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enough to take this case out of the doctrine of the cases I have cited; because sir Thomas having aliened the fee to trustees to uses; subsequently'to his will, and having under those uses taken a newly modified estate, appears to me to constitute that ground for infers ring a revocation at law, which hitherto has chiefly governed in cases of this sort, and, because it is also to be remembered that the sta tutes which give the power of devising land, only enable the devise of land of which the testator is seized at the time; and therefore that even an express intention is not sufficient to give effect to a will, upon lands subsequently acquired. Equity, indeed, sometimes saves a devise revoked at law; tbus, in the case of a mortgage in fee, after a will, equity treats the mortgage only as a partial revocation, upon the ground that a mortgage is merely a security. This was done in Hall v. Dunch, i Vern. 329 & 312; and lord Hardwicke observes, at the same time, that this exception of equity is confined to mortgages and securities for money: and I should think that it would be found very difficult to induce a court of equity to extend the exception further: yet if the principal of the exception of equity is, as it seems to be, simply the manifest intention of the tesiator, not to disturb his will beyond the extent of the charge created by the mortgage if the present case should be construed to contain equal evidence of an intent, only to sobject the devised estates to the settlement, there is no saying that the present case may not be brought within the reason, and consequently the applicability of the exception. With respect to the latter branch of this first questions I think that the gencrał words in the settlement, wbich comprehend the manor of Swinford, were sufficient to pass the rectory impropriate, and advowson of the same denomination.
Mr. Hargrave's Answer to the second Question
I am under very considerable difficulty from the two agreements which have been entered into between Sir Charles Cave and Mr. and Mrs. Otway, how to advise on this second question : and as the right to so very large an estate is depending, and it is of great importance to the parties to shape the proceedings for trial of the point of revocation in the most convenient way, I recommend liaving the subject of this second questiou laid before all the counsel for Mr.arid Mrs. Otway, for a joiut opinion, therefore I will only observe for the present, that it is; as I conceive, most for the advantage of Mt. Otway, 28 heir at law, to bave the point of revocation determined in a court of law.
FRANCIS HARGRAVE. New Boswell Court, 16th April 1792.
Mr. Fearne's Opinion on Sir Thomas Code's Will and Setttemen.
Ispust confess that I find much, difficulty in making up my mind to an opinion upon the case now stated to me. It is of that goved impression, for which I am not apprised of any direct authority,
VOL. III. N 13.
Had the question rested on a will containing in itself no reference to, or expressions apparently denoting the testator's contemplation of a subsequent settlement; I should scarcely have hesitated in considering the subsequent settlement as a revocation of the will, under the concurrent weight of abundant authorities. But here the circumstances of the devise being expressly confined to the event of the testator's death without leaving any issue of his body living at his decease, and being made expressly subject to such jointure or jointures as he should thereafter make upon the woman he might happen to marry : and that at a time when he had just entered into a contract for making jointures on a woman with whom he was actually under a treaty for marriage, seems to me to create a distinction betwixt the present case and those which I conceive must have ruled the decision, if those circumstances had been wanting. That any grant, feoffment, lease, and release, or any other conveyance, though to the use of the testator and his heirs, after the execution of his will, in general operates as a revocation of his prior will (in respect to the conveyed lands) cannot, I think, at this day, admit of controversy. I mean as a general position. For that the rule admits of various erceptions is clear from the cases upon partitions by feofiment, lease and release, or fine between tcnants in common, as well as conveyances of the fee by way of mortgage, or in trust for payment of debts, or particular charges.
And these exceptions shew us that the rule itself is not grounded in the mere alteration in the plight of the estate consequent on the conveyance itself, abstracted from the nature and tendency of the disposition effected or attempted by it, or any reference to the express or presumptive intention of the testator afforded us thereby.
For if that were the case, conveyances for effectuating partition, or by way of mortgage in fee, or in trust for payment of debts, &c. would fall equally within the extent of the rule. But it seems that in all those cases, where a conveyance does not operate to give a new and different estate from that which was in the testator, and liable to the operation of his will at the time, as a fee-simple; for instance, where he haul nothing more than an estate-tail before, or an estate by purchase, instead of one by descent, by changing the old use, that is, in short, whenever the old estate is not taken out of the testator's by the conveyance, or the estate left in or restored, or resulting to or in trust for him, under or after the conveyance, is considered to be his old, or part of his old estate. There the operation of such conveyance, as a revocation of his will, quoad the estate not disposed of as subject to other purposes, seems to be founded on the same grounds as the similar effect allowed to incomplete conveyances, failing for want of some ceremony requisite to their effect, (as a feoff. ment defective in respect to livery, grant without attornment, bar. gain and sale not inrolled), namely, an implicution of the testator's change of intention, with regard to the estate arising from his making, or attempting the subsequent conveyance of it; and accordingly we find, that upon the case of a feoffment, where the testator takes back the old us., Lord Hardwicke observed, that the construction must arise from a presumption (adopted by the law) in favour of the heir, that the testator would not have made a new conveyance, without an intention to revoke his will. Vide 3 Atkyns, 748. i Wils. 310. And he distinguishes the cases of a conveyance in fco by way of mortgage, or for payment of debts from it, by considering the testator himself, as having in the nature and purpose of the conveyance drawn the line how far the recocation should go, and plainly shews his intention as to the extent of it. Now, if it be admitted, that the operation of the rule iu couveyances, where the estate remaining in, or resulting to, the testator, is part of the old estate, depends on his presumable intention to revoke his will, I think it will follow that such presumption may be encountered by circumstances of a contrary implication, denoting the testator's intention, that the revocation should not go beyond certain limits, viz. the immediate purposes of the conveyance ; upon the very same principle to which lord Hardwicke referred the distinction of the cases of mortgages in fee, and conveyances for payment of debts. And then whenever there are sufficient arguments of such an intention in the testator, to confine the revocation only to a particular extent, and let the will stand beyond that. It seems, I think, in excluding the presumption of an absolute or total revocation, to deny that operation of the rule which is ascribed only to such legal presumption. The present case is one of those where the fee, limited to the use of the testator in his subsequent settlement, was the reversion, and part of his old use and estate in the lands. And taking it then for granted, as I should within the authority of the earl of Lincoln's case, cited below, that the testator's conveyance of the whole fee in that settlement, and the relimiting the reversion to himself and his heirs, would have left it within the extent of the general rule, if nothing had occurred to shew the testator's intention, to confine the revocation of that settlement to the purposes of a jointure for his wife, and provision for his issue.' Still I think it may be contended, that if circumstances sufficiently demonstratide of such an intention do exist, they should have their operatior, against the effect of the general presumption, opposed by them. Revocations of this sort appear to be grounded on implication or the presumed intention of the testator; but implication or presumption of intention may, it should seem, be rebutted by evidence of a contrary intention, Vide Dougl. Rep. 39 and 40. And where is the difference, whether, the argue ments of such contrary intention are to be collected from the will, or from the subsequent conveyance itself? In the case of mortgages in fee, &c. it is inferred from the purposes of the conveyance. But has it not the same tendency, if founded on expressions in the will, manifestly referring to the intention and nature of the intended conveyance? In the present, the testator soun after having entered into a treaty for marriage, and executed a contract for settling bis estates, so as to secure jointures on his intended wife, and make protisions for the issue of the intended marriage, makes a disposition by his will, of the lands, erpressly confined, in its intended operation, to his leading nu issue, and subject to the jointure or jointures he might there after make upon the woman he might happen to marry. Could there be a more evident allusion to the provisions he had so siipulated to make? Did not this amount to an erception of those intended provișions out of the extent of his will, and consequently imply an affirmance of his intention that it should operate beyond them? Was not this expressly drawing the line of the intended revocation, and neyativing it beyond the provisions intended to be made for his wife and issue by the stipulated settlement ? Could a mortgage in fee, to the amount of three-fourths of the estate, or a conveyance of it 10 trustees to sell for the discharge of debts, and to pay the residue to kimself, amount to a more clear indication of his intention, where he intended the revocation should stop, than this did? If not, the ques țion is, Why the one be less effectual than the other in imposing the limits of the revocation to be effected by it? When the testator dis posed of the lands, in case of his leaving no issue, and subject to the jointure he might make on the wife he might marry, it seems to imply, that he did not intenri the settlement he was about, and had agreco to make, for securing a provision for any such issue, and jointures for such wite, should revoke the disposition so directed to take place in failure of, or subject to them. The circumstances of the recent subsisting articles for making the settlement, may perhaps be said to þare put him in the situation of a sort of trustee for himself of the fee, subject to the stipulated provisions of that settlement, which became actually and absolutely executed in him by the settlement afterwards made. And in this respect the case may be thought to bear a sort of analogy to that of an actual conveyance taken by a person under a contract for the purchase of an estate, which he had devised by will intermediate between the contract and the completion of his purchase, which it has been decided is no revocation of such intervening devise. But abstracted from this view of the case, the reference in the will to the provisions stipulated by the pres vious marriage articles, and the restoration of the devise to an interest in the lands ulterior to, and subject to those provisions, seems to nie to afford such a degree of analogy between it and all the cases of mortgages of the utrole fee and trusts for payment of debts, &c. under the principle to which Lord Hurdwicke referred the exception of those cases from the general rule, in the places I have referred to, that I ratber incline to an opinion, that the present case may, on that ground, in equiry at least, be held to fall within the reason of those cases, and consequently, that the will was not revoked by the settlea ment as to the lands comprised in both, further than as to the stipulated jointures for the wife, and provisions for the issue of the marriage. But though this is the inclination of my opinion, I must cona sess I feel great dissidence in it, as I think it, at all events, a very disputable point.
As to such of the estates included in the will as were not comprised in the settlement, I apprebend the settlement could have no operation to revoke the devise of them, or carry thero to the heir. And as to the rectory of Swinford, il rather seems to me, that it passed by the general words of the settlement, “ of all other the hereditaments of the said sir Thomas Cave, situate within the parish of Swinfördl."
In respect to cases, the principal of those relative to this point are pretty well known
Vide Dister v. Dister, 3 Lev. 108; Lord Lino coln's case, 1 kq. Abr. 411, Show. Cas. Parl. 154; Marwood v. Turner, 3 P.Williams, 103; Darley v. Darley, 3 IVils. 6, and the cases and principles referred to by Lord Hardwicke, in the case of Parsons v. Freeman, above cited, and the reterence in Core's note, 3 P. Vil. liams, 106. The cases ir: m which the inclination of my opinion is deducible, are those which have been beld exce;tions to the general rule: and the principle of them, as stated by Lord Hardwicke, in the said case of Parsons and Freeman, combiner with the supposition that the connequences attributable to what would otherwise be the implicative or presumable intention, are precluded by plain indication of a contrary intention.
CHARLES FEARNE. Bream's Buildings, April 1792.
In the view I have taken of the case, and the consequent inclination of my opinion, as delivered in my above answer to the first quære, I cannot think ii aivisable for the parties to proceed on the idea of the will's being rervhed by a settlement, er engage in the levying fiues to accomplish the arrangements intended under such a supposition. But I think it will be proper to bave the question, upor the operation of the will, first decided, and that, by application to a court of equity on a bill to be filed by Mr. Cave, and uther parties, against the heir and trustees to establish the will, and have the trusts of the terin thereby created, carried into execution, and the legacies paid according to the will. Should the decision be ultimately referred to the operation of the settlement as a legal redocation of the will, I apprehend that point may be deterinined on an issue directed for that purpose by the court of chancery.
April 27, 1792.
II. Remarks on " Additional Observations on the Erercise
of Power of Appointment, &c." WHEN I perused Mr. B.'s second communication, I
was much surprised to find, that from a fear of exceeding the Innits of it, he was prevented froin (doing what I think would have been of considerable service) reviewing the different opinions on the subject. I hope some one of your numerous Correspondents will gratify your readers with an examination of the various arguments, and an elaborate decision of this point, which has displayed the hurmourous as well as the serious talents of many of your Correspondents.
Mr. B. observes, that“ the legislature in the siat. of 27 H. 8, intended to unnihilate this sort of limitations as distinct