke his will, cancels that which is in his custody, it is an effectual cancellation of both. (0)

So a will may be only partially cancelled: therefore, if A. devise two estates, Black Acre to B. and White Acre to C., and, after the execution of such will, expunges that part which relates to the disposition of White Acre, the devise of Black Acre shall not be revoked by such obliteration. (p)

A residuary bequest was held to be cancelled by striking through with a pencil all the disposing part, leaving only the general description, with notes in pencil in the margin, indicating alteration and a different disposition of certain articles. (q)

Alterations in pencil of a will, are not therefore to be taken as merely deliberative, but are to be considered as equally valid as if made in ink, provided it appear that the deceased intended them to take effect. (r)

A will may be expressly revoked by another will, or by a codicil in writing; (rr) either of which, in case it relate to land must be executed pursuant to the statute of frauds as above stated. (s) Such will of lands may be also revoked by

(1) Perkes v. Perkes, 3 Barn. & Ald. 489.

(m) Burtenshaw v. Gilbert. Cowp. 53.

(n) Trevelyan v. Trevelyan, Phill. Rep. 149.

(0) Burtenshaw v. Gilbert, Cowp. 54. Onions v. Tyrer, 1 P. Wms. 346, S. C. 2 Vern. 742. Mason v. Limberry, 4 Burr. 2515. S. C. Com. Rep. 451. Rickards v. Mum

ford, 2 Phill. Rep. 123.

(p) See Sutton v. Sutton, Cowp. 812; and Winsor v. Pratt, 2 Brod. & Bing. 650.

(9) Mence v. Mence, 18 Ves. jun. 348.

(r) Dickenson v. Dickenson, 2 Phill. Rep. 173.

(rr) See 1 Vict. c. 26, s. 20 & 21. (s) Grantley v. Garthwaite, 2 Russ. 90.

writing other than a will, or codicil; and then such other writing must by the statute be signed by the devisor, in the presence of three or four witnesses declaring the same. The requisition in the statute of the signature by the devisor to such revocation in the presence of three or four witnesses declaring the same, is, according to the sound construction of the statute, applicable merely to such other writing, and not to a will, or codicil of revocation; since the legislature could not intend to require that a will or codicil amounting to a revo[16] cation should be executed in one mode, and a will or codicil originally disposing of lands should be executed in another. (s)

These provisions of the statute in regard to revocation do not extend to personal estate. (ss) A will of personal estate may be revoked by another will, or by a codicil, or other writing authenticated in the same manner as a will of such property. (t) But by the same statute no will in writing of personal estate shall be repealed, or altered by parol, or will nuncupative, unless the same be committed to writing in the testator's life, and afterwards read to, and allowed by him, and proved so to be by three witnesses at the least. (tt)

Devises of customary freeholds, or of terms vested in trustees to attend the inheritance, or of sums of money primarily charged on lands, must, as we have seen, be executed pursuant to the solemnities required by the statute, and, consequently, fall within its provisions in regard to revocation. (u)

If a testator, in consequence of fraud, or misinformation, or mistake in regard to a fact, as, for example, the death of a devisee, or legatee, who is living, make a new will, the former instrument shall not be revoked by the latter. (uu)

(s) Ellis v. Smith, 1 Ves. jun. 11. (ss) See 1 Vict. c. 26, s. 20 & 21. (t) Vide Brady v. Cubitt, Dougl. 35. Doe v. Pott, ib. 690, n. 2. Onions v. Tyrer, 1 P. Wms. 343. Ellis v. Smith, 1 Ves. jun. 11.

(tt) Vide infra.

(u) Brudenell v. Boughton, 2 Atk. 272.

(uu) Campbell v. French, 3 Ves. jun. 321.

C

[17] It is essential that the second will should expressly revoke, or be clearly inconsistent with the first, in respect to the subject matter of such will; for no subsequent disposition shall revoke a prior, unless it apply to the same subject. (v) It is also necessary that the second will should be subsisting and effective at the time of the testator's death; if, therefore, in case of a devise of lands, it be not executed according to the statute of frauds, it is not effective, and is as if no second will had existed. (w) So, if the second will be effectually cancelled in the lifetime of the testator, the first will shall operate as if no other had existed; for it is the only will subsisting at the testator's death. (x) But the particular circumstances of the cancellation and the case must be looked to, for in a late case where a second will was mutilated so as to amount to a cancellation, such cancellation was held not to revive the prior will of nearly similar import. (y)

In case a party leave two inconsistent wills of the same date, neither of which can be proved to have been last executed unless explained by some act of the testator, they are both void for uncertainty, and will let in the heir. (≈)

The making of a subsequent codicil does not invalidate the former, unless it appear to be so intended. Codicils, however numerous, may be all effectual. (a) But a codicil may be virtually revoked by another codicil of a subsequent date, although there are no express words of revocation in the latter instrument. (b)

[18] There are also other species of revocations which I have not mentioned. The statute of frauds extends not to implied revocations, or to such as are in the nature of ademptions.

(v) Onions v. Tyrer, 1 P. Wms. 345, in note. Harwood v. Goodwright, Cowp. 87. S. C. 7 Bro. P. C. 344.

(w) Hyde v. Hyde, 3 Ch. Rep. 155. Limbery v. Mason, Com. Rep. 451.

(a) Goodright v. Glazier, 4 Burr.

2512.

(y) Moore v. Moore, 1 Phill, Rep.

375 and 406.

(2) Phipps v. Earl of Anglesea, 5 Bro. P. Č. 45. Onions v. Tyrer, 1 P. Wms. 344, note 1.

(a) Swinb. Part 1. s. 5. Hitchins v. Basset, 1 Show. 549. Willet v. Sandford, 1 Ves. 187.

(b) Methuen v. Methuen, 2 Phill. 416.