
    * George Reid and Wife, Appellants, versus Sally Borland, Executrix.
    An instrument purporting to be a last will and testament, revoking all former wills, must have the same attestation, &c., to operate as a revocation, as is requisite to give it validity as a will.
    This was an appeal from a decree of the judge of probate for this county, allowing and approving the last will and testament of John Borland.
    
    After an issue to the country on the sanity of the testator, and a verdict for the executrix, another issue was formed to the court on the revocation of the same will.
    The evidence of a revocation was a posterior instrument, executed by the testator, purporting to be his last will and testament, in which also he expressly revoked all former wills by him made. This latter will had been offered for probate by the present appellants, and disallowed, as not duly witnessed, within the requisition of the statute;  as to which it appeared that the latter will was attested, by three subscribing witnesses, but that one of them did not subscribe in the testator’s presence.
    
      
      Orr, for the appellants,
    argued that, although this instrument might not be duly witnessed as a last will, yet it might avail as a revocation of the former will now offered for probate. The three witnesses saw and heard the testator execute and publish it. They are competent and credible, and the facts are well established by their testimony.. The words of the statute, as to instruments of revocation, do not require that the witnesses subscribe in the presence of the testator.
    
      Mellen, for the respondents,
    contended that the instrument, offered as evidence of the revocation of the will now in question, could not have that operation. Our statute on this point is a literal copy from the English statute of wills, and it has been repeatedly decided, and is perfectly settled, in England, that a second * will, whereby lands are disposed of, as is the case here, to amount to a revocation of a former one, must be such a one as would be effectual to pass lands, within the devising clause of the statute; and must be witnessed, and otherwise qualified, as that clause requires. 
    
    
      
      
        Stat. 1783, c. 24.
    
    
      
      
        Powell on Devises, 631, 646. — 1 P. Will. 343. — 2 Black. Comm. 396.
    
   And the Court being of this opinion, the decree of the judge of probate was affirmed, and the papers remitted to him for further proceedings in the matter, 
      
      
        [Laughton vs. Adams, 1 Pick. — Very vs. Very, 3 Pick. 374. — Brown vs Thorndike, 15 Pick. 388. — Ed.]
     