Nor an alteration of the quality of the estate. 1 Roll. Ab. 616. pl. 3. 3 Atk. 749. Williams v. 2 Ves. Jun. deed; and therefore could not operate as a revocation of the will. 88. A mere alteration of the quality of an estate, without any intention of varying the quantity of the interest, or the disposing power of the owner, will not operate as a revocation of a preceding devise. 89. Thus where a man having feoffees to his use, before the statute 27 Hen. VIII., devised the lands to another, and afterwards the feoffees made a feoffment of the land to the devisor; it was agreed that this feoffment did not operate as a revocation of the devise: for after the feoffment, the devisor had the same use as before. 90. It follows from this case, that the acquisition of the legal estate alone, will not operate as a revocation of a devise. Thus Lord Hardwicke has said, that where a man has an equitable interest in fee in an estate, and afterwards takes a conveyance of the legal estate, to the same uses; this is no revocation. 91. G. Jones by articles, in consideration of marriage, covenanted to convey all his real estates to trustees, to the use of himself for life, remainder in trust to secure an annuity to his intended wife for life, remainder to the first and other sons of the marriage in tail, remainder to the daughters in the same manner, remainder to his own right heirs. Some time after, G. Jones devised all his real estates, upon condition that he should have no issue, to his wife for life, with several remainders over. Afterwards, by indentures of lease and release, G. Jones, in pursuance of the said articles, and in consideration of the said marriage, bargained, sold, and confirmed to trustees and their heirs, all his said real estates, to hold to certain uses and trusts, which were exactly the same as those expressed in the articles. Sir R. P. Arden, M. R. said, the simple question was, whether a man having an equitable estate, devising it, and taking to himself afterwards nothing more than the legal interest in that, in which he before had the equitable, has by that simple act, going no further, not modifying it, nor passing to the devisee any thing more than what was before given, revoked his will. He did think that had been decided, both in principle and in precedent; but he was not sure one of the counsel was not right in saying, it had not been exactly decided. But cases seemed to have been taken for granted at least, which completely proved it. It was stated by Ante. Lord Hardwicke in Parsons v. Freeman, and repeated 3 Atk. 798. by him in Sparrow v. Hardcastle, in which this question, as to the effect a subsequent deed would have upon a will, was much discussed, that taking the legal estate, after a devise of the equitable interest, was no revocation; and it was admitted by Lord Loughborough in Brydges v. Chandos. Lord Hardwicke not only admitted, but seemed to consider it as decided and acted upon; if so, the case was determined, for this was nothing more than taking the legal estate exactly in the same manner as he was before seised of the equity. In Parsons v. Freeman, which he had looked into very attentively, Lord Hardwicke established this principle, that wherever the estate is modified in a manner different from that in which it stood at the time of making the will, there is a revocation; but wherever the testator remains with the same estate and interest exactly, and disposable by the same means, without any fresh modification, there is no revocation, and the testator will be taken to have passed to the devisee the same interest he acquired, though the one may be legal, the other equitable.* Upon the whole, he considered that the devisor had nothing but the reversion in fee; that his acquiring the legal interest made no difference; and that the person * In the cases of Brydges v. Chandos, and Goodtitle v. Otway, the conveyances did not pursue the articles, but went beyond them. Vide Harmood v. 6 Ves. 199. Roe v. Griffits, 4 Burr. 1952. Nor the change of a trustee. Watts v. to whom the estate was conveyed, was a trustee for the purposes of the will. 92. It has been determined upon the same principle, that where a person devised a copyhold estate, and was afterwards admitted to it, this did not operate as a revocation of the devise. 93. B. North being seised in fee of a copyhold estate, surrendered the same, in consideration of marriage, to the use of himself and his heirs, till the solemnization of the marriage; then to his own use for life, remainder to his intended wife for life, remainder to the children of the marriage, remainder to the said B. North in fee. The marriage took effect, and the next year, 1725, B. North surrendered the premises to the use of his will. In 1743, B. North made his will, by which he devised his copyhold estates in remainder and reversion to his wife in fee. In the year 1751, B. North was admitted to the uses of the marriage settlement. It was resolved by the Court of King's Bench, that this admission did not operate as a revocation of the will, and that it passed the reversion in fee. 94. In consequence of this doctrine it has also been determined, that the mere change of a trustee does not operate as a revocation of a preceding devise. 95. W. Watts devised all his real estates to trustees upon certain trusts; he afterwards made a codicil, reciting that, since the publication of his will, he had contracted for the purchase of certain lands; and thereby directed the trustees and executors named in his will to pay the purchase money; and that the said purchased premises should be conveyed to the same uses as he had declared concerning his other estates. Afterwards the testator himself completed the purchase, and took a conveyance of the estates to trustees, in trust for himself and his heirs. The question was, whether the conveyance of the newly-purchased lands to the trustees, subsequent to the codicil, was not a revocation; the testator, at the time of making the codicil, having only a trust estate, and the vendor being a trustee for him; so that, before his death, the legal estate was conveyed to other trustees. Lord Bathurst decreed there was no revocation; relying much on the general proposition laid down by Lord Hardwicke in Parsons v. Freeman. After 96. Sir J. Gibbon having mortgaged his estates in fee, made his will, by which he devised them. wards he paid off the mortgage, and took a conveyance of the estate to a trustee for himself. The Court of King's Bench held, that this being no more than a bare change of a trustee, the will was not revoked. Ante. Doe v. Pott, 97. A partition of an estate between tenants in com- Nor a partition. mon does not operate as a revocation of a prior devise, made by one of the tenants of his share; even though such a partition be corroborated by a fine. 98. One Temple and two others were tenants in common; Temple made his will in writing of his third part; afterwards, by indenture and fine, a partition was made between the tenants in common; and if this partition was a revocation of the will, was the question. Risley v. Baltinglass, Temple, It seemed to all the Barons, Montague, Littleton, Webb v. Thurland, and Bertie, that it was not any revocation. 1 Freem. 542. But judgment was not given, because the plaintiff obtained leave to discontinue his action. 8 Vin. Ab. 148. 99. Dorothy Kirby, by her will, taking notice that Luther v. she was tenant in common with another person, de- Kirby, vised her moiety to trustees. She afterwards, by inden- 3 P. Wms. 169 ture between her and the other tenant in common, covenanted to levy a fine of all the premises, and declared the uses thereof, as to certain farms, &c., being one moiety, to Dorothy Kirby and her heirs; and as to the other farms, &c. being the other moiety, to the other tenant in common and her heirs; and a fine was levied accordingly. A question having arisen whether this deed and fine operated as a revocation of the will, the Lord Chancellor referred it to the Judges of the Court of King's Bench; who certified their opinion, Unless it extends to other things. Tickner v. Tickner, cited 3 Atk. 742. Vide 7 Ves. 564. 8 Ves. 281. 10 Ves. 249. Revocation of devise of con subsequent con to prevent dower. Rawlins v. that they were not a revocation; with which the Chancellor agreed, and decreed accordingly. 100. But where a partition is made, and a fine is levied, not merely to establish the partition, but also for another purpose, and the estate in the land is altered; there it will operate as a revocation. 101. Henry and Robert Tickner being seised of an estate in gavelkind, Robert devised his undivided moiety to his wife in fee; afterwards, by deed of partition and fine, all the gavelkind estate which Robert had devised, was allotted entirely to Robert; to such uses as he should appoint, and in default of appointment, to him in fee. Lord Ch. J. Lee, after mature deliberation, held this transaction to be a revocation of the will. 102. In May, 1809, R. agreed to purchase an estate; tracted lands by by his will, dated in July, 1809, and duly attested, he veyance to uses gave all his property to his wife; by deeds of lease and release, dated in September, 1809, the vendor, by the direction of R., conveyed the estate to S., to such uses as R. should, by deed executed in the presence of two witnesses, or by will appoint, subject thereto, to the use of R. for his life; and after the determination of that 2 Ves. & Bea. estate, to the use of S., his heirs and assigns, during the life of R. in trust for R., and to prevent dower, with remainder to the use of R., his heirs and assigns. R. died without having republished his will. It was held by Sir Thomas Plumer, V. C. that the conveyance was a revocation of the will, in consequence of the modification of the estate by the introduction of a power of appointment, and the interposition of a trustee. 382. Ward v. Moore, 4 Madd. 368. 103. M. having verbally agreed to purchase an estate, and being in possession of it, devised all his estates; a conveyance was subsequently made to M. and a trustee in fee, but as to the estate of the trustee in trust for M., his heirs and assigns; it was held by Sir John Leach, V. C. that the subsequent conveyance was not such as was incident to the unqualified equitable fee, but made |