case onion versus tyrer see Tupper v Tupper king I Nevil v Boddam Beav ford v  de pontes Beav quin v butler l r Eq dancer v Crabb p d Alexander v Kirkpatrick  l r Sc App in re Fleetwood Sidgreaves v brewer Ch d Lord chancellor Cowper  vern pre Charles pale yellow Rep Mod Eq can ab pl in a will devise land three  witness must subscribe in the presence of the testator a will or write revoke  a former will must be subscribe by three witness but this need not be in the  presence of the testator a void will or codicil though there be a clause of  revoke all former will will not however operate as a revocation cancel a  former will by mistake or on a presumption that a latter will be good which  prove void will not let in the heir one by will duly execute and attest by  three witness who subscribe the same in the presence of the testator devise  land to trustee to several use under which the plaintiff claim he afterward  make another will of the same land devise they to other trustee but to the  same use and there be a clause in this last will revoke all former will but in  this last will though subscribe by the testator and attest by three witness  vet the witness do not subscribe their name in the presence the testator upon  which the testator heir at law lie claim to these land and the question be  whether this last will which be admit to be a void will quoad the land in  question shall yet be a good revocation of the former will peer William saint  the diversity betwixt the pen of the two clause in the statute of fraud be  observe sure the clause relate to the devise of land require sect that three  witness must subscribe in the presence of the testator but the clause of  revoke former will say sect that and will in write of land shall be evoke  unless it be by some other will or codicil in write or write declare the same  sign in the presence of three ormore witness ante so that this last clause do  not direct that the write which revoke shall be subscribe by three witness in  the testator presence but a will of land must be subscribe by three witness  and that in the testator presence but then it be insist that this last will  notwithstanding the usual clause of revoke all former will shall not revoke  the first will for that the revoke clause in the statute require that such  revocation shall be by a will which it be say must be a good and effectual  will of land and this last will be not so neither be it a good codicil or so  much as a write declare a intention of revocation for that this write suppose  it to be a good will be yet so far from intend to revoke the former will that  it give the land exact to the same use now the revoke intend by this clause of  the statute be such as shall be make pure with a intention revoke or destroy a  former will and so it be hold and resolve in the case of Eccleston v speak in  Mod and show Lord chancellor I do allow of the case of Eccleston v peer  William speak in regard there the second will devise the land to the same  person to who they have be devise by the first will and therefore it may be  true say that the second will do not intend to revoke the former but rather to  confirm it but suppose in the latter will in that case there have be no devise  of the same land to the same person or if the latter will have only extend to  the personal estate and not to the land in question then the general clause of  revoke former will may have be a good revocation but a second will devise land  to the same person as the former and revoke all former will and this subscribe  by three witness but not in the testator presence shall never revoke the  former will so as to let in the heir nay if by the latter will the premise in  question have be give to a three person it shall never have let in the heir in  regard the meaning of the second will be to give to the second devisee what it  have take from the first without a consideration have to the heir peer William  er p and if the second devisee take nothing the first can have lose nothing or  if the first will have be cancel by the testator direction upon a presumption  that the second devisee be to take the premise by the second will such a  cancel shall not have profit the heir because it will have be a cancel proceed  from a mistake it be no more than if the testator be sick and have his two  will under his pillow shall by mistake give his last will to be cancel or  order one to cancel his first who by mistake cancel his last and so in the  principal case though the first will be order by the testator to be cancel and  the same be in fact cancel accord yet all this be upon a presumption peer  William that the latter will be good and duly execute it be proper relievable  under the head of accident wherefore let the heir be enjoin and the first  devisee hold and enjoy in this cause it be say by sir Thomas powis and not  deny by any that if a man have two duplicate of his will cancel one of these  duplicate with a intention to destroy his will this be a good revocation of  the whole will and of both the duplicate and that this be sir Edward seymour  case so Burtenshaw v Gilbert Cowp but it will depend upon the cancel the  duplicate be do mind to call again mason v Limbery burr and Com Rep S c as to  cancel see Larkins v Larkins Bos pull short v smith east perrott v perrott  east Pemberton v Pemberton Ves Utterson v Utterson v b coop Windsor v Pratt  Brod b do v perk b a a more change of trustee will not revoke a prior devise  of the equitable estate Willet v Sandford ves do v pot Doug Watts v fullarton  cite Doug his lordship declare that if the testator Thomas tyrer have by his  second will bare revoke the first without declare by the same act his  intention to dispose of his land to the same purpose to which they be devise  by the former will the second will have be a good revocation of the former as  to the land devise but here be a disposition of the same land in the second  will to the same purpose as in the first will which show he do not mean to  revoke his first will as to the devise of these land unless he may by the  second will at the same time that he revoke the former set up the like devise  so as to take effect by virtue of his second will and that his second will  never be so perfect as to make the devise of the land therein to be good the  same devise stand unrevoked by the former will and that upon the like reason  the court of law have determine with great justice in like manner in the case  now cite and it be plain the testator do not mean to revoke his former cc will  by cancel but by substitute another perfect will in lieu thereof and not  otherwise and therefore the cancel thereof if any be but a circumstance show  that he think he have make a good disposition by the second will and in  confidence thereof it be do with no other intent but that the second will  shall thereby most sure take place but here be a contrariety of evidence his  lordship be of opinion the better evidence be that the will be not cancel by  tear it in the presence of the testator but if the testator do order it to be  cancel the effect of such cancel depend on the validity of the second will and  ought to be take as one act do at the same time so that if the second will be  not valid as the testator think it be and without which he will not have  cancel the first the cancel the first will depend thereon ought to be look  upon as null also and therefore the first will as to the say land be still  subsist and unrevoked and it will be unreasonable and contrary to natural  justice that the testator who by his second will have show his intention to  dispose the same land to the same purpose as in his former and thereby in  effect make the same devise twice shall by that mean be whole defeat of have  his meaning take effect by either of they and that therefore if the first will  be cancel as the law require it be one of those accident against which this  court ought to relieve and upon the whole matter his lordship declare the  trust of the term in the first will ought to be execute c Reg lib b fol the  law to be collect from the several case upon this subject seem to be this the  title of the heir at law be not to be defeat but by some other title certain  and unexceptionable pale yellow devise and therefore where there be proof of  the existence of a will the content of which do not appear no peer William er  p conjecture shall be admit as to the content of such will in prejudice of the  heir Cowp so two inconsistent will of the same date neither of which can be  prove to be last execute unless explain by some subsequent act of the testator  be void for uncertainty and will let in the heir Phipps v earl of anglesea bro  p c and Edward bro r c on the other hand wherever a effective devise appear to  have be once make in disinherison of the heir at law it shall lie upon the  heir to prove that such devise have be as effective defeat Harwood v Goodright  Cowp and bro p c and Edward bro p c S c will in the present case of onion v  tyrer the first will be impeach in both the way point out by the statute of  fraud namely saint as be tear in the presence and by the direction of the  testator to which point some evidence be adduce as appear by the report of  this case in vern and also by the decree as above state from the register book  and dly as be revoke by the second will on the first head the act of cancel be  not sufficient prove but yet it be determine by this case as well as by hide v  hide Charles Rep and Burtenshaw v Gilbert Cowp which full recognize the  principle of onion v tyrer that the cancel be in itself a equivocal act and in  order to operate as a revocation must be do mind to call again on the second  head with respect to revocation by subsequent devise it be necessary that the  second will shall express revoke or be clear incompatible with the first  devise quoad the particular subject matter of such devise for no subsequent  devise will revoke a prior one unless it apply to the same subject matter  Harwood v Goodright it be also necessary that the second will shall be subsist  and effective at the time of the death of the testator if therefore it be not  execute accord to the statute of fraud it be not effective and it be as if no  second will have exist as in hide v hide Charles Rep Limbery v mason Com Rep  and in the present case of onion v tyrer and yet a devise of land void in  respect of the incapacity of the devisee to take shall revoke a former devise  roper v Ratcliff bro p c so shall a subsequent grant to a person incapable of  take beard v beard atk but not a grant which become ineffective under stat g c  by the death of the grantor within month matthews v Venables bing and see  wright v littler burr Bla Rep so if the second will be effectual cancel in the  lifetime of the testator the first will shall operate as if no other have  exist for it be the only will subsist at the testator death Goodright v  glazier burr with respect to the difference of the pen of the two clause of  the statute as to will and revocation which be observe in onion v tyrer it do  not appear that any case have be determine express upon the subject either in  affirmance of or contradiction to what be say by lord Cowper in the decree as  take from the register book all the question have arise upon instrument which  have not operate mere as revocation but also as substantive devise in  themselves see note to duppa v Mayo williams sand f Longford v Eyre post Ellis  v smith Ves jun Thomas v Evans east Vawser v Jeffere swan peer William de term  paschae