ORIGINAL COMMUNICATIONS

I. Original Opinions on the Will of Sir Thomas Cave, taken previous to the Proceedings reported in 2 Hen. Black. 516, 1 Pul. and Bos. 576, and 7 Term Rep. 399.

THE

IE Conductors of the Law Journal have been favoured by a Correspondent* with the opinions, taken in the case of Cave versus Holford, previous to its being decided; and as those opinions appear to be of importance, and concurrent with the ultimate result of it reported in H. Blackstone the Term Reports, and Bosanquet and Puller, they present them to the Subscribers to this Work in the same state in which they appear to have been delivered.

CAVE . HOLFORD.

Short Statement of the Case.

Dec. 13, 1790. IN contemplation of an intended marriage between Sir Thomas Cave, Bart. and Lady Lucy Sherard, daughter of the earl of Harborough, an agreement in writing, on unstamped paper, was signed by the earl and Sir Thomas, whereby the earl agreed to make Lady Lucy's fortune 30,0001.; 20,000l. to be paid down on the marriage, and 10,000l. to be secured upon part of his real estate, and paid upon his (the carl's) decease. And Sir Thomas agreed to apply part of the fortune in discharging a mortgage of 14,5001. upon his estate at South Kilworth and Swinford, and to settle the said estates, so as to secure Lady Lucy, after Sir Thomas's death, a jointure thereout of 14001. per annum; and out of his Stanford estate to secure an additional jointure of 6001. per annum after the death of the survivor of Sir Thomas and his mother.

Also, to make a provision out of the Stanford estate for younger children; and to settle the said estate, subject as aforesaid, upon his eldest son and his heirs male, in strict settlement.

March 13, 1791. Sir Thomas by will," in case he should happen to die without leaving any, ssue of his body living at his decease," devises all his aforesaid hereditaments in tail, subject nevertheless to such

66

• Mr. G. Pr, of Camden-street, Islington.

jointure or jointures as he might thereafter make upon the woman he might happen to marry, to his uncle Charles Cave for life, and to his first and other sons in tail male, with remainders over in favour of John Cave Brown, and his first and other sons in like manner, remainder to his own right heirs. And charges the said estates with divers sums in favour of other persons therein mentioned,

May 26 and 27, 1791. By lease and release, the Stanford es. tates are conveyed to Lord Sherard and Mr. Robert Holford, to the intent for better securing Lady Cave's jointure after the marriage. To Sir Thomas for life-remainder;

To other trustees to support, &c.--remainder;

As to part of the premises, for securing Lady Lucy's additional jointure after the death of Lady Cave and Sir T. Cave-remainder;

To Lord Sherard and Holford for 500 years; and as to all other the remainder;

To same trustees for 1000 years; and subject to the said terms; To the first son and other sons of the marriage, successively in tail male-remainder to Sir Thomas in fec.

Terms raised for securing jointure and portions of younger children, and for keeping down interest of mortgages for 6000l. and 50001. therein mentioned.

Covenant from Lord Harborough to pay interest during his life, and that his heirs, &c. within six months after his death should pay the principal.

And in this settlement is a clause, empowering Sir Thomas, in the event of his surviving Lady Lucy, to make a jointure or jointures on any other wife or wives.

Same dates. By indentures of lease and release, the estates at Swinford and South Kilworth are conveyed to Lord Sherard and Mr. Holford, for securing to Lady Lucy the jointure of 14001. and subject thereto to Sir Thomas in fee.

Soon after, the marriage took effect.

In this cause there is parol evidence to shew Sir Thomas's intention, that his will should not be revoked.

Mr. Serjeant Hill's Opinion on Sir Thomas Cave's Will, &c.

I think the marriage settlements, after making the will operate as a full revocation in law of the several devises of the real estates therein contained, so as to occasion all those estates to descend to the testator's sister as heir at law in fee simple, without any of the charges thereupon by the will.

I also think the personalty will be distributable by the statuțe, in

the manner mentioned in the question, unless there should happen to be a posthumous child, in which case the widow lady would be intitled only to one-third, and the posthumous child or children to the other two-thirds; or if such posthumous child or children, being born alive, should die intestate, and without being married, or should die ever so soon after their birth, then the widow lady would be intitled to the whole personal estate; and a posthumous child would, I think, be intitled to the real estate. 5 Burr. 2708. 2 Brown, 340.

As to the first part of the case, if a devisor makes a partial disposition of his estate, if not by conveyance to uses, but by demise, for a term of years, or by feoffinent not to uses or other conveyance at common law for life, or in tail, leaving the reversion in fee in himself, I apprehend such demise, or other common law conveyance, would not be a total revocation of a prior disposition by will of the same estate, but only a revocation, pro tanto, as was necessary to let in the particular estates, in the same manner as in the known case, of a mortgage, by a devisor, for a term of years, which, even at law, operates only as a revocation, pro tanto, to let in the mortgage, and leaves the reversion and redemption to pass to the devisor. So if a mortgage be in fee, in equity, it is no revocation, further than to let in the mortgage upon the estate, but the equity of redemption passes to the devisee, though the will was prior to the mortgage. All conveyances in fee are now almost universally by way of use; if not, I should think the mortgage in fee no revocation at law: and though the statute of uses hath introduced a new mode of conveying, yet it hath introduced no alteration in the minds of testators; but only, if lawyers, who have observed, that in such conveyances the whole fee simple is conveyed to the releasee or feoffee to uses, followed by a declaration of uses to one or more persons for particular estates, generally with an express use; but if not expressed (after all the prior estates are determined) with an implied use to the releasor or feoffor and his heirs, and from thence lawyers have concluded, that the fee simple being limited to the testator and his heirs, is inconsistent with the devise in his will to some other person; and therefore a revocation of it, though no such thing was intended, or so much as known to the testator, and notwithstanding for all other purposes, except that of revoking the will, the use to the testator and his heirs, whether implied, as in 3 Lev. 406, or expressed, as in Satk. 590, is not a new estate, but is the same estate as he had before the conveyance or settlement. If, before it was an estate descendible to the maternal heir, it appears by those cases it will continue so, being the direct contrary to what is there reported; for they did not hold (as there said), that the vouchee in that case gained a new estate, but, on the contrary, continued seised of the old estate; and the law is taken to be settled, that any deed to uses, though they never take effect as in Lord Lincola's case, and more clearly if they do take effect, though only to particular estates, will be a total revocation of a prior devise of the same estate, and not so far only as is necessary to create the particular estates. This I take to have been always, since Lord Lincoln's case, so considered, though reluctantly; and Lord Lincoln's case

has been followed, and a recovery intended only to confirm, hath been holden a revocation of a will, 3 Atk. 803. The zeal, in general laudable, of adhering to the rule, stare decisis, has, I think, in this instance, been carried to an extreme. Lord Hardwicke, in 3 Atk. 176, seems to have disliked, but would not plainly speak against this kind of revocations; but Lord Mansfield, 3 Burr. 1749, observed, that constructive revocations ought not to be indulged, and that some overstrained resolutions of that sort had brought a scandal upon the law; therefore, courts have sometimes got rid of them as in the case of a partition there mentioned, which, though by fine hath been holden not to revoke a will, 8 Vin. 148, pl. 30; in 2 Vern. 241, there is a case which seems to go further than any, viz. that a conveyance to uses, where (as alledged in other cases) the absolute fee simple was transferred out of the testator, and though but for an instant, and in idea only, was holden, no revocation; yet, according to manuscript notes, that case has been disapproved of: it was before Lord Lincoln's case, and not there cited. There are some other cases in 2 Eq. Abr. 777 Ca. 26, and one in Ambl. 495, but much fuller in A.'s, where a will was not revoked by a subsequent disposition. These were determined on this principle, that in these particular cases the will and the deed were consistent; there seems to be some ground for the same argument in this case, but I doubt not sufficient to bring this within the authority of those cases, because it will be said, that the fee by the settlement is limited to Sir Thomas's heirs, which is inconsistent with the devise, though I think it not so, for the reasons already mentioned; and that it would be so determined, if it was a new question, but that it will be considered as bound by authorities, and to be a revocation of the will.

I have been extremely engaged ever since this case was before me, and pressed for an answer, otherwise would have expressed my opinion more clearly and methodically on the subject.

Lincoln's Inn, Jan. 29, 1792.

G. HILL.

Serjeant Hill's second Opinion on Sir T. Cave's Will.

There are two facts in this case, neither of which was stated when I gave my former opinion: the first is, that Sir Thomas Cave had, previous to making his will, entered into an agreement for making a settlement on his marriage. The other, though not stated in this case, appears, by copies of the settlements now before me, viz. that there is contained in the settlements a recital of an agreement for making them, which I incline to think will be taken to refer to the articles, which seems to me to bring the present case within the reason of that of Watts v. Fullerton, Trinity, 14th Geo. III., and Parson v. Freeman, both of them cited Douglas, 691, 692, and war◄ ranted, as there cited by reports of the first in manuscript, and of the last in print and manuscript, which have established this prineiple, that where a man, having only an equitable estate, disposes of

it by will, and afterwards takes a conveyance of the legal estate, the will is not thereby revoked.

As to the estates of South Kilworth and Swinford, I incline to think the will may be supported on another ground, which is, that the settlement of those estates was made merely for securing a jointure to Lady Lucy. And it hath been long settled, that a mortgage in fee, subsequent to a will, is in equity not a revocation of the will, further than to let in the mortgage upon the estate: and the same hath been holden with respect to a conveyance to trustees for payment of debts; and the intent and operation of the settlement of Kilworth and Swinford is nothing more than the bringing a charge on those estates.

As to the parol declarations of intention, there are but few cases in which they are admissable; and this does not appear to me to be one of them. But if the will or the deeds had been misdated, I think parol evidence, if there were any, might be admitted, to shew that the will was executed after, though it bears date before the settlements; but no such evidence is stated: and the will refers to a future jointure, which is an evidence that the jointure was not then actually made. I also think it not clear, whether the parol evidence might not be admitted, to shew tha tthe agreement recited in the settlement was before the will, supposing the settlements had varied from the written agreement, for as both were before marriage, the parties might vary from the agreement; but there does not appear to be any variance with respect to the settlement of the testator's estate; and therefore I think the agreement recited in the settlements will be taken to refer to the written agreement. And then the point, Whether parol evidence might be admitted, as to the time when the recited agreement was made, cannot come in question.

G. HILL.

Lincoln's Inn, February 27, 1792.

The Solicitor General's Opinion on Sir Thomas Cave's Will, &c.

The authorities with respect to the effect of settlements made subsequently to wills, are so extremely strong to prove them revocations, even with respect to such interests in the estates as remains in the grantor, that it will be found very difficult to establish the will in question. This case, however, has circumstances in it which are singular; and the disapprobation which, in some late cases, has been expressed with regard to those authorities, may perhaps operate to an extent, which makes it adviseable to take the opinion of a court upon the validity of this will. With respect to the Swinford and South Kilworth estates, by the agreement, if a marriage t'ok place, they were to be subject to 14001. a year; and the settlement does not vary the testator's interest in those estates to any other extent than by effectuating that charge. There seems, therefore, to be some reason to contend, that the will itself having adverted to the jointure, by devising the estate subject to it, and the settlement being made