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with two testaments," yet any number of instruments, whatever be their relative date, or in whatever form they may be, (so as they be all clearly testamentary) may be admitted to probate as together containing the last Will of the deceased (1). And if a subsequent testamentary paper be partially inconsistent with one of an earlier date, then such latter instrument will revoke the former as to those parts only where they are inconsistent. Where, however, a testator by a paper purporting to be or unless the

latter be a sub. "liis last Will," and in which executors were appointed, stantive Will : disposed of a part only of his personal estate, and did not expressly revoke a former testamentary paper, it was held by Sir Herbert Jenner Fust in Plenty v. West (i), that the earlier paper was nevertheless revoked by the later, notwithstanding the two were not wholly inconsistent; there being nothing to show that he intended them to be taken conjointly as his Will: And it was said by the judge that he knew of no case where the testator called a Will “his last Will” in which the Court has held former papers to be included. And this decision was recognised and acted upon, after much consideration, by Sir John Dodson in Cutto v.


Gilbert (1)

In Plenty v. West the Judge further remarked that the effect of ap

pointment of appointment of executors has always been considered to effect excéutors. a complete disposition. But this, as it has been since held by Sir John Dodson, is by no means conclusive of the testator's intention to constitute a substantive Will (1:).

(2) See a strong instance of this to a former Will: In the goods of in Masterman v. Maberly, 2 Hagg. Luffman, 5 Notes of Cas. 183. In 233; and for other examples, see the goods of Langhorn, 5 Notes of ante, p. 93, n. (e). Stoddart v. Cas. 512. And see further In the Grant, 1 Macq. H. of L. 163. goods of Holt, 6 Notes of Cas. 93, 96. Richards r. Queen's Proctor, 18 2 East. 494, 495, by Lord EllenJur. 540. See also post, 146, note(e). borough and Lawrence, J.

(i) 1 Robert. 264. S. C. 4 Notes (j) Prerog. Nov.23,1853, & March of Cas. 103, S. C. coram M. R. 16 3, 1854, 18 Jur. 560, post, p. 143. Beav. 173. But instances may be (k) Richards v. Queen's Proctor, found where a paper calling itself 18 Jur. 540. Stoddart v. Grant, a last Will and testament has been 1 Macq. H. of L. 163, 173. admitted to probate as an addition

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A paper dis. Conversely, where by a testamentary paper, which was posing of all the estate,

executed as a Will and not as a codicil, all the testator's without making an ex

property is given to a particular person, without the appointecutor, wholly ment of any executor, such paper will operate as a total revokes a prior Will, though revocation of a prior Will, even though an executor may appointing ex- have been appointed by such prior Will. For the later ecutors,

paper being, in fact, a Will disposing of all the property, although there is no express revocation of the former Will or of the appointment of an executor, is, ex necessitate, a

revocation of the former (I). Effect of ex- It may here be observed, that a paper of a date prior to a press revoca. tory clause in Will with a revocatory clause may be admitted to probate, subsequent

provided the Court is satisfied that it was not the intention Will.

of the testator to revoke that particular legacy or benefit. Thus, in the case of Denny v. Barton (m), where there was a letter to the executors directing the payment of a legacy, and a clause of revocation in a subsequent Will, it was held that the legacy was not revoked by a general revocatory clause. So in Gladstone v. Tempest (n), checques written

. in 1833 by the deceased on his banker, but not intended to have effect until after his death, were pronounced for as part of the testamentary disposition of the deceased, notwithstanding he had, in 1834, formally executed a Will disposing of the whole of his property, and containing a full

clause of revocation. Mere fact of a Upon the same principles it has been decided, in later Will existing, will

the Courts of Common Law, that a subsequent Will is not operate a no revocation, unless the contents of it are known: and revocation, at least in the it is not to be presumed, from the mere circumstance Common Law Courts :

of another Will having been made, that it revoked the former. As where it was found by a special verdict that the testator after the making of a former Will made another Will in writing; but what the contents and purport were, the jury did not know: The second Will was holden

(1) Henfrey v. Henfrey, 2 Curt. 468: affirmed in the Privy Council, 4 Moore, P. C. C. 29,

(m) 2 Phillim, 575.
(n) 2 Curt. 650.


not to be a revocation of the first : for the other Will might concern other lands, or no lands at all, or be a confirmation of the former (o). And though a Will be expressly found though it be to be different from a former, yet if it be declared that it is

expressly found

to be different not known in what that difference consisted, it will be no

from a former

Will, if the revocation in law thereof. Thus where it was found by a particulars be

unknown : special verdict (p) that the testator did make and duly publish another Will in writing in the presence of three subscribing witnesses who duly attested the same; that the disposition made by the testator by the second Will was different from the disposition in the former Will, but in what particular was unknown to the jury; but they did not find that the testator cancelled the second Will, or that the devisee under the first Will destroyed the same, but what was become of the second Will the jury could not tell; it was adjudged in the King's Bench on Error, reversing the judgment of C. B. to the contrary, that the second Will was no revocation of the first; and the judgment of the Court of King's Bench was affirmed in the House of Lords. However, in Cutto v. Gilbert (2), Sir John Dodson de- a later Will, of

which nothing clined to recognize these doctrines of the Common Law: In that case a testator, having duly executed his Will, sub- that it was sequently executed another testamentary paper, which was Will,” is no not found at his death, and the contents of which were unknown, save that it was headed “last Will;” and that learned Judge, on the authority of Plenty v. West, (already cited) held that the former Will was revoked by the execution of the latter, being of opinion that the execution of a Will of

is known but

headed “last


(0) Hitchins v. Bassett, 3 Mod. 203. S. C. Comb. 90. 2 Salk. 592. 1 Show. 537, affirmed in the House of Lords, Show. Cas. Parl. 146. " Hence it seems to follow," says Mr. Serj. Williams, in his note to Duppa v. Mayo, 1 Saund. 279, h. “ that what Lord Hale is said to have laid down in a former case upon the same Will (Seymour v. Nosworthy, Hard. 376), namely that 'a second substantive independent Will,

though it does not by express words
importa revocation of a former Will,
or pass any land, amounts in law to
a revocation,' is either not correctly
reported, or if it be, is overruled by
Hitchins v. Bassett."

(P) Goodright v. Harwood, 3Wils.
497. S. C. 2 Black. 937. Cowp. 87,
aflirmed in the House of Lords, 7
Bro. P. C. 344. 1 Saund. 279, h.

(9) Prerog. Nov. 23, 1853, & March 3, 1854, 18 Jur. 560.

Personalty amounts to a revocation of a former Will, whether the contents of the later Will are known or not, provided there be, in substance and effect, revocatory words. But this decision was reversed in the Privy Council; their lordships being of opinion that the words,“this is my last Will,” did not import that the paper contained a different disposition of the property; and that the mere fact of so calling

it did not render it a revocatory instrument (q). Two incon- If two inconsistent Wills be found of the same date, or sistent Wills of the same date, without any date, and no evidence can be adduced estabor without any lishing the posteriority of the execution of either, both are

necessarily void, and the deceased must be considered intestate: But in every case the Courts will struggle to reconcile them, if possible, and collect some consistent dis

position from the whole (r). Revocation of It may sometimes become a question, in a case where a prior disposition, by a

there are several codicils, or other testamentary papers, of substituted one different dates, whether the dispositions of the later are to in a latter instrument. be considered as additional and cumulative to those of the

prior, or as a substitute for, and consequently revocatory of them. As if a testator, by a codicil to his Will, should direct a certain mode of making a provision for his wife, and by another subsequent codicil, should also direct a provision for her in another mode; on the face of these instruments it might be doubtful, whether by the latter codicil he intended to increase the provision made by the former, or to revoke it by substituting that contained in the latter (8). In such cases, the Ecclesiastical Court will admit parol evidence, in order to investigate the animus with which the act was done; and if upon such evidence it should appear, that the latter codicil, although containing no revocatory words, was intended by the testator as a substitute for the former, it shall be thereby revoked, though it remain (9) 9 Moo. P. C. 131.

(8) See also Gladstone v. Tempest, (r) Swinb. Pt. 7, s. 11, pl. 1. 2 Curt. 650. Walsh v. Gladstone, Godolph. Pt. 1, c. 19, s. 3. Phipps 1 Phill, C, C. 294. S. C. 13 Sim. v. Earl of Anglesea, 7 Bro. P. C. 261. In the goods of Beetson, 6 443. Toml. Ed. 1 Powell on De- Notes of Cas. 13. See also Frewen vises (by Jarman) 518, n. (3). v. Relfe, 2 Bro. C. C. 221.

incancelled (t). However, the general principle is, that bequests are, primâ facie, to be taken cumulatively, when they are on separate papers, unless they are revocatory of each other (u). And in a late case (1) in the Prerogative Court, it was held by Sir Herbert Jenner Fust, that, whether the case is to be governed by the old law, or by the new Statute of Wills, parol evidence is not to be admitted, unless there is such doubt and ambiguity on the face of the paper's as requires the aid of extrinsic evidence to explain it (y).

Although a paper merely purporting to be instructions for in what cases

ins'ructions are a Will may, under some circumstances, operate as fully as revoked by a a Will itself (z), yet when i Will has been subsequently wili.

subsequent executed, disposing of all the testator's personal estate, and operative by itself, the instructions must be regarded as having performed their duty, so that their effect is at an end, and the Will is, prima facie, a revocation of them (a). But it is otherwise where the subsequent Will is operative only by reference to the instructions; for in such case the Will and instructions may be admitted to probate as forming together the last Will of the deceased (1). Before the new Statute of Wills (1 Vict. c. 26) came into Revocation of a

finished Will operation, a Will of personalty might also have been partially ly a subsequent revoked, in some instances, by a subsequent unfinished Will, unfinished one,

(if made before which the testator had been prevented, by the act of God, Jan. 1, 1838.) from completing. The rule was, that where there was a regular Will, and another paper begun as a new Will, which the testator had been prevented, by the act of God, from finishing, the two papers might be taken together as the Will

(1) Methuen v. Methuen, 2 Phillim. 416. Greenough v. Martin, 2 Add. 239. See post, Pt. III. Bk. III. Ch. 11. § VII. And as to the ad.. missibility of parol evidence, see post, Pt. 1. Bk. iv. Ch. III. sv.

(u) Bartholomew v. Henley, 3 Phillim. 316, by Sir John Nicholl. See infra, Pt. III. Bk. III. Ch. II. $ VII. äs to cumulative legacies.

(x) Thorne v. Rooke, 2 Curt. 799.

(y) As to what is to be regarded as such an ambiguity, see post, Pt. 1. Bk. Iv. Ch. III. $ v.

(-) See ante, 62, 63.

(a) Wood v. Goodlake, 2 Curt. 129.

(5) Hitchings v. Wood, 2 Moore, P. C. C. 355.



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