case onion versus trier refer to Tupper v Tupper king I Nevil v Boddam Beav  ford v de pontes Beav Quinn v butler l r Eq dancer v Crabb l r p d Alexander v  Kirkpatrick l r Sc App in re Fleetwood Ch d vern S c Eq Abr pl S c vern pale  yellow wms S c Mod atk burrow brown parliament case Cowper and Douglas Wilson  Blackst one devise his land by will attest by three witness and afterward make  another will of his land which revoke all former will but this will be not  duly execute the last will be no will and void will not amount to a revocation  of the former a man make his will duly execute and attest accord to the  statute of fraud and perjury and at the same time in like manner execute a  duplicate thereof precedent in chancery er p some time after the testator have  a mind to change one of his trustee order his will to be write over again  without any variation whatsoever from the first save only in the name of that  trustee and when it be so write over he execute it in the presence of three  witness and the three witness subscribe their name but not in his presence  after this the testator cancel the duplicate by tear off the seal and then die  and the question now be whether this second will not be good as a will to pass  land shall yet be a revocation of the first and if it shall not whether the  cancel of the other shall be a revocation thereof within the statute of fraud  and perjury and it be decree that neither the make of the second nor the  cancel of the first be a revocation thereof though in the second there be a  express clause that he do thereby revoke all former and other will precedent  in chancery wherein my Lord chancellor take this distinction t that the second  be not intend as a effectual will to pass the land to the person and in the  manner thereby devise and therefore if it be not good as a will to that  purpose it be no revocation of the first and if a man by his will devise land  to a and after make a second will and thereby devise the same land to b if  this second will be not good as a will to pass the land to b it shall be no  revocation of the devise in the first to a for it be plain a be to lose only  what b be to gain and if b gain nothing by the second a shall lose nothing  that be give by the first but if a man execute a second will which appear to  have no other intention than only to revoke his first and to die intestate  though his second be not in all circumstance duly execute as a will whereby to  pass land yet it will operate as a revocation of the first and as to the  cancel or tear of the first will that be no revocation of it in this case  because that be no selfsubsisting independent act but do to accompany or in  way of affirmation of the second it be do from a opinion that the second have  effectual revoke the first and therefore he tear the first as of no use but if  the first be not effectual revoke by the second that act of tear the first  will not destroy it neither for though a man may by the statute of fraud as  effectual destroy his will by tear or cancel it as by make a second when he  intend that as a revocation of the first yet if it be insufficient for that  purpose as in the principal case the tear and cancel of the first be only in  consequence of his opinion that he make good the second will shall not destroy  the first but it ought to be set up again in this court and he say he think  this be consistent with the resolution that have be give in Mod shower  Eggleston and speak Swinb and a case cite by sergeant Hooper in c b where a  man by will give precedent in chancery land to a for life remainder to b in  fee and after by a second will execute in the presence of three witness but  not sign by the witness in the testator presence he give the same land to a  again for life remainder to c in fee this be hold no revocation of the  remainder to b notwithstanding a express clause of revoke all former will and  it be hold clear that the cancel or revoke either of the duplicate or original  will be a effectual avoid of both they be both but one will and therefore must  stand or fall together the substance of the several authority appear to be  that the mere act of cancel do not effect a revocation unless do mind to call  again a abundance of curious and interest information upon this subject be to  be find in Swinburn to in the decision of Gilbert v Burtonshaw Cowper Lord m  observe that the whole question in the above case turn upon the act of cancel  be under a mistake his lordship add there be some doubt upon the evidence  whether the first will be cancel at all but Lord Cowper there say suppose the  first will have be cancel the testator do not mean to do so because the devise  in the second will be precise the same as those in the first and to the same  person he do it therefore upon a supposition that he have execute the latter  accord to the statute of fraud not with a design to revoke the devise as to  the real estate it be clear therefore that the ground of the determination in  that case be its be a cancel by mistake not that the first will be revive for  want of the latter be duly attest precedent in chancery er p brown v Barkham  precedent in chancery er report date case brown and Barkham ante S c ante S p  e contra a devise land in trust after debt pay to convey the premise to the  heir male of the body of b the testator great grandfather c be the heir male  of the body of b but not heir general there be a daughter of a elder brother  who be heir general yet the trustee shall convey to c as c will be well  entitle to take as heir male by descent so be he sufficient describe to take  by purchase my Lord chancellor have take time to consider of this case do now  deliver his opinion to the follow effect he put the case at large and then  premise that natural and accord to the common unprejudiced reason of mankind  every one at first read of this will will be clear of opinion that the  testator intent in this case be to give his estate to his heir male and none  but a lawyer or one who judgement be bias with the learning of the law can  possible understand it otherwise but since resolution of law and decree of  equity have from time to time establish certain rule and artificial mode of  property he think it necessary to consider such of they as have be cite and  make use of to disprove this natural construction of the will before he give  his own judgement the first that have be cite be that he who take as heir or  heir male can take while his ancestor be live for the rule be that no one be  heres to live and this be archer case   but that rule make nothing in the  present case first because here the ancestor be actual dead at the time that  this devise take place dly because here the word of the devise be precedent in  chancery all strict and literal verify of the person that be to take as heir  male when the devise take place and therefore nothing can be infer from that  rule to influence the present case for in archer case the word be not all true  of he who be to take as heir male for his ancestor be live at the time when  the will take effect and therefore accord to the rule mention he can not take  as heir male but in our case the ancestor be dead even in long before the make  of the will the defendant Barkham may true and literal be call his heir male  and consequent capable of take by that name if nothing else hinder another  case that have be cite be the case of Challoner and bowyer Leon but that  likewise be nothing to this purpose because there the old son be live when the  remainder shall have vest in the heir of his body which it can not do during  his father life for during his life he be no more heir male than he be heir  female so neither be the case in dyer a of any force at all in the present  question for there the son who claim the remainder be to make himself right  heir both of the body of his father and mother which during his father life he  can not do but in that case it be strong imply that if the father have be dead  the son shall have take as right heir of their two body a second objection  have be make that he who take as a purchaser by the name of heir male must  answer the whole description that be he must be both male and heir which the  defendant Barkham be not but this be a rule which have no foundation in  natural reason but be raise and support pure by the artificial reason of  lawyer and under this head we may consider the principal case of Cownden and  clerk in hob and Ashursts case cite at the end of that case and also the case  of sterling and Ettrick ante in this court in all which case it be observable  saint that the limitation precedent in chancery be only to the heir male not  say of the body dly whoever careful observe the manner of my Lord hobart  argument fol will find his own opinion to have be for the devise if it have be  make to the heir male of the body and there seem to have some mistake creep  into the print in the transcribe that part of the case which look otherwise  and as to the case of sterling and Etterick beside that there be no mention of  the word body that be in the case of a deed direct a conveyance to his heir  male and therefore he think the decree in that case extreme right and shall  have give the same if it have come before he but now none of all these case do  in any sort affect the present case for if the reason of reject those devise  be good because both part of the description of the person intend to take be  not true the same will be a good reason for allow the devise in the present  case where the whole description be literal and strict precedent in chancery  er p true for without question one may take as heir male of the body of a  person decease who be not heir general of the same person first because the  intent of the testator be manifest and appear at first view who be the person  mean to take thereby dly the distinction between take by purchase and take by  descent where the word be the same though it be mention in book of good  authority yet it seem to have no sufficient foundation of reason or authority  of law to support it and if it shall prevail in all case will overthrow  another rule as certain and well establish which be that a person may take by  purchase if he be sufficient describe though he have neither addition of  Christian or surname give he nay though his Christian name be false or mistake  as appear by several case put to this purpose in   light a and if so then  certain such a description of the person as have all the mark and character  whereby he may be know and be defective in none precedent in chancery must be  sufficient to entitle he under that description and that be the present case  for the word here be all true dly they be no more than be true for Edward  Barkham in the strict propriety of speech be heir male of the body of his  great grandfather and the book which be to the contrary infer to make out  their conclusion that the word be not true which show that if they be the  authority of those book must fail and that they be not true they endeavour to  prove by urge that the person who be to take by such a description must be  both heir male and heir general for if he fall in either he be not the person  describe but this sure be no good reason for though it be true that the word  heir take single by itself can be true of none but he who be heir general yet  when it be join with the word male or female of the body they be true of he or  her who descend from that body though they be not heir general and to say  otherwise be a very disingenuous and unfair way of construe word for suppose a  man have land at commonlaw and other land in borough English or suppose a man  have land at commonlaw and other land in gavelkind and he devise life land at  commonlaw to his heir in gavelkind in these case if a man stop at the word  heir or heir it be certain the young son in the one case or all the son in the  other can take because the old son oh all that be heir and therefore this can  never be a just construction of such a will but now take all the word together  and it be then most certain a good devise to the young son who be heir in  borough English in the one case and to all the son who be heir in gavelkind in  the other so in the principal case leave out the word male of the body and  then no doubt none but the heir general can take but as these word be add to  distinguish he from the heir general it will be a very unjust way of wrest and  pervert a man word to leave their out pure precedent in chancery to let in  another who the testator never intend shall take and though the addition of  those word be pure to distinguish he from the heir general from who these very  word be add to distinguish the person describe to take which be all one as to  say that though the law allow a heir general or heir special two distinct  person yet none can take who be not both heir general and heir special in one  person which be to confound and destroy the very distinction itself beside  here the person intend to take be certain and know Edward Barkham and no other  be heir male of the body of his great grandfather and the description of he by  these word be correct and perfect thly if the word heir male of the body in  the plural number be a sufficient description to convey land by descent from  the ancestor to the heir male of his body they be as sufficient to pass such  land to the same heir male of that body by purchase where the intent of the  testator appear to be so and this be not a construction wrought upon the  statute de gift for that statute do not determine or meddle with what word be  word of purchase and what not or how the heir of the body that be to take  shall be describe nor be there any such distinction between a purchase and a  descent arise upon that statute for the word here make use of in this devise  be all at the commonlaw long before the statute de gift which do not create  such heir male of the body for he will have take by such a devise at the  commonlaw as sufficient describe and know and the statute only confirm the  description and this be say be the principal reason of the opinion he be now  to deliver and the authority which have be cite to the contrary do not at all  come up to this case there be no mention of the word body in any one of they  and as to the opinion of hob that the word heir male of the body be not  sufficient word of purchase where another be heir general he say precedent in  chancery er p precedent in chancery saint that that point be not at all  necessary for the determination of the principal case there dly from some  expression in that book it look rather like a mistake in the transcriber than  hobart own opinion dly if it be his opinion it seem not to be law because a  limitation to the heir male of the body of a person dead before be sufficient  to vest in they by purchase within the statute and before the statute de gift  and so be John de mandevill case   light which he cite and apply and say that  the sole difference in those case be between a devise to the heir male or heir  female general and such a devise to the heir male or heir female of the body  and as to Shelleys case   though the principal case there be rather a  confirmation of this opinion for there the ancestor be dead at the time the  limitation take place and for my Lord coke report of that case it appear to be  only his own argument as he be of counsel in it and though he do indeed lie  down the distinction between take by purchase and take by descent yet Wray  chief justice when he come to sum up the reason of the judgement he take no  manner of notice of that distinction so that it seem only to be my Lord coke  own opinion without any authority to support it but then indeed this doctrine  be again transcribe into his first institute and Shelleys case cite for it  which be the only authority to warrant that distinction for as to the  yearbooks refer to in the margin he say he have look into every one of they  with all the care he can that he may go to the bottom of this question and  those book be so far from warrant such a opinion that be but one of they at  all to the purpose and that be direct contrary to what it be cite to prove for  as to the h and h it be a limitation only to the heir male not heir male of  the body beside that he be not in be when the limitation to he be to take  place precedent in chancery and therefore that case can be no ground for my  Lord coke opinion another case cite to support this opinion be the h Brok  title de gift sect but on look into that case it appear to be nothing at all  to the purpose and bro title Mosme Hussey case there be no judicial resolution  on this point one way or the other and dyer be only a imperfect report of  Shelleys case and from the weakness of these authority to prove the doctrine  continue he take occasion to observe that there be no rely on sudden opinion  as cite in book and for the support of his own opinion ante he cite pollex and  Ven Burchett and Durdant all James and Richardson which he say be a much  strong case than this now in question for there the ancestor be live and yet  it be hold to be such a description of he as to let he in during the life of  his ancestor though that be a dissension with the ancient maxim of law quod no  one be heres to live but in our case no maxim of law be infringe but the case  of Beaumont and long brown parliament case S c fearne count Rem in the house  of lord late be still a much strong case for there be not so much as the word  of the body yet the heir be admit to be sufficient describe to take even in  the life of his aunt long so that he think the obiter opinion of my Lord coke  and Hobart to be very much outweigh by the authority of those resolution then  he cite the case of pibus and Mitford vent and say that my Lord hale do not  think fit to rely on the common point of the father take a estate for life by  implication but hold the word heir male of the body of his second wife a  sufficient description to vest it in the heir male of the body of such wife by  purchase and though the reporter of that case introduce the argument of my  Lord hale only with his say that of that he be not well satisfy yet in the  argument of my Lord hale after he seem precedent in chancery to have profess  set about confute that opinion and take notice of such heir male as a special  heir at commonlaw before the statute de gift who be capable of take distinct  from the heir general and what he cite there out of light sect of perform the  condition as near the intent as may be prove in the present case that the  settlement must be make to the person who be the heir special and say he have  never meet with any one case to the contrary but only the opinion  beforementioned of coke and Hobart for the case at the end of pibus and  Mitford be direct in point for the special heir male and in that case he take  notice of his heir general as he do in the present case and therefore can  never mean that his heir female shall take it when he express give it to his  heir male and in that case justice wile be of the same opinion in that  particular so that it have the authority of two judge there and the reason of  my Lord hale there must sure convince all that hear it and be much strong than  the beforementioned precedent in chancery er p opinion of coke and Hobart the  last whereof amount to no more than that he doubt of the law in this point  then he cite the case of baker and wall Trin W rot in c b where a man make his  will in this manner I give to my old heir male and his heir male for ever all  my land in such a place and if there be a female she to have pound per and as  long as she life and the testator have two son the old which be dead in his  lifetime leave a daughter who be heir general yet the young son go away with  the land and that case as appear by the adjournment on the roll be depend for  a considerable time so that seem to have be settle with great judgement and  deliberation and in that case there be several expression to show he never  mean that his heir general shall take precedent in chancery as to the case of  Goodwright and Cornish which have be cite he say it be nothing at all to the  purpose and therefore he take notice of it last of all and upon the whole  conclude that the word of this will be sufficient to vest the estate in  question in the heir male of the body of the great grandfather saint because  natural reason common sense and the intent of the testator call aloud for it  dly because the argument to the contrary be now bring into a very narrow  compass and weight dly that the weight of they if any be overweigh by judicial  resolution in much strong case and therefore the only doubt now remain be how  this trust be to be execute in consider whereof he say that the limitation to  the heir male in the plural number make no manner of difficulty for so be  Shelleys case and when a conveyance come to be make it must be to the person  who be heir male in the singular number and the word be better and more  skilful in the plural number than they will have be if they bad only be in the  singular as they both denote the person who be to take and at the same time  describe the quantity of the estate he be to take and thereupon decree that  the trustee shall execute a conveyance to Edward Barkham and the heir male of  the body of his great grandfather for in this case be able sequitur law and  the conveyance must be as near the intent of the testator as may be accord to  the beforementioned rule of light sect and a conveyance be decree accord this  case come on afterward before Lord Hardwicke upon a bill of review when his  lordship affirm the above decree but upon other ground which do not coincide  with Lord cowpers reason for the satisfaction f the reader respect this  intricate doctrine the editor beg leave to refer he to the learned and  ingenious note of Mr Hargrave in his edition of Lord coke first institute note  folio b where he will find Lord coke doctrine its principle and distinction  and the several authority and case relative to it through consider and explain  with the utmost clearness accuracy and judgement to which be subjoin a note of  Lord hardwicke opinion upon his affirm the decree of Lord Cowper in the above  case the editor also refer the reader to a subsequent note in Mr hargrave  edition a in which Mr h observe that a case have be decide in the court of  king bench after three argument against apply the rule to a will will and  other v palmer burrow in another case also which undergo as through a  investigation the court of exchequer as he have understand refuse to apply the  rule to a marriage settlement Evans on the demise of Burtonshaw v Weston  determine in a special verdict in scacc mich or hill the cause have receive a  prior determination in b b in a case reserve in a ejectment in which b be  defendant and there the case be argue three time in both court the judgement  be against Mr b the question upon the construction of heir female of the body  consider as word of purchase be only a secondary point but whether it be  debate or not in r b he be not then inform precedent in chancery er p  precedent in chancery de boundary paschae in curian porter