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Chap. IX. testator has been prevented by the act of God from com

pleting, the two papers may be taken together as the will of the deceased, and operation pro tanto be given to the latter paper, provided the proof of final intention be clear;

but it will not wholly revoke the former paper.(a) This has been the constant doctrine of the Court; where instructions are finished they are not revoked by an unfinished paper, except as far as it goes; the law presumes

, that the testator would have adhered to the remainder.(b) Where there was a will regularly executed in Jamaica, and the deceased gave instructions for an entirely new will, but before he had disposed of the residue became incapable, the Court pronounced for the two papers as

containing together the will.(c) Revocation by The Statute of Frauds did not prohibit the introducsubsequent non-appearing tion of parol evidence to prove the fact of a will having will,

existed subsequent to the will founded on the death of the alleged testator. And therefore it was held that the execution of a second will of a different purport from the first was by law a revocation of the first, though the second might not appear.(d) But in order to revoke an existing instrument by parol evidence that another will has been executed, and by such evidence alone, the evidence produced must be strong and conclusive. (e)

Where the second will or codicil is void, not because operative will

the instrument is improperly executed, but because a

a

Second in

when revocation.

(a) Carstairs v. Pottle, 2
Phillim. 35, per Sir J. Nicholl ;
Reeves v. Glover, 2 Cas. temp.
Lee, 270.

(6) Harley V. Bagshawe, 2
Phillim. 51; Masterman
Maberly, 2 Hagg. 236.

() Goldwyn v. Coppoll, cited

2 Phillim. 51.

(d) Helyar v. Helyar, 1 Cas. temp. Lee, 472, 511; see also Brown v. Brown, 8 E. & B. 876.

(e) Cutto v. Gilbert, 9 Moo. P. C. C. 131; Wharram v. Wharram, 3 Sw. & Tr. 301.

V.

gift contained in it is void, it will nevertheless operate as CHAP. IX. a revocation.(a) Evidence is admissible to show that a clause of revo- Revocatory

clause inserted cation inserted in a will was inserted by mistake.(b) by mistake. Where the deceased by her will left a portion of her furniture, etc., to her daughter and disposed of the residue of her property, appointing trustees and executors, and subsequently, being advised that the bequest to her daughter should be secured to her separate use, gave directions that a testamentary paper should be prepared to that effect, which paper contained a clause revocatory of all former wills, and this paper was executed by the deceased, but was not read over to or by her, and she was not aware that it contained such words of revocation; it was held that as the words had been introduced per incuriam they ought to be omitted. (c)

Where separate powers of appointment are exercised Wills under by separate wills at different times, and the second will appointment. contains a revoking clause, evidence is admissible to show that the testator did not intend to revoke the appointment in the first will.(d) Again, a second will relating to the testator's own property alone, and not referring to property over which he has a power of

powers of

(a) French's Case, 8 Vin, Ab. elston v. D'Alton, 1 D. & Cl. Dev. 0. pl. 4; Roper v. Con 85; Re Fairburn, 4 No. Cas. stable, 2 Eq. Cas. Ab. 359, pl. 9 ; 478. S. C. nom. Rooper v. Radcliffe, (c) Re Oswald, L. R. 3 P. & 5 Bro. P. C. 360; 10 Mod. 233; D. 162. Tupper v. Tupper, 1 K & J. (d) Re Meredith, 29 L. J. P. 665; Quinn v. Butler, L. R. 6 & M. 155; Re Merritt, 1 Sw.

& Tr. 112; 4 Jur. (N. S.) 1192 ; (6) Powell v. Mouchett, 6 Re Joys, 4 Sw. & Tr. 214 ; Re Madd. 216; and see Hippesley Fenwick, L. R. 1 P. & D. 319. v. Homer, T. & R. 48 n.; Trim

Eq. 225.

Chap. IX.

appointment which he has exercised, will not revoke the first will. (a)

Where a woman, having a power to appoint certain property by a will, made a will previously to her marriage in 1834, and, by her marriage settlement of even date with her will, covenanted not to revoke that will; and after her marriage she executed many testamentary papers, but did not, as alleged, thereby in any way revoke that will; and subsequently she executed "a codicil” to her “last will,” whereby she revoked her " said will in toto"

“so that I may die intestate;" it was held, notwithstanding an averment of the necessity of probate being granted of certain former testamentary papers in addition to the last “codicil ” in order that a Court of Equity might construe them in reference to the covenant in the settlement, that the Prerogative Court was bound by Hughes v. Turner (b) to decree probate of the last testamentary paper alone. (c)

Where the testatrix, a married woman, executed a will, in which, referring to a power to that effect given to her under her marriage settlement, she disposed of all her property in favour of her husband; and subsequently made a second will, in which she referred to the same power, and bequeathed the greater portion of the property affected by the settlement to certain persons; and this will contained words revoking all former wills made by the testatrix; it was held that the first will was revoked thereby.(d)

(a) Hughes v. Turner, 4 Hagg. 52; Denny v. Barton, 2 Phillim, 575; Richardson v. Barry, 3 Hagg. 249.

(b) Ubi supra.

(c) Brenchley v. Lynn, 2 Rob, 441 ; and see Re Holt, 6 No. Cas. 93.

(d) Re Eustace, L, R. 3 P. & D. 183.

1

The mere fact of the existence of a second will is not Chap. IX. sufficient to revoke the former, for a will may be made Existence of up out of several documents.(a) The second will must

second will

alone not either contain a revoking clause or must be inconsistent revocation. with the former will ;(b) and where the second will is destroyed or lost, parol evidence is admissible to prove its contents; (c) but it is not sufficient for the jury to say that the second will was inconsistent if the evidence does not prove in what particulars it is inconsistent.(d) The mere fact that a second will contains the

expres

“ Last will "

not revocation sion This is

my

last will and testament” does not if no different render it a revocatory instrument if there is no revoking disposition. clause, (e) as those words do not necesarily import that such instrument contained a different disposition of the property. The rule is the same as regards either real or personal estate. (f) If a testator devises lands to one in fee, and afterwards Different dis

position. devises the same lands to another in fee, the second will operates as a revocation of the former. (9)

(a) Re Luffman, 5 No. Cas. 183; Foley v. Vernon, 7 No. Cas. 119.

(6) Seymor V. Nosworthy, Hardr. 374 ; S. C. nom. Hungerford v. Basset, Show. P. C. 146.

(c) Brown v. Brown, 8 E. & B. 876.

(d) Goodright v. Harwood, 3 Wils. 497; 2 Wm. Bl. 937; Cowp. 87; 7 Bro. P. C. 489.

(e) Re Sinclair, 3 Curt. 746 ; Re Langhorn, 5 No. Cas. 512 ; Lemage v. Goodban, L. R. 1 P. & D. 57; Re Fenwick, ib. 319.

(f) Thomas v. Evans, 2 East,

494 ; Re Luffman, 5 No. Cas.
183; Re Holt, 6 No. Cas. 93 ;
Cutto v. Gilbert, 9 Moo. P. C.
C. 131 ; overruling S. C. 18
Jur. 560; and Plenty v. West, 1
Rob. 264; 4 No. Cas. 103, as to
this point; see also Freeman
v. Freeman, 5 D. M. G. 704 ;
Stoddart v. Grant, 1 Macq. 163 ;
Richards v. Queen's Proctor, 18
Jur. 540; Lemage v. Goodban,
L. R. 1 P. & D. 57; Re De la
Saussaye, L, R. 3 P. & D. 44 ;
Re Petchell, L. R. 3 P. & D.
153.

(9) Hitchins v. Basset, 3 Mod.

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Where there are two inconsistent wills of the same date, neither of which can be proved to be last executed, they are both void by the common law for uncertainty, and will let in the heir-at-law or the next of kin, as the case may be, unless such wills are explained by some subsequent act of the testator so as to reconcile such inconsistency.(a)

Although it is a maxim that no man can die with two testaments, yet any number of instruments, whatever their relative date or in whatever form they may be, so they be all testamentary, may be admitted to probate, as together containing the last will of the deceased; and although one may be partially inconsistent with another of an earlier date, the latter instrument will revoke the former as to those parts only where they are inconsistent. Thus where a testator executed a will and two codicils, and afterwards had a new will and certain bonds prepared which were in conjunction to dispose of his property, on the same principle as his former will, and died when preparing to sign the new will; it was held, first, that the execution being thus finally determined on and

prevented the new will was entitled to probate; and secondly, that the new will never being intended to operate independent of the bonds, the Court was bound, in order to carry the testator's intentions most nearly into effect, to grant probate of the new will and of the unexecuted bonds, as together containing his will.(6)

Comb. 90 ; 2 Salk, 592; 1 (a) Phipps v. Earl of AngleShow. 537 ; Re Hough's Estate, sey, 7 Bro. P. C. 443; see 1 15 Jur. 943 ; 20 L. J. Ch. 422; Wms. Exs. 7th ed. 166. Evans v. Evans, 17 Sim, 107; (6) Masterman v. Maberley, 2 and see Litt. S. 168, and 1 Hagg. 235; and see Richards Jarm, on Wills, 3rd ed. pp. 159, v. Queen's Proctor, 18 Jur. 540; 160.

Re Graham, 3 Sw. & Tr. 69;

206 ;

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