firmatory thereof. It was observed also, on the same side, that where a man makes several wills expressly of different particular things, these together make but one will, though written upon different papers. But that as the jury had found that the testator had made another will, this must be taken to mean a general testament; and it must be understood to mean a different will, for if it had been a duplicate to be sure it would not be a revocation, but then it ought to be idem and not aliud testamentum. And upon the whole they concluded, that if the testator did in fact make a second will, not correspondent in omnibus with the first, and purporting to be his last will and testament, it was necessarily a total revocation (1),

These arguments were answered on the other side by denying the construction put upon the civil law maxim, that a man can die with but one will.' They said, that the true construction of that maxim was, that where two devises of the same thing were made, the last must stand, but that two wills might well stand together as to such devises or bequests as are not inconsistent. That there was no ground for presuming that the last will in this case, though a complete will, contained any thing inconsistent with the devise in the first will, under which the lessor of

(1) The same line of argument was taken and pursued by the late Mr. Serjeant Hill in arguing the case of Goodright v. Harwood, Cowp. 89.

the plaintiff claimed. The Court (in Trinity term, 4 W. and M.) gave judgment for the plaintiff, and a writ of error being afterwards brought in Parliament, that judgment was affirmed. And since this case the point appears to have been considered as settled, that a second substantive independent. will, properly executed, as a will of lands, is not, merely as such, a total revocation of a former will, but only so far as it is inconsistent with it; though it must be owned that Sir Matthew Hale, when he sat as Chief Baron in the Exchequer, seemed to be of opinion on the same case, that such subsequent independent will, though not importing in express terms a revocation of the former, nor passing any land, would amount in construction of law to a revocation (2). That great Judge, it is true, expressed himself in favour of the

b Vide Hardress, 376. Seymour et Ux. v. Rosworthy,

(2) In arguing the case of Hitchins v. Bassett, it would seem as if Serjeant Maynard meant to concede that where the second will appears to have appointed an executor, it may be considered as that sort of distinct, substantive, independent will, which must revoke a former will in toto; but I find no authority for such a concession, and I conceive that the law is at this time clearly held otherwise. It was holden (before the statute of frauds) that if a man made his will, and devised his land to J. S. and afterwards purchased the manor of D. and afterwards wrote in his will that J. D. should be his executor, this was no new publication to make the linds pass. Vin. tit. Devise (Z) S per Popham, C. J. And the principle in this respect is the same as to republication and revocation.

first will, but then it was on the ground of there being no finding by the jury of the contents of the second will, so that it did not appear but that the second will was a confirmation of the first.

The rule, however, is now established, that the contents of such second will must be found, and the contents so found must appear to be inconsistent with the dispositions of the former will, to operate as a revocation; and that if part is inconsistent and part is consistent, the first will shall only be revoked pro tanto, and to the extent of these discordant dispositions,

The case of Hitchins v. Bassett received confirmation from the subsequent case of Goodright v. Harwood, which passed through three stages of adjudication. The jury found by their special verdict that J. Lacy made two wills, both duly attested so as to pass freehold estates; and that the disposition made by the second will, which was eight years after the first, was different from the disposition in the prior will, but in what particulars was unknown to the Jurors: and the Jurors did not find that the testator cancelled the first will, or that the defendant destroyed the second. It was contended for the defendant in the writ of error, that the grounds of the decision in Hitchins v. Bassett were in his favour, for that case was decided against the effect of the second will as

* 3 Wils. 497. Cowp. 87. 7 Bro. P. C. 344.

a revocation of the first, because there was no proof whatever of any change of intention in the testator, or even that the second will did any way affect or concern the testator's lands. But that in the present case it was found that the second will was attested by three witnesses, that it did relate to lands, and indeed to the very estate in question, because the testator had no other real estate. And that as it had been expressly found that the disposition of 1756 was different from the disposition in 1748, that finding amounted to a finding of an express revocation of the first will,

But Lord Mansfield, after stating the rule that a subsequent devise of land must be inconsistent with a prior devise of the same land, or the first will would stand as a good subsisting devise, observed that it was not found that the second will was in any particular repugnant to or inconsistent with the first. Had the defendant destroyed the second will there might have been good ground to presume such inconsistency or repugnance, and the jury might have found the fact of revocation. His Lordship added, that there was no variation in substance between this case and that of Hitchins v. Bassett. That, properly speaking, another will could not exist without there being a difference, for if it were exactly the same it would be no more than a duplicate or republication of the first will. That the Jury, therefore, in finding it to be another will, said, ex vi termini, that it was different; but as they had not found in what that

difference consisted, the Court could not presume that there was any inconsistency in the dispositions of the two wills, and by consequence they could not say that the first will was revoked.

This doctrine is in itself so rational, and so founded on authorities, that one is surprized at seeing the question renewed, and again disputed at so late a period; but even these cases did not prevent the point from coming again into discussion, with a trifling variation in the circumstances, about five years ago, in the case of Thomas v. Evans"; in which, a person made his will, whereby he bequeathed his personal estate to his mother, and, after several intermediate limitations, devised the ultimate remainder to T. Upon his having afterwards acquired other estates, some by purchase and some by devise, and the bequest to his mother having lapsed by her death, the testator made a second will disposing by name of the property which had been so devised to him, and then added, " as to the rest of my real and personal estate I intend to dispose of it by a codicil hereafter to be made to this my will." This was determined to be no revocation of the. former will. It was not necessary to suppose the words intimating the future intention to be meant to embrace the real property before devised, as the testator had acquired estates since the first will, which were not included in the second, and which might satisfy the words by which the future intention was expressed; 42 East, 488.