Name of Hitchins versus Basset.—Writ of Error to Reverse a Judgment in B. R. upon a special Verdict in Ejectment by Hitchins the Lessee of Nosworthy, against Sir William Basset, Defendant, for the Manor of Lanrock and other Lands in Cornwall; wherein, upon Not guilty pleaded, and a Trial at Bar, the Jury find, That Sir Henry Killegrew was seised in Fee of the Lands in Question; and on the 12th of November 1644. made his Will in Writing, which follows in these Words, I Henry Killegrew, &c. and so they set forth the Will, whereby Sir Henry Killegrew devised the Premisses to Mrs. Jane Berkley (his near Kinswoman) for Life; with Remainder over to Henry Killegrew, alias Hill (Sir Henry's Natural Son) in Tail, and makes Mrs. Berkley sole Executrix. They further find, that after the making of that Testament, and before the Time when, &c. viz. about the Feast of St. Michael in the Year 1645. Condidit & fecit aliud Testamentum in scriptis, sed quod fuit content' in eodem ult' mentionat' Testamento, vel quale fuit purportum sive effectus inde, juratoribus præd' non constat. And that Sir Henry on the 29th of September 1646 died seised of the said Lands; that Mrs. Jane Berkley, Devisee of the said Will, in 1644. by Lease and Release conveyed to Mr. Nosworthy's Father, and that the Father died in 1684. that Mr. Nosworthy is Son and Heir to him; that Sir William Basset is Cosin and Heir to Sir Henry, viz. Son and Heir of Elizabeth Basset, Daughter and Heir of Sir Joseph Killegrew, elder Brother of Sir Henry the Testator; that Nosworthy, the Lessor of the Plaintiff, entred and made the Lease in the Declaration, &c. But upon [147] the whole Matter, whether the said Testament made in Writing 1645. was a Revocation in Law of the said Devise of the said Lands to Mrs. Berkley, they are ignorant, and pray the Judgment of the Court, Et si; And upon this Judgment was given for the Plaintiff in the Ejectment.
Argument for the Plaintiff in Error. That a subsuquent Will revokes the former. Military or Unsolemn Will by the Civil Law. Local Customs of Devising at the Common Law. Made general by Statutes. Difference between Wills and Codicils.—And now it was argued, That the Judgment was Erroneous; that this last Will could not be taken to be a Duplicate of the Former, but must be deemed a Revocation. That no Will is good but the Last; that every Will is revokable till Death; that the making of another doth import a Revocation of all former ones, tho' it be not so expressly declared in Writing; for it must be the last, or nothing. That this Conveyance by Will was anciently a Privilege by the Civil Law, for People in Extremis, who had not the Time or Assistance necessary to make a formal Alienation; and chiefly intended for Military Men, who were always supposed to be under those Circumstances; and therefore the Ceremonies and Number of Witnesses required of others, were dispensed with, as to Soldiers. But now the Rules for Military Testaments, as they are called, are allowed in most Cases. That as to Lands, by our Law, was a Privilege only given to some Boroughs and Places within the Kingdom; and particular Custom gave the Liberty of disposing Lands or Houses by Will, and that by nuncupative Will or Parol without Writing; so is Bracton, lib. 4 fol. 272. Fleta, lib. 5. cap. 5. Potest legari, ut catallum, tam hæreditas quam perquisitum, per Barones London & Burgenses Oxon, 1 Inst. 111. that then came the Statute of H. 8. and impowers a Devise by a Man's last Will and Testament in Writing; but still 'tis by his last Will. And so is Littleton, sect. 168. If divers Wills, the latter shall stand, and the others are void, 1 Inst. 112. In Truth 'tis plain Law, the first Grant and the last Testament. In Swinb. 1 part, sect. 5. p. 14. no Man can die with two Wills, but he may with divers Codicils; and the latter doth not hinder the former, so long as they be not contrary. Another Difference there is between Wills and Codicils: If two Testaments be found, and it can't be known, which is first or last, both are void; but the latter Countermands the first, tho' there be a Clause in the first, that it shall not be revoked, and tho' an Oath were taken not to revoke; because the Law is so, and the very Making of a latter doth revoke the former: So is Linwood's Provincial de Testamentis; Justice Dodderidge's Office of Executor, published by Wentworth 29. A verbal Will revokes a former written Will, Forse and Hembling, 4 Rep. 60, 61. Plowd. 541. Perkins, sect. 178, 179. and sect. 478. The 2 H. 5. 8. is full to this Purpose. There's an Action by an Executor against two Executors, and they plead a Testament whereby they are made Executors; and the Plaintiff replies, that the Testator afterwards made another and himself Executor; and held that by the
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