Parsons v. MS. Rep. and having no son, made his will, by which he devised his estate to his nephew, (who was not his heir,) in strict settlement. Afterwards Sir H. Turner suffered a common recovery of this estate, to the use of himself in fee. Upon the back of the will was written, this my will; and afterwards, but not now so intended. is It was determined that the recovery, and the declaration of the uses of it to Sir H. Turner and his heirs, being subsequent to the will, and inconsistent therewith, as declaring the estates should go to his heir at law, and not to his devisee, operated as a revocation of the will. And it was observed that a common recovery, as it is a solemn conveyance upon record, and stronger than a feoffment, must needs be a revocation: the recovery being suffered by the tenant in tail, plainly gains an absolute fee, derived out of the estate tail, and which fee was never devised; consequently it must be even stronger than the case where a man, having lands, devises them, and afterwards makes a feoffment of them; though to the use of himself and his heirs, and though this be the old use, yet according to the several cases in 1 Roll. Ab. 614., it is a revocation; and the case of Dister v. Dister was cited as exactly in point. 75. It was agreed by marriage articles, that the wife's estate, whereof she was tenant in tail, should be conveyed to the husband in fee. Subsequent to the marriage, the husband devised those lands, and afterwards the husband and wife suffered a recovery of them, to such uses and for such estates as they should jointly appoint; and in default of appointment, to the use of the husband and his heirs. No appointment was made. It was decreed by Lord Hardwicke, that the will was revoked by the recovery. And he said," It is admitted that if the testator had been seised in fee, at the date of the will, and had afterwards suffered a recovery, that would have been a revocation; and yet the objec tion would have held equally there, of the alteration being made only for the particular purpose to enable him and his wife to dispose, without any other form of conveyance. There are a great variety of cases, and nice and artificial distinctions, upon the favour to the heir: one rule however is certain, that if a man is seised in fee, and disposes by will, and afterwards makes a conveyance, taking back a new estate, that is a revocation. So if he devises the land, and levies a fine without any use declared; this is a revocation; and yet he takes back the old use unaltered; which is a prodigious strong case." Langworthy, Amb. 653. 3 Wils. R. 6 76. Vincent Darley being seised of several real Darley v. estates for his life, with the reversion in fee in himself, made his will, by which he devised them to Mr. Langworthy in strict settlement; some years after, the testator suffered a common recovery of the estates devised, to the use of himself in fee. The question was, whether the will was revoked by the recovery. The Court of Chancery ordered a case to be stated for the opinion of the Court of Common Pleas, upon the following question:-" Whether the deed executed, and the recovery suffered by Vincent Darley, was a revocation of the will." The case having been fully argued before that Court, Lord Ch. J. Wilmot said, there were a great many determinations touching the revocation of wills, and very nice artificial distinctions were made in favour of heirs at law. It seemed to be clear, from the latest determinations upon the subject, that if a man seised in fee, made his will and devised; and afterwards conveyed by recovery, fine, feoffment, release, &c., and took back the same, or a different estate, it should amount to a revocation. The reason was, that it must be presumed he intended to alter his will. The Court certified their opinion, that the deeds executed and the recovery suffered by Vincent Darley, 3 Bro. Parl. were a revocation of his will. Lord Camden decreed Ca. 53. Ante, c. 3. Tit. 36. Doe v. Dilnot, Bos. & Pull. N. R. vol. 2. 401. Any conveyance inconsis tent with the devise. accordingly; and the House of Lords affirmed the decree, as to this point. 77. In the case of Selwin v. Selwin, which has been stated in a former chapter, the will, though made before the return-day of the writ of entry, on which the recovery was suffered, and to which it had relation, was held not to be revoked by the recovery; because the bargain and sale and recovery ought to be considered as one transaction, and as constituting one whole, by reference to its inception. 78. It was held by the Court of Common Pleas, upon a motion for a new trial, that where a testator levied a fine to such uses as he should appoint, by deed or will; a prior will was thereby revoked. 79. The doctrine of presumptive and constructive revocations appears to have been carried much too far; and has been disapproved of by the ablest judges of 3 Burr. 1491. modern times. Lord Mansfield has observed, that constructive revocations, contrary to the intention of the testator, ought not to be indulged; and that some overstrained resolutions of that sort had brought a Doug. R. 722. scandal on the law; and on another occasion he said 2 Hen. Black. R. 523. Brydges v. 2 Ves. Jun. "All revocations which are not agreeable to the intention of the testator, are founded on artificial and absurd reasoning." It is however now fully settled, that whereever a person who has devised an estate, afterwards makes any alteration in it, by any mode of conveyance whatever, inconsistent with the preceding devise; or by which the estate devised becomes in any respect different from what it was before; such an alienation will operate as a revocation of the prior devise. 80. By articles made in 1777, previous to marriage, the Duke of Chandos covenanted, that he would, within six months after the marriage, cause several freehold and copyhold estates to be conveyed to him, to the intent that the duchess might become entitled to dower thereout; and also that he would, within twelve months after the marriage, and after such conveyances, settle the said estates, subject to dower, to the use of himself for life, remainder to trustees to preserve contingent remainders; remainder, after the decease of the duke and duchess, to other trustees for a term of years, to raise portions for younger children; remainder to the first and other sons of the marriage in tail male; remainder to the right heirs of the duke. The marriage took effect; and the duke by his will, dated January 9th, 1780, confirmed the articles, and devised all the estates which he had agreed to settle, in case of failure of issue male of the marriage, to the duchess for life; remainder to his daughters, as tenants in common in tail, with several remainders over. Afterwards (in October 1780,) the duke executed a settlement, purporting to be in pursuance and performance of the articles, by which he granted and released all the estates comprised in the articles to trustees, to the use of himself for life; remainder, as to part, to the use of the duchess for life; and as to another part, for securing a jointure of 20007. a year to the duchess; remainder to trustees for a term of 1000 years, to secure portions for younger children, nearly as in the articles; remainder to the first and other sons of the marriage, remainder to the duke in fee. Lord Loughborough said, that a court of equity could not adopt different rules respecting the transmission of estates, from those established at law. That the settlement being in many points inconsistent with the articles, and also with the will, must be deemed a revocation of the will. Ca. 505. On an appeal to the House of Lords, the following 7 Bro. Parl. reasons were assigned in support of the appellant: 1. Because the settlement being executed in consequence of the articles by which the duke was bound to make a conveyance of his estates, ought not to be considered as a distinct and independent deed, but as forming part of the same conveyance with the articles, which bore date antecedent to the will; and therefore Infra. could not be deemed a revocation of it. 11. Because, by expressly referring to the articles, and professing to carry them into effect, the settlement clearly marked and defined the object which the parties had in view, and excluded every possible idea of an intention to revoke the will; and though the rule were generally true, that any conveyance after the execution of a will, whereby the nature of the estate which the devisor had in him at the time of making the will was altered, operated as a revocation of such prior will; yet it was submitted that such rule did not apply at all to a case circumstanced as the present; or if it did, that there were many exceptions to that rule, grounded on the nature and tendency of the conveyance, with reference to the intention of the testator, manifested thereby. If the principle of revocation was founded merely on the alteration in the plight of the estate, it could admit of none of those exceptions which had actually been adopted in the case of conveyances in fee, by way of mortgage, or in trust for payment of debts or particular charges subsequent to the execution of a will, and which had been held only a revocation pro tanto. These depended entirely on the nature and design of such conveyances; and if so, the settlement in question appeared to fall directly within the same principle. III. Because the duke's will referred in express terms to the articles, and disposed only of such estates and interests as were not bound thereby; and it seemed unreasonable to say, that a deed for carrying those articles into effect, and which the duke must have had in contemplation at the time of making his will, should totally revoke the dispositions contained in that will; although made with reference to ulterior objects, not within the articles or deed. In support of the decree, the following were some of the reasons assigned. Because the testator, after making his will, conveyed and departed with the whole of the estate which he had, in the lands comprised in |