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Express intention to revoke

but admitting these words to include the real property

no actual revo devised by the will, still it did not appear that the

sation.

Inconsistency between the will

and subsequent

acts.

disposition intended to be made of it would be inconsistent with the former devise; and even supposing it to be intended to be inconsistent, yet an express intention to revoke would not operate as an actual revocation; for, as was truly observed at the bar and on the bench, what would not have been a revocation by parol before the statute would not be so since, though reduced into writing with all the formalities of the statute, and it had been decided that a bare intention to revoke though expressed by parol was no revocation before the statute, unless the testator declared that he did revoke his will (3).

As a second will is no revocation of the first, any further than as it is inconsistent therewith, so neither does a testator by acting in any other manner upon the property which he has already devised by his will,

(3) Cranvel v. Saunders, Cro. Jac. 497. where it was resolved by the court, that if a man makes his will, in writing, of land, and afterwards upon communication says, that "he has made his will, but it shall not stand," or "I will alter my will," these words are not any revocation of the will, being in a future sense, and only a declaration of what he intends to do. Aliter if he says I do revoke it or in any other manner declares his purpose to revoke it in presenti. But if a testator declare his intention by parol to revoke his will, and that upon his arriving at such a place he will execute his intention, and in his going thither he is murdered, it has been said that the intended. revocation shall take place. 1 Roll. Abr. 614. 7 Vez. jun. 371.

revoke the will by such act beyond the extent of that necessary inference which is created by the inconsistency between the will and his subsequent conduct. Thus in an early case where a man, having issue two sons by several venters, devised his lands to F. his eldest son, in tail male, remainder to the heirs male of W. his younger son, and for default of issue to his own right heirs; and afterwards made a lease to W. for 30 years, to begin after his the testator's death, and died: it was resolved that this lease made to W. was not a revocation of the whole devise, but quoad the term only. And the same point was agreed to on the bench and at the bar, in Montague v. Jeffrys'. But this doctrine is carried to its fullest extent in the case of Lamb v. Parker. There Edward Parker by his will devised to his younger son W. Parker a messuage for 99 years, if three lives therein mentioned lived so long, yielding and paying an annuity of 501. to his sister, who was the plaintiff, for her life. The testator afterwards. demised the same messuage to one L. for 99 years, if three lives, named in such demise, should so long live, yielding and paying 501. per annum, to the testator, his heirs, and assigns. The question was whether this demise to L. was a revocation of the devise to W. and consequently of the annuity payable to the plaintiff.

The cause was first heard at the Rolls and then held to be a revocation; but upon appeal to the

• Cro. Car. 23, Hodgkinson v. Wood. Ann. prim. Car. Reg.

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Lord Keeper", the contrary was adjudged and upon the following grounds.-That by the lease to L. the term of 99 years commenced immediately in the life-time of the testator; whereas the term to W. was to commence from the testator's death; and though both were determinable for three lives, and possibly L.'s three lives might happen to live the longest, yet, that a reversionary interest passed which would carry the rent reserved on L.'s lease. The ground of this species of revocation is, as is above observed, the inconsistency of the posteriour Act, and the inference of intention arising from such inconsistency. Grant of a less Proceeding, therefore, upon this principle, a lease was given by the made subsequent to the will of the devised land, for the benefit of the same person to whom the fee had been devised, and to commence upon the decease of the testator, was in Coke . Bullock', adjudged a revocation in toto. Had it been to a stranger, it was agreed, it would only have been a revocation pro With a different tanto (4). And it was likewise agreed that if the lease had been granted to begin presently, or

interest, than

will, to the same

person.

To a stranger.

commencement.

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(4) A distinction was here adverted to by Walmsley J. which is clearly not law, as the law is now settled, viz. that though in the case of a lease to a stranger after a will made, such lease, if it comprehend part only of the same lands, is only a revocation for such part; yet if it embrace the entire lands, though it is partial only in respect to the estate, it is a total revocation, as extending specifically over the whole subject matter.

futurely in the life-time of the devisor, it would have been no revocation, for then it might have stood with the will.

Upon this distinction in respect to the time of the commencement, the case of Baxter v. Dyer, determined by the present Chancellor is in accordance with the last-mentioned case of Coke v. Bullock. In Baxter v. Dyer, the testatrix, after devising lands to Sir John Dyer, and his heirs, borrowed from the devisee a sum of money, and mortgaged the devised estate to him, by a conveyance in fee, and upon the ground that mortgages are in equity considered not as conveyances of the estate, but as mere pledges thereof by way of security, this subsequent mortgage, although it was made to the same person to whom the estate itself had been devised, was held to be no revocation. As in Coke v. Bullock the lease was to begin in the life-time of the testator and might have terminated before his death, so in this case the pledge was to take place in the testatrix's life-time, while it was hers, and at her own disposal, and the object might have been answered in her lifetime. It was therefore held to be no revocation. And the Chancellor, after stating that the case of Harkness v. Bayley', had been misreported, produced a note which he himself had made upon it, wherein a feature of inconsistency between the will and the posteriour acts of the parties appeared, by attending

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Where there are

two inconsistent wills of the

same date, or both without date, they are both void for uncertainty.

to which, the principle of that case might be reconciled with his decision of the case before him; for it appeared that after the mother's devise in fee to the daughter, the son joined the mother in a conveyance. of the estate for 500 years to the daughter, with a proviso that if the mother or son should pay during the life of the mother 100l. a year to the daughter, and the son after the mother's death should pay 4000l. to his sister, then the term should cease and be void, and the son moreover covenanted with the sister to pay 40007. to his sister after the mother's death, and also with the mother to pay the annual 100l. to his sister during the mother's life. This conveyance was clearly inconsistent with the devise, and it was also clear that the mother intended the estate to descend to the son.

The settled law therefore upon these cases is, that a will is not to be revoked but by necessary implication, so that where the subsequent will or posteriour act is consistent with a prior will or with any part of it, such prior will remains valid in part or in all according to the extent to which the dispositions of the party can be effectuated without contradiction or discordancy. But where two inconsistent wills are produced of the same date, or both without date, neither of which can be proved to be last executed, they are both necessarily, and by the common law, void for uncertainty so far as they are inconsistent, and supposing no act of the testator subsequent to the wills to have explained and reconciled them, the heir at

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