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 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 equity case abridge after this the testator cancel the  duplicate by tear off the seal and then die and the question 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 the other shall be a  revocation thereof within the statute of fraud and perjury and it be decree  that neither the make the second nor the cancel 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 wherein my Lord chancellor take this  distinction that the second be not intend bare a revocation of the first so as  to signify his intention of die intestate or without any will but it be 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 but as it be suppose to be valid as a will for pass  the land by the second 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 he by  the first but if a man execute a second will which appear to have no other  intention than to revoke the first and to die intestate though this 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 a 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 yet if he do make a second and  intend that as a revocation of the first if it be insufficient for that  purpose as in the principal case the tear and cancel be only in consequence of  his opinion that he make a good second will shall not destroy the first but it  ought to be set up again in equity hill onion and trier call in Vernon and p  wms tyrer decree vide Mod lev vern will Rep Prec in Chan pale yellow Eq Rep SC  that it be no revocation but if a man cancel or revoke either the duplicate or  original will this be a effectual avoid of both they be both but one will and  therefore must stand or fall together onion v tyrer vern per curian and say to  have be so resolve in sir Edward seymour case S p p wms by the car cap it be  enact that no devise in write of land tenement or hereditament or any clause  thereof shall be revocable otherways than by some other will or codicil in  write or other write declare the same or by burn cancel tear or obliterate the  same by the testator himself or in his presence and by his direction and  consent but shall continue c unless alter by some other equity case abridge er  p will or codicil in write or other write of the devisor sign in the presence  of three or more credible witness declare the same and by the same Act no will  in write concern personal estate shall be repeal nor any clause or bequest  therein alter by word or will by word of mouth only except the same be in the  life of the testator commit to write and read to and allow by he and prove to  be do by three witness but where a man by will in write devise the residue of  his personal estate to his wife and after she die he by a nuncupative codicil  bequeathe to I S all that he have give to his wife it be resolve good for by  the death of the wife the devise of the residue be total void and the codicil  be no alteration of the former will but a new will for the residue raym equity  case abridge a man make his will in write and thereby devise all his real and  personal estate to his wife her heir and executor in trust to pay his debt and  legacy and then devise several legacy to his child and other person and  conclude in witness whereof I have to this my last will and testament contain  nine sheet of paper and to a duplicate thereof to be leave in the hand of such  a one set my seal to every sheet thereof and to the last of the say sheet my  hand and seal in the presence of three witness who all subscribe their name in  due form of law afterward the testator be mind to add other trustee to his  wife and make some little alteration in his will send for a scrivener and give  direction to prepare a draft of instruction for another will which the  scrivener do accord which the testator read over and approve very well and set  his hand to it and be at a tavern think he have now make a new will he pull  out of his pocket the first will and tear off the seal from the first eight  sheet which the scrivener see ask he what he be do why say he I be cancel my  first will pray say the scrivener hold your hand the other will be not perfect  it will not pass your real estate for want of be execute pursuant to the  statute of fraud and perjury I be sorry for that say he and immediate desist  from tear off any more of the seal and in some short time after die without  have do any thing further to perfect the second will or cancel the first after  his death on application to the spiritual court by the wife who be make  executrix of this last will they sentence it a good will as to the personal  estate and admit her to prove it and on a bill bring by the legatee against  the wife and other trustee to have a specific performance of the trust in the  first will and that the estate may be sell pursuant to the direction of that  will it be insist upon that the first will be revoke either by make of the  second or by the tear off the seal from the first but Lord chancellor hold  that the subsequent will can be no revocation as to the real estate not be  execute accord to the statute of fraud and perjury and that as to the tear oft  the seal from the first eight sheet that not be do mind cancelland be no  revocation and that the seat remain whole to the last sheet wet sufficient and  in strictness it be not necessary that all the sheet shall be seal but because  the spiritual court have sentence the second a good will of the personal  estate his lordship hold it a good will for the whole personal estate and that  such legatee of personalty in the first will as be leave out in the second  must lose their legacy but for those that have legacy by the first will  Chargeable on the real estate if the same legacy be devise to they by the  second will that they shall still continue Chargeable on the real estate  provide such legacy be not increase or enlarge by the second will for though  the second will be not sufficient in itself to charge the real estate yet  since the real estate remain well devise by the first will they shall be still  secure by that real estate for they be not devise out of land like a rend but  only secure by land which before be well devise but for other new absolute  personal legacy devise by the last will they shall be Chargeable only upon the  personal estate and shall have the preference to be first pay out of the  personal estate before the other legacy in the first will charge upon the real  estate because they have their several fund out of which they be to be pay the  personal legacy in the last will out of the personal estate which be well  devise by that will and the legacy equity case abridge charge or secure upon  the real estate which be devise by the first will out of the real estate hill  Ann hide and hide Chan Rep SC and decree and add that all agree that the  second will though not seal and subscribe as the statute of fraud direct yet  be good for the personal estate it be casus to let go out of the statute and  then it be good at commonlaw ibidem equity case abridge er p if a devise land  to p and his heir and afterward mortgage the same land to I S for year or in  fee though a mortgage in fee be a total revocation at law vide roll Abr yet in  equity it shall be a revocation pro tanto only vern salk S p admit to be a  settle point in equity