tain his Count, and answer the Defendant's Bar; the Book is, per hoc quod alius Executor nominatur. Then was cited 1 Cro. 51. the Reason given is, quia in dubiis non præsumitur pro testamento, and here being a good Will, at the most the other is doubtful, 1 Cro. 114, 115. Several Wills of several Things may be made. And the same Book 595. 10 Car. 1. which Resolution Serjeant Maynard, in arguing this Case below, said that he heard in the Court of King's Bench. 'Tis the subject Matter of the Wills and the Repugnancy which makes the Revocation. In this very Case, in the Exchequer, upon an English Bill, 'twas held by Hale to be no Revocation: 'Tis in Hardres 375. Coke upon Littleton, which hath been quoted, comments upon these Words several Devises, and if there be no Devise in the Second, there can be no Sense or Meaning in it; and consequently unless some Meaning appear, it can never be an Evidence of a Change of his Mind. As it might be a Revocation, so it might be otherwise; and he, that will have it to be a Revocation, must prove it to be such. No Man can affirm that every Will must necessarily be a Revocation of a former, for the second Will might be of another Thing, as Goods; or of another Parcel of Land; or in Confirmation of the Former. If in these, and many other like Cases, a latter Will is no Revocation of a former, how can it possibly with Justice be concluded, that a latter Will without Contents, Purport or Effect, shall be a Revocation of a former? And tho' the Jury have in this Case believed the Witnesses, and found that another Will was made, it may be of dangerous Consequence to and construe this a Revocation, without knowing the Contents; for no Will can be secure against the Swearing of a new Will, if there be no Necessity of shewing it, or proving what it was. For which, and other Reasons, it was prayed that the Judgment might be affirmed; and it was affirmed.
[150]Sir William Leach & al',—Plaintiffs; v. J. Thomson, Lessee of Charles Leach,—Defendant [1698].
[16 Lds. Jo. 267; Mew's Dig. ix. 648. Noted in Yates v. Boen, 1739, 2 Str. 1104. See Molton v. Camroux, 1848, 2 Ex. 487, 4 Ex. 17; Imperial Loan Co. v. Stone [1892], 1 Q.B. 599.]
Non compos mentis. Whether his Acts void. [2] Salk. 576. 3 Mod. 301. 2 Vent. 198. 1 Show. 296, &c.—Writ of Error to reverse a Judgment given in B.R. upon a special Verdict, on a Trial at Bar in Ejectment brought by Thomson on the Demise of Charles Leach: The special Verdict finds, that Nicholas Leach was seised of the Lands in Question in his Demesne as of Fee; and being so seised 9 Nov. 19 Car. 2. he makes his last Will, and thereby devises the Premisses to the Heirs Males of his Body lawfully to be begotten; and for Default of such Issue, to Simon Leach his Brother for his Life, and after his Decease to the first Son of the Body of the said Simon lawfully to be begotten, and the Heirs Males of the Body of such first Son lawfully to be begotten; and for Default of such Issue, to the second, &c. and so on to the eighth Son, and of all and every other Sons, &c. and for Default of such Issue, to Sir Simon Leach, his Kinsman, Son and Heir of Simon Leach of Cadley in Com' Devon', Esq; deceased, and the Heirs Males of his Body; and for Default of such Issue, to the right Heirs of him the said Nicholas for ever.
Then they find, That the Lands in the Declaration, and those in the Will, are the same; that afterwards, viz. 10 Apr. 20 Car. 2. Nicholas died seised without Issue of his Body; that after his Death, the said Simon his Brother and Heir entred, and was seised in his Demesne ut de libero tenemento for Term of his Life; Remainder to the first Son of the Body of the said Simon the Brother, and the Heirs of the Body of such first Son lawfully to be begotten; and for Default of such, to the second, &c. Remainder to Sir Simon in Tail, Remainder to the said Simon the Brother and his Heirs.
That Simon Leach the Brother so being seized, afterwards, viz. 20 Aug. 20 Car. 2. took to Wife Anne the Daughter of Unton Crook; that afterwards the 20 Aug. 25 Car. 2. he being so seised did Make, Seal, and as his Deed Deliver a certain Writing, purporting a Surrender of the said Lands to the said Sir Simon Leach,
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