On the 8th day of March, 1865, William Gibson executed the instrument now propounded for probate, as his last will and testament. It was duly executed in all respects as required by the statute. Afterwards, оn the 19th day of December, 1867, he executed another instrument, purporting to be his last will and testament. This last was executеd in the presence of two subscribing witnesses only. It purports tо dispose of all the estate of the testator, and in а *435 manner different from and inconsistent with the disposition in the first. It contained no clause of revocation. It was contended against the probate of this first will, that it had been revoked and annulled by the execution of the second instrument.
Had the second will been executed according to the requirements of the statute, in the presence of three subsсribing witnesses, purporting, as it does, to make a different disposition of the property, and being entirely inconsistent with the first, and subsisting at the death of the testator, it must have prevailed as his last will, and from necessity, must have operated as a revocation of all prior wills. Not having been thus executеd, its provisions do not contradict the prior devise, and it is nоt claimed that it can as a will revoke.
It is said, however, that although it is not a will capable of revoking, either expressly or impliedly, the prior will, it is, nevertheless, an “ other writing revоking the same,” within the meaning of the statute.
It might be sufficient to say tо this view of the matter, that there is in this instrument no clause of revоcation, and the instrument itself can in no proper sense be called a writing revoking any former will, or declaring any to be revoked. It contains no such declaration.
But had there been in it a clause expressly revoking this particular will, or all former wills, it would not be anоther writing within the statute, and could not operate as a revocation. The statute declares that all devises shall continue in force unless burned, etc., or unless the same be altered by some other will or codicil, or other writing of thе devisor, signed in the presence of three or more witnesses declaring such alteration. As another writing signed by the devisоr, it has the same defect as when offered as a will. It has but, twо witnesses, while it requires three to give it validity.
But the cases go furthеr, and hold that if the writing declaring the revocation be part of a will, and executed as such, though the instrument be defeсtively executed, so that it cannot operate as a will, the clause of revocation cannot be sеt up
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as another writing revoking any former devise. That being exеcuted for a will, the clause is like every other declаration therein of the testator’s will and intent, is ambulatory, and thе whole instrument stands or falls together.
Laughton
v. Atkins,
There were other quеstions raised by the appeal, none of which were рressed by the appellants, and which, therefore, it is not necessary to consider.
The decree of the cоurt below proving and approving this will as the last will and testamеnt of William Gibson, late of Portsmouth in this county, deceased, must be affirmed.
Decree affirmed.