Goodright, on the demise of Glazier, v Glazier
| Jurisdiction | England & Wales |
| Judgment Date | 25 January 1770 |
| Date | 25 January 1770 |
| Court | Court of the King's Bench |
English Reports Citation: 98 E.R. 317
IN THE COURT OF KING'S BENCH
See Cowp. 49. Buller, 266. 3 Wils. 508. Doug. 40, and Dyers' Readings on Stat. of Wills, p. 4, No. 14.
Approved, M'Ara v. M'Cay, 1889, 23 L. R. Ir. 142.
goodright, on the demise of glazier, ver. glazier. Thursday 25th January 1770. Former will not cancelled nor reversed by a subsequent will afterwards cancelled by the testator. [See Cowp. 49. Buller, 266. 3 Wils. 508. Doug. 40, and Dyer's Readings on Stat. of Wills, p. 4, No. 14.] [Approved, M'Ara v. M'Cay, 1889, 23 L. R. Ir. 142.] This cause had been tried at the Sussex-Assizes : where a verdict had been given for the plaintiff, the heir at law to the testator, against the defendant, who was his devisee in two wills. It now came before this Court, upon a motion on the part of the defendant for a new trial; which was opposed by Mr. Dunning (Solicitor-General,) Mr. Burrell, and Mr. Kemp, on the part of the plaintiff; who argued, that both wills were revoked ; and, consequently, their client took as heir at law. The question turned upon the revocation of the first will, by making the second. The short of the case was this. The former will (being a will of lands) was made in 1757 ; the second, in 1763. The former was never cancelled ; the second was cancelled by the testator himself. Both wills were in the testator's custody, at the time of his death ; the second, cancelled ; the first, uncancelled.(a)1 The counsel for the plaintiff, the heir at law, argued that the second will was a complete instrument, at the time when it was executed ; that it clearly proved the testator's intention of revoking the former ; and that the execution of it was as much a revocation of the former, as if he had thrown the former into the fire ; that the pre-[2513]-servation of it was merely accidental, and of no consequence ; that it had been already totally extinguished, so that it could never revive ; that, as it never had been republished, it remained a mere nullity ; and that no subsequent event could hinder the execution of the second will from operating as a revocation of the former. The second will was therefore the testator's only subsisting will, so long as it remained uncancelled. And when he thought fit to cancel and destroy it, it is manifest that he meant to die intestate, and that his heir at law should take.(a)2 If a woman makes a *! P. 301 of 3 Keble. *2 N.B. Mr. Justice Aston was absent; being engaged in his new office of one of the Lords Commissioners of the Great Seal. (a)1 It is of the essence of a will, that it should be valid during the remainder of the devisor's life, per Lord Kenyon, 2 Durn. 695. If the agreement referred to the will, then in existence, still the will would want a necessary ingredient, viz. a disposing...
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