delivering the opinion.
There can be no doubt, that if a testator makes a deed for the property which he has bequeathed by his will, the act amounts to a revocation of the will. Why, then, should not such an act be pleadable in the court of ordinary as a bar to the establishment of the will ? An appeal to the superior court, and to a jury, will lie from the decision of the court of ordinary. Similar matters are pleadable in the court of ordinary; as the execution of a later will; the execution of a naked revocation; the cancellation of the will; the marriage of the testator, or his. having a child subsequently to the making of the will. (Cobb 847.) The ease of Finch vs. Finch, was a case in which the matter pleaded in bar to the establishment of the will, was an agreement made by the legatees among themselves. No act of theirs could revoke the will.
We see nothing to justify disturbing the verdict.
Judgment affirmed.