Or, to the use of himself for life, and afterwards to his wife for life, and afterwards to his right heirs. 1 Rol. 616. 1. 5. 50. So, if the feoffiment be to the use of his will. 1 Rol. 614. 1. 32. So, if he had made it before his will before the st. 27 H. 8., and then the statute executes the possession to the use; this will be a revocation. Cont. 1 Rol. €16. l. 10. Acc. 1 Rol. 616. 1. 20. So, if tenant in tail devises, and afterwards suffers a recovery to the use of himself; it is a revocation. R. 3 Lev. 108. (y) So, if the devisor, after his will, makes any conveyance of the land, it will be a revocation. (2) 2 Ca. Ch. 116. (a) So, if a man covenants to levy a fine, and afterwards levies the fine; though he makes his will between the time of the covenant and the fine levied, it will be a revocation. 1 Rol. 614. 1. 40. (b) So, if he covenants to make a feoffinent, and makes a feoffient with livery, but by some defect in the livery the feoffment is void; yet it will be a revocation. R. 1 Rol. 615. l. 25. (c) So, if he devises a reversion, and afterwards grants the reversion by deed, but the grant is void for want of attornment; yet it will be a revocation, for he has fully shown his intent (d) to revoke. Per 2 J. 1 Rol. 615. 1. 30. 695. 5. A. by his will, dated in 1708, gave several pecuniary and specific legacies, and then gave all his real and personal estate to B., on condition that he took the name of A.; and afterwards A. together with J. S. his trustee, by lease and release, conveyed several manors to trustees and their heirs, to the use of himself for life, and that the trustees and their heirs should execute such conveyances thereof, as A. by writing under his hand and seal, or by his last will, should appoint; the testator died without altering or revoking his said will, or making any appointment touching his real estate; and it was decreed that the lease and release was a revocation of the will, which decree was affirmed by the house of lords. 1 Eq. Abr. 412. 7 Bro. P. C. 453. 6. See further 6 Ves. 199. 16 Ves. 519. 2 V. & B. 382. (y) 1. 3 P. Wms. 163. 3 Atk. 741. Amb. 655. 3 Wils. 6. 5 Bro. P. C. 359. 2. So where a testator levied a fine to such uses as he should, by deed or will, appoint, 401. .-3. But a fine for the mere 2 Ves. J. 600. a prior will was held to be thereby revoked. 2 N. R. purpose of a partition, is no revocation, even at law. (z) 7 T. R. 399. 1 B. & P. 576. 7 T. R. 416. (a) 1. A person devised all his manors, messages, and hereditaments to trustees, in trust for his nephew and his issue, in strict settlement. The testator afterwards conveyed an advowson whereof he was seised at the time of making his will, to trustees and their heirs, and by another deed declared the trust of that conveyance to be to present the son of R. J.; and held that the conveyance of the advowson was a complete revocation of the devise of it.. Amb. 224. 3 Atk. 799.-2. And where A. devised a house to her sister for life, and after her decease devised the same to trustees, in trust to sell; and afterwards sold the estate herself; it was decreed that the sale was a revocation not only of the house, but also of the devise of the money to arise from the sale. 3. And even an agreement or covenant to convey lands, which have been previously devised, will operate in equity, though not at law, as a revocation of such devise. 2 P. Wms. 328. 5 Ves. 654. 7 Ves. 558. 16 Ves. 519.-4. Though the contract be rescinded after the devisor's death. 19 Ves. 170. - 5. And though mere partition whether by compulsion or agreement, is not a revocation of a will; yet the slightest addition, as a power of appointment prior to the limitation of the uses, is sufficient. 2 Ves. J. 429. 7 Ves. 564. 8 Ves. 281. 10 Ves. 256. 284. vide 5 Ves. 648. (b) 2 N. R. 401. (1. So if he makes a feoffinent without livery, 3 Atk. 73. 805. 7 Ves. 370. 2. For an instrument, though inadequate to the purpose for which it was intended, operates as a revocation of a will, if an intention to revoke is apparent. 5 T. R. 124. 310. (d) In the case of a revocation, by the execution of a conveyance of lands, subsequent to a devise of them, parol evidence is not admissible to prove that the testator heant his will should remain in force and unrevoked by the subsequent conveyance. 2 Ves. J. 606. 2 H. Blk. 516. So, So, if he devises land, and afterwards sells by bargain and sale, and acknowledges it in order to be inrolled, but it is never inrolled. Per 2 J. 1 Rol. 615. 1. 40. So, if he makes a charter of feoffment for the whole, and livery only for part; it will be a revocation for the whole. R. Mo. 429. So, if he devises, and afterwards, in consideration of an intended marriage, makes a settlement by lease and release; it will be a revocation, though the marriage does not take effect. R. Ca. Parl. 157. (e) So, if a man devises land, and afterwards devises the same land to another; though the second devise is void for the incapacity of the devisee. R. 1 Rol. 614. l. 45. 50. (ƒ) Or, devises to another by parol. Per Poph. 1 Rol. 615. l. 42. Vide infra. (g) So, if he devises to A. in fee, and afterwards leases to A. for years, to commence after his death; for it is inconsistent. R. 2 Cro. 49. (h) Though the lease be delivered to a stranger, without the privity of A. R.2 Cro. 49. So, if he devises a lease pur auter vie, and afterwards renews the lease. Dub. 2 Ver. 209. (i) So, (e) 1. Supra, Lord Lincoln's case. 2. The doctrine of presumptive revocations appears to have been carried much too far, and has been disapproved of by the ablest judges of modern times. 6 Cruise, 125.- 3. Thus Lord Mansfield has observed, that constructive revocations, contrary to the intention of the testator, ought not to be indulged; and that some overstrained resolutions of that sort had brought a scandal on the law." 3 Burr. 1491.-4. So "that all revocations which are not agreeable to the intention of the testator, are founded upon artificial and absurd reasoning." Dougl. 722, vide 2 H. Bl. 525. 5. It is, however, now fully settled, that wherever a person who has devised an estate, afterwards makes any alteration in it, by any mode of conveyance whatever, inconsistent with the preceding devise, or by which the estate becomes in any respect different from what it was before; such an alienation will operate as a revocation of the prior devise. 6 Cruise, 126. 2 Ves. J. 417. 7 Bro. P. C. 505. 7 T. R. 399. 1 B. & P. 576. 3 Ves. 682. 16 Ves. 519. 7 Bro. P. C. 593. 6. And 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. 3 Atk. 748.-7. And a devise is revoked by an exchange, though the land after the death of the devisor, is restored to the heir under an arrangement, in consequence of a defect discovered in the title of the other party to the exchange. 8 Ves. 256. 2 V. & B. 382. (f) So a devise to one incapable of taking by devise, is a revocation. 10 Mod. 233. (g) Where a will duly attested, charges the real estate with the payment of debts and legacies, a subsequent unattested will or codicil revokes the legacies given by the first. 1 Eq. Abr. 409. 2 Atk. 268. 6 Cruise, 101. (4) But the revocation is only partial, for the duration of the leases. Infra, (F 2.) (1) 1. The surrender of a lease for lives, and taking a new lease, will operate as the revocation of a former devise. 3 P. Wms. 163. - 2. And where a person has an estate pur auter vie at the time of making his will, and afterwards purchases the inheritance, it is a revocation of any devise of the estate pur auter vie. 2 Atk. 450.- 3. Andalthough a term for years, acquired after the 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 redemption of the bequest; and the new term will be considered as part of the personal estate. 6 Cruise, 142. 2 Atk. 593. 2 Ves. 418. 1 B. C. C. 261. 4. If, however, the words of the will show the testator's intention to dispose of all terms for years, whereof, he may de possessed, a renewed term will pass. Cruise, 143. 3 Atk. 199. 174. 5. Where a person devised to S. S. her leasehold garden, &c. for the term of his life, and after his decease to his children, and after the publication of the will, the testator surrendered the lease and took a new one; upon the question arising whether the bequest was revoked, the master of the rolls (Sir William Grant) said the question was, whether a specific devise of a leasehold estate was affected by a renewal of the lease, subsequent So, if a man devises, but is afterwards disseised, and does not reenter (k) before his death; it will be a revocation. 1 Rol. 616. 1. 25. So, if a man devises land to one, and by the same will afterwards gives an estate, inconsistent with the first, to another; this will be a revocation. Co. L. 112. b. So, if a woman makes a will, and afterwards marries with the devisee, and dies; it will be a revocation. R. 4 Co. 61. Vide (F 2.) So, if a man by parol says, I revoke my will, and desires the witnesses present to witness it, and adds, that he will alter it when he comes to D. It will be a revocation, though he dies before he comes to D. R. Dy. 310. b. 1 Rol. 614. 1. 30. Per Rol. Sti. 343. 418. Vide post, (F. 2.) So, if the testator, says, animo testandi, A. (who was his heir at law) shall be my heir. Per Cur. 1 Sid. 73. So, if he says, I do revoke, and desires those present to witness it, without more. 2 Cro. 497. Or, my will shall not stand: for though the words are in the future tense, they show a present resolution. R. Cro. El. 306. Ow. 76. So, if a man makes a will, and devises his personal estate to A. and afterwards marries, and has several children, and dies a long time after the will made; it shall be presumed a revocation by the alteration of his circumstances. R. Sal. 592. (1) If to the will; that the ground upon which in many cases it had been held that renewed leases did not pass to the specific devisee was, that the thing given no longer existed; but that 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 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 testator might subsequently acquire in the leasehold; and therefore that the renewal operated as a revocation of the bequest. 16 Ves. 197.-6. Where the testator 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, Dom. Proc. (reversing the decree of the court of chancery,) held that the bequest of the leasehold was revoked by the revocation of the devise of the freehold. 3 Bro. P. C. 365. — 7. A settlement of leasehold estates was held not to be revoked by a subsequent assignment by the trustee to the settlor, entitled for life, or by the will of the latter; no indenture to revoke appearing, and the terms of a power of revocation, not being complied with. 6 Ves. 656. (k) Secus if he enters. Vide (F 2.) in notis. (4) 1. It is now fully established that marriage and the birth of a child operate as an implied revocation of a will. 4 Burr. 2182. Dougl. 35. Amb. 721.-2. Thus a posthumous child. 5 T. R. 49.-3. But since this doctrine proceeds upon the principle of presumed intention, the presumption may be rebutted by other circumstances. 1 Eq. Abr. 413. Dougl. 31.-4. But a second marriage and the birth of children, the wife and children being provided for by settlement, and there being children by a former marriage, is a case of exception from the rule, that marriage and the birth of a child revoke a will. 7 Ves. 348.-5. And where a widower having a son and two daughters, made his will, by which he gave all his real estate in trust for those children, and afterwards married, and had other children, the will, it was held, was not thereby revoked. 1 V. & B. 390. 6. Where A. bequeathed all his personal estate to B., and devised an annuity of 150l. to her for her life out of the rents of his freehold and copyhold estates, or by mortgage, &c., and in case he should have any child or children by her who should be living at his decease, he gave 60l. a-year out of the rents of his said estates, or by mortgage, for the maintenance and education of each such child until twenty-one, and then 3000l. to be divided among them if more than one, and if but If he devises his real and personal estate to his brother, and makes him executor, and afterwards marries, and by a codicil makes his wife executrix; she shall have the personal estate, for it was intended for the brother only as he was executor. 1 Ver. 23. If he devises his lands to charitable uses, and afterwards devises the same estate to others to such uses as he shall afterwards declare, and dies before any declaration of the uses; the subsequent will shall be a revocation, though no estate passes thereby, the uses not being declared. Eq. Ca. 8. (1) So, if he devises a real estate to a stranger, and afterwards marries and has issue; it will be a revocation as to the real as well as the personal estate. R. Eq. Ca. Abr. 413. But if the devise was to a stranger, whom he afterwards marries, and the disposition appears reasonable, chancery will establish it. R. Tr. 1702. Eq. Ca. Abr. 413. Vide post, (F 2.) (F2.) What not. But if a testator makes an estate by act executed, it is a revocation only so far as that estate is inconsistent with the devise: (m) as, if after a devise in fee, he leases the same land for years; it is a revocation only during the term. R. 1 Rol. 616. 1. 37. So, if he leases for life, it is a revocation only for the life of the lessee. 1 Rol. 616. 1. 40. So, if he leases to a stranger for years to commence after his death; it is a revocation only for the years. 2 Cro. 49. R. Cro. Car. 23. (n) So, if he leases to the devisee himself, to commence immediately, or at a future day in the life of the testator, (o) for ten or twelve years. 2 Cro. 49. So, if a termor of a term for forty years devises it, and afterwards leases for twenty years; it is a revocation only for twenty years. 1 Rol. 616. 1.45. So, if a termor devises his term, and afterwards mortgages and redeems it, the devisee shall have it. Dy. 143. b. in marg. So, if a man devises, and afterwards mortgages the same land, the but one, to be paid to such only child, to be raised out of his said estates, and devised the estates over to others subject to the said annuities and payment; and the testator afterwards married said B., and had children by her, and died without expressly revoking his will; it was held that this subsequent marriage and birth of children did not amount to a revocation. 2 East, 530. 7. And where a married man having then no children devised to his niece and dies leaving his wife enseint, but which fact was at the time of his death unknown to either of them; it was held, that the birth of the child was no implied revocation. 4 M. & S. 10. - 8. For though marriage and the birth of a child are a revocation, yet neither alone is. Ambl. 487. 2 East, 530. 1 V. & B. 465. 4 M. & S. 10.-9. Marriage with and a settlement on the devisee is a revocation of the devise. Eden's B. C. C. 61. n. 10. Mutual wills by two unmarried sisters, under twenty-one; the marriage of one does not revoke the will of the other. 4 Ves. 160. ()2d part of 2 Mod. Ca. (m) So an obliteration or alteration of part of a will, does not operate as a revocation of the whole will, but only of the parts obliterated. 2 Vern. 498. Cowp. 812. 3 B. & P. 16. 4 East, 419. (n) 1 Vern. 97. (0) But a lease to the devisee to begin after the devisor's death, would be a revocation, since then the estates would be inconsistent with each other. 3 Bro. P. C. 12. Per Moreton, Ca. Ch. devisee shall have it subject to the mortgage. Though the mortgage be in fee; for it is but a security. Ca. Parl. 155, 156. R. 1 Ver. 329. 342. So, if a man makes a feoffment, and when he seals the deed asks, if it will not prejudice his devise of the same land? for then he will not seal it, and livery is made by attorney in part; it will be no revocation of the part whereof livery is not made. R. Ow. 76. Goldsb. 32. (p) If he devises a lease for three lives, and afterwards makes a lease for three other lives; it will be a revocation only for the lease; for the lives in the lease may determine before those in the will. R. 2 Ver. 496. So, if a devisor devises an estate to one, and afterwards devises by the same will to another, it is no revocation if they are consistent: as, if he devises land to A. and afterwards rent out of it to B. Pl. Com. 523. a. 541. a. If he devises a term to Thomas, and afterwards to his mother during his minority. R. Pl. Com. 541. a. So, if he devises all his lands to A. and afterwards land in D. to another; A. shall have all, except the land in D. R. Yel. 210. 2 Cro. 49. Acc. 2 Rol. 276. R. Dal. 3. 4 East, 428. So, if he devises all to A. and afterwards all to B. they shall be jointtenants. R. Yel. 210. Dy. 4. a. in marg. Vide post, (N 8.) Or, to A. and his heirs, and if he dies without issue, to B. and his heirs; A. shall have an estate-tail, remainder in fee to B. R. Yel. 209. 2 Cro. 290. So, if a verdict finds, that A. made his will, and afterwards made another will, but the jurors do not know the contents; it is no revocation, for they may be consistent. (q) R. 3 Mod. 204. Sho. 537, &c. R. Sal. 592. Ca. Parl. 146. R. Hard. 375. (†) (p) A conveyance obtained by fraud will not operate as a revocation of a prior devise; because when such a conveyance is set aside, it is considered as a mere nullity. 3 B. C. C. 156. Vide 6 Ves 1. 8 Ves. 283. 2 Cox, 263. 3 Burr. 1244. (q) 1. By the Roman law, a subsequent will operated in all cases as a revocation of a former one. Posteriori quoque testamento, quod jure perfectum est, superius rumpitur. And the reason was, because the essence of a Roman testament consisted in the institution of an heir, who took the whole property of the testator; so that two wills could never subsist at the same time, as there could not be two distinct owners of the same thing. Quicunque testamentum facit, censetur de omnibus bonis disponere, ut non magis duo testamenta simul consistere possint, quam duo domini ejusdem rei in solidum constitui. Just. Inst. lib. 2. tit. 17. s. 2. Vinn. Com. 6 Cruise, 94. 2. But although the law of England has adopted the principles of the Roman law, respecting wills of personal property, yet Lord Mansfield has declared, (Cowp. 90.) that a devise of lands is looked upon in a very different light, being considered as an appointment of lands to a particular person; from which it followed, that a man might as well dispose of part of his lands by his will as of the whole. 6 Cruise, 95.-3. And in consequence of this principle it has been determined, that where a second will has not a clause of revocation of all former wills, and does not make any disposition inconsistent with a former will, it does not operate as a revocation of such former will, but both are good. Cro. Eliz. 721. (r) 1. And where a jury found that a testator had made a second will different from the first, but without finding in what that difference consisted, Dom. Proc., determined that such second will did not revoke the former one. 3 Wils. 497. 2 Blk. 937. Cowp. 87. 7 Bro. P. C. 344. · .-2. But two inconsistent wills of the same date, neither of which could be proved to have been last executed, are void for uncertainty. 7 Bro. P. C 445. So, |