-

to rebut such presumption. That a disposition of the whole estate will be presumptively revoked by a subsequent marriage and birth of a child. But quere, says Mr. Cox, Whether either of those circumstances singly, or only a partial disposition of the real property will raise the presumption i (5).

i 1 P. Will. 304. note 4. 4th edit.

(5) This head of revocation, originally borrowed from the civil law, (although by that law the doctrine stood upon a different footing, for it was the birth of issue alone that revoked, Cicero de Oratore, lib. i.) was formerly considered as grounded upon a presumed alteration of intention in the testator, but Lord Kenyon (Doe v. Lancashire, 5 T. R. 58.) has thought, and in which opinion Lord Ellenborough has concurred (Kenebel v. Scrafton, 2 East, 541.), that the rule is founded on a tacit condition annexed to the will when "made, that it should not take effect if there should be a "total change in the situation of the testator's family." The change of circumstances may imply a change of intention; but the great circumstance which has been regarded as laying the foundation of this implied change of intention is the subsequent acquirement of new moral duties. But upon whatever grounds this rule of revocation may be supposed to stand, it has been solemnly determined that a subsequent marriage and the birth of a child, without provision made for the objects of these relations, is such a material change in the circumstances of the testator's family, as will work a revocation of a devise of land. Kenebel v. Scrafton, supra. And in a case where, after making his will, the testator married, and his wife became pregnant with his knowledge, the posthumous child was considered for this purpose in the same condition as a child born during the testator's lifetime. Doe v. Lancashire, supra. The rule, however, applies only to cases where the wife and children, the new objects of duty, are wholly unprovided for, and where there is an entire disposition of the whole estate to their exclusion and prejudice. Therefore if a testator by his will made before marriage specifically contemplates and provides for the persons who afterwards stand in the legal relation of wife and children to him, his subsequent marriage and the birth of children does not vacate his will. Kenebel v. Scrafton, supra. See also 1 Ves. & Bea. 465.

So a will

With respect to real estate: By Lord Chancellor Hardwicke: The general principle is, that, at the time of the devise, the devisor must have a disposing capacity, and an estate in the land devised; and the estate must remain in the same plight and condition until his death: for the least alteration by any act of his makes it a different estate, and shews a different intention, and therefore is an actual revocation. Thus, if one seised in fee devises, then enfeoffs, or conveys it to another to the use of himself in fee; though it is the old use that remains, yet it is a revocation, notwithstanding it is his own feoffment or deed. So of a bargain and salek without inrolment.

* A bargain and sale is a conveyance made by deed, whereby real estate may be conveyed as well as

So if a man think himself

by deed of feoffment or lease and release. Yet real estate will not pass by bargain and sale, unless the

made in favor of the children of a first marriage is not revoked by a subsequent marriage and the birth of children. of such subsequent marriage, where the second wife and her children are provided for by a settlement. Ex parte Earl of Ilchester, 7 Ves. 348. And a devise of real estate in favor of a son and daughters of a first marriage will not be revoked by the subsequent marriage of the devisor and the birth of a child of that marriage, although the second wife and her child are unprovided for, because the only effect of such a revocation would be to let in the eldest son to the whole real estate. But in respect to personal estate the rule would be different. Sheath v. York, 1 Ves. & Bea. 390. See also Hollway v. Clarke, 1 Phillim. 339. Emerson v. Boville, Ib. 342. To raise this presumption of a revocation, it hath been laid down, that both the circumstances of a man's marriage and of the birth of a child must conspire; neither his subsequent marriage, nor the subsequent birth of a child, being of itself singly sufficient. Doe v. Barford, 4 Mau. & Selw. 10. Woodd. 373. 3 Wils. 516. And see 2 Fonbl. 350. note (b). But Sir John Nicholl, in a late most important case, after a luminous review of the principles and authorities upon which the doctrine of implied revocation stands, conceived that where there are corroboratory facts, shewing an intention to revoke, the subsequent birth of children may operate a revocation without the concurrence of a subsequent marriage. Johnston v. Johnston, 1 Phillim. 447.

R

tenant in fee, devises, and then, apprehending himself to be only tenant in tail, suffers a recovery with intent to confirm his will, it is a revocation (6). As to mortgages, they are ex

deed be an indenture, and the same be inrolled within six months in one of the courts of Westminster-hall,

or with the custos rotulorum of the county, as directed by statute 27 Hen. VIII. c. 6.

(6) The doctrine of revocations of devises of freehold, on which the devise operates as a conveyance, proceeds not only on the words of the statute of wills, but on the nature of legal seisin, which changes with every change of the legal estate, and it was, as it should seem, originally introduced in favor of the heir. The rule is founded on this technical principle of law, that, in order to render a devise valid and effectual, it is necessary that the seisin of the devisor should remain unaltered from the execution of the will until his death. This species of revocation, or more accurately speaking, the ademption of the subject on which the will was designed to operate, is altogether independent of intention, and may prevail even in opposition to it. Therefore, where the whole estate is conveyed by lease and release to uses, although there be a resulting use in the ultimate reversion to the grantor by the same instrument, yet the conveyance will operate as a revocation of a prior will, because the grantor takes back his old use by a conveyance which purports to pass his whole estate. Goodtitle v. Otway, 1 Bos. & Pul. 576. See also 2 Swanst. 273. So if A, after making his will, suffer a recovery, Doe v. Bishop of Llandaff, 2 New Rep. 491.; or levy a fine, Doe v. Dilnot, Ib. 401.; the devise will be revoked, although the use result, or be limited to A himself. Parsons v. Freeman, 3 Atk. 741. So if A devise lands and afterwards makes a feoffment to the use of his will, 3 Atk. 804.; or if A covenant to levy a fine to the use of such person as he shall name by his will, then makes his will, and devises his land, and afterwards levies a fine in performance of his covenant, Ambl. 618.; or if A, seised in fee, devise an estate in fee to B, and by a conveyance takes back an estate from B in fee, 3 Atk. 742. 2 Ves. jun. 431.; all these cases amount to a revocation. So imperfect conveyances, though not capable to pass the estate, as a bargain and sale, without enrolment, or feoffment without livery of seisin, work a revocation. Vawser v. Jeffery, 2 Swanst. 274. And a devise of a freehold estate contracted for is revoked by a subsequent conveyance to the usual uses to bar dower.

ceptions out of the rule: at law a mortgage for years, and in equity a mortgage in fee, are revocations pro tanto, or for so much only; and the reason is, that a mortgage is only a security, and though it be a conveyance of real estate, yet in this court it is a chattel interest only, and goes to the executor, and it gives no dower'. Mortgages for terms of

1 5 New Abr. 527.

Rawlins v. Burges, 2 Ves. & Bea. 382. So a devise of a term is revoked by a purchase of the fee. Capel v. Girdler, Sugd. on Vendors, 158. And a devise of an estate is in equity revoked by a subsequent contract for the sale of it, Ryder v. Wager, and Cotter v. Layer, 2 P. Wms. 332. 623. Vawser v. Jeffery, 16 Ves. 519.; if the contract be of such a description as will entitle the vendee to a specific performance of it. Sugd. on Vend. 165. These are the necessary consequences flowing from the nature of a devise of lands. It is not an institution of an heir; it is in the nature of a conveyance; it is an appointment of the specific estate to be completed by a subsequent event, namely, the death of the devisor. The devisor must therefore continue to have it unaltered, and without any new modification, to the time of his death, when the devise is to take effect. If, therefore, any new disposition be made subsequently to the will, or in other words any new conveyance of that which had been conveyed by the will, it shall defeat the will. It implies an alteration, and the rule that the estate must pass by the first complete conveyance becomes applicable. Ambl. 618. 2 Ves. jun. 426. 3 Atk. 803. Cowp. 90. 305. On the principle that no alteration in the estate is effected, it has been held, that the mere partition of a joint estate does not operate a revocation, because it does not make any change in the seisin, and is incident to a joint estate. Luther v. Kidby, 8 Vin. Abr. 148. And if the owner of an unqualified equitable fee devise it, and afterwards takes an unqualified conveyance of the legal fee, this is no revocation of the will, because the conveyance is incident to the equitable fee. 3 P. Wms. 169. Greenhill v. Greenhill, 2 Vern. 679. But if he take a qualified conveyance of the legal fee, for the purpose of preventing dower, it is a revocation of the will, being a change in the quality of the estate, and not incident to the equitable fee. Ward v. Moore, 4 Madd. 368.

years on the death of the mortgagee, the term and the right in equity to receive the mortgage debt, vest in the same person, viz. the executor or administrator. But, in cases of mortgages in fee, the estate on the death of the mortgagee goes to the heir or devisee, and the money is payable to his executor or administratorm, and must be paid by the heir, if he has the estate, as hath been shewn". - If lands are devised to one in fee, and afterwards mortgaged to the same devisee, it is a revocation in toto, or in the whole, being inconsistent with the devise; though if the land be mortgaged to a stranger, it is otherwise; for it hath been admitted to be a settled rule in chancery, that where a testator devises his lands in fee to one, and after mortgages it in fee to another, and then dies before the principal and interest is paid, this is not a total revocation of the will, but quoad the mortgage only, or as far as the mortgage, and the devisee shall have the equity of redemption P (7).

m Co. Litt. 205. note 1. 13th edit. Page 62.

n

• Prec. in Cha. 515.
P 1 Salk. 236. 258.

(7) This proceeds upon the principle that to defeat the disposition by the will, there must be a subsequent conveyance of the whole estate. It must be commensurate with the appointment which the will has made. If the inconsistency between the disposition by the will and the subsequent disposition be merely partial, the revocation will not extend beyond such inconsistency. As where A devises an absolute estate in fee to B, and afterwards by a subsequent devise gives him only an estate tail in the same land, it is a revocation merely to the extent of the difference between an estate tail and an estate in fee. Cowp. 90. So in the case of a conveyance for the payment of debts, the surplus resulting or being expressly reserved to the party making it, and his heirs, it is precisely the same case as that of a mortgage. There is no distinction between a general charge for debts, and a charge for a particular debt. The alteration of the estate in substance extends no farther than to let in the particular purpose; and whether definite for a particular debt, or indefinite for all debts, makes no difference. 2 Ves. jun. 428. See also Williams v. Owen, Ib. 595. Cave v. Holford. Ib. 603. But though a conveyance for a particular purpose