But there does seem to be a distinction between cases, where the testator refers to a fact as having actually happened, and where he merely expresses his doubt, supposition, or advice of the fact (2). Thus in the case of the AttorneyGeneral v. Lloyd (a), the testator, by his Will, dated 8th February, 1734, gave particular lands and his personal estate, to be laid out in lands, to charitable uses. He afterwards made a codicil, dated 12th July, 1736, in which, after reciting his doubt whether such devise would be good, he gave the lands to M. B. and his heirs, if by the Mortmain Act they could not pass according to his Will. In 17th March, 1737, he made another codicil, the terms of which were, that the testator, "being advised" that the devise of his lands was void, and it being his intention that the charity should be continued, and being advised that his personal estate could be given, he did, by that codicil, give his personal estate to the charitable uses, and his real estate to M. B. The former part of this advice seems to have been ill-founded; for in Ashburnham v. Bradshaw (b) it had been certified by the opinion of all the judges, to Lord Hardwicke, that a devise of lands, under a Will to charitable uses, made before the Statute of Mortmain, (which was enacted in 1736,) notwithstanding the testator survived the enactment, passed the land. But Lord Hardwicke observed, that the testator had put the devise on the fact of his being advised; and that he was so advised, was a fact in his own knowledge; and he had grounded his devise upon this advice, and not upon the reality of the law, though that should come out in the event one way or another; upon that he made his determination, which he might do to quiet a doubtful question,-"I will not have this litigated after my death, but I will settle it myself, upon some certain foundation (c)." His Lordship afterwards ordered a case that this did not set up the codicil: for, having been once inoperative, it could only be republished according to the Statute of Frauds. (2) 1 Powell on Dev. 525. (a) 3 Atk. 551. (b) 2 Atk. 36. (c) His Lordship afterwards said, his principal doubt in this case Will executing a power revoked by subsequent will. to be stated for the opinion of the judges of the King's Bench, and they certified, that the real estate was well devised to M. B., under the second codicil. So in the Attorney-General v. Ward (d), the testatrix, having by her Will, given 300l., to be divided among such of the children of E. D. as should be living, by a codicil gave to her brother's son "the 300l. designed for E. D.'s children, as I know not whether any of them are alive, and if they are well provided for:" Lord Alvanley held that this operated as a complete revocation of the legacy, though the children of E. D. were alive and claimed the legacy: The learned judge observed that it had been argued, and with some ground, that if it had rested upon her not knowing whether they were living, there would be good reason to contend, that it fell within the case of "Pater credens filium suum esse mortuum, alterum instituit hæredem; filio domum redeunte, hujus institutionis vis est nulla (e);" but she went further; that she doubted, if they were living, whether they might not be well provided for; and the Court would not inquire whether they were well provided for or not. In Richardson v. Barry (ƒ), (a case before the new Statute of Wills) the deceased had power, under a trust deed, to dispose of certain effects by a Will attested by two witnesses: And it was held, that a Will, executed accordingly, was revoked by a subsequent Will directly referring to the trust deed, and containing an express revocatory clause duly executed, but attested by one witness only. In Hughes v. Turner (g), the testatrix, possessing a power of appointment, duly by Will executed that power: By a later Will duly executed and attested according to the power, but without any recital of, or reference to, the power, she was, whether the new disposition Will, as to be sufficient to support the charity. (d) 3 Ves. 327. (e) Cicero de Oratore, lib. 1, c. 38. disposed of a real estate over which the power extended, bequeathed all the rest, residue, and remainder of her estates and effects, real or personal, plate, &c. or other property whether in possession, reversion, or expectancy, or held in trust for her; revoked and made void all and every other Will and Wills by her at any time theretofore made, and declared this only to be her last Will and Testament: The Court of Delegates, holding that the intention to revoke the former Will was, taking all the contents of the latter Will together, clear, refused probate of the two papers, as together containing her Will, and granted probate of the latter paper alone. But it has been understood (h) that the ground of this decision was, that the contents of the later Will taken altogether clearly showed a departure from the original intention of the prior one, and therefore revoked that Will, but that the clause of revocation, taken per se, and without a clear intention, would not have had that effect. It was argued that by refusing probate of the earlier papers, the question was shut out, whether they were not a good execution of the power (i). But it was holden, notwithstanding, that the Court of Probate must decide, according to its ordinary rules, whether the last paper was revocatory or not, and decree probate accordingly in the ordinary course (k). Again, in Brenchley v. Lynn (1), a woman, having a power to appoint certain property by Will, made a Will previously to her marriage in 1834, and by her marriage settlement, of even date with her Will, convenanted not to revoke that Will: After her marriage she executed many testamentary papers, but did not, as alleged, thereby in any way revoke the Will: Subsequently she executed "a codicil" to "her last Will," whereby she revoked her "said Will in toto," so that I may die intestate:" And Dr. Lushington held that, notwithstanding an averment of the necessity of pro (h) See 4 Hagg. 71. (i) See post, Pt. 1. Bk. IV. Ch. III. § IX. (k) See this case again stated, post, Pt. 1. Bk. IV. Ch. III. § IX.; and also Pt. 1. Bk. v. Ch. III. § VI. (7) 2 Robert. 441. Question whether on the revocation of a latter Will a former uncancelled Will is revived? bate being granted of certain former testamentary papers in addition to the last "codicil," in order that the Court of Equity might construe them in reference to the covenant in the settlement, the Ecclesiastical Court was bound, by the authority of the above-mentioned case of Hughes v. Turner, to decree probate of the last testamentary paper alone: For it appeared from that case, that the duty of deciding whether the "last codicil" was meant to revoke all the other papers, was thrown on the latter Court; and upon the facts 'before him it could not be doubted that it was so meant (m). It has long been a vexata quæstio, whether the principle of law is, that, on the revocation of a latter Will, a former uncancelled Will shall revive, or not. In the Common Law Courts, it has certainly been laid down as an absolute proposition, excluding all questions of intention, that the former Will shall revive. Thus in Goodright v. Glazier (n), the former Will (being a Will of lands) was made in 1757; the second in 1763: The former was never cancelled; the second was cancelled by the testator himself: Both Wills were in the testator's custody at the time of his death; the second cancelled, the first, uncancelled: It was held, that the first Will was valid, because the second, being cancelled before the testator's death, had no operation whatever, and therefore the first stood unrevoked (o). So in Harwood v. Good (m) See In the goods of Holt, 6 Notes of Cas. 93. (n) 4 Burr. 2512. (0) In the report of this case in Burrow, it is not mentioned that the second Will expressly revoked all former Wills. It appears, however, from the quotation of the case in Bull. N. P. 266, and from 3 Hill's MSS. 433, that such a clause was in fact contained in the second Will see note (a) to Burr. 2513, 3d edit. This omission, in the report by Burrow, may have led to the distinction which is to be found in Powell on Devises; where, after citing Goodright v. Glazier, it is said to be the better opinion, that if the subsequent Will expressly revoke the former, the cancellation of the latter does not set the former up again. See also Roper on Revocation, p. 24, to the same effect. This distinction, as well from the fact above stated, as from the principle upon which the case was decided, appears to have no foundation; and the dicta of Lord Mansfield in Harwood v. Goodright, cited in the text above, expressly negative it. ! right (p), Lord Mansfield said, that it had been settled, that In the Ecclesiastical Courts, it seems that a different It is a question be collected circumstances of the case. But the judgment of the Delegates in the above cited case of Moore v. Moore, where the point was very ably argued of intention to and fully considered, has been understood to establish, that from all the it is to be regarded as a question of intention, to be collected from all the circumstances of the case (t), and that the legal presumption is neither adverse to, nor in favour of, the revival of a former uncancelled, upon the cancellation of a latter revocatory Will. Having furnished this principle, the law withdraws altogether; and leaves the question, as one of (p) 1 Cowp. 91. (g) 1 Phillim. 419. (r) See also Sir John Nicholl's observations in Wilson v. Wilson, 3 Phillim. 554. (8) See the different cases cited in Moore v. Moore, 1 Phillim. 412. Helyar v. Helyar, 1 Cas. temp. Lee, |