MOTION for a new trial.

This was an action of ejectment for five sixth parts of J eight several tracts of land, lately the property of Jcrc~ ' , , , . wan HogabQQffl, deceased.

The defendant pleaded the general issue.

On the trial, the plaintiffs claimed title as heirs at law of Hogaboom; the defendant, in right of his wife, who was Pamela, Griffin, as devisee and grantee. It appeared, that'by a will duly executed and attested, dated the Sth of January, 1802, which, was afterwards proved and approved, Hogaboom devised these tracts of land to Fame-la- On the 3d of December, 1802, he procured another will to be drawn, in which he bequeathed all his personal estate to her, but-made no disposition of any of his real • estate. This will contained a clause revoking all former wills, but was attested by two witnesses only. At the same time, he procured a deed to be drawn of the demanded premises to Pamela, and one of another form to Calvin Noble. After the will and deeds were executed, the scrivener took up the deeds, and addressing himself to Hogaboom- said, ⅛< These you deliver for the purposes therein mentioned.” To this Hogaboom made no reply; but, after pausing awhile, turned, and address,-ing himself to Elizur Wright, Esq. (who had witnessed the deeds and will, and taken the acknowledgment of the former,) said, “ Take these deeds, and keep them s if I never call for them, deliver over one to Pamela, and the other to Noble, after my death: if I call for them, deliver them up to me.” Wright thereupon r'eceived the deeds. Hogaboom never called for them; he died on the 3d of June, 1803; and after his death, they were delivered over according to his directions. Pamela was not present at the drawing, execution or delivery of the deeds, and never conversed with Wright on the subject. Upon these facts, two questions of law arose : first, whether the will of January, 1802, was revoked by the will of December, 1802; and, secondly, whether the delivery of the deeds to Wright, and the delivery of them over by him to Pamela, as above stated, constituted a sufficient delivery to pass the title of the demanded premises to her. The court decided the latter question in the affirmative; and, therefore, deemed it unnecessary to give any opinion on the former. The jury, being directed accordingly, found a verdict for the defendant; and the plaintiffs moved for a ' new trial on the ground of a misdirection.

/ 1. The first question is, whether the will of the 5th of January, 1802, was revoked by the will of the 3d of December, 1802, which contained a clause expressly revoking all former wills ?

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