maintenance, and to raise 3000l. for them: at the time of making the will the testator had one child by M. Simpson; afterwards he married her and had three children, and died without altering his will. 465. It was held that the will was not revoked by the subsequent marriage, and birth of children; because there was not that total change in the situation of the family, and that total destitution of provision for those who ought to be the objects of the testator's care and protection (although the provision was made for them under a different character), which could vacate the will on the ground of a supposed tacit condition, that 1 Ves. & B. it should be void upon a total change in the situation of the testator's family, and a total want of provision for the family so newly circumstanced; or upon the ground of a presumed intention to revoke, according to any rules of law hitherto recognized on this subject. Sheath v. York, 52. It has been determined lately, that where a widower, having a son and two daughters, made his will, by which he gave all his real estate in trust for those children, and afterwards married and had other children, his will was not thereby revoked. For such revocation would operate only to let in the eldest son to the whole of the estate, which he had by the will divided between that eldest son, and the other children of the marriage, 1 Ves. & B. 390. marriage. Forse and Hembling's case, 53. The marriage of a woman operates as a revoca- A woman's will tion of a will made by her prior to such marriage; for revoked by if the wife dies before her husband, it can have no operation; the making of the will being only the inception of it, as it does not take effect till the death of the devisor. But if the wife survives her husband, the will is revived, and takes effect as if she had never been 2 Bro. R. 534. married. 4 Rep. 61. a. 2 P. Wms. 625. Hodgson v. Lloyd, 54. It was established as a rule of law, long before Alteration of the statute of wills, that any alteration of the estate in the estate. lands devised, by the act of the devisor, after the publication of his will, operated as an implied revocation of such will. This doctrine is founded on three reasons. Ch. 3. Alienation to a stranger. Vin. ad Inst. Lib. 2. Tit. 20. 12. Sparrow v. Arnold v. 1. On the favour which the common law shows in every instance to the heir. II. On a principle already stated, that a devisor must not only be actually seised of the lands at the time when he makes his will, but must also continue to be so seised thereof till the time of his death. III. Because any alteration of the estate devised is held to be evidence of an alteration in the intention of the devisor. 55. An actual alienation or disposition of an estate by the devisor, after he has made his will, operates as a revocation of the devise; for in such case the devisor does not die seised; and his alienation is deemed undoubted evidence of an alteration of intention, in conformity to the rule of the Roman law, from which this doctrine was probably derived; est enim rei legata alienatio species tacita ademptionis, quoniam hoc ipso, quod testator rem in alium transfert, recedere à priori voluntate videtur. 56. A person devised all his manors, messuages, and hereditaments to trustees, in trust for his nephew and his issue, in strict settlement. The testator afterwards conveyed an advowson, whereof he was seised at the time of making his will, to trustees and their heirs, and by another deed declared the trust of their conveyance to be to present the son of R. I. It was decreed by Lord Hardwicke that the conveyance of the advowson was a complete revocation of the devise of it. 57. Eliz. Milner devised a house to her sister Cathe1 Bro. R. 401. rine for life, and after her decease, devised the same to trustees, in trust to sell. The testatrix afterwards sold the estate herself. It was decreed that the sale was a revocation, not only of the house, but also of the devise of the money to arise from the sale. Contract for sale. 58. Even an agreement or covenant to convey lands, which have been previously devised by will, operates in equity, though not at law, as a revocation of such devise. 2 P. Wms. 328. 59. A person devised six houses to his wife; after- Rider v. Wager, wards the testator, by articles, covenanted, in consideration of the marriage of his eldest daughter, to settle a moiety of his real estate on her. Lord King held, that though this was but a covenant, and therefore did not, at law, revoke the will; yet it being for a valuable consideration, was, in equity, tantamount to a conveyance; and consequently a revocation of the will. 2 P. Wms. 622 Alcock, 60. In a subsequent case it is said by Lord King, Cotter v. Layer, that though a covenant or articles do not, at law, revoke a will, yet if entered into for a valuable consideration, amounting in equity to a conveyance, they must consequently be an equitable revocation of a will. 61. In a modern case Lord Rosslyn held, that an Knollys v. agreement for a partition operated as a revocation of 5 Ves. 648. a devise; and said, that where an estate was devised specifically, and was afterwards sold by the testator by a contract executory, the estate went from the devisee. And Sir Wm. Grant held, that a covenant to surrender Vawser v. copyhold estates operated as a revocation in equity of 16 Ves. 519. a prior will. 7--558. Jeffrey, 626. 62. In all cases of this kind the legal estate passes 2 P. Wms. by the will to the devisee; but the Court of Chancery will compel him to convey it to the person entitled under the equitable agreement. alienation. 63. Even an intended alienation of an estate pre- An intended viously devised, which fails of taking effect for want of some formality in the instrument, has been held to operate as a revocation of the devise. Thus a feoffment 1 Roll. Ab. 615. without livery, and a bargain and sale, not enrolled, have been held to be revocations of prior devises; because such intended alienations were considered as proofs of an alteration of intention. 64. It was certified by the Court of King's Bench to the Court of Chancery, in a modern case, that a deed intended to operate as an appointment to uses, but not sufficient for that purpose, may have the effect of revoking a will, if the party appear to have had that intention. 3 Atk 73. 803. Shove v. Pincke, Term R. 124. Alienation to the use of the testator. Dyer, 143 b. Lincoln's case, 1 Ab. Eq. 411. Show. Parl. Ca. 154. 3 Ark. 803. Pollen v. Hi band, 7 Bro Parl. Ca. 433. 65. An alienation to a trustee, without any intention of departing with the estate; and though the alienor take back the old use, has been held to operate as a revocation of a prior devise; because, in such a case, there is an interruption of the seisin; and also because a presumption, in favour of the heir at law, arises from the alienation, that there was an alteration in the intention of the testator. 66. Thus it was determined in Michaelmas, 44 Edw. III., that where a man seised in fee of lands, devisable by custom, made his will, he having then two sons, and upon their death, aliened the land in fee, and took back an estate in fee; the will was thereby revoked. 67. Lord Lincoln made his will, by which he devised all his estates to the person to whom his title was to descend: afterwards conceiving that he should marry a certain lady, though the lady never had any such intention, he conveyed his estate by lease and release to trustees, in consideration of his intended marriage, to the use of himself and his heirs, until the marriage should take effect, and then, as to part, for his intended wife, &c. No marriage ever took place, and Lord Lincoln died. It was decreed that this conveyance operated as a revocation of the will: and the decree was affirmed in the House of Lords. It is said that the Judges were equally divided in this case; and that all the Lords voted. Lord Mansfield has said of it," The absurdity of Lord Lincoln's case is shocking; however, it is now law." 68. A. by his will, dated in 1708, gave several pecuAb. Eq. 412. niary and specific legacies, and then gave all his real and personal estate to B., on condition he took the name of A. Afterwards A. together with J. S. his trustee, by lease and release, conveyed several manors to trustees and their heirs, to the use of himself for life, and that the trustees and their heirs should execute such conveyances thereof as A. by writing under his hand and seal, or by his last will, should appoint. The strengthen the 69. An alienation made for the sole purpose of Alienation to strengthening, or giving effect to a previous devise, has devise. notwithstanding been held to operate as a revocation of it, on account of the interruption of the seisin; for, in such a case, no alteration of intention could be presumed. 70. A bastard made his will, and thereby devised a certain manor. He afterwards made a feoffment of the same manor, to the use of such persons, and for such estates, as he had already declared by his will. It was adjudged that this feoffment was a revocation of the will. 71. A person covenanted by indenture to levy a fine, to the use of such persons as he should nominate by his will. He then made a will, by which he devised the lands to certain persons; and afterwards levied a fine in pursuance of the covenant. It was agreed that the fine operated as a revocation of the will; but in this and the preceding case, the will was held to be a good declaration of the uses of the fine. Hussey's case, Moo. 789. 1 Roll. Ab. 614. Lutwich v. 1 Roll. Ab. Mitton, 614. Hicks v. Mors, Amb. 215. Tit. 32. c. 12. 72. Where a person who has devised his lands, after- Fine and rewards levies a fine or suffers a recovery of them, these covery. acts will operate as a revocation of the devise. 73. A tenant in tail made his will, whereby he devised certain lands; and afterwards, by bargain and sale enrolled, conveyed the same to a tenant to the præcipe, against whom a common recovery was suffered, with voucher of the tenant in tail, to the use of himself in fee. It was determined that the recovery operated as a revocation of the will. Dister v. Dister, Lev. 108. Turner, 74. Sir H. Turner being seised of a considerable Marwood v. estate in tail male, with remainder to himself in fee, 3 P. Wms. 163. |