second the first became void. Now the Meaning of these Books cannot be, that a Will expresly revoking, is the only Will that can make a Revocation; nor is it, that a Contrariety or Repugnance between the one and the other, is necessary to make a Revocation: For tho' [148] there be no new Will made, yet a Revocation may be by Word of Mouth, as 2 Cro. 49, 115. 1 Cro. 51. 3 Cro. 781. nay, a void Bequest shall revoke a Will; so shall a Deed that hath no Effect, as Feoffment without Livery; a Devise to J.S. or to a Corporation, when there is no such, will do it: So that 'tis not the Contradiction between the Disposal which revokes, for that which is no Disposition at all will do it. Wherefore the Meaning of the Authors cited is somewhat else; and it can only be this, That there is somewhat particular in a Will, to that Instrument of Conveyance, more than to any other, that even the Making of a new Will is a sufficient Revocation; the Words are plain, by the making [a] new Will the former are all destroyed; for there can be but one last. And when a Man makes and declares a new Will, that new Will must be presumed to contain his whole Mind concerning the Disposition of his Estate. Declaring his Will imports thus much, and excludes all other. When a Man would alter Part of his Will, there is a proper Instrument for it, called a Codicil, which is known in the Law as well as that of a Will: Here's nothing found of a Reference to the former. To judge it otherwise, would confound the Use of Wills and Codicils, and the Difference between them. 'Tis true that a Man may make partial Wills of several Parts of his Estate, and all may stand together; but then they must be declared to be Wills concerning particular Things; and they are but several Pieces of the same Will, tho' written in different Papers: But then in pleading one of them, you must not generally say he made ult' voluntatem, but ultimam voluntat' of such a Thing: But here 'tis aliud testamentum, i.e. a general Testament. The 2 Rich. 3 fol. 3. is directly thus, The Defendant pleads one Will, the Plaintiff replies another, and Exception taken, because he did not traverse the former, but held needless to do so, quia per ult' testamentum, ut placitatur generaliter, primum testamentum revocatur in omnibus: And it cannot be pretended that this might be the same Will written over again; for if so, it could not, be aliud; it would be the same. These are not Quibbles upon Words; for can it be said that this is a Devise by the last Will of Sir H. when there is another. Nor is it an Objection, that the Contents do not appear; for the Will belongs not to the Heir to keep, and consequently not to shew; in pleading he is not bound to a Profert; it is enough that there was a subsequent Will. And as the latter may Confirm or be consistent with the former, so it may not be so; and the Consistency is not to be presumed, especially against an Heir at Law, and in Possession. In the Case of Coward and Marshal, 3 Cro. 721. the Substance of both are declared, and thereby they appeared to be Consistent, and consequently no Revocation. Here Eadem mens sic testandi, the same Intent of disposing his Estate the same Way can never be thought to continue, for then there had been no Occasion of making another Will. If this be not a Revocation, it is an Act void, and to no Purpose, which is never to be intended. Then it was insisted on, That the bare Act of making and publishing another Will, is a Revocation; [149] and the Finding of the Contents unknown is void: If this be not a Will, 'tis a Codicil; and that is contrary to the finding of the Jury: For the Verdict mentions a second Substantive independent Will, without Reference to the former; which second Will is a Revocation: And therefore 'twas prayed that the Judgment should be reversed.
Argument for the Defendant in Error. Judgment affirmed.—It was argued on the other Side, in Behalf of Mr. Nosworthy, That this was no Revocation. That here had been a great Stir about Nothing, for that Nothing appeared against his Title; that a Man may make a Will of several Things at several Times, and they both shall stand; that a deliberate Will being made, the Contents whereof are known, shall never be revoked by that which is not known: Nothing can be judged upon that which doth not appear, and consequently it can never be judged to be a Revocation. Here's another Will, and nothing is given by it, nothing is found to be given by this subsequent Will. The Form of entering the ancient Judgments was, Quibus visis, lectis & auditis, & per Curiam plene intellectis; now what is here read to make a Revocation? 2 R. 3. fol. 3. is with the Judgment; for there 'tis replied that he made another Executor; there are the Contents pleaded, sufficient to main-
101
