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law” is let in. Though according to the case last cited in the margin, either will is subject to be confirmed by a subsequent act or declaration of the testator. Which judgment appears to stand on a very reasonable and intelligible principle. Since a will cannot be said to be revoked by a will till the death of the testator. And the act of the testator only operates to decide which is his last will and not to produce the effect of an implied or parol republication, of which, since the statute of frauds, there is authority and reason for doubting the possibility, as I shall endeavour to shew in its proper place.
IT is manifest that these cases of inconsistent wills turn principally upon the intention of the testator; but we must observe that a will perfected as the statute requires is not subject to be overturned by loose and conjectural inferences of an alteration of mind in the testator. The cases have reduced the doctrine to a regular system. The statute itself has limited the mode whereby a will may be expressly
* 5 Bro. P. C. 57, Phipps v. Earl of Anglesea. 7 Bac. Ab. 327.
revoked; and, one of the modes prescribed by the statute is by a subsequent will, which, we have seen, should, to produce that effect according to the force given by construction to the word "will,” where it occurs in the 6th.secțjon, be perfected with the formalities required by the preceding section. But this construction of the language of the 6th section seems to bave given to it no enabling efficacy, in respect to the operation of a will, since if the words will or codicil” had not been excepted out of the restraint put upon the power of revoking, it should seem that the statute must either have been construed not to extend to the case of a subsequent will; or to have enacted that a will once perfected, though made 20 years before the testator's death, must be taken as his last will, if remaining uncancelled, notwithstanding a subsequent will should be made within a month before the decease of the testator, with all the circumstances constituting a perfect will
No intention As the law now stands, it has been shewn, that a can be inferred from a will of new substantive will, unless it be executed as the 5th lands not executed according section directs, will not revoke a former will; which to the stacute.
rule seems to arise justly out of the principle of intention, for an intention to revoke a first will by a second can only be properly inferred from a legal, valid, and perfect disposition of the same property; which accords with the rule of the civil law, “ Tunc prius testamentum rumpitur cum posterius perfec
voke a will,
tum est(1).". In truth, since the statute of frauds, there can be no will in contemplation of law that has not been executed with the formalities made necessary by that statute. It is a mere nullity (2), affording no ground of inconsistency from which to infer even a change of intention. But'in general an instrumental Bat other legal act of a testator, inconsistent with the dispositions instrumentally of his prior will, even though such act may be ren- nevertheless res dered inoperative by the want of certain legal requisites to its validity, will effect: a revocation. For, though, in the case of a subsequent will, the courts will not take any notice of its existence as to any devise of land, if not duly executed and attested, yet
in the other cases of invalid instrumental acts, And if a will be they are respected as indications of intention though cuted, though specifically inoperative.
And, indeed, if a will de- from circumvising land be executed and attested so as to have an ed from operatexistence as a will, though from circumstances ex- vertheless
ing, it may netrinsic it is rendered void, it may still effect a revo- prior will.
sic it is prevent
rate to revoke a
(1) See the case of the Earl of Ilchester, 7 Vez. jun. 348. that a testamentary appointment of a guardian, by virtue of the 12 Ch. 2, C. 24; ís not revoked by a subsequent testamentary appointment, which is not substantively perfected by the attestation of two witnesses, according to that statute.
(2) Equally so in all courts either of law or equity. Thus in equity, a will of lands, unattested according to the statute, and containing a bequest of personalty to the heir, will not put him to his election, which is a striking instance to shew the absolute nullity of such a devise in the view of the courts of equity.
cation, as in the case before mentioned of a will devising land in fee to the heir at law'.
If a testator leaves at his death a dozen wills, and only one executed and attested so as to pass real estate, such will, whatever may be its date, is properly his last will as to this part of his property. And as a man can have no will but his last will, there can be no other will from which any intention of the testator, inconsistent with the dispositions of his operative will, can be inferred (3); but if a testator affects to do something instrumentally, which fails from the omission of some circuma stances with which it ought to be accompanied, and which, if effectuated, would by its specific operation revoke a prior will, the courts will take notice of such imperfect instrument, and construe it a revocation as much as if it had been rendered effectual' to its purpose. For it will not be supposed that a nugatory act was intended to be done, when that act was professedly to have immediate perfection: whereas in the case of an unexecuted will, which is made in prospect of death and with regard to a future condition of things, it is reasonable to suppose
a Vid. Ellis v. Smith, 1 Vez. jun. 17. and note (2) in the preceding page.
(3) This is strongly put by Sir Wm. Grant in giving his opinion in the case ex parte Ilchester. “It is not competent for a person to express an intention, as to land, by such an instrument.” 7 Vez. jun. 378.
it to be left purposely unfinished and inoperative, ta be adopted or not on the approach of extremities, as the state of the testator's affairs and connections may at that season determine his inclinations.
Upon the above-mentioned principles, the imper- Imperfect infect conveyances by a deed of feoffment without conveyance. livery of seizin, and by a deed of bargain and sale of the freehold without such inrolment as is required by the statute in that case provided", though specifically inoperative, are nevertheless effectual revo·cations. So, before the statute taking away attornment, a grant of a reversion without attornment was a revocation of an antecedent will devising the same property (4).
Whether a deed intended to operate as an appoint- Power of apo ment of uses, but incapable of operating as a valid pointment is appointment, either from a deficiency of power in the party executing the deed, or a neglect of some ceremony made necessary to the efficacy of the appointment by the person granting the power, be operative as a revocation, seems to be left, by the case of Shove v. Pincke', in a considerable
i Roll. Abr. 615. Vin. Dev. (P) pl. 6. Went. Off, Ex. 22. 3 Atk. 803.
c 5 T. R. 194.
(4) Went. Off. Ex. 22. So where a tenant to the præcipe is made towards suffering a recovery, and no other proceedings are had, a previous will is nevertheless revoked. Vid. Harmood v. Oglander, 6 Vez. jun. 199.