case HITCHINS on the demise of Nosworthy against basset see SC Mod e r with  note in ejectment if a special verdict find that a be seize of the land in fee  in the year devise the same to b for life with a remainder to c in tail c and  that afterward in the year the say testator make another will in write but  what be contain in the say last mention will a swearer inside ignorant this  second will so find do not amount to a revocation of the first will for  although he make a second will yet as the content be not know it may for any  thing that appear to the contrary be consistent with the first will SC comb SC  Mod SC salk SC show Cas par ejectment on a trial at bar for the manor of  Lanrock and other land in Cornwall the jury on not guilty plead find a special  verdict videlicet that sir Henry killigrew be seize in fee of the land in  question and on the that of November make his will in write which follow in  these word I Henry killigrew c and so they set forth the will whereby sir  Henry killigrew devise the premise to mrs jane Berkley his near kinswoman for  life with remainder over to Henry killigrew alias hill sir Henry natural son  in tail and make mrs Berkley sole executrix they further find that after the  make of that testament and before the time when c videlicet about the Feast of  saint Michael in the year to put together et fecit other will in scribe send  quid to be content in eoden ult mentionat will well quale to be purportum sive  execution ind juratoribus pillage non constat and that sir Henry on the that  of September die seize of the say land that mrs jane Berkeley devisee of the  say will in by lease and release convey to Mr Nosworthys father that the  father die in that Mr Nosworthy be son and heir to he that sir William Basset  be cousin and heir to sir Henry videlicet son and heir of Elizabeth Basset  daughter and heir of sir Joseph killigrew elder brother of sir Henry the  testator and that Nosworthy the lessor of the plaintiff enter and make the  lease in the declaration c but upon the whole matter whether the say testament  make in write be a revocation in law of the say devise of the say land to mrs  Berkley they be ignorant and pray the judgement of the court et si c Maynard  sergeant may it please your lordship John Hitchins be plaintiff and sir  William Basset be the defendant in a ejectment of the manor of Lanrake c in  shower KB er p the county of Cornwall the lessor who title be in question be  Mr e Nosworthy his title as it be find by the special verdict be this sir  Henry killigrew be seize of these land in fee and in the year make his will  which be find in haec word he make a deliberate will and show his reason why  he make it and thereby give his land to his cousin Berkley for his life under  who a good title if there be no revocation of the will be derive to the lessor  of the plaintiff but they find further that in the year this sir h killigrew  make another will but what be the content these be the word of the verdict  make other testatum in write but quod to be content c a swearer ignorant and  conclude if the court adjudge the last shower KB a revocation of the first  then they find for the defendant if not they find for the plaintiff the case  be short and be but this a man seize in fee make a will in write and devise  his land and that deliberate and upon reason give and he do a year after make  another will but the jury find not what be the content of it and what the  meaning and effect of it be that they know not and refer it to the judgement  of the court whether this be a revocation or no my Lord under favour it can  upon no reason in the world be say to be a revocation but the first will do  stand and the last signify nothing before I enter into my argument I must  observe the case have be argue before a and we know one another reason and I  shall state to your lordship where the difference be between we we do not  differ what the nature of a last will be a will be a publication of a man mind  as to what he will have do with his estate after his death and we do agree  every will be revocable and though a man shall have say he will not revoke it  yet at the time when this will be make he may have revoke it by parole but  that wherein we differ be this it be say on their part that any will whatever  it be that come after another be absolute in law a revocation of the former  that my Lord we do differ in we say a man may make a will of several thing at  several time and they both shall stand and one not trip up the heel of the  other as for the purpose as to my land in the province of Canterbury and good  there I give they to I S I may afterward say as to my land in the province of  York and good there I give they to I d this will do not revoke the other if a  man settle his land or estate upon his wife and child and five or six year  after another child be bear and he say I give my last child bear five hundred  pound this shall not undo what be do before that they deny my Lord if a man  shall settle his estate upon his wife and child and afterward be please with  his tender say he I give so much to my tender all be void if what they say be  true but I affirm it that a man may make two will and both stand together  where they be of two several thing and not contradictory one to the other the  question upon the whole case be whether a deliberate will be make and after a  will that they know not what the content of it be whether that be a revocation  of the former the question be upon shower KB the whole in accomplice as the  verdict be find upon that they do not know as well as that they do know I  ground myself first upon the nature of a verdict a verdict when it be find  there can be nothing add to it nor nothing take from it but as it be find so  the court must judge of it second my Lord I say this that whatsoever be find  in a verdict whereupon the court can give any judgement must be positive find  not ambiguous for if the jury do doubt the court can never resolve the matter  of fact nay to go a degree further if the jury do find positive the matter of  argument and do not make the conclusion de facto the court shall reject the  matter of argument and give judgement to the contrary the reason be plain  because a attaint lie upon a false verdict and a man can be attaint upon what  he doubt the authority be herein very plain in the case of crisp v Pratt b  issue be join upon a fraud it be adjudge there that though there be never so  many circumstance of a fraud find unless the jury find it to be a fraud the  court shall adjudge it to be none in the case of the earl of Lincoln v lady  gorge c a man purchase land and pay for it and direct a conveyance to his  daughter who a it be argue in the easter term precede by finch for the  plaintiff b cro car c Noy shower KB er p know nothing of it but he keep the  possession take the profit of it and declare that he be owner of it and when  all this be do he make a mortgage of it and the question come between the  daughter and the mortgagee say the mortgagee it be a fraud and without doubt  the court will bold it so but the jury find only the evidence and not that it  be a fraud judgement be give for the daughter against the mortgagee the  question be upon the evidence whether resignation or no the jury find a  special verdict the evidence thus that he be the person that sign the  instrument of resignation and seal and deliver as his act and deed to the  register c and the question be whether upon that verdict the court shall  adjudge it a resignation because they do not find the bishop agree and the  jury be ignorant certain the court must be more ignorant than they nay the  court must know the contrary for they can take no notice of what be dubious  find my shower KB Lord this be not only a precedent but the constant and  rational judgement of mankind de non that this only is apparent et non to step  out eaden be ratio et judgment it be express in a record of darrein  presentment d against William duras where the court in those time do enter the  reason of their judgement the reason be thus whenever a swearer dubitant a to  some degree sit in the same way as be ac si non be where can you find in all  this verdict nay the jury say they do not know what be the content of this  will pray my Lord where will you look to find the content when they find none  where will you find there vocation of a will why my Lord I think under favour  if I have say no more I have say enough but there have be much earnestness in  this case and therefore I will not rest here my Lord they see the objection  and therefore never go about to argue that point that be find by the jury but  have find out a way to leave out half the verdict and because the jury have  find another will they have take upon they a invention of their own that be  say they when there be a second will find by the verdict the first be void but  my Lord they go out of the verdict and find a will in the cloud and be like  squirrel hunt from one tree to another but I will gratify they in it take the  case here be a good will as appear upon the reason set forth and after the  testator make another will what be give by this nothing the jury find there be  none and now they put you to bunt for it pray go to blindman buff and let the  court find it out I be sure there can be but conjecture they can prophecy at  this day and if no body can say what the will be can they say it be a  revocation my Lord there be reply to they that make this objection but what if  a man make a latter will the very same sir h killigrew and a gallant gentleman  he be leave his will with his cousin and then within a year be feign to go  into France without any occasion of change at all give he of the one side or  the other and he make another will and what that will be be not know what if  the latter will be a confirmation of the former how if it be express the same  with the former what be the answer to that ay but that be not likely sure it  be more likely he shall confirm his will than destroy it but to go do further  he may do it and that be enough for I and then the presumption be false they  go upon my Lord if I do conclude here again I say I need go no further when a  judgement be ancient enter they use to enter their reason now they enter it  only who look bed shower KB et hearing et per cur plene comprehension c now if  this judgement shall be enter when be this read to the court where be it see  what be it the court understand what fact be here find for the court to  deliberate and consider on my Lord it be a strange case but I will go further  and take upon I by reason and full authority to prove against they that they  be mistake in the law I will give my authority and reason and answer their  authority and reason pretend for the authority of my part I begin with a  judgement a book cite by themselves but so cautious they will not put the case  at large Peckham Richard fol a action of trespass be bring for take away good  the defendant plead that the testator be possess of these good as his own good  and make the defendant executor c and to this bar the plaintiff reply and  confess and avoid the bar thus say he it be true he do make the defendant  executor but afterward he make another will d the yearbook Edward pl shower KB  er p and thereby make I executor and thereupon I take the good and bring the  action and it be question whether it be good without a traverse and it be  adjudge good I say this be a judgement for I their affirmation be if there be  a will though nobody know what it shall be it be a revocation of any former  will my Lord in this case they prove there be another will but rest not there  but say he make I executor by it what do the court say to this quisquis in  vita svan compose all will c whoever make another will and make another  executor the law revoke the former pro hoc why do it pro hoc quod all executor  nominator et si c it be as full for I as a man can speak why be it a  revocation because by it he make another executor and why so because a man  never make a will but that if he do any thing afterward by which the court may  understand the will be change it be revoke when the reason be with I the  judgement be with I now the reason be not the make the will but the name  another executor in Henry fol it be a rule give by the chief justice when a  will be make the court must look what the word be and so judge now where be  the word of this will to judge by if there be none then you can judge it no  revocation my Lord the next book be in Anderson report the case be there thus  placita but I will not mistake the case the case be this a man do devise to  his son his land to he and his heir afterward he make another will and thereby  he do devise the same land to his wife for life pay the son shower KB c and  the question be whether this last will be a revocation of the former it be  fine cite they tell you two lawyer be of opinion it be none they may have be  please to have give due honour to they it be Anderson chief justice and  Glanville a very learned judge and why be it no revocation because they may  both stand together this case Anderson report e as his own opinion as a  judgement upon the bench by he and Glanville and it seem there be no other  judge upon the bench next to this I shall cite Hodgkinsons case f a man devise  the feesimple of his land and afterward make a lease of the same land to I d  for thirty year to commence after the death of the testator it come in  question whether it be a devise of the feesimple or no and in that case both  can not stand whole they agree that if it have be a lease for twentyone year  it have be no revocation but be to commence after the death it must be a  revocation but of what not of the whole but only de tanto and the case cite  out of Anderson be cite there and the reason of the case by which that have a  double authority I will cite you another judgement and resolution too in cro  car g a man make his will and by his will he devise legacy to two brother that  he have and afterward fall sick and then make another will he be ask by some  then who shall be his executor and he name his wife and be ask what he will do  for his brother to who in truth he have give each a legacy I will give they  nothing say he but then he give a legacy to his godson c the question be not  there whether the latter will be a revocation of the former but because of  these word I will give he nothing it be doubt whether it refer to the time of  his indisposition then I will give he nothing now or whether it be so general  as it shall repeal the former legacy by the former will the resolution upon  hear counsel be that it be no revocation of the former legacy and the reason  be because in doubt non to take before pro will that there may be two will be  den case h there it be express say that if a man make one will of good and  another of his land and a revocation be allege of both a prohibition shall be  grant for the one and deny for the other and shower KB I hear it in the case  of neller v brell I Jones and Berkley justice put this very case that if a man  make two will one of his land and another of his good a prohibition shall go  only as touch his land and not concern his good but where a entire will be  make of land and good a consultation shall go to the whole because the  examination of the whole will do no hurt my Lord they cite Swinbourn and  Godolphin but you shall see how much to their purpose in Godolphin king it be  express say thus that a man e and f   g byres v byres h cro car I cro car king  Godolphin orphan legacy shower KB er p can proper make two will unless it be  of several thing and in Swinbourn that a man of several thing may make several  will l and Perkins m say express if a man make two will the latter shall stand  and the other not nisi soil in special case my Lord in this very case this  point be in the exchequer and I think they rely very much upon it a bill be  exhibit on the behalf of the wife of Seymour by this Basset ancestor that be  now defendant and heir to sir Henry killigrew that make the will I have peruse  exact the proceed the bill consist of two part one impeach the will the other  be that Mr Nosworthy have purchase in a statute which statute they make the  usual suggestion they say be satisfy in the proceed in this case the court  direct a special issue that be whether this will under which Mr Nosworthy  claim be revoke yea or no that be the issue and there be something lead the  jury to find it and it come back to the court and the court dislike the  verdict say the old gentleman how can they be of that opinion and he direct a  new trial he be no way satisfy with the former and then in effect upon the new  trial it be find as here they find no content but find a second will but that  it do not concern the land at all and it come to be hear again in court if it  be a revocation then without all question the judgement of the court ought to  have be to have a account upon the extent whether satisfy or not but the court  be so far satisfy that they dismiss their bill out of court I speak this the  rather because it be the judgement of my Lord chief baron hale of who as  Virgil say nec justior any nec c then come into chancery a very learned judge  my Lord Nottingham he direct that we shall prove ourselves a purchaser for if  we do not it be another case and what be the consequence he grant we a  perpetual injunction but they go shower KB before the master of the roll and  get a discharge of the extent and then come to fence upon the will my Lord  this court be of opinion with we and one say here be a great deal of stir to  make something of nothing my Lord I have cite and go over the authority of our  book but I will mention one more Lord coke in his commentary upon Littleton in  tenure by burgage put this case if a man make two will and devise there the  latter will and devise shall stand the other not that be a general rule Lord  coke take notice and comment upon these word several devise there be the same  law of chattel as of inheritance a mail in France make a will and give several  legacy and afterward he make a will in England but what he give in the latter  non constat it be adjudge the last be revocation it be say indeed it may be a  revocation but it may also as well not be if a man will say a latter will  revoke a former he must prove it for say they taking away non to take before  nisi c another expression they have si deviseris notepad who to go before et  who to follow idem be ut si in eoden will to hold together a codicil be a last  will without a executor now in this case whether it be contain in the will  before or after it be the same thing my Lord I have go a great way over all  these book and I think upon these authority it be very plain they cite  Littleton the case that I cite before if a man make several will and devise  the last will and devise shall stand my Lord there can be no devise where  there be no sense nothing to be understand at all as in our case it be a  general rule and a case put by Littleton obiter by the way there be four case  put and I agree every one of they to be good law as good law as the conclusion  be have a man devise his land in feesimple then he make a feoff in fee under  hand and seal and to the deed of feoff he make a letter of attorney to give  livery and seize and as it be in more be report the feoff be void but the  revocation be good the other three case be upon the devise land to I S and  after devise they first to a monk and second to a corporation and three to a  parish where all be incapable to take these will be void and yet they be a  revocation and here be a kind of a huzza upon that but here it be express  another shall have it and though the party can take yet his mind be plain that  the other shall not have it so his mind be change my shower KB Lord I have  here a case I will presume to read it as it be in my report I write it about  fifty year ago and be as good as any have be print since p Dellore be seize of  land in Blackfriar c and make Swinb on will m Perk shower KB er p his will and  by that first devise the land in Blackfriar to the hospital of b in Smithfield  and afterward make another will and devise land he have in another parish to  another it be hold by all the judge that this last will be not a revocation of  the former for both will be of diverse thing may well stand together Lord  chief justice who report be they Mr S Maynard I do not take the name I copy it  with my own hand I do not copy the whole book but only some special case now  my Lord I come to my reason that I shall give the first reason be from the  nature of a will a will be the disposition not the last disposition but a  declaration of what a man will have do with his estate after his death there  be three degree or step of make it the conception the birth and the  legitimation the conception be when a man be resolve I will do it and so if he  die it become embrio corpse and signify nothing the birth be when he publish  it but these be positive law the civil law require two and our law now three  to make it effectual and if a man do it without these it be his will but it be  borrowed tongue it can speak in any court on any behalf but if he observe the  solemnity of the law then it have its legitimation as for instance if a man at  this day make his will and give his land and a thousand pound to I S and have  four witness but do not subscribe his name in their presence this be a good  will for the money but for the land it be void yet it be in the very same  paper now what be the essence of the will be the subscribe or call of witness  a essential part it be not it be causan without how non it be that without  which the court can take notice of it but the essential part be the meaning of  the party but what can be the meaning of this not one part of it appear a  logician can make nothing of it there be neither lying near nor proclaim known  formally another shower KB reason be from the definition of a will here be no  declaration of his mind whatsoever a will be make but what do he declare by it  nothing another thing be whoever it be to take apart eastern modus quo  bookbinding when a will be make a man discover his mind as to the disposition  of his estate and if you will have a revocation there must appear his meaning  to revoke it where be that a three thing be this in plead suppose the now  defendant Basset shall bring trespass against Mr Nosworthy and he shall defend  himself by this will be it a good replication to say he make another will and  show not what it be for if the replication and bar may both be true it can be  a avoidance of the bar my Lord when a man have make another will be it  necessary No it be but contingent whether he will revoke the former or no when  he have make another will and keep it to himself can any one say it be  necessary a revocation or it be only a contingent upon the whole matter I must  conclude and leave it to your lordship whether you shall think fit to take  away a man estate upon such a conjecture I be sure there be no ground to  conclude it a revocation Pemberton sergeant may it please your lordship I be  of counsel for the defendant the special verdict have find as my brother have  open it sir Henry killigrew make a will in the year and give this estate to  mrs Berkley for life and afterward he come and make another will in the year  which be find he make all will and then they derive a title under mrs Berkley  to the lessor of the plaintiff and find that mrs Berkley who the estate be for  life be alive and find the defendant heir to sir Henry killigrew and that be  the substance of the verdict Maynard sergeant you omit the latter part of it  Pemberton sergeant that be they find he make another will but it do not appear  to they what be the content of it and refer it to the court whether it be a  revocation of the former will or not the shower KB sole question in this will  be whether the make of a latter will do destroy the former will or not here be  a will find which devise the estate to mrs Berkley by sir Henry killigrew  under which the lessor be a purchaser and it be also find that he make a  latter will a year after and if the latter will have revoke the former there  be a end of the plaintiff title that that real have I hope to prove to your  lordship my brother Maynard say and it be a common maxim that a will be  revocable so long as the testator life and I think it to be as plain a rule  too that a latter will revoke all former my Lord shower KB er p I do not find  it be deny in word but they will by a distinction evade it say they it be true  a latter will revoke a former if it have word of revocation or the matter be  inconsistent with the former this be the distinction they of the other side  have make in the case but if it have no word of revocation or be not  contradictory it shall not that say they my Lord because of this distinction  which I think have no foundation in authority or reason but because of this  distinction and that I may the more clear proceed I will cite two or three  book that speak of this rule Swinbourn enumerate the way by which a will may  be revoke and in the first place he mention by make a latter will his word be  these if a man make a thousand will the last be the best and make void all the  rest n and he put the case to which my brother Maynard do agree that though  there be a oath that he will not or a clause in the former will that he will  not revoke it yet the last shall stand because the law be so the make the last  revoke all the rest and so in the very same term be the gloss upon it oh and I  suppose Swinbourn have it from thence he say execution will be quod secundum  she pronuntie what be contain in the last will eastern entirely to stand in  the office of executor p it be express lie down as a ground that every make of  a latter will be a countermand and revocation of all former will and upon this  he collect and note say he a nuncupative will revoke a former will though  never so formal make and in write and so Perkins in the place my brother have  cite be to the same effect then my Lord there be Henry pl now pray what do  Lindwood and other mean by say the make the latter will make the former void  be their meaning that the latter will shall make void the former if it contain  word of revocation if that be all true they may have spare shower KB their  pain for nobody will dispute that if there be a clause of revocation for a  revocation without it by parole will avoid it do he mean this that a latter  will will revoke a former if it be contrary to it sure no for a deed will  revoke it where it be contrary to it and so will a codicil and a void will  will revoke it for if a man give it to a corporation where there be none such  in the world that will revoke it so he must mean something further and their  meaning be this they be discourse of the nature of a will and something that  be particular to a will to that instrument more than to any other instrument  now whereas a deed or any thing may revoke it if it be contrary whereas by  word a man may revoke it in boundary now say they by make a will the former be  all destroy my Lord their word be plain and I think there be no ground to  intend their meaning otherwise than their word import that be by make the last  will all the rest shall become void not to put it upon the content of the will  or any thing of that and this seem to be agreeable to reason if your lordship  examine the reason of the thing I take the reason why a latter will revoke a  former be not because it contain word of revocation or matter inconsistent if  that have be so these book will have say so but I take the reason why a latter  will destroy the former be this from the very nature of a will as such a  instrument for a man have power of alter his will as long as he life either in  part or in the whole when he make and declare a new will that will must be  presume to contain his whole mind concern the disposition of his estate and  therefore that alone shall argue thus much the word of declare big will import  it for the word be these this be my last will and testament that exclude all  other it be a exclusive term when a man have make his will if a man will alter  a part of it there be a proper instrument for that which be a codicil but this  be a instrument as well know in law and as much use make of it almost as there  be of a will for most will of considerable matter have codicil now annex and  this be so far from revoke that it confirm the other will and amount to a new  publication now when a man have such a easy way to revoke part of it or make  alteration in his will and he make and declare a new will and will not go by  way of codicil but make a new will I think this a sign next to demonstration  that he design none of his former will shall stand my shower KB Lord if your  lordship shall intend n Swinbourn on will page section oh gloss page chapter  of testament p wentworth office of executor page shower KB er p this last will  to stand with the former and to be but some slight alteration or confirmation  of it you will confound the use of will and codicil whole whereas there be not  more difference between any two instrument in the law than there be between  these of a will and a codicil the very make of they do import such a absolute  difference when a man deliver his will he say I deliver this as my last will  when he come to make a codicil that imply the contrary that it shall not be  his whole will and therefore as to that he annex it to his will to show that  that as well as the other shall stand it be say in the civil law a man can die  but with one will I will agree my brother distinction it be true he can have  but one will but he may have twenty codicil the reason be because a will be  presume to contain the whole and the codicil the contrary and so it be say in  Swinbourn but now my Lord as my brother say I will agree that a man may make  partial will of as many thing as he have he may make a will of his good and  chattel and he may make a will of the manor of dale and the manor of sale and  all stand together but then your lordship will please to take it with this  consideration they must be declare to be particular will at the same time now  if a man make a will of dale and afterward of sale these be but piece of one  will though write in several paper and contain his whole will but then he must  come and declare not general that he make ultimam will but ult will of such a  manor and I have see it in practice myself where they have make a particular  will of one thing alone but when it be find general that he make all will that  be a general testament that be a will of all my brother Maynard cite a case  Richard foe and he take it to be a judgement in point for he under favour I  take it to be clear against he the book be as he have cite it there be a  action of trespass bring for good and the defendant make title to the good by  will of the decease by which he have make he executor the plaintiff reply and  say he make I al will and make he executor and so he claim the good the  exception be take ay but you shall have traverse the first will no say they  these the word be because per ultimum will ut placitatur generally at first  will to call again in omnibus now if they have not take it that the latter  will do revoke the first it have be necessary for they to have traverse it but  then say my brother Maynard he set himself forth executor and there be great  reason for it in that case he be plaintiff and it be not enough shower KB for  he to avoid the other title unless he have entitle himself to the good as  executor for if he have make himself no title he be out of possession he shall  have have no judgement and therefore the set himself forth to be executor be  not for avoid the first will but to make himself a title my Lord here be one  case will go a great way in the proof of this if a man make twenty codicil  they may all stand together if a man make twenty codicil and it do not appear  what date they be of they shall all stand together Q but if he make two will  and there be no date to they and you can tell which be the first and which be  last they shall be both void r what be the reason the reason be because by  make the latter the first be go and though they can tell which of they be the  latter yet one of they must be the latter therefore rather than this rule  shall be break that a latter will shall not revoke a former they will adjudge  both to be void my Lord as to the rule that Littleton give and my brother have  cite where a man make diverse devise or diverse will the last devise and will  shall stand and the other be void now this must be understand say my brother  that he make diverse will and diverse devise in those will he be put a case of  diverse will and diverse devise it be not say the last will must have a devise  in it to revoke the former then to examine our case here with Littleton rule  which have always obtain sir Henry killigrew make a will in and afterward say  the verdict he make all will in which must by the way be intend a complete  testament for when they find he make ult will it must be imply so S that he  make a Q Swinb r shower parliament case Mod ld Ch b gilbert treatise on will  publish in gilbert execution page S Swinb page section shower KB er p complete  will and so the plead at all time be therefore here they find he make another  will then accord to the rule in Littleton that make in the year must stand  that in the year be void then what become of their case if sir Henry killigrew  have make one or more codicil that will not have revoke the will it be plain  he have a way to have make any alteration but when he come and make a whole  new will then the former be go but say my brother Maynard this may be be the  same will over again then it be not all will for if a man write the same will  over in other paper and do declare that to be his will that be not other will  that be idem will for the will be the thing contain and not the paper it be  just as if a man be to make a duplicate of his will still it be but one will  so that that can be intend in this case again shower KB how can this case be  bring within the statute of will at the commonlaw it be plain there can be no  devise of land now come the statute of Henry c I which make land devisable but  how by a man last will and testament so be Henry c now they will claim by a  devise make in the will in the year and how can that be a last will and  testament when he make all will in the year so the case stand before your  lordship can any man say that this be a devise contain in the last will of sir  Henry killigrew when the jury have find he make a latter I take it that the  latter will be the proper instrument to convey this land by but say they where  do they show the content of it and therefore they will have it signify nothing  under favour my Lord we do not need to show the content of it we be in  possession if there be a will to revoke the former we be only to show he make  a second will the will do not belong to we the law never compel a man to show  what be impossible for he to show as to what my brother say that this may  confirm or stand with the other will if the law be so that a second will and a  first may be couple together and stand together which I do absolute deny but  suppose it may be so that they may stand and make but one will say they it be  true here be two will but we will suppose that the first be confirm by the  last or that the last contain no new matter contrary to the first and then we  will lick it all well now the matter be salve this will be a mighty pretty  device to disinherit a heir but I hope this will not serve their turn for it  do appear by the book cite to your lordship that the make of a second will  revoke the former then if they will support it by any matter they will suggest  they ought to have show it to the jury that it may have be find here be the  make of a will find but nothing of this appear will your lordship presume it  and why shall your lordship presume this against we that be in possession it  be not by law to be admit we be now in the case of a special verdict which my  brother Maynard do admit can have no matter of fact add to it and this they  will have be plain matter of fact they will have you admit that this last  confirm the other will when it do not appear they will have you presume that  it contain matter that will stand whole with the former will but how can you  presume this if there can be a presumption it ought to be the best for we we  be heir and your lordship will not presume any thing to disinherit a heir you  will help he as much as you can then we be in possession you will not presume  any shower KB thing to dispossess we we come before you to defend our  inheritance it enough for we when you charge we with a former will to say he  make another after that and it do not concern we to show what the matter of it  be my Lord they may have make use of this with a great deal of more reason to  a jury they ought to have show the content of the will to they but they do not  and therefore you have no reason to presume it for now that it be find there  be a will your lordship be bind up to it and must take it that there be a  complete will make my Lord the objection will have be more reasonable for they  to have make if upon the face of the will it appear it do confirm the former  or his intention be that the former shall have stand in part or in the whole  then there may have be more colour for they as in the case of coward v marshal  t my brother quote the passage right but not the book that be in a action of  trespass a special verdict be find that a by his will devise t cro Elizabeth  shower KB er p black acre to his son in fee and marry and by another will  devise the land to his wife for life pay annual to his son and heir twenty  shilling then the question be whether the latter be a revocation of the other  in toto or not and it be the opinion of Anderson and Glanville that they may  stand both together but I take that to be another guess case than we it seem  there that it be not a former testament but a codicil and it be say to be by  another write which I take be intend by they to be a codicil and then accord  to what I tell your lordship before it do not revoke the whole will but then  my Lord there be that which take with those judge and that be that upon the  matter that appear before they they take it not only to stand with it but to  be a confirmation of it for there say they his give twenty shilling a year to  his son to who he have give the reversion in fee before seem that he intend  his son shall have the reversion in fee and so this will stand with his former  will and be a confirmation of it how far that may rational be collect I will  not dispute but however they collect it so it be a reason to they and they  take it so and that be the reason that rule that case so I take it the case  will not stand in our way at all my brother Maynard have make a great many  objection in this case but the chief I remark be these first shower KB he say  there may be a will make of land in Yorkshire to one and afterward the party  may come and make a will of his land in Durham to another and they shall both  stand and it seem the case that he have put out of his own private note be so  I agree the case to be good law for that stand upon the rule of particular  will and nobody will deny but a particular will may be make of one thing and  another of another thing and one shall not revoke the other but it do not come  within the general rule that a second will shall revoke the former now if it  have be find in our case that he have make another will of this land there  have be a end of the cause second in the case of Henry pl he cite these word  the court must look upon the word of the will it be true they must if they be  to give judgement for a thing contain in the will but that come nothing to our  purpose that the make of a second will revoke the former his case of eyres v  eyres u will not come to our case at all for there be legacy give to the  brother and afterward the testator be demand whether he will give his brother  any thing No say he I will give they nothing there the word be ambiguous  whether he mean he will give they nothing by the former will or give they  nothing then three my brother tell you and he cite Godolphin that a man can  make two will unless it be of two thing I think this be against he for then he  can make two general will as these be find to be it be clear against he my  Lord in this case my brother tell you that here be a kind of uncertainty in  this find and say he you will not take our land from we by a uncertainty I  must make he the same objection again the land be we if here be a uncertainty  you will not take it from we why shall your lordship take it from we upon a  uncertainty to give it to he the land be we you must take it away or else we  shall retain our land my Lord I take it these be the chief objection my  brother have make and you do now find a heir in possession it be find his  ancestor make a will and give away his land and it be find by the same verdict  that this be not his last will unless a man can say a will make in the year be  after shower KB a will make in the year but if not then I be sure it be find  here be a latter will say my brother the jury do not find whether here be a  revocation in boundary I think they need not do that but only show a will that  make a revocation all the find of special verdict be so will he have a jury  find the matter of law that must be leave to your lordship you find we in  possession and I hope you will not take away our land from we Lord chief  justice I have hear it argue before but I can tell whether my brother will ask  for a second argument I will not declare my opinion yet but as to what my  brother argue from uncertainty and possession they have possession for twenty  year upon the first will and for the uncertainty there be nothing of it in  that will he give it to mrs Berkley for life and afterward to Henry killigrew  and they come and take the possession and be in possession a great while and  then u cro car shower KB er p you come and contend it and get a verdict and  here they bring another action upon which this special verdict be find that  sir h killigrew make other will Pemberton sergeant they be in by extent holt  sergeant we can not come to it for that Lord chief justice and then the two  will may stand together there be other case there be one case of Herne v Allen  shower KB Pemberton sergeant I take it the question will be whether upon this  general find of other will your lordship shall presume it to be a will that  will stand with the former will or revoke it Lord chief justice we can neither  fancy that it may stand with it or that it be contrary to it and therefore the  other must be throw out the court in Trinity term William and mary give  judgement for the plaintiff a writ of error in parliament be bring upon this  judgement and now it be argue that this last will can not be take to be a  duplicate of the former but must be deem a revocation that no will be good but  the last that every will be revocable till death that the make of another do  import a revocation of all former one though it be not so express declare in  write for it must be the last or nothing that this conveyance by will be  ancient a privilege by the civil law for people in limit who have not the time  or assistance necessary to make a formal alienation and chief intend for  military man who be always suppose to be under those circumstance and  therefore the ceremony and number of witness require of other be dispense with  as to soldier but now the rule for military testament as they be call be allow  in most case that as to land by our law be a privilege only give to some  borough and place within the kingdom and particular custom give the liberty of  dispose land or house by will and that by nuncupative will or parole without  write so be Bracton lib fol Fleta u cap to be able pulse et catallum tam  inheritance how search everywhere for per baron London et citizen oxon Inst  that then come the statute of Henry and empower a devise by a man last will  and testament in write but still it be by his last will and so be Littleton  sect if diverse will the latter shall stand and the other be void Inst in  truth it be plain law the first grant and the last testament in Swinb part  sect p no man can die with two will but he may with diverse codicil and the  latter do not binder the former so long as they be not contrary another  difference there be between will and codicil if two testament be find and it  can be know which be first or last both be void but the latter countermand the  first though there be a clause in the first that it shall not be revoke and  though a oath be take not to revoke because the law be so that the very make  of a latter revoke the former so be Linwoods provincial de will justice  dodderidge office of executor publish by Wentworth a verbal will revoke a  former write will force v Hembling   Plowd Perkins sect and sect the Henry be  full to this purpose there be a action by a executor against two executor and  they plead a testament whereby they be make executor and the plaintiff reply  that he afterward make another and himself executor and hold that by the  second the first become void now the meaning of these book can be that a will  express revoke be the only will that can make a revocation nor be it that a  contrariety or repugnance between the one and the other be necessary to make a  revocation for though there be no new will make yet a revocation may be by  word of mouth as cro James cro car cro Elizabeth nay a void bequest shall  revoke a will so shall a deed that have no effect as feoff without livery a  devise to I S or to a corporation when there be no such will do it so that it  be not the contradiction between the disposal which revoke for that which be  no disposition at all will do it the meaning of the author cite therefore be  somewhat else and it can only be this that there be somewhat particular in a  will to that instrument of conveyance more than to any other that even the  make of a new will be sufficient revocation the word be plain by the make a  new will the former be all destroy for there can be but one last and when a  man make and declare a new will that new will must be presume to contain his  whole mind concern the disposition of shower KB er p his estate declare his  will import thus much and exclude all other when a man will alter part of his  will there be a proper instrument for it call a codicil which be know in the  law as well as that of a will here be nothing find of a reference to the  former to judge it otherwise will confound the use of will and codicil and the  difference between they it be true that a man may make partial will of several  part of his estate and all may stand together but then they must be declare to  be will concern particular thing and they be but several piece of the same  will though write in different paper but then in plead one of they you must  not general say he make ult will but ultimam will of such a thing but here it  be other will I e a general testament the Richard fol be direct thus the  defendant plead one will the plaintiff reply another and exception take  because he do not traverse the former but hold needless to do so because per  ult will ut placitatur generally at first will to call again in omnibus and it  can be pretend that this may be the same will write over again for if so it  can not be other it will be the same these be not quibble upon word for can it  be say that this be a devise by the last will of sir h when there be another  nor be it a objection that the content do not appear for the will belong not  to the heir to keep and consequent not to show in plead he be not bind to a  profert it be enough that there be a subsequent will and as the latter may  confirm or be consistent with the former so it may not be so and the  consistence be not to be presume especial against a heir at law and in  possession in the case of coward v martial cro Elizabeth the substance of both  be declare and thereby they appear to be consistent and consequent no  revocation here eaden man such to cause to testify the same intent of dispose  his estate the same way can never be think to continue for then there have be  no occasion of make another will if this be not a revocation it be a act void  and to no purpose which be never to be intend then it be insist on that the  bare act of make and publish another will be a revocation and the find of the  content unknown be void if this be not a will it be a codicil and that be  contrary to the find of the jury for the verdict mention a second substantive  independent will without reference to the former which second will be a  revocation and therefore it be pray that the judgement shall be reverse it be  argue on the other side in behalf of Mr Nosworthy that this be no revocation  that here have be a great stir about nothing for that nothing appear against  his title that a man may make a will of several thing at several time and they  both shall stand that a deliberate will be make the content whereof be know  shall never be revoke by that which be not know nothing can be judge upon that  which do not appear and consequent it can never be judge to be a revocation  here be another will and nothing be give by it nothing be find to be give by  this subsequent will the form of enter the ancient judgement be who look bed  et hearing et per curian plene comprehension now what be here read to make a  revocation Richard fol be with the judgement for there it be reply that he  make another executor there be the content plead sufficient to maintain his  count and answer the defendant bar the book be per hoc quod the executor  nominator then be cite cro car the reason give be because in doubt non  presumitur pro will and here be a good will at the most the other be doubtful  cro car several will of several thing may be make and the same book car which  resolution sergeant Maynard in argue this case below say that he hear in that  court of king bench it be the subject matter of the will and the repugnancy  which make the revocation in this very case in the exchequer upon a English  bill it be hold by hale to be no revocation it be in Hardres coke upon  Littleton which have be quote comment upon these word several devise and if  there be no devise in the second there can be no sense or meaning in it and  consequent unless some meaning appear it can never be a evidence of a change  of his mind as it may be a revocation so it may 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 necessary be a revocation of a former for the second will may be of  another thing as good or of another parcel of land or in confirmation of the  former if in these and many other like case a latter will be no revocation of  a former how can shower KB er p it possible with justice be conclude that a  latter will without content purport or effect shall be a revocation of a  former and though the jury have in this case believe the witness and find that  another will be make it may be a dangerous consequence to encourage and  construe this a revocation without know the content for no will can be secure  against the swear of a new will if there be no necessity of show it or prove  what it be for which and other reason it be pray that the judgement may be  affirm and it be affirm ten shower KB Mr attorney general argument on the case  OF a clerk OF the peace on statute William mary