will becomes revoked and void by the marriage, would seem to bar the conclusion of the learned serjeant; and Mr. Roper, in his laborious and accurate Treatise on the law of Property, in relation to husband and wife, assigns very good reasons why the will cannot be deemed to have revived by the death of the husband. The provision in the New-York Revised Statutes, declaring that the will of a married woman shall be deemed revoked by a subsequent marriage, effectually puts an end to the question under that statute. A second will is a revocation of a former one, provided it contains words expressly revoking it, or makes a different and incompatible disposition of the property. Unless it be found to have contained one or the other, it is no revocation of a former will. Any alteration of the estate or interest of the testator in the lands devised, by the act of the testator, is held to be an implied revocation of the will, on the ground, principally, of its being evidence of an alteration of the testator's mind. A sale of the estate devised, operates, of course, as a revocation; for the testator must die while owner of the land, or the will cannot have effect upon it. A valid agreement, or cove nant to convey lands, which equity will specifically enforce, will also operate in equity as a revocation of a previous devise of the same. It is as much a revocation of the will in equity, as a legal conveyance of the land would be at law; for the estate, from the time of the contract, is considered as the real estate of the vendee.

a Hodsden v. Lloyd, 2 Bro. 534. Doe v. Staple, 3 Term Rep. 684, b Vol. ii. 69.

c Vol. ii. 64. sec. 44.

d Hitchins v. Bassett, 3 Mod. Rep. 203. Goodright v. Harwood, Cowp. Rep. 86.

e Cotter v. Layer, 2 P. Wms. 622. Rider v. Wager, ibid. 332. Mayer v. Gowland, Dickens' Rep. 563. Knollys v. Alcock, 5 Vesey's Rep. 654. Vawser v. Jeffery, 2 Swanst. Rep. 268. Walton v. Walton, 7 Johns. Ch. Rep. 258,

Not only contracts to convey, but inoperative convey ances, will amount to a revocation of a devise to the extent of the property intended to be affected, if there be evidence of an intention to convey, and thereby to revoke the will. A bargain and sale without enrolment, feoffment without livery of seisin, a conveyance upon a consideration which happened to fail, or a disability in the grantee to take, have all been admitted to amount to a revocation because so intended. If, however, the testator substitutes a new disposition of the land, and intends to revoke the land by means of that substitution, and to make way for it, and to give it effect, and not otherwise, in that case, if the instrument cannot have that effect, and the substitution fails, there is no revocation. It is further the acknowJedged, but very strict and technical rule of law, that if the testator conveys away the estate, and then takes it back by the same instrument, or by a declaration of uses, it is a revocation, because he once parted with the estate. Either an intention to revoke, or an alteration of the estate without such an intention, will work a revocation. The law requires, that the same interest which the testator had when he made the will, should continue to be the same interest, and remain unaltered to his death. The least alteration in that interest is a revocation. If the testator levies a fine, or enfeoffs a stranger to his own use, it is a revocation, though the testator be in of his old use. Lord Hardwicke, in Parsons v. Freeman, admitted, that these were prodigiously strong instances of the severity of the

a Montague v. Jeffereys, 1 Rol. Abr. 615.

Roper v. Radcliffe, 10 Mod. Rep. 230. Lord Hardwicke and Lord Eldon, 3 Atk. Rep. 748. 805. 7 Vesey's Rep. 273. 2 Swanst: Rep. 288.

c Lord Eldon, 7 Vesey's Rep. 373.

d Dister v. Dister, 3 Lev. 108. Darley v. Darley, 3 Wils. Rep. 6.

e Trevor, Ch. J. in Arthur v. Bockenham, Fitzgib. 240.

f 3 Atk. Rep. 748.

rule; and Lord Mansfield observed, that the Earl of Lincoln's case, decided upon the same principle, was shocking, and that some overstrained resolutions of the courts upon constructive revocations, contrary to the real intention of the testator, had brought scandal upon the law." The unreasonableness of the rule, holding an act to be a revocation, which was not so intended, and even when the intention was directly the contrary, has been often complained of, and the English courts have, latterly, shown a strong disposition not to assume the doctrine, unless there was some express authority for it."

The doctrine, hard and unreasonable as it appears in some of its excressencies on this subject, and powerfully as it has been repeatedly assailed by great weight of argument, has, nevertheless, stood its ground immoveably, on the strength of authority, as if it had been one of the essential landmarks of property. The cases have been investigated and discussed with the utmost research and ability by the courts of law and equity, and the principle again and again recognised and confirmed, that by a conveyance of the estate devised, the will was revoked, because the estate was altered, though the testator took it back by the same instrument, or by a declaration of uses. The revocation is upon the technical ground, that the estate has been altered, or new modelled, since the execution of the will. The rule has been carried so far, that if the testator suffered a recovery, for the very purpose of confirming the will, it was still a revocation, for there was not a continuance of the same unaltered interest. There is an exception to the rule in the case of mortgages, and charges on the estate, which are only a revo cation in equity pro tanto, or quoad the special purpose,

a 3 Burr. Rep. 1491. Doug. Rep. 722.

b Charman v. Charman, 14 Vesey's Rep. 584. Vawser v. Jeffery, 2 Barnw. & Ald. 463.

c Goodtitle v. Otway, 1 Bos. & Pull. 576. 7 Term Rep. 399. S. C. 3 Vesey's Rep. 650.

and they are taken out of the general rule on the fact of being securities only. These doctrines of the English Cases have been reviewed in this country, and assumed to be binding, as part of the settled jurisprudence of the land. It was decided, that a contract for a sale of the land, was a revocation of the devise, even though the contract should afterwards be rescinded, and the testator restored to his former title. Legal and equitable estates, as to these im plied revocations, were deemed to stand on the same ground. It has also been held, that if the testator, after devising a mortgage, forecloses it, or takes a release of the equity of redemption, it is a revocation of the devise. It is equally a revocation, if he cancelled the mortgage, and took an absolute deed, for it was an alteration of the interest, and a new purchase. Some of the excesses to which the English doctrine has been carried, have not been acquiesced in, but the essential rules have been taken to be law.

A codicil is an addition, or supplement to a will, and must be executed with the same solemnity. It is no revocation of a will, except in the precise degree in which it is inconsistent with it, unless there be words of revocation.d If the first will be not actually cancelled, or destroyed, or expressly revoked, on making a second, and the second will be afterwards cancelled, the first will is said to be revived. But the first will is not revived, if the testator makes a second, and actually cancels the first by an absolute act rendering it void, and then cancels the second will. It will,

a Sparrow v. Hardcastle, 3 Atk. Rep. 798. S. C. 7 Term Rep. 416. n. Bridges v. The Dutchess of Chandos, 2 Vesey, jr. 417. Cave v. Holford, 3 Vesey's Rep. 360. 7 Term Rep. 399. 1 Bos. & Pull. 576. S. C. Harmood v. Oglander, 6 Vesey's Rep. 221.

b Walton v. Walton, 7 Johns. Ch. Rep. 258.

e Ballard v. Carter, 5 Pick. Rep. 112.

d Brant v. Wilson, 8 Cowen's Rep. 56

e Goodright v. Glazier, 4 Burr. Rep. 2512.

in such a case, require a republication to restore the first will. The mere act of cancelling a will does not amount to any thing, unless it be done animo revocandi. The intention is an inference to be drawn from circumstances, and the fact of cancelling may be, in many cases, an equivocal act. If, however, the will be found cancelled, the law infers an intentional revocation; for it is prima facie evidence of it, and the inference stands good until it be rebutted. Cancelling, in the slightest degree, with a declared intent, will be a sufficient revocation; and, therefore, throwing a will on the fire, with an intent to burn it, though it be only slightly singed, and escapes destruction, is sufficient evidence of the intention to revoke. An obliteration of part of a will, is only a revocation pro tanto.

The New-York Revised Statutes have dispensed with all refinements on this point. In no case does the destruction, or revocation of a second will, revive the first, unless the intention to revive it be declared. These statutes have essentially changed the law on the subject of these constructive revocations, and rescued it from the hard operation of those technical rules of which we have complained, and placed it on juster, and more rational grounds. It is declared, that no bond, agreement, or covenant, made by

a Burtonshaw v. Gilbert, Coup. Rep. 49. Semmes v. Semmes, 7 Harr. & Johns. 388. There are contradictory opinions of Lord Mansfield, as given in Corp. Rep. 53. and 92., on the point whether, if the first will be not cancelled, in point of fact, but he revoked by the terms of the second will, and the second will be cancelled, the first will to be thereby restored, without republication.

b Onions v. Tyner, 1 P. Wms. 393. Burtonshaw v. Gilbert, Cowp. Rep. 49. Jackson v. Holloway, 7 Johns. Rep. 394. Sir John Nichols, in Rogers v. Pittis, 1 Addams' Rep. 30.

c Bibb v. Thomas, 2 Blacks. Rep. 1043.

d Sutton v. Sutton, Cowp. Rep. 812. Larkins v. Larkins, 3 Bos. & Pull. 16. Short v. Smith, 4 East's Rep. 419.

e Vol. ii, 66. sec. 53.