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ance were of

a partial inte

Under the old law the general rule was that if a testa- Old law as to tor seised of a freehold estate devised his whole inrevocation by implication, terest, and then aliened the same to the extent of such interest, the will was revoked: but if the alienation revoked by were not to the extent of the whole interest, as if conveyance, a testator seised in fee should have demised for life unless conveyor a less estate, the revocation was pro tanto only, and the devisee would have taken subject to the demise. rest only. Though a conveyance of a freehold estate were for no definite object, it revoked a previous devise; thus if the lands devised, should after the will have been conveyed to the testators use for life with remainder to his right heirs, so that it merely operated to revest the fee, the devise was revoked. Even an ineffectual conveyance had the same effect.

Where however, the conveyance was a mere charge, as Not revoked by a mortgage in case of a mortgage in fee with power of redemption to or mere the mortgagor, in the usual form, the will was not wholly charge. revoked in equity, but merely to the extent of the charge, and the devisee took cum onere (a).

tract to sell, even though

A contract to convey or settle lands theretofore devised Revoked in operated in equity, though not at law, as a revocation or equity by conademption of the devise, and this it would seem would be so, though the contract should have been rescinded in the rescinded, testator's life-time (b); so also if the lands were sold under or sale comcompulsory powers given to a railway company (c).

pulsory.

under the new

law,

A contract for sale, unless such whereof specific perform- Revocation ance would not be enforced, will now as formerly, as regards the beneficial interest, be a revocation of a prior devise of the lands sold, and the unpaid purchase money will go to the on contract of executor or next of kin entitled to have the contract carried out for their benefit, but the legal estate will go to the devisee (d). If however the contract have been abandoned

(a) As to right to exoneration, see 29 Vic. ch. 28, sec. 33, ante p. 45. (b) 1 Jarm. Wills, 3 ed. 150.

(c) Gale v. Gale, 21 Bea. 349; Smith Rl. Prop. 3 ed. 988; see however 1 Jarm. Wills, 3 ed. 152.

(d) Farrar v. Earl of Winterton. 5 Bea. 1; 1 Jarm. Wills, 3 ed. 152; Sug. Stat. 2 ed. 360, Moore v. Raisbeck, 12; Ford v. DePontes, 30 Bea. 72.

sale.

On contract to purchase.

Effect after

veyance by

his whole

estate relimit

a partial interest.

the property will now pass under the will contrary to the old law (a).

If a man having a term of years contract for the fee, and then devise the estate and die before the conveyance, the equitable fee will pass as before the statute, and the term will attend it (b): if the conveyance were made to the purchaser, or to a trustee for him, simply in fee, or pursuant to the contract before death, the devise would stand good both under the former and the present law (c).

The act "goes much further than simply to leave the devise of con- will to operate on such interest as the testator has left in the devisor, of him under a conveyance subsequently to his will, for the will is to operate on such estate or interest as the testator ing to himself has power to dispose of at the time of his death: therefore if a man were to make a will disposing of his real estate, and afterwards were to convey the whole fee to uses, or on trusts, relimiting or leaving any interest in himself, that interest would pass by his will; and still further, if he were afterwards to convey to a purchaser his remaining interest, and at a subsequent period repurchase the property, and die seised of it, it would pass by his will to the devisee (d).

Effect of sec.

ő may be in

some cas es

of wills now executed.

As the act by section 6 will apply to all wills except those of testators who die before 1st January, 1869, it will to necessitate be requisite that testators should consider how far their inrepublication tentions may be varied by the new act. Thus, if a testator having made his will disposing of some of his real estate in a particular way, should afterwards by post nuptial settlement before the act have granted such estate to the use of his wife for life and after her death to his own use in fee, and have made no alteration in his will, relying on the same being by the old law revoked by the conveyance, quoad the property conveyed (e), and in fact so intending, he would find such intention defeated by this act.

(a) Sug. Vend. 14 ed. 191.

(b) Sug. Stat. 2 ed. 364.
(c) 1 Jarm. Wills, 3 ed. 144, 145. (d) Sugd. Vend. 14 ed. 191.
(e) 1 Jarm. Wills, 3 ed. 136, ante p. 297.

SECTION 5.

5. No Will or Codicil, or any part thereof, shall be revoked Sec. 5. How

may be revo

otherwise than as aforesaid, or by another Will or Codicil exe- only a will cuted according to law, or by some writing declaring an intention ked. to revoke the same, and executed in the manner in which a Will is by law required to be executed, or by the burning, tearing or otherwise destroying the same by the testator, or by some one in his presence and by his direction, with the intention of revoking the same.

The 21st section of the English act has not been enacted here. It provides that no obliteration, interlineation or other alteration shall have any effect, except so far as the words or effect of the will shall not be apparent, unless such alterations shall be executed as the act requires.

SECTION 6.

6. This Act shall not apply to the Will of any person who is dead before the first day of January, one thousand eight hundred and sixty-nine.

Sec. 6. Act does not apply to the will of one who dies before 1 Jan.

As this section does not exempt from the operation of 1869. the act, wills executed before the first day of January, 1869, it may be requisite in some cases by reason of the change the new law works on such wills (as in the instances before given) that testators should republish their wills (a).

The power and mode of devising by a married woman is Devise by considered in treating of Con. Stat. ch. 73.

(a) See ante pp. 298, 295.

married

woman.

SALE AND TITLE UNDER EXECUTION.

STATUTES.

13 Ed. 1, c. 18, St. Westminster-Fieri Facias and Elegit. 33 Hen. 8, c. 39-Crown Debts.

13 Eliz. c. 4-Crown Accountants.

29 C. 2, c. 3, ss. 14, 15-Signing Judgment-Purchasers. 4 & 5 W. & M. c. 20-Docketing Judgments-Purchasers. 5 Geo. 2, c. 7, s. 4-Fieri Facias against lands-Pleadings and proceedings in suits against executors to reach lands. 2 & 3 Vic. c. 11, s. 8, Imp.-Registry of Crown Debtors and Accountants.

24 Vic. c. 41-Repeal of Registry of Judgment-Judgments no

27

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lien on land.

c. 13, s. 1-Sale of equity of redemption. See chapter on mortgages.

"" c. 13, s. 2-Renewal of executions.

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29

66

c. 15-Sales of lands on fieri facias against executors. c. 28, s. 28-Crown debts.

29 & 30 Vic. c. 42, ss. 5, 6-Issuing of fieri facias lands-Return of writs against goods in order of priority.

66

c. 43- Abolition of binding effect of Crown bonds. 31 Vic. c. 20, ss. 58, 59-Registry of Sheriffs' deeds. 66 c. 25-Lands and goods in one writ-Return, &c. Con. Stat. c. 5-Registry of Crown bonds.

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c. 22, s. 249-Renewal of writs.

c. 22, s. 252-Lands and goods not to be in one writSale, &c.

c. 22, ss. 257, 258, 259-Sale of equity of redemption. See chapter on mortgages.

c. 22, s. 261-Seizure of mortgage. See chapter ou mortgages.

c. 22, s. 268—Advertising, seizure, &c.

c. 22, s. 269-Sheriff vacating office.

c. 89, ss. 48, 49-Registry of judgments.

c. 90, ss. 5, 11-Sale of contingent interests. See chapter on that Act.

In order properly to consider this subject it will be of execution. necessary to consider the state of the law in England as

well as here.

elegit.

The Statute of Westminster 2, 13 Ed. 1, ch. 18, was the St. Westminster gave first first which gave a judgment creditor a right to proceed a remedy against the lands of his debtor. Under that statute the against lands judgment creditor may "have a fieri facias to the sheriff by a writ of to levy his debt on the lands and chattels of the debtor, or that the sheriff shall deliver to him all the chattels of the debtor (saving only oxen and beasts of the plough) and the half of his land, until the debt be levied, on a reasonable price or extent." It is from the election given by the statute to adopt one of the two remedies that the writ of elegit derives its name, and from the entry of the award of this on the judgment roll, "quod elegit sibi executionem," &c. Before this statute, a man could only have satisfaction of goods, chattels, and the present profits of the lands by the writs of fieri facias or levari facias, but not the possession of the lands themselves, which was a natural consequence of the feodal principles which prevented the alienation, and of course the encumbering of the fief with the debts of the owner. And when the restriction on alienation began to wear away, the consequence still continued, and no creditor could take possession of the lands, but only levy the growing profits, so that if the defendant aliened his lands the plaintiff was ousted of his remedy; the statute, therefore, granted the writ of elegit. The writ of fieri facias only affected the goods of the debtor, and the sheriff sold them under it: the writ of levari facias affected the goods and the present profits of the lands of the debtor, but not the lands themselves, and under it the sheriff was not authorized to sell or extend the lands, or deliver them to the creditor; but could only proceed to collect the rents and profits. Both these writs are yet in force in England: the latter however, has become almost obsolete, from the more advantageous remedy given by the writ of elegit; whilst to the former extended operation has been given in England and here, so as to affect other per

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