those deeds, at the time of making his will, and passed that estate to others in fee, declaring the use to himself for life, with limitations thereon, and limiting the ultimate use to himself in fee simple; and it had been settled, by a series of decisions, which could not be impeached without destroying all security of title, that the conveyance of the entire fee simple of lands to uses, was a revocation of a prior will of such lands; and that the use limited to the grantor himself by such conveyance would not pass by such will, without a republication thereof, but would descend to his heir at law; except in certain cases, bounded by certain rules.

It had been contended, that though the settlement was a revocation at law, it was not so in equity: or that in equity the devisees had a right to make the heir a trustee for them. Lord Hardwicke, in Parsons v. Freeman, had said, and the rule was unquestionably 3 Atk. 748. established, that the same conveyance which would be a revocation of a devise of a legal estate, would be equally a revocation of a devise of an equitable estate; and that it would be very dangerous to property to hold it otherwise. If, therefore, the conveyance in question was a revocation of the devise at law, what equity could there be to set up the revoked legal devise, against the heir, in favour of the devisee; or for declaring the heir a trustee for the devisee; which would be in effect to convert what was a legal devise, into an equitable devise, merely because it was revoked; and therefore of no force as a legal devise.

The decree was affirmed.

Otway,

7 Term R. 399.

81. Sir Thomas Cave, by articles dated December Goodtitle v. 13th, 1790, entered into previous to his marriage with Lady Lucy Sherrard, agreed to make a provision for his intended wife, and the issue of the marriage, out of certain estates. Sir Thomas Cave made his will, dated March 13th, 1791, by which he devised his estates, in case he should die without issue of his body, to his uncle, the Rev. Charles Cave, and his issue male, in

Pull. 576.

strict settlement. Afterwards, by deeds of lease and release, dated in May 1791, reciting the intended marriage, and that Sir T. C. had agreed, upon the treaty for the said marriage, to settle a jointure upon Lady Lucy, in consideration of the marriage and of the fortune of Lady Lucy, he conveyed the estates in question to trustees and their heirs, to the use of himself for life, remainder to the intent that Lady Lucy might receive an annuity of 600l. a year for life, as a jointure, and in bar of dower; remainder to the use of the first and other sons of the marriage, in tail male; remainder to Sir T. C. his heirs and assigns for ever. And by other deeds of lease and release Sir T. Cave conveyed other estates to trustees and their heirs, to the intent that Lady Lucy might receive an additional jointure, with a limitation to trustees for 500 years, for better securing it, with remainder to the use of Sir T. Cave in fee, The marriage took place, and in about six months, Sir T. Cave died, without issue; leaving Sarah Otway his heir at law. A question arose in a suit of Chancery, between the devisee and the heir at law of Sir T. Cave, whether the first and second deeds of lease and release operated as a revocation of the will.

By consent, the parties were ordered to proceed to a trial at the bar of the Court of Common Pleas, where a special verdict was found, stating the above facts. Vide 1 Bos. & The judges delivered their opinions seriatim on the special verdict, and were unanimous, that the first deeds of lease and release operated as a revocation of the will, as to the lands comprised therein. And three of the judges thought the second deeds of lease and release had the same effect; but Lord Chief Justice Eyre was of opinion, that they did not operate as a revocation.

A writ of error was brought from this judgment in the Court of King's Bench, when Lord Kenyon began by observing, that the marriage settlement executing the articles, and on which the principal question depended, limited the reversion in fee to Sir T. C. his

heirs and assigns for ever; therefore the whole use was
disposed of some way or other. He then stated the Ante.
cases of Parsons v. Freeman, and Sparrow v. Hard-
castle; and observed, that the doctrine which Lord
Hardwicke wished to establish, was this; that any alte-
ration of the estate, or conveyance to uses, after making
the will, though the old use remained, which was the
case here, was in law a revocation of the will. That
supposing in this case Sir T. C. had merely made a
conveyance to the use of himself and his heirs for ever,
that would undoubtedly have operated as a revocation
of his will; then could the other uses to which he con-
veyed the estate make any alteration. He said it had
been supposed in the course of the argument, that the
case of Brydges v. Chandos proceeded on equitable
principles; but he knew that the Lord Chancellor
meant by that decision to confirm the doctrine esta
blished by Lord Hardwicke. He concluded by saying,
"I do not enter into the reasons upon which all the
cases have been determined; because the best rule is
stare decisis. But my opinion is formed upon the
authority of all the cases from the time of Lord Rolle.
Such were the opinions of Lord Trevor, Lord Hard-
wicke, and Lord Mansfield; the latter of whom, though
finding fault with former decisions, thought himself
fettered by the authorities. I take it therefore that the
law of the land is now clearly and indisputably fixed,
if at any time it can be fixed; that where the whole
estate is conveyed away to uses, though the ultimate
reversion of it comes back again to the grantor by the
same instrument, it operates as a revocation of a prior
will. That being the law, I am bound, how unfortunate
soever it may be in this case, to give my opinion in
favour of the defendant; and consequently the judg-
ment of the Court of C. B. must be affirmed."

682.

Vawser v.

The cause coming on again in the Court of Chancery 3 Ves. Jun. upon the equity reserved, the Court was clearly of opinion, that the will was revoked in equity, as well as at

16 vs. 519.

Jeffrey,

Vide 7 Bro.

Parl, ca. 503.
Att. General

v. Vigor,

8 Ves. 256.

Rawlins v.

Burgis,

law, and decreed accordingly. And on an appeal to the House of Lords, the decree was affirmed.

82. It was resolved in a modern case, that a devise was revoked by an exchange; though the land, after

2 Ves. & Bea. the death of the devisor, was restored to his heir, under

382.

Parol evidence not admissible.

2 Ves, Jun. 606.

2 H. Black.

516.

an arrangement, in consequence of a defect discovered in the title of the other party to the exchange.

83. In the case of a revocation by the execution of conveyance of lands, subsequent to a devise of them, parol evidence is not admissible to prove that the testator meant his will should remain in force, and unrevoked by the subsequent conveyance.

84. In Goodtitle v. Otway, the plaintiff went into evidence, in the Court of Chancery, of the testator's conversations with his lady and the attorney who prepared all the instruments, to show the motives for making the will; and that the testator had no intention to revoke it; and after the marriage referred to it as his will. But the Lord Chancellor was clearly of opinion, that the parol evidence, being evidence of a republication, if any thing, could not be received. That if the deed did not affect the will at law, it was out of the question: if it did, he could not set up the will again by parol evidence.

85. Upon the trial at bar of the above case, in the Court of Common Pleas, the same evidence was offered; but the Court refused to admit it.

Lord Chief Justice Eyre said, it was manifest from the opening, that it was intended to be insisted on, that by the necessary operation of the conveyances used, Sir T. C. lost his old estate, upon which the will operated, and took a new one. If so, the consequence was, that though there were the clearest demonstration that it was his intent, that the will should operate upon it, the law said it should not; and by that law they were bound. If this was a case of that kind, it was a case that would disappoint the will, even admitting the clearest intention that it should not. All evidence

therefore of intent seemed to him entirely foreign to the question; all such evidence therefore must be rejected; and the question tried upon its true legal grounds.

Mr. J. Buller observed, that in order to determine whether the evidence was or was not admissible, the Court was to consider to whom it was to be applied. If the question was, whether the testator was incapacitated, or the instructions given were duly followed, the evidence would be admissible. But here the end proposed by it was, to show that the deeds should have a different construction from that which the words imported. That there was a great difference between cases which depended on circumstances, and those which depended on the solemn acts done by the party himself; and that distinction supported the case of Brady v. Cubitt. There was no act in that case done Ante. by the testator, importing that he meant to revoke his will, or change it in any respect; but changes having happened in his family by marriage, and the birth of a child, there was a presumption of revocation; and therefore it was to answer that presumption, that the Court received parol evidence. But he could not find, from any one case quoted at the bar, that the Court had received parol evidence in the case of a deed executed by the party himself, with a view of altering the construction of the instrument.

veyance not

86. A conveyance obtained by fraud will not operate Fraudulent conas a revocation of a prior devise; because when such a a revocation. conveyance is set aside, it is considered as a mere nullity, and of as little effect as if it had never been made.

215.

87. Francis Hawes being seised of a reversion in fee, Hawes v. Wyatt, subject to the life interest of his father, made his will, 3 Bro R. 156. and thereby disposed of it. The testator's father after- Vide 6 Ves. wards obtained from him a conveyance of his reversion by fraud. The Court of Chancery, having directed the deed to be delivered up to be cancelled, said it was no

8

Ves. 283. Wright v.

2 Cox R. 263.

Littler,

3 Eurr. 1244.