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devise of lands to one, and afterwards the devisor by a will duly executed and attested, devised the lands to another who was a papist: it was decreed, that both the devises were void : for though the latter was void as a will, yet it was good as a revocation. 2 Abr. Eq. Cas. 771. (s)
But a will which will pass personal estate, is not a sufficient revocation of a former will whereby a real estate is devised. Comyns 451.,
And although the statute says, that no will in writing concerning personal estates shall be repealed by word of mouth only, except the words be put into writing, and read to and allowed by the testator, and proved to be so done by three witnesses; yet where a man by will in writing devised the residue of his personal estate to his wife, and she dying, he afterwards by a nuncupative codicil bequeathed to another all that he had given to his wife, this was resolved to be good: for by the death of the wife, the devise of the residue was totally void; and the codicil was no alteration of the former will, but a new will for the residue. 1 Abr. Cas. Eq. 408. Also, the statute hath not taken away revocations of wills by
of law; as if the testator afterwards make a feoffment, or do any other act inconsistent with the will: but such revocation remains as before the statute. Carth. 81. (t)
If a man devises lands to one and his heirs, and afterwards mortgages the same lands to another for years or in fee; though à mortgage in fee is a total revocation at law, yet in equity it shall be a revocation pro tanto only. 1. Abr. Eq. Cas. 410. [Baxter v. Dyer. 5 Ves. 656, S. P.]
And the reason is, because a mortgage is not considered as a conveyance of the estate, but only as a charge upon it; being merely a security, and in the consideration of equity carries only a chattel interest; the creditor gains nothing real, it affords no
(Implied revocation of a will.]
(s) So a deed intended to operate as an appointment to uses, but not sufficient for that purpose, was held to revoke a will, the party appearing to have had that intention. Shove v. Pincke, 5 T. Rep. 124 and 310. [See ante 198. note 1.]
(t) [And this though the feoffment is void for want of livery and seisin. Moor. 429. 1 Rol. Ab. 614–616.] So if a testator suffer a recovery of, or sell the lands devised. Marwood v. Turner, 1 P. Wms. 165. Arnold v. Arnold, 1 Bro.C.C. 401. [Doe d. Lushington v. Bp. Landaff, 2 New. Rep. 491. S. P. and the same of an equitable estate, Freeman v. Freeman, cor. lord Hardwicke, C. 1 Wils. 308. Or, if he levy a fine, 3 Moore, 24. Parker d. Biscoe v. Dilnot, 2 N.R.401. contract for sale revokes a devise, Knollys v. Alcock, 5 Ves. 654. A deed intended to operate as an appointment of uses, but not sufficient for that purpose, may have the effect of revoking
dower, and goes to executors. Sparrow and Hardcastle, May 6, 1754. 3 Atk. 798.
But if lands be devised to one in fee, and afterwards mortgaged to the same devisee; this is a revocation in toto, being inconsistent with the devise: but if the mortgage had been to a stranger, it had been a revocation quoad the mortgage only. Prec. Cha. 514.
If a man seised in fee, devises it to one in fee or for life, and afterwards makes a lease to another for years; this, even at law, shall not be a revocation but during the years. 1 Roll's Abr. 616.
So if a husband possessed for forty years, devises it to his wife, and after leases the land to another for twenty years, and dies; this lease is not any revocation of the whole estate, but only [ 204 ] during the twenty years, and the wife shall have the residue by the devise. Id.
But where a man seised of a lease for lives, devised it, and afterwards surrendered the old lease, and took a new one to him and his heirs for three lives; it was decreed, that this renewal of the lease was a revocation of the will as to this particular. For by the surrender of the old lease, the testator had put all out of him, had divested 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 not pass by a will made before such purchase, 3 P. Will. 166. 170. [Marwood v. Turner.]
June 10, 1743. Sir Thomas Abney and Miller. The testator by his will devised all his college leases which he then held of Magdalen college to Mrs. Burton, his mother, to be sold by her immediately after his decease, and ordered the money arising by such sale to be distributed according to the directions of the said will. Some years after making the will, he surrendered the college leases devised by it, and accepted two new leases of the premises, but one of them was not sealed with the college seal, till after the death of the testator. Lord Hardwicke decreed, that the lease actually renewed after the will made, was a revocation of the devise (u), but otherwise as to the lease not perfected for want of the college seal. 2 Atk. 593.
But where the testator devised all and singular his leasehold estate, and afterwards renewed a lease; it was held by lord Hardwicke clearly, that this leasehold estate passed by the will: for that this is not a specific legacy, but only an enumeration of the several particulars of the personal estate, but yet is a general devise of the whole. 3 Atk. 199.
Though a covenant or articles do not at law revoke a will; yet if entered into for a valuable consideration, amounting in equity to a will, if the party appear to have had that intention. Shove v. Pincke, 5 T. Rep. 124. 310.)
(u) [And the rule of revocation of wills is the same at equity as at law. S. P. Hone v. Medcraft, 1 Bro.C.C.160.]
a conveyance, they must consequently be an equitable revocation of a will, or of any writing in nature thereof. 2 P. Will. 624.
[A devise of a real estate is not revoked by bankruptcy.] (1)
A woman's marriage, is alone a revocation of her will. Id. [4 Rep. 60. b. Forse v. Hembling.]
A man made a will, and appointed one (who was no relation) to be his executor. He afterwards went abroad, where he became a governor of one of the plantations, and sent over for an English woman of his acquaintance, whom he married, and had children by; and died, without an actual revocation of his will. Yet it was determined, that this total alteration of his circumstances was an implied revocation. P. Will. 304. Eyre and Eyre.
So in the case of Lugg and Laugg, M. 8 W. before the delegates. One being single made his will, and devised all his personal estate. Afterwards he married, and had several children, and died without other will or disposition. It was ruled, that there being such an alteration in his estate and circumstances so different at the time of his death from what they were when he made the will, here was room and presumptive evidence to believe a revocation, and that the testator continued not of the same mind. 2 Salk. 592. L. Raym. 441.
And in the case of Brown and Thompson, T. 1702. The lord keeper was of opinion, that alteration of circumstances may be a revocation of a will of lands, as well as of a personal estate; notwithstanding the statute, which doth not extend to an implied revocation. 1 Abr. Cas. Eq. 413. (2)
(1) Charman v. Charman, 14 Ves. 580. (2) And accordingly, marriage and the birth of a child has been adjudged a revocation of a will of lands, in Christopher v. Christopher, [Dougl. 35.] 4 Bur. 2171. 2182. and Sprange (or Spragg] v. Stone, Amb. 721. [2 Eden. Rep. 263, and note.) though the child were born after the father's death. Doe v. Lancashire, 5 T. Rep. 49. But it seems that marriage or the subsequent birth of a child alone, are not of themselves sufficient to support the presumption of a revocation. See Dr. Hay's Judgment, Hil. 1770, in Shepherd v. Shepherd, 5 T. Rep. 49. 51. n. (which doctrine however Mr. Fonblanque has combated in his note to Treat. on Eq. ii. 355.) [J. B. married and afterwards made his will, and devised to his niece, and died, leaving his wife enceinte with a daughter, which was unknown to him. This birth was held not a revocation of the will. Doe d. White v. Barford 4 M. & S. 10.] And as marriage and the birth of a child, when taken together, only furnish ground on which to presume an alteration of the testator's mind, such implied revocation may be rebutted by evidence, either written or parol, which proves a republication. Brady v. Cubitt, 1 Doug. Rep. 31. [Quære, whether such implied revocations may be rebutted by evidence of parol declarations of the testator made after the events, that he meant his will to stand. Kembel v. Scrafton, 2 East, Rep. 530.]
Wills of Seamen and Marines. By 55 G. 3. c. 60. Intituled, “ An act to repeal several acts [Repeal of "s relating to the execution of letters of attorney, and wills of petty several
officers, seamen, and marines, in his majesty's navy; and to make acts.] 6 new provisions respecting the same.” 9 & 10 W. 3. C. 41. 3. 6. 20 G. 2. c. 24. 6. 31 G. 2. c. 10. 21. 24. 9 G. 3. c. 30.9 5. 6. 26 G. 3. c. 63. 92 G. 3. c. 34. and c. 67. 14. 16. 49 G. 3. c. 108. § 1. 6. 10. 17. 54 Geo. 3. C. 93. § 7. are repealed. s 1.
By $ 2. No will made by any petty officer or seaman, non- Mode of commissioned officer of marines, or marine, before his entry into executing
wills. his majesty's service, shall be rated to pass or bequeath any wages, pay, prize or bounty money, or other allowances of
money to accrue due for or in respect of the service of any such petty officer or seaman, non-commissioned officer of marines, or marine, in his majesty's navy. Nor shall any will made or to be made by any such petty officer, &c. in the king's service, be valid to bequeath any such wages, &c. due, or to grow due, to him, unless it shall contain the name of the ship to which the person executing the same belonged at the time, or to which he last belonged,
Ex parte the Earl of Ilchester. A second marriage, and the birth of children, the wife and children being provided for by settlement, and there being children by the former marriage; held to be a case of exception from the rule, that marriage and the birth of a child revoke a will. 7 Ves. 348. But where there was no settlement on the second wife and her issue, a second marriage and the birth of a child were held presumptive revocation of a will, made by a widower, and in favour of children of a former marriage. Hollway v. Clarke, 1 Phill. Rep. 339. Emerson v. Boville, id. 342.; nor does the death of the child of the second marriage after the presumption. Id. The whole law of presumed revocation of former will by marriage and birth of children, is stated by sir John Nichol, in Johnston V. Johnston, 1 Phill. Rep. 447. in which case the first will of a married man with children, was set aside on shewing the birth of more children, and his intention to make another will.]
Hinckley v. Simmons. Two unmarried sisters made similar wills, (Mutual in favour of each other, bearing the same date, and appointing the or similar same executors. The marriage of one of them was held not to revoke wills.] the will of the other. 4 Ves. 160. [And see Lowfield v. Stoneham, 2 Stra. 1261. Mutual or conjoint wills irrevocable by either of the supposed testators are unknown to the testamentary law of this country; and a separate will of the same deceased of a later date, was in effect pronounced for in Hobson v. Blackburn and another, 1 Add. Rep. 274.: but the devisees of such a will may be trustees for performing the deceased's part of the compact. Dufour v. Perraro, per lord Camden, 18 July, 1769, 2 Hargr. Jurid. Éxer. 101. Walpole v. Cholmondeley, 7 T. Rep. 138. observed on 3 Ves. 403.]
and also in every case a full description of the relationship or residence of the person or persons to whom, or in whose favour as executor or executors, the same shall be granted or made; and also the day of the month, and year, and the name of the place when and where the same shall have been executed. Nor shall any such will be good for the purposes aforesaid unless executed and attested as follows:- In case any such will is made by any such petty officer or seaman, non-commissioned officer of marines, or marine, at any time while they respectively belong to and are on board any of his majesty's ships, as part of the complement thereof, or be borne on the books as a supernumerary, or as an invalid, or for victuals only, unless such will is executed in the presence of and attested by the captain or other commanding officer of the ship, or during his absence on leave on separate service, by the commanding officer for the time being, who in that case shall state at the foot of such attestation the absence of such captain, &c. at the time of the execution of such will, and the occasion thereof; or in case of the inability of such captain or commanding officer by reason of wounds or sickness to attest any such will, then unless such will is executed in the presence of and attested by the first lieutenant or other officer next in command of such ship, who shall state at the foot of such attestation the inability of such captain, &c. to attest the same: In case any such will shall be made by any such petty officer, &c. in any of his majesty's hospitals, or on board any of his majesty's hospital ships, or in any military or merchant hospital, or at any sick quarters either at home or abroad, unless such will shall be executed in the presence of and attested by the governor, physician, surgeon, assistant surgeon, agent, or chaplain of any such hospital or sick quarters of his majesty; or by the commanding officer, agent, physician, surgeon, assistant surgeon, or chaplain for the time being, of any such hospital ship; or by the physician, surgeon, assistant surgeon, agent, chaplain, or chief officer of such military or merchant hospital, or other sick quarters, or one of them: - In case any such will shall be made by any such petty officer, &c. on board of any ship in the transport service or in any
merchant ship, unless the same is executed in the presence of and attested by some commission or warrant-officer, or chaplain in his majesty's navy; or some commission officer, or chaplain belonging to his majesty's land forces, or royal marines; or the governor, physician, surgeon, assistant surgeon, or agent of any hospital in his majesty's naval or military service who may happen to be then on board of such transport or merchant vessel, or by the master or first mate thereof, or one of them: - In case any such will shall be made by any such petty officer, &c. after his discharge from his majesty's service, unless the same (if the party making such will resides in London or Westminster, or within