WILL. 



tions in manner aforefaid, or unlefs the fame be altered by 

 fome other will or codicil in writing, or other writing of 

 the devifor, figned in the prefence of tl.ree or four witnefles 

 declaring the fame. 



And no will in writing concerning any goods or chattels 

 or perfonal cilate fhall be repealed, nor (hall any claufe, 

 devife, or bequell therein be altered or changed, by any 

 words, or will by word of mouth only, except the fame be 

 in the life of the teftator committed to writing, and after the 

 writing thereof read unto the teftator, and allowed by him, 

 and proved to be fo done by three witnefles at the leaft. 



A will which %\-ill pafs perfonal eftatc is not a fufficient 

 revocation of ? former will, by which a real eilate is de- 

 vifed. Com) ;is, 451. 



Although the itatute fays, that no will in writing con- 

 cerning perfonal eftates (hall be rtpealed by word of mouth 

 only, except the words be put into writing, and read to 

 and allowed by the teftator, and proved to be fo done by 

 three witnefles ; yet where a man by will in writing devifed 

 the refidue of his perfonal eftate to his wife, and ftie dying, 

 he afterwards by a nuncupative codicil bequeathed to an- 

 other all that he had given to his wife, this was refolved to 

 be good : for by the death of the wife, the devife of the 

 refidue was totally void ; and the codicil was no alteration 

 of the former will, but a new will for the refidue. i Abr. 

 Caf. Eq. 408. 



Alfo, the ftatute hath not taken away revocations of 

 wills by aft of law ; as if the teftator afterwards make a 

 feoff'ment, or do any other aft inconfiftent \\4th the wiU : 

 but fuch revocation remains as before the ftatute. Carth. 81. 

 If a man devifes lands to one and his heirs, and after- 

 wards mortgages the fame lands to another for years or in 

 fee ; though a mortgage in fee is a total revocation at law, 

 yet in equity it fliall be a revocation pro tanto only. I Abr. 

 Eq. Caf. 410. 



And the reafon is, becaufe a mortgage is not confidered 

 as a conveyance of the eftate, but only as a charge upon it ; 

 being merely a fecurity, and in the confideration of equity 

 carries only a chattel intereft, the creditor gains nothing 

 real, it affords no dower, and goes to executors. Sparrow 

 and Hardcaftle, May 6, 1754. 3 Atk. 798. 



But if lands be devifed to one in fee, and afterwards 

 mortgaged to the fame devifee ; this is a revocation in toto, 

 being inconfiftent with the devife : but if the mortgage had 

 been to a ilranger," it had been a revocation quoad the mort- 

 gage only. Prec. Cha. 514. 



If a man feifed in fee devifes it to one in fee or for life, 

 and afterwards makes a leafe to another for years ; this, 

 even at law, fliall not be a revocation but during the years. 

 I RoU's Abr. 616. 



So if a huftjand poflefled for forty years devifes it to his 

 wife, and after leafes the land to another for twenty years, 

 and dies ; this leafe is not any revocation of the whole eftate, 

 but only during the twenty years, and the wife fhall have 

 the refidue by the devife. Id. 



But where a man feifed of a leafe for lives devifed it, and 

 afterward furrendered the old leafe, and took a new one to 

 him and his heirs for three lives ; it was decreed, that this 

 renewal of the leafe was a revocation of the will as to this 

 particular. For by the furrender of the old leafe, the tef- 

 tator had put all out of him, had diverted himfelf of the 

 whole intereft ; fo that there being nothing left for the de- 

 yife to work upon, the will muft fall, and the new purchafe, 

 being of a freehold defcendible, could not pafs by a will 

 made before fuch purchafe. 3 P. Wms. 166. 170. 



But where the teftator devifed all and fingular his leafe- 

 hold eftate, and afterwards renewed a leafe ; it was held by 



lord Hardwicke clearly, tliat this leafehold eftate paffed by 

 the will : for that this is not a fpecific legacy, but only an 

 enumeration of the feveral particulars of the perfonal eftate, 

 but yet is a general devife of the whole. 3 Atk. 199. 



Though a covenant or articles do not at law revoke a 

 will ; yet if entered into for a valuable confideration, 

 amounting in equity to a conveyance, they muft confe- 

 quently be an equitable revocation of a will, or of any 

 writing in nature thereof. 2 P. Wms. 624. 



A woman's marriage is alone a revocation of her wiU. 

 Id. 



A man made a will, and appointed one (who was no re- 

 lation ) to be his executor. He afterwards went abroad, 

 where he became a governor of one of the plantations, and 

 fent over for an Englifli woman of his acquaintance, whom 

 he married, and had children by ; and died, without an 

 aftual revocation of his will. Yet it was determined, that 

 this total alteration of his circumftances was an imolied re- 

 vocation. I P. Wms. 304. 



It is an eftabliflied maxim, that wills fliould be conftrued 

 favourably. Accordingly, the intention of the teftator is 

 called by lord Coke the polar-ftar, to guide the judges in 

 the expofition of wills. In divers inftaCces, relating to the 

 interpretation of wifls, collateral evidence hath been admitted 

 in the court of chancery to explain the teftator's intention. 

 But notwithftanding thefe cafes, the courts have been very 

 unwilhng to admit of parol evidence in relation to any thing 

 that appears on the face of a will ; and it is certain that too 

 much caution cannot well be ufed in this particular, efpe- 

 cially when it is confidered that the ftatute of frauds and 

 perjuries, which was made to prevent perjury, contrariety 

 of evidence, and uncertainty, binds the courts of equity as 

 well as the common-law courts ; as alfo that little regard 

 ought in many cafes to be had to the expreffions of the tef- 

 tator, either before or after the making his will, becaufe 

 poflibly thefe expreflions might be ufed by him, on purpofe 

 to conceal or difguife what he was doing, or to keep the 

 family quiet, or for other fecret motives and inducements 

 which cannot after his death be found out. 2 Bac. Abr. 



Notwithftanding that wills are generally favoured by the 

 law ; yet where the teftator endeavours to eftablifli a fettle- 

 ment againft the reafon and policy of the common law, the 

 judges will rejeft it. Gilb. 110. 2 Bac. Abr. 79. 



Alfo where the teftator by his will maketh no other dif- 

 pofition of his eftate than the law itfelf would have done, 

 had he been filent ; there fuch a will is ufelefs, and fhall be 

 rejefted : and, therefore, if a devife be made to a perfon 

 and his heirs, which perfon is heir at law to the devifor ; 

 this is a void devife, and the heir fliall take by defcent as his 

 better title ; for the defcent ftrengthens his title, by taking 

 away the entry of fuch as may poflibly liave right to the 

 eftate ; whereas if he claims by devife, he is in as by pur- 

 chafe. Gilb. no. 2 Bac. Abr. 79. 



Alfo devifes are void and rejected, where the words of 

 the will are fo general and uncertain, that the teftator's 

 meaning cannot be collefted from them ; and, therefore, 

 where a man by will gave all to his mother, the general 

 words did carry no lands to his mother ; for fince the heir at 

 law hath a plain and uncontroverted title, unlefs the anceftor 

 difinherits him, it would be fevere and unreafonable to fet 

 him afide, unlefs fuch intention of the teftator is evident 

 from the will ; for that were to fet up and prefer a dark 

 and at beft but a doubtful title to a clear and certain one. 

 Gilb. 112. 2 Bac. Abr. 81. 



The claufe of " perfeft mind and memory" is more ufual 

 than neceffary in a will, and yet not hurtful. ( Swinb. 7. ) 



But 



