Blackstone Justice-Upon first considering this special verdict I thought it imperfect, infomuch that no judgment could be given thereupon, and therefore that a venire facias de novo muft have iffued; but, upon more mature confideration, I now think the verdict is fufficiently perfect, not repugnant or inconfiftent in itfelf, and the jury have found all the facts they can find.

The principal facts found are, 1. That Elizabeth the wife of William Rolfe is the niece and heir at law of the teftator. 2. That the is difinherited by the will in 1748. And 3. That the teftator in 1756 made and duly published another will; that the difpofition made therein was different from the difpofition in the will of 1748, but in what particulars is unknown; but the jurors say that they do not find that the teftator cancelled his will of 1756, or that the defendant deftroyed the fame, but what is become thereof, they fay they are altogether ignorant.

The question is, whether the facts thus found amount to a revocation of the firft will, fo as to let in the heir at law?

I am of opinion that the will of 1748, is not revoked at common law, nor fince the ftat. 29 Car. 2. ch. 3. and I rely upon the cafe of Sir Henry Killegrew's will; in ejectment, the jury found a special verdict, that Sir Henry Killegrew was feifed in fee of the lands in question, and on the 12th day of November 1644, made his will in writing, and devifed the premises to Mrs. Berkley for life, remainder over to Henry Killegrew [Sir Henry's natural fon] in tail, and that he made Mrs. Berkley his executrix; that afterwards in 1645 the faid Sir Henry Killegrew made aliud teflamentum, but what was contained in the faid laft-mentioned will, or what was the purport or effect thereof, juratores penitùs ignorant; after this cafe had been argued in the moft folemn manner, it was adjudged that the fubfequent will which did not appear was not a revocation of the former. Parl. cafes 146. 3 Mod. 203. Salk. 592. Hard. 374.From the determination of this great cafe in parliament it follows, that a fecond will, unlefs the contents thereof be found, is not fufficient to revoke a former will; for it may or may not be confiftent with the former; a fecond will of lands may be fo made as to be confiftent and stand with a former will of the fame lands. Coward verfus Marshal, Cro. Eliz. 721. How can it be known that the fecond will in the prefent cafe was a revocation of the former, when it never was found or feen; I think the cafe before the court falls within the reafon of the three barons in Hard. 371. it is not found that any lands were devifed by this fecond will, fo that it may or may not be confiftent with the former, and where the matter ftands indifferentèr the court will not fuppofe a revocation of a

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2 Atk. 272. ■ Veley 192.

former will folemnly made: it may be concerning other lands, of no lands at all; in fhort, it may be an exact tranfcript of the former, for any thing that is found by the jury.

It is objected for the plaintiff that it is found, that the difpofition made in the fecond will was different from the difpofition in the former; different in what? we are totally ignorant; no body can answer thefe doubts; but they must be answered, in my opinion, before we can say this is a revocation; any giving of a ring or mourning, may be different, but might ftand and be confiftent with the will of 1748.

Nothing fhall be prefumed upon a fpecial verdict, nothing fpecifically appears touching the will in 1756, and the argument for its being a revocation, feems to me to be fallacious, for it doth not appear what were the contents thereof, et de non apparentibus et non exiftentibus eadem eft ratio.Prefumptions are always in the affirmative, there cannot be any negative prefumptions; no prefumption fhall arife from a diversity, unless that diverfity be fhewn and found; if I understand the flat. of 29 Car. 2. of Frauds, fect. 6. If a will is revoked by writing, that writing muft appear; there is not a cafe in the books of a revocation, unless it appears; the prefent attempt is fetting up another will that doth not appear. The opinion of Lord Hale in Hard. 376. "That a fecond fubftantive independent will,

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though it doth not by exprefs words import a revocation of a former will, nor paffes any land, will yet amount in con"ftruction of law to a revocation;" cannot now be law.

It was faid at the bar that revocations of wills have been conftrued favourably for the fake of the heir at law; but I think that the title of the heir by inheritance, is not better than the title of a devifee under a will folemnly made, especially in a commercial country; and a will shall not be revoked by a fub fequent writing unfefs that writing be alfo a good will within the fatute of frauds, Eggleton et al' verfus Speke, Mich. 1 W. & M. 3 Mod. 258. This cale feems not to favour the heir, and is allowed in 1 Peer Wms. 344. And according to the doctrine laid down in that cafe it is incumbent upon the heir to make out, and fhew to the court that the fecond will revoked the firft; it must not rest in prefumption or conjecture, the fecond will must' appear, or the contents thereof must be found; I therefore think it our duty, under the ftatute of frauds, fect. 6. not to fet up a fecond will in the dark, which neither we nor the jury ever faw, and are wholly ignorant of the contents thereof; the heir might avail himfelf by deftroying the second will to defeat

both

both the wills. Upon the whole, I am of opinion that judgment ought to be given for the defendant.

Gould Juftice-I intirely agree with my Brother Nares, that judgment ought to be given for the plaintiff, and fhall confine my ideas to the words of the special verdict, touching the real eftate of the teftator, and not meddle with the perfonal eftate, because the ecclefiaftical court has the proper jurifdiction as to that. The point now before the court feems to me to be quite novel, and not like the cafe of Hitchins and Baffet, which is fo much relied upon for the plaintiff; the jury in that cafe found the teftator made aliud teftamentum, but it feems to me, if they had found that Sir Henry Killegrew made aliud teftamentum different from his former will it would have been adjudged a revocation thereof; in the prefent cafe it is found that Mr. Lacy by his will of 1756 made a different difpofition from the dif pofition in his will of 1748, but in what particulars is unknown to the jurors; however it is clear the first and fecond will are different; the defendant had access to the firft will, therefore fhe muft have had accefs to the laft, and ought to produce it, as fhe claims under the teftator's laft will, or the heir, whofe title to the fee-fimple is clear, must have the land; the jury have found that the latter will was executed in the prefence of three fubfcribing witneffes, therefore it may fairly be prefumed it was a devife of land; and being found to be different from, is a revocation of the former.

Lord Chief Justice De Grey-After fo full argument of this cafe, I fhall fhortly point out the ground of my opinion.

The first thing that occurs upon this record is, that the heir has an original title to the eftate of her ancestor, who is the teftator; the devifce claims a derivative title under him, but that title will not be good and fufficient if it was not intended by the teftator at the time of his death; when a man hath once declared properly what his mind is, as to the difpofition of his lands, upon doing that, he is prefumed to continue of the fame mind til his death, unlefs the contrary appears; the fame prefumption will ftand upon a fecond will or declaration of his mind properly.

Arother thing-As a man may make his will gradatim, and by different inftruments, fo he may revoke it partly or totally; 'all the inftruments, when compared with each other, may either. be confiftent, fland all together and conftitute one will, or the latter may partly or wholly revoke the former; a codicil is prefumed to confirm a will; the proper inftrument to revoke a will Vol. III.

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is

as another fubfequent will; but if two wills are confiftent, or may ftand together, they ought to ftand together, as in the cafe of Cro. Eliz. 721. Coward verfus Marshal, where the latter will did not revoke the former, but might well fland with it.

In the cafe of Hitchins verfus Baffett, the court of King's Bench, at firft, had great doubt whether a fecond will without looking into the contents thereof, would not revoke the first will; but at length it was determined in that court, and ultimately in the Houfe of Lords, that it would not revoke the first will. Thus I take the law to ftand at prefent; although this be fo, yet when the contents of a fecond will are fo far found as in the prefent cafe, I am convinced that this will of 1748 is not the laft will of the teftator.

Suppofe the will of 1756 had almoft been totally deftroyed by rats or vermin, and only these few words of the teftator's own hand-writing had remained legible, viz. this is my last will of my eflate, and evidence had been given to a jury that the will once exifted entirely, that it was properly attefted by three witneffes, and that the difpofition therein was different from the will in 1748, I think it would have been fufficient evidence, that this was a revocation thereof. So fuppofe the whole of a fubfequent will was deftroyed except only the beginning thereof in thefe words, viz." As to all my eflate I give," and the ending with the teftator's name, this would be evidence of a total revocation of a former will of a teftator, and that he meant a new difpofition of his eftate thereby, and whoever claims under his laft will, muft fhew that this fubfequent will once exifted, and that the teftator thereby devised his eftate to fuch perfon claiming under the teftator's last will.-So fuppofe thus much of Mr. Lacy's will of 1756 had appeared and been found, viz. “I John

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Lacy have given my cftate by my will in 1748 to Frances "Harwood, but now I intend to give my ellate differently," and all but those words had been deftroved, this would have been a revocation, and the devifee could not have taken under the first will.

It is found by the fpecial verdict that Mr. Lacy's eftate, and the ftate and circumftances of his kindred and family were the fame in 1756 as in 1748 nearly; that the defendant Mrs. Harwood is no relation to him at all.

Another thing-Mr. Lacy made and duly publifhed his will of 1756, in the presence of three fubfcribing witneffes who duly attefted the fame, fo that one cannot get it out of one's mind that this was a will of his lands; and it is found that he thereby

intended

intended to make a different difpofition thereof; we know his former intention was changed as to the difpofition of his eftate, but in what particulars we do not know; the defendant claims under the last will, the laft will is found to be made in the year 1756, therefore it is incumbent on her to produce and thew it, and that she has a title under it, and was the laft object of the teftator's benevolence; and then if it will ftand with the former, fhe will take; fhe muft fhew the laft will becaufe fhe claims under a derivative title, under Mr. Lacy's laft will.

If we establish the will of 1748 we muft prefume that the last inftrument of 1756 did not at all affect the teftator's real estate; fomething or other muft be prefumed, or the defendant cannot take under Mr. Lacy's laft will, but there fhall be no prefumption against the heir at law.

Suppose a man makes two wills without any date, and by one gives his lands to A. and by the other he gives the fame lands to B. neither of them fhall take, but the lands fhall defcend to the heir, although the teftator's intention is most clear againft the heir, and that either A. or B. fhould have the lands.

The laft will being found to be different from the former, is a revocation thereof until you compare them, and fee that they can stand together, in this cafe especially where the jury have found that Mrs. Harwood hath not destroyed the laft; if the jury had found that the deftroyed the latter, (the contents being unknown) it would have been prefumed against her; the heir at law muft take the land because it is not effectually disposed of the heir at law is never called upon to produce the will of his ancestor; but it would have been incumbent upon a devifee under the will of 1748, in pleading, to have fhewn that the fecond will would ftand with the former.

The jury fay that they do not find that the teftator cancelled his will of 1756, whereby it appears he intended to make a dif ferent difpofition; and we mult take it, that fuch his intention continued until his death.

There are in the books many cafes of revocations of wills, not mentioned in the ftatute of frauds, 29 Car. 2. cap. 3. the 6th fect. whereof runs thus, viz." No devife in writing of lands, &c. or any cause thereof fhall be revocable otherwife than

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by fome other will or codicil in writing, or other writing declaring the fame, or by burning, cancelling, tearing or obli"terating the fame by the teftator himself, or in his prefence, "or by his directions and confent; but all devifes and bequefts

of