-books held this to be a revocation, yet latterly it has been construed either a joint tenancy, or tenancy in common, according to the limitation."

Were it not for the opinion expressed by Lord Hardwicke upon the import of the cases, I should have said that these decisions do not materially depart from or conflict with Lord Coke's rule; for he evidently contemplates devises irreconcileably repugnant, and which in no way of reading them can stand together; and where the authorities have held the two devisees to take jointly or in common there was no irreconcilability, repugnancy, or necessary revocation of the one by the other. I incline to think that the Touchstone takes the same view of the matter (a), as the learned editor Mr. Preston certainly does in his edition of that valuable publication. But I speak with much distrust of my own view of the subject, when I find that the point struck Lord Hardwicke in a different light.

In Wykham v. Wykham (b), Lord Eldon considers Lord Hardwicke as having decided Coryton v. Helyar (which had not then been published by Mr. Cox) on what his Lordship calls the doctrine prevailing in all times as to wills, that a subsequent limitation inconsistent with a former one cuts down the former by a necessary implication. But in Coryton v. Helyar (c), Lord Hardwicke supplied the words, in the gift of a term of 99 years, "if he should so long live;" so that it should seem the case was one of construction and not of revocation. I nevertheless must regard this expression of Lord Eldon as lending the sanction of his authority to the doctrine he refers to in Wykham v. Wykham.

1834.

SHERRATT

บ.

BENTLEY.

Lord

(a) p. 451.

(b) 18 Ves. 395.

(c) 2 Cox, 340.

1834.

SHERRATT

V.

BENTLEY.

Lord Alvanley had occasion more than once to consider this subject. In Sims v. Doughty (a), he says that where two parts of a will are perfectly irreconcileable, so that they cannot be made to stand together by rejecting words in either part as inserted by plain mistake, he knows of no rule but by taking the subsequent words as an indication of a subsequent intention, and he adds "the Court is in a dilemma and cannot act at all unless they do that." Again in the last case which this learned and laborious Judge decided, Constantine v. Constantine (b), he refers to the opinion just cited, and says that he adheres to it, admitting however that where the same thing has been given to two persons in different parts of a will, doubts have been entertained whether they should not both take as joint-tenants.

But in Doe dem. Leicester v. Biggs (c), the doctrine was carried farther than I am aware of its having been carried in any other case. The question there arose upon the construction of repugnant words in the same clause; and it was whether a devise to A. in trust to pay unto or to permit and suffer B. to receive the rents and profits was a trust, or a use executed in B.; and Chief Justice Mansfield delivered the judgment of the Court after time taken to consider. The Court, consisting of three most eminent common lawyers besides the Chief Justice, viz. Heath, Lawrence, and Chambre Justices, held "the use executed in B., and expressly upon the ground of the general rule that, if there be a repugnancy, the first words in a deed and the last in a will shall prevail." The Chief Justice added that "for want of a better reason the Court was forced to give the beneficial with the legal estate," and he prefaced his judgment by observing that "the case might be argued and considered

for

(a) 5 Ves. 245.

(b) 6 Ves. 100.

(c) 2 Taunt. 109,

for ever without advancing it at all in law, reason, or precedent." But these observations most probably referred to the peculiarity which marked the case of the repugnant words being parts of the self-same gift. Had the irreconcileable opposition been between different clauses separated by a considerable interval, there cannot be a doubt that the Court would have applied the rule without any hesitation.

It must then be admitted that the great weight of authority, both of Lord Coke and of the modern decisions, is in favour of regarding a subsequent gift in a will as revoking a prior one to which it is repugnant, and not rendering it all void for uncertainty. How far that repugnancy could be got rid of by presuming an intention to give each legatee an equal moiety, where the very same thing is given first to one and then to another, there being no expressions excluding such intention, might be a different question. The repugnancy, which existed in those other cases, may be said not to arise here. If in one part of a will an estate is given to A., and afterwards the testator gives the same estate to B., adding words of exclusion, as "not to A.," the repugnance would be complete, and the rule would apply. But if the same thing be given first to A. and then to B., unless it be some indivisible chattel, as in the case which Lord Hardwicke puts in Ulrich v. Litchfield, the two legatees may take together without any violence to the construction. It seems, therefore, by no means inconsistent with the rule as laid down by Lord Coke, and recognized by the authorities, that a subsequent gift, entirely and irreconcileably repugnant to a former gift of the same thing, shall abrogate and revoke it, if it be also held that, where the same thing is given to two different persons in different parts of the same instrument, each may take a moiety; though, had the second

1834.

SHERBATT

v.

BENTLEY.

1834.

SHERRATT

v.

BENTLEY.

gift been in a subsequent will, it would, I apprehend, work a revocation.

It is, however, the less necessary to consider how far this joint estate may be thus implied, as it is also unnecessary to consider the admissibility of the construction put by the appellant upon the latter series of bequests, supposing that series had stood alone, and in opposition to the preceding gift to the wife; because words are added which appear to call for another construction altogether-a construction not revoking the preceding gift, but only cutting it down to a life estate. The residue is given absolutely to W. Allen and J. Sherratt's children, "after the decease of Margaret Harrison.” Therefore it is to be considered, first, that this is wholly incompatible with the argument of the appellant, which treats all the latter bequests, including the residuary clause, as conditional upon the event of Margaret Harrison predeceasing the testator, and not executing the power; and, secondly, that the latter gift of the residue both excludes the possibility of Margaret Harrison taking an absolute interest, and assumes that she takes another interest, viz., an interest for life. The testator first gives her the fee simple immediately on his own decease. He afterwards gives that fee simple to others, not immediately on his own death, but in remainder expectant on the determination of Margaret Harrison's life. Either, therefore, he had changed his intention, and was minded to give her a life estate instead of the fee he had at first given her, or he was ignorant of the force of the words he had originally used; and those words must be rejected as having been used by mistake. The former alternative is the one to which the rule sanctioned by modern decisions, as well as by Lord Coke's opinion, leads. The latter is the inference drawn, not unfairly,

from

from the whole instrument taken together. For if probabilities are to be weighed, it is much more likely that the testator did not well understand the force of the words he used in giving the residue to the wife, than that he was ignorant that he was giving to W. Allen and J. Sherratt's children an interest which should only take effect after his wife's decease-the period he expressly fixes. His wife's life interest seems more than once to have been distinctly in his contemplation in the course of the will; for he declares that the legacies first given shall not take effect till a year after her death. Either supposition, however, will suffice to support the conclusion, which I adopt, that she only took a life interest.

The decree must be affirmed, but without costs.

1834.

SHERRATT

v.

BENTLEY.