the other formalities required in the case of wills by the 5th section, viz. the attestation and subscription of the witnesses in the presence of the devisor.

3d. Method of express Revocation. By burning, &c. Or by burning, cancelling, tearing, or obliterating the same, by the Testator himself, or in his Presence, and by his Directions and Consent. The acts here mentioned are in themselves equivocal acts: and, consequently, in order to make them operate as revocations, it must be shown that they were done animo revocandi, that is, with an intention to revoke; for unless that appears, the prior devise will not be revoked (g). Hence, if the devisor were to throw his ink upon his will, instead of the sand; though it might be a complete defacing of the instrument, it would not be a revocation; or suppose a person having two wills of different dates by him, should direct the first will to be cancelled, and, through mistake, the person to whom the devisor gave his directions, should cancel the last will; such an act would not be a revocation of the last will: or, suppose a person having a will consisting of two parts, throws one unintentionally into the fire, where it is burnt, it would not be a revocation of the devises contained in such parts. The intention, therefore, must govern in such cases. A., by will, duly executed and attested (h), devised land to trustees to several uses; and at the same time executed a duplicate thereof, with all the solemnities prescribed by the fifth section of this statute. Some time after, having been desirous to change one of his trustees, he ordered his will to be written over again, without any variation from the first, except only in the name of that trustee, and a clause revoking all former wills. When it was so written over he executed it in the presence of three witnesses, and the three witnesses subscribed their names, but not in his presence (as the 5th section directs). Some evidence was adduced, that the testator afterwards cancelled the duplicate of the first will, by tearing off the seal. The question was, whether the cancelling the duplicate of the first will should be a revocation thereof within this clause. It was admitted, that if a devisor, having duplicates of his will, cancels one of them animo revocandi, this is a good revocation of the whole will, and of both the duplicates (19). But it was decreed in the present case (i), that it was plain the testator did not mean to

(g) Per Ld. Mansfield, C. J., in Burtenshaw v. Gilbert, Cowp. 52.

(h) Onions v. Tyrer, 2 Vern. 741; Prec. in Chan. 459; Gilb. Rep. 130; 1 Eq.

Ca. Abr. 407, pl. 1; but best reported in
P. Wms. vol. 1, p. 344, Cox's ed.

(i) Reg. Lib. B. 1716, fol. 242; Cox's P. Wms. vol. 1, p. 345.

(19) "Where there are duplicates of a will, one in the possession of the devisor, the other not; and the devisor cancels that which is in his custody, it is an effectual cancelling of both." Per Aston, J., in Burtenshaw v. Gilbert, Cowp. 54.

revoke his former will by cancelling, but by substituting another perfect will in lieu thereof, and not otherwise; and, therefore, the cancelling thereof (if any) was but a circumstance showing that he thought he had made a good disposition by the second will, and in confidence thereof it was done with no other intent, but that the second will should thereby more surely take place. The cancelling of a will under this section may be proved (k) in any manner consistent with the general law of evidence, the statute not introducing any new rule of proof. In order to effectuate a revocation, it is not necessary that the will should be actually destroyed: hence a slight tearing of a will and throwing it on the fire, with a deliberate intent to consume it, by the testator, though it fell off, and was preserved by a bystander without his consent or knowledge, has been holden (1) to be a sufficient revocation. But where a testator, intending to destroy his will, threw it upon the fire, and another person snatched it off; a corner of the envelope only, and no part of the will itself being burnt; it was holden, that the will was not revoked as to the freehold (m), but, as to the copyhold (n), to which the statute of frauds does not extend, it was revoked by the attempt to burn. A. having made a will of land (0), and a duplicate thereof, (both duly executed and attested,) but declaring that it was not a will to his liking, and that he should alter it, delivered a duplicate to B. (a devisee named therein). Afterwards A. executed another will, disposing of his estate in a different manner from what he had done under the former will, and thereby revoked all former wills, and at the same time cancelled the first will, which remained in his own custody, observing to the person who made the second will, that there was a duplicate of the first will in the hands of B. A short time before A.'s death, one of the principal devisees in the last will died; whereupon A. sent for an attorney to prepare another will, but, before the attorney arrived, A. became senseless, and shortly afterwards died. After his death, the first and second wills were found together in a paper, both cancelled; but the duplicate of the first will (which duplicate had been delivered to B.) was found among some deeds and papers of the testator uncancelled. It did not appear how the duplicate came to be found among the testator's papers. It was holden, that at the time of making the second will, the first was clearly revoked, and that it was not set up again by cancelling the second will. The testator, after devising all his land (p) to trustees upon trust to sell," except the house at Bath," gave to his wife his house in Bath for her life, and after her death to his eldest son; and after the execution of the will sold his house at Bath, and struck out of his will the exception and the

(k) Doe d. Reed v. Harris, 6 A. & E. 209; 1 Nev. & P. 405.

(1) Bibb d. Mole v. Thomas, 2 Bl. R. 1043. But see the 20th section of the new act, 1 Vict. c. 26, post, p. 899.

(m) Doe d. Reed v. Harris, 6 A. & E. 209; 1 Nev. & P. 405.

(n) Doe d. Reed v. Harris, 8 A. & E. 1.
(0) Burtenshaw v. Gilbert, Cowp. 49.
(p) Sutton v. Sutton, Cowp. 812.

devise respecting it. It was holden, that the devise to the trustees was not revoked by the erasure, as to the house at Bath (20). So where a testator, by will duly executed and attested (g), devised lands to A. and B., as joint-tenants in fee, and afterwards struck out the name of B. by drawing a pen through it. It was holden, that the erasure was to be considered as a revocation of the devise pro tanto only (21). A., by will duly executed and attested (r), devised land to B. and C. in trust, and afterwards struck out the name of C. and inserted the names of D. and E., leaving the general purposes of the trust unaltered, though varying in certain particulars, and did not republish his will. It was holden, that the intent of the testator appeared to be to revoke by the substitution of another good devise to the new trustees, and not by the obliteration; but such devise, not having been executed with the proper solemnities, would not operate as a revocation; and, admitting that the obliteration of the name of C. would have revoked the devise to C., yet the heir could not recover, inasmuch as the devise to B. remained unrevoked, and competent to sustain all the trusts in the will in exclusion of the heir.

Implied Revocations.]—Although the section of the statute of frauds now under review has enumerated several methods by which a devise of lands may be revoked, and although it should seem to have been the intention of the legislature to have excluded every other method of revocation, yet has it been holden, that implied revocations are not within the statute. Implied revocations strictly so termed, are; 1st, when certain acts are done by the testator, inconsistent with or contradictory to the dispositions made by the will, so necessarily inferring an intention to revoke, that the law will presume such an intention. As where the devisor (s), by a subsequent deed, gives the devisee in fee a lesser interest, e. g. an estate for years, to commence after the death of the devisor: in such case the intended devisee cannot have both interests; that

(9) Larkins v. Larkins, 3 Bos. & Pul. 16. (r) Short d. Gastrell v. Smith, 4 East,

419.

(s) Coke v. Bullock, Cro. Jac. 49, cited in Harkness v. Bayley, Pr. Ch. 514, and 2 Atk. 72.

(20) If A. by his will devises all the residue of his personal estate to B. and C., and makes them executors; and after, by a codicil, cancels and revokes everything relating to B., and also revokes the appointment of B. as executor, C. shall have the whole. A revocation, without a new gift, shall have the same effect as if it had been expressly given; and whether it be by codicil or obliteration, it is the same. Humphries v. Taylor, in Canc. Hil. 25 Geo. II., 7 Bac. Abr. by Gwillim, p. 363.

(21) A mere change of trustees will not revoke a prior devise of the equitable estate. Willet v. Sandford, 1 Ves. 178, 186; Doe v. Pott, Doug. 710; Watts v. Fullarton, (cited) Doug. 718.

which is conveyed by the deed must take effect, and, therefore, the law makes a necessary implication, that the first disposition, which is by the will, is revoked. In like manner, where the devisor having devised a reversion to A., afterwards grants the same to B., this will be a revocation, even though the lessee has not attorned. So where the testator, having devised land to A., bargains and sells the same land to B., although the deed be not inrolled within six months, according to the statute, and, consequently, nothing can pass to the bargainee, yet this will amount to a revocation, because here is a solemn act done, whereby the testator has clearly evinced his intention, that the devisee should not have the land devised (22). 2. It has been holden, that revocations are necessarily to be implied or presumed, from a total change in the circumstances of the testator's family after the execution of the will. This head of revocation was originally borrowed from the civil law (23), and applied in the first instance to bequests of personal estate (t), and afterwards extended to devises of land, such revocation not having been considered as excluded by the provisions of the 6th section of the statute of frauds. What changes or alteration in the circumstances of the testator will be sufficient to work a revocation of a devise of land, may often be difficult to decide. It has, however, been solemnly determined, that a subsequent marriage, and the birth of a child, without provision (u) made for the objects of these relations, is such a material change in the circumstances of the testator's family, as will work a revocation of the devise of land (24).

(t) Lugg v. Lugg, Salk. 592; Overbury v. Overbury, 2 Show. 242.

(u) See Exp. E. of Ilchester, 7 Ves.

242.

(22) I am not aware, that the two last-mentioned instances have ever been solemnly decided. They are mentioned in 1 Roll. Abr. 615 (P.) pl. 5, 6, as the opinions of Popham and Gawdy, Js. ; but, from subsequent cases, where they have been cited, it appears that they have been considered as law. Gilbert has inserted them in his Treatise on Devises, p. 95, 96, ed. 1739.

(23) N. By the common law, before the statute of frauds, a subsequent marriage was holden to revoke a will of land made by a feme sole; although such marriage was had with the person in whose favour the will was made. Forse v. Hemblinge, 4 Rep. 60, b.

(24) An opinion bas been expressed in Brown v. Thompson, at the Rolls, 8 Dec. 1731, by Sir John Trevor, M. R., and afterwards in the same case by Lord Keeper Wright, (1 P. Wms. 304, n.; 1 Eq. Ca. Abr. 413,) that revocations of a devise of land might be implied from subsequent marriage and birth of a child, notwithstanding the provision of the 6th section of the statute of frauds; but this point was not considered as settled until the case of Christopher v. Christopher, 2 Dickens, 445, when it was solemnly determined by Adams, B., Smythe, B., and Parker, C. B., against the opinion of Perrot, B., who thought the case within the

In a subsequent case the rule was thus laid down (x): that, in the case of the will of an unmarried man having no children by a former marriage, whereby he devises away the whole of his property which he has at the time of making his will, and leaves no provision for any child of the marriage, the law annexes the tacit condition that subsequent marriage and the birth of a child operates as a revocation. And in a case where, after making his will, the testator married, and his wife became pregnant with his knowledge, the posthumous child was considered for this purpose in the same condition as a child born during the testator's lifetime (y). This rule of revocation, like the preceding, was formerly considered as grounded upon a presumed alteration of intention in the testator; but Lord Kenyon, C. J. (z), thought it was founded "on a tacit condition annexed to the will when made, that it should not take effect if there should be a total change in the situation of the testator's family" (25). But this rule has been holden to apply only in cases where the wife and children, the new objects of duty, are wholly unprovided for, and where there is an entire disposition of the whole estate to their exclusion and prejudice. Hence (a), where A. devised certain lands to B. in trust, and directed him to pay, out of the rents and profits, an annuity to M. S., with whom he cohabited, and in case he should leave any child or children by M. S., to raise a sum of money to be paid among his children, and then devised the remainder of his estate to several of his relatives; and afterwards A. married M. S., by whom he had several children: it was holden, that the will was not revoked; either, 1st, on the ground of a tacit condition annexed to the will,

(x) By Tindal, C. J., delivering judgment in Exch. Chamb. in Marston v. Roe d. Fox, 8 A. & E. 60; 2 Nev. & P. 504. (y) Doe v. Lancashire, 5 T. R. 49. (z) Ib., recognized by Tindal, C. J., de

livering judgment in Marston v. Roe d. Fox, on error in Exch. Chamb., 8 A. & E. 57, 8; 2 Nev. & P. 504.

(a) Kenebel v. Scrafton, 2 East, 530.

statute, and that the dispute concerning the reality of a subsequent marriage, and the legitimacy of children, was as open to perjury as any other, and that the statute intended an actual and not a presumptive revocation. The case of Christopher v. Christopher has been recognized in several subsequent cases, viz. in Spraage v. Stone, Ambl. 721; Brady v. Cubitt, Doug. 31; Doe v. Lancashire, 5 T. R. 49; in Kenebel v. Scrafton, 2 East, 530; Exp. E. Ilchester, 7 Ves. 348; Sheath v. York 1 Ves. & Beames, 397. N. Marriage alone, or the subsequent birth of children unprovided for alone, is not sufficient to operate as a revocation of a will of personal estate*. Per Dr. Hay, in Shepherd v. Shepherd, Hil. 1770, in the Prerogative Court. Nor of real estate. Doe v. Barford, 4 M. & S. 10.

(25) Lord Ellenborough, C. J., delivering the judgment of the court in Kenebel v. Scrafton, seems to have approved of Lord Kenyon's opinion.

* Jackson v. Hurlock, Lord Northington, Ch., S. P., Amb. 494; 2 Eden, 63, S. C.