and executors, in trust, to pay his debts and legacies; and then devised several legacies to his children and other persons, and concluded thus:-" In witness whereof I have to this my last will and testament, containing nine sheets of paper, and to a duplicate thereof, to be left in the hands of A. set my seal to every sheet thereof, and to the last of the said sheets my hand and seal;" which will was properly executed according to the statute.

The testator being afterwards desirous of adding other trustees to his wife, and to make some alterations in his will, sent for a scrivener, and gave directions to prepare a draught of instructions for another will, which the scrivener did accordingly, and the testator read it over and approved of it, and set his hand to it; and, thinking he had now made a new will, he pulled out of his pocket his first will, and tore off the seals from the first eight sheets, which the scrivener seeing, asked him what he was doing? "Why," says he, "I am cancelling my first will." "Pray," says the scrivener, "hold your hand, the other will is not perfected; it will not pass your real estate, for want of being executed pursuant to the statute of frauds and perjuries;" to which the testator replied, "I am sorry for that;" and immediately desisted from tearing off any more of the seals; and soon afterwards died without having done any thing further to perfect the second will, or to cancel the first. After his death, on application to the spiritual court by the wife, who was made execu

trix to the second will, it was sentenced to be a good will as to the personal estate, and she was admitted to prove it.

On a bill brought by the legatees against the wife, and other trustees, to have a specific performance of the trust in the first will, and that the estate might be sold pursuant to the directions of that will, it was insisted that the first will was revoked either by making the second, or by tearing off the seals from the first; but the Lord Chancellor held, that the subse quent will could be no revocation as to the realestate, not being executed according to the statute of frauds, and that as to tearing off the seals from the first eight sheets, that not being done animo cancellandi, was no revocation; but because the spiritual court had sentenced the second will to be a good will of the personal estate, his Lordship also held it good to that extent, and that such legatees of personalties in the first will as are left out in the second, must lose their legacies; but as to such as had legacies by the first will charged on the real estate, if the same legacies were devised them by the second will, that they should continue chargeable on the real estate; provided such legacies were not encreased or enlarged by the second will; for though the second will was not sufficient in itself to charge the real estate, yet since the real estate remained well devised by the first will, they should be still secured by that real estate, for they were not devised

BB

What evidence

is admissible to determine the

out of land like a rent, but only secured by land, which before was well devised; but as to the new absolute personal legacies devised by the last will, they should be chargeable only on the personal estate, and should have the preference in being first paid out of the personal estate, before the other legacies in the first will charged upon the real estate, because they had several funds out of which they might be paid the personal legacies in the last will out of the personal estate, which was well devised by that will; and the legacies charged or secured upon the real estate, which was devised by the first will, out of the real estate.

In the cases last produced the mere mechanical act of tearing is shewn to be equivocal, and to what tearing or yield to the inference of an intention not to reficient to revoke. Voke arising from other circumstances. Parol evi

intention; and

burning is suf

dence, therefore, of the facts acompanying the act of cancelling is clearly admissible. The principle, however, of the admissibility of parol evidence for this purpose, requires that in a case where the intended cancelling or destruction of the instrument has been prevented by fraud or contrivance, affirmative proof of the animus revocandi should also be received, and that effect should be given to the intention so established. Even if such intention so endeavoured to be defeated by fraud were manifested by no act of the testator, it would be consonant to the general maxims of courts of equity to give effect

to the intention, and to treat as perfected that which would have been perfected but for the fraud. So the slightest act of tearing, or an incipient burning amounting only to scorching, will satisfy the statute, where the intention to revoke can be manifested by proof of accompanying acts, or even declarations: but that, without proof of fraud, or partially executed intention, parol evidence could be received to shew a design to cancel, unaccomplished through mistake or accident, no case has yet established; such a latitude would indeed seem to frustrate the caution of the legislature in respect to this object of the statute of frauds.

The case of Bibb v. Thomas perhaps marks the boundary in respect to the admissibility of this evidence. A testator, who had for two months together frequently declared himself discontented with his will, being one day in bed near the fire, ordered M. W. who attended him, to fetch his will, which she did and delivered it to him, it being then whole, only somewhat erased. He opened it, looked at it, then gave it a slight rip (2) with his hands, rum

. 2 Bl. Rep. 1043.

(2) Tearing is a sufficient revocation within the statute without cancelling by tearing off the seal, if the act be accompanied by any circumstance demonstrative of the intent to revoke. See Bibb on dem. of Mole v. Thomas, Blackst. Rep. 1043.

pled it together, and threw it on the fire, but it fell off. M. W. took it up and put it into her pocket. The testator did not see her take it up, but seemed to have some suspicion of it; as he asked her what she was at, to which she made little or no answer. The testator afterwards said that that should not be his will, and bid her destroy it, to which she replied, "So I will, when you have made another;" but afterwards, upon repeated enquiries, she said she had destroyed it.

The testator afterwards told another person that he had destroyed his will; that he should make no other until he had seen his brother J. M. and desired the person to tell his brother so, and that he wanted to see him. He afterwards wrote to his brother, saying "I have destroyed the will which I made; for serious consideration I was not easy in my

upon

mind about the will;" and desired him to come down, saying "If I die intestate, it will cause uneasiness." The testator however died without making another will. The Jury, with the concurrence of the Judge, thought this a sufficient revocation of the will; in which opinion Lord Chief Justice De Grey and the whole court, upon a motion for a new trial, concurred; the Chief Justice observing, that this case fell within two of the specific acts described by the statute of frauds, it was both a burning and a tearing; and that throwing the will on the fire with an intent to burn it, though it was very slightly