an alteration in the quality of the estate, and was therefore a revocation. tions. 104. A conveyance to have the effect of revoking Partial revocaa prior devise, must be of the whole estate; and coextensive with the disposition made by the will. For if it be but of a part of the estate, it affects the will no further than that part goes. If it is of a particular estate or interest only, it will not operate as a revocation of the rest. And it has been determined, upon this ground, that a lease made of lands already devised by will, only operates as a partial revocation, or a revocation pro tanto of such will. Hodgkinson v. Whood, 1 Vern. 97. Bullock, Cro. Ja. 49. Parker v. Lamb, 3 Bro. Parl. Ca. 12. Jeffry, 105. A person devised his lands to his eldest son, and afterwards made a lease of them, for thirty years, to his second son, to begin after his death. It was resolved, that this lease only operated as a partial revocation of the will, quoad the lease; for both might well stand together. But if the lease had been made to the devisee, then it would have been a revocation; because the estates would have been inconsistent with one another. 106. A person devised copyholds to A. for life, with Vawser v. different remainders over, and having surrendered them to the use of his will, afterwards in contemplation of marriage conveyed his freehold and copyhold estates to trustees and their heirs, to secure a jointure to his intended wife, and subject to a term of 99 years for that purpose, to the use of himself in fee; and surrendered his copyholds to these uses. The Court of K. B. certified to the Court of Chancery that this did not amount to a total revocation of the will, but that the devisee took the copyhold subject to the charge created by the settlement. 106.* Although a mortgage in fee made after the lands mortgaged were devised, be a revocation of such devise at law, yet in equity it is only a revocation pro tanto; and the equity will pass to the devisee. But if lands are devised to a person in fee, and the testator 462. Hall v. Dunch 3 1 Vern. 329. Atk. 805. 2 P. Wms. 33 Harkeness V. Bayley, Prec. in Cha. 32. Vernon v. Ogle v. Cook, afterwards mortgages them to the devisee, it will be a revocation in toto, being inconsistent with the devise. 107. It has been determined that a conveyance in fee to trustees, for raising money to pay debts, being 2 Bro. R. 592. made for a particular purpose, will only operate as a revocation pro tanto of a prior devise, so far as relates to the payment of the debts, but no further. 7 Bro. Parl. Ca. 517. 3 Atk. 805. Temple v. 3 Ves. 685. Kenyon v. 2 Ves. Jun. 108. It is observable, that in the above cases, the whole fee simple being limited to the use of the mortgagee or trustee, the grantor parted with his whole estate at law, without taking back any legal estate or use to himself; and therefore, at law, nothing remained upon which the will could operate, or which could descend to the heir. In these cases, therefore, nothing being left to descend at law, the question has been, to whom the equitable interest should belong; and the courts of equity have held these cases to be exceptions from the general rule of law, which they ordinarily follow, on these grounds, as stated by Lord Hardwicke, namely, that although the conveyance is of the fee simple of the land, yet in the consideration of a court of equity, the interest conveyed is merely a personal interest, having no quality of a real estate; and that therefore the testator is to be deemed, in equity, to have created only a chattel interest, as if he had created a term for years, which would have been a revocation pro tanto only at law. All that remained to the grantor was a right of redemption, and that right of redemption did not pass by the conveyance. 109. But where a person, after having made his will, executed a conveyance in trust for payment of debts in a schedule, and instead of declaring the uses to himself in fee, after payment of the debts, he declared that the trustees should convey to such uses and purposes as he by deed or will should appoint; and for default of appointment, to himself in fee. This was held to be a revocation. Title XXXVIII. Devise. 110. It was decreed by Sir W. Grant in a late case, that a devise was not revoked by a bankruptcy; be cause the bankrupt laws take the property out of the bankrupt only for the purpose of paying his creditors; and from the moment that the debts are paid, the assignees are mere trustees for the bankrupt, and can be called upon to convey to him. 121 Charman v. 14 Ves. 580. Charman, leaseholds. 111. With respect to leasehold estates, it has been Revocations of long settled that a surrender of a lease for lives, and the taking a new lease, will operate as a revocation of a prior devise of it. For the testator, by the surrender, devests himself of his whole estate in the old lease, and by the renewal acquires a new estate. Marwood v. Turner, 112. Sir H. Marwood, being seised of an estate for three lives, held of the Archbishop of York, made his will, by which he devised this lease. He afterwards surrendered it and took a new lease. It was resolved that this surrender and renewal operated as a revocation of the devise of the lease; for by the surrender the testator had put all out of him, had devested himself of the whole interest; so that there being nothing left for the devise to work upon, the will must fall: and the new purchase being of a freehold descendible, could 2 Atk. 597. not pass by a will made before such purchase. Hancock, 113. Where a person has an estate pour auter vie, at Galton v. the time of making his will, and afterwards purchases 2 Atk. 430. the inheritance; it is a revocation of any devise of the estate pour auter vie. 114. Although a term for years, acquired after the Ante, c. making of a will, passes by it; yet if a testator bequeaths a term for years, of which he is then possessed, and afterwards surrenders it, and takes a new term; this will operate as a revocation, or ademption of the bequest; and the new term will be considered as part of the personal estate. 115. A, person devised two college leases for years to his mother, upon certain trusts. The testator afterwards surrendered the two college leases, and accepted Abney v. Miller, Atk. 593. Rudstone v. Anderson, 2 Ves. 418. Hone v. Medcraft, 1 Bro. Rep. 261. two new leases of the same premises; but the last was not sealed with the college seal till after the death of the testator. Lord Hardwicke decreed that the bequest of the first lease was revoked; but that of the second lease was not. 116. If, however, the words of the will show the testator's intention to dispose of all terms for years, whereof he may die possessed, a renewed term will pass; for a term for years being only a chattel, there Carte v. Carte, is no necessity for a possession at the time when a will of it is made, or of a continuance of such possession till the testator's death. 3 Atk. 174. Stirling v. 3 Atk. 199. Slatter v. 16 Ves. 197. 117. A person devised in the following words :"As to all and singular my leasehold estate, goods, chattels, and personal estate whatsoever, I give the same to my daughter." The testator, after making his will, renewed a lease for years with the Dean and Chapter of Windsor. Lord Hardwicke said, that what the testator had done in this case was not a revocation. Suppose the testator had purchased a new lease, would not that have passed? why then should not a new term in a lease equally pass? 118. A person devised to S. S. her leasehold garden, &c. for the term of his life, and after his decease to his children. After the publication of the will, the testatrix surrendered the lease, and took a new one. The question was, whether the bequest was revoked. Sir W. Grant, M. R. said the question was, whether a specific devise of a leasehold estate was affected by a renewal of the lease, subsequent to the will. The ground upon which in many cases it had been held that renewed leases did not pass to the specific devisee James v. Read, was, that the thing given no longer existed. But as a testator might undoubtedly dispose of the future, as well as his present interest in a chattel real, it was a question of intention, what the subject of disposition was; whether only the interest which he had at the time 11 Ves. 383. of executing the will, or all the interest, though subsequently acquired, which he might have at his death, in the leasehold premises. That intention was to be collected from the words used by the testator to express it; there were no words prospective or future to take in any interest which the testatrix might subsequently acquire in the leasehold: and therefore the renewal operated as a revocation of the bequest; and decreed accordingly. Tit. 13. c. 2. 119. In the case of Darley v. Langworthy, the tes- Ante. tator devised a term for years, in trust that the same might go unto and be enjoyed by the owner and possessor of his freehold estate thereby devised. Ca. 365. The Court of Chancery decreed, that the bequest of 3 Bro. Parl. the leasehold was revoked by the revocation of the devise of the freehold. But this was reversed by the House of Lords. effect of. As a will or devise of lands is ambulatory during the Nature and life of the testator, and may be revoked by him at any time before his death; so it may be republished; and a republication of a will has a twofold effect; first, to give it all the effect of a will made at the time of its republication; and secondly, to set up and re-establish a will that has been revoked. |