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ed Argument in Trinity

term.

#3 Geo. 3.

The cafe of Hitchins of the demife of Nofworthy against Baffet, Parliament cafes 146. is a cafe in point for the defendant, upon which I rely. 2 Salk. 592. S. C. 3 Mod. 203. S. C. and in several

other books.

Serjeant Hill in reply-I admit that an animus revocandi is as neceffary to revoke, as an animus teftandi is to make a will; here appears an animus revocandi of the teftator, for it is found that in 1756 he did make another will, duly attefted by three fubfcribing witneffes, and that the difpofition in the fame was dif ferent from the difpofition in the will of 1748, which fhews a mind to revoke the fame; and there is a material diftinétion between this and the cafe in Parl. cafes 146. for there it is found that the teftator condidit et fecit aliud teftamentum in feriptis, &c. but it is not found that he made any different difpofition therein, here it is found Mr. Lacy made a different difpofition by his will in 1756.

Serjeant Burland for the plaintiff-The question is, whether the will of 1748 is a fubfifting will? If it is, the defendant has a good title; if it does not fubfift, but is revoked, the plaintiff who claims under the heir at law must have judgment to recover poffeffion of the premises in question.

It is certain that no man can die with two wills, the last muft prevail; there is a great difference between a will with fubfe. quent codicils thereto, confirming the fame in part or in the whole, and confiftent therewith; and a former and latter will different and contradictory to each other with respect to the pofition of the fame lands or eftate of the teftator; fuch will and codicils may well stand together, and make but one will, but two different and contradictory wills of the fame lands cannot ftand together, the latter will muft prevail, for it amounts to a revocation of the former. [See 1 Vezey 178, 186.]

Revocations of wills have been conftrued favourably for the fake of the heir at law; before the ftatute of frauds, if a man had faid he would alter his will when he came to fuch a place, and he had died before he came thither, the will would have been revoked without writing. 1 Roll. Abr. 614. pl. 1. Dier 310. But it never was doubted but a revocation may be by deed; as if a man devife lands to another, and afterwards makes a feoffment to the ufe of his will, this was always held a revo cation. 1 Roll. Abr. 614. pl. 2.-So if a man devifes lands to one, and afterwards devifes the fame to the poor of fuch a parish, which is void because the poor have not a capacity to take, yet it is a revocation of the firft will, 1 Roll. Abr. 614. pl. 4.A feoffment

A feoffment without livery, or a bargain and fale without inrollment, or a feoffiment made by a inan to the use of himself, although the old ufe remains in him, are revocations. I cite thefe cafes (and many others might be cited) to fhew, that revocations are favoured for the heir at law; [See Parfons verlus Freeman, 3 Ath. 741. 1 Wilfon 310. fame cafe. Ante, fol. 6. Darley verfus Darley. And in Lord Lincoln's cafe a man makes fettlement upon a lady that he intended to marry, which never took effect, yet a revocation.]

a

In the cafe of Hitchins verfus Baffet, Parl. cafes 146. which is relied on as a cafe in point for the defendant, the verdict there found that the teftator made aliud teftamentum, which must be taken to mean a duplicate of his will; but if it had been found that he made a will different from the first, it would have amounted to a revocatiom,

The difpofition made by Mr. Lacy in his will of 1756 was different from the difpofition made in the will of 1748, but the verdict doth not find what the difference was, whether in the whole or in what part; the defendant cannot have the whole which is devised to her by the will of 1748, because the jury have found that the will of 1756 is different; what the difference is between the former and the latter will is wholly uncertain, fo the heir at law fhall take: but one thing is certain, viz. that the latter will differs from the former, therefore revokes it.

Serjeant Davy for the defendant-The cafe of Hitchins verfus Baffet in Parl. cafes 146. 3 Mod. 203. Salk. 592. and in other books, is exactly like the cafe at bar. Mr. Lacy in 1748 devised all his eftate whatfoever to the defendant in fee, except a few fmall perfonal legacies; in 1756 he made another will which the jury fay was different, but in what particulars is unknown to them; and they fay that they do not find that the teftator cancelled, or that the defendant deftroyed the will of 1756, but what is become of it they are altogether ignorant.-They never faw it, fo could not find any thing touching the contents thereof, for they had no evidence of it's contents; how then could they fay that it was different, at the fame time they declare themselves ignorant of the particulars of that difference?-For any thing that appears the latter will may be fo made as not to revoke or deftroy, but to confift with the former, and ftand as part thereof, and both may make one will.

The cafe of Coward verfus Marfhal, Cro. Eliz. 721. "Upon .“ a fpecial verdict was; one by his will devifed his lands *to I. his youngeft fon, and his heirs, and afterwards married

"again,

"again, and by another will in writing devifed the land to his "wife for life, paying annually to I. his youngest son and his "heirs fuch a rent: whether this fecond will was a revocation "of the former was the question? And Anderson and Glanville "held it to be no revocation, but that both may stand, although "they be by feveral writings, unless it be manifeftly contrary "to the first will, or that there be an express revocation therein; "but they ought to ftand together if they may, as if made by, "and in one and the fame writing; and here his intention ap"pears, that he had not any purpose to alter it as to his fon, but only to provide for his wife, whom he afterwards efpoufed; and by the appointing of the rent to his fon, it appears that his intent was that the reverfion fhould be to his "fon." This cafe fhews there may be two different wills with different difpofitions therein, and yet both may stand together as confiftent and reconcilable.

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I fubmit it with great deference to the court, that in this cafe it is a question of fact, and not of law, whether the former will was revoked or not, by the latter.

Lord Chief Justice-If a man makes a will of lands, and afterwards levies a fine, or makes a feoffment, the jury find those facts, but leave it to the court to adjudge whether the same be a revocation in law or not.

Gould Juftice-Whether a revocation or not, may sometimes be a queftion of law, and fometimes of fact; in a cafe of Titner verfus Titner, where there were interlineations in a will, the late Lord Chief Juftice Wilmot left the queftion of revocation, as a fact to the jury.

Blackstone Justice-Devifavit vel non, feems to be like revoca. vit vel non.

Serjeant Davy-The jurors fay that they do not find that the teftator cancelled his will of 1756, but they do not fay that they do find that he did not cancel it; the court will give judgment upon the facts which the jury do find, and not upon what they do not find.

In the cafe of Glazier verfus Glazier, which was folemnly argued in B. R. about two years ago, a man made his will, and afterwards made another will; the fecond will appeared, and was a clear revocation of the firft, for the second had a clause of revocation in it; the teftator afterwards cancelled the last will, and died without republishing the firft; all this appeared to

the

the court, who were all of opinion that the firft will became the teftator's laft will, for the cancelling the laft was a republication of the firft; and for any thing that appears in the special verdict in the prefent cafe, Mr. Lacy cancelled his will of 1756, for it hath not been produced, and the jury fay they are altogether ignorant, &c.

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I beg leave to conclude with the laft words in Hitchins verfus Baffet, Parl. cafes 149. "No man can affirm that every will muft neceffarily be a revocation of a former, for the second will might be of another thing, as goods, or of another parcel of "land, or in confirmation of the former. If in these and many "other like cafes, a latter will is no revocation of a former, "how can it poffibly with juftice be concluded, that a latter' "will without contents, purport or effect, shall be a revocation "of a former. And though the jury have in this cafe believed "the witneffes, and found that another will was made, it may "be of dangerous confequence, and will overthrow the ftatute "of frauds, &c. [as to revocation of wills] to conftrue this a "revocation without knowing the contents; for no will can be "fecure againft the fwearing of a new will, if there be no neceffity of fhewing it or proving what it was."

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Serjeant Burland in reply-It is objected that the jury say they are altogether ignorant what is become of the will in 1756, that they never faw it, fo had no evidence of the contents thereof, or that the difpofition made thereby was different from the difpofition in the will of 1748. In anfwer to this, they have found in fact that the difpofition in the latter will was dif ferent; if they have found the evidence only of that fact it would have been ill; Mr. Lacy in his life-time might fhew the latter will to fome of the jury, and convince them he had made a different difpofition; the court cannot now say that the jury had no evidence to find as they have done.

I contend that the first will does not exist, because the jury have found that the teftator made a fecond will, and thereby made a different difpofition, which is a revocation of the first; fo there is no title found for the defendant, and the plaintiff muft recover.

The court took time from laft Trinity term until this term to confider of their judgment, when three of the judges being of opinion against one that the plaintiff muft have judgment, they delivered their refpective opinions feriatim.

Nares Juftice, (having ftated the fpecial verdict)-It is found that Elizabeth the wife of William Rolfe, leffor of the plaintiff, is

the

the niece and heir at law of the teftator John Lacy, fo the plain. tiff's title is certain, and he muft recover, unless the will of 1748, found by the jury in hæc verba, under which the defendant claims, be ftill fubfifting; the question therefore is, whether that will of 1748 is, or is not revoked by another will made in 1756 found by the jury to be different, but in what particulars is unknown to them; but they fay they do not find the teftator cancelled his will of 1756, or that the defendant deftroyed it, and what is become of it they are altogether ignorant.

Here is a fecond will in writing found to be different from the firft, which fecond will is not found to be cancelled or deftroyed, thereof it must be confidered as in being, and having made a different difpofition from the firft, it is a revocation thereof, and has defeated the defendant's title. The will belongs not to the heir to keep, and confequently not to fhew; in pleading he is not bound to profert; it is enough that there was a fubfequent will. And as the latter may confirm or be consistent with the former, yet it may not be fo; and the confiftency is not to be prefumed against an heir at law. Show. Parl. cafes 148. especially as the latter will in this cafe is found to be different from the former. Where a man is a stranger to a will and does not claim under it, or to a deed and does no claim the thing comprised in the grant, &c. he may plead without a profert. 10 Rep. 93. b. Bro. Monftrans de faits, c. pl. 102. &c. &c.

The firft will is a general difpofition by the teftator of all his real and perfonal eftate whatfoever to the defendant and her heirs; eight years afterwards he makes another will, and a dif ferent difpofition, but in what particulars is unknown; one can fcarcely think he gave his chambers in Lincoln's-inn [the only premifes now in queftion] to a fingle woman; the fecond will being exprefly found to be different from the first is inconfiftent therewith.

It has been faid at the bar that the court muft look into the will, but in this cafe no whole perfect laft will appears, and all prefumption against the heir is excluded, the court will never pre fume any thing against him. 1 Show. 551. Carth. 81.

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This is a revocation within the very word, of the ftat. 29 Car. 2. ch. 3. fect. 6. which fays, "No devife in writing shall "be revocable otherwife than by fome other will or codicil in writ ing, &c." Here is another will in writing found by the jury to be different from the former, which is fufficient for me to de termine this to be a revocation. I am therefore of opinion that judgment ought to be given for the plaintiff.

Blackftone

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