born, the will was utterly destroyed. And this confirmed the idea that these decisions did not proceed on the intention of the party, but on a tacit condition annexed to the will itself when made. That our law also took notice of posthumous children. For these reasons therefore, standing on former decisions, and not extending them beyond the rule established and incorporated into our law, he was of opinion for the plaintiff. But disclaimed paying any attention to the declarations of the husband, because letting in that kind of evidence would be in direct opposition to the statute of frauds; which was passed in order to prevent any thing depending either on the mistake or the perjury of witnesses. But when the act intended to guard against frauds and perjuries, it left the courts at liberty to take into consideration those circumstances which are not liable to prevarication. Mr. Just. Buller said, the only question was, whether a child in ventre sa mere, be or be not in the same situation as a child actually born, and that there was no distinction between them. That he had looked into the Register's book for the case of Browne v. ante, § 43. Thompson, where it did not appear that the child was born during the parent's life. That that case was first heard before the Master of the Rolls, who decreed a revocation of the will; though that decree was afterwards reversed by Lord Keeper Wright, from the peculiar circumstances of the case. They must take it that in that case the child was not born during the devisor's life; if so, the opinion of the Master of the Rolls went the full length of deciding the case and he agreed that that opinion was sound law. The Court was unanimous that the will was revoked. c. 2. 48. Although it be fully established in the pre- Treat of Eq. ceding cases, that marriage, and the birth of a child, B. 4. P. 1. operate as an implied revocation of a man's will; yet Jackson v. it has never been decided that either of those cir. Hurlock, Amb. 487.' cumstances singly, as a subsequent marriage, or the subsequent birth of a child, will have that effect. 49. J. Pierson devised all his real estates to a Kennebel v. trustee, in trust to pay an annuity to Mary Simpson, 2 East, 530. Scrafton, and in case he should have any children by her, to provide for their maintenance, and to raise 30007. for them at the time of making the will the testator had one child by M. Simpson; afterwards he married her and had three children, and died without altering his will. It was held that the will was not revoked by the subsequent marriage, and birth of children; because there was not that total change in the situation of the family, and that total destitution of provision for those who ought to be the objects of the testator's care and protection (although the provision was made for them under a different character), which could vacate the will on the ground of a supposed tacit condition, that it should be void upon a total change 1 Ves. & B. in the situation of the testator's family, and a total want of provision for the family so newly circumstanced; or upon the ground of a presumed intention to revoke, according to any rules of law hitherto recognized on this subject. 465. ì Ves & B. 50. It has been determined lately, that where a Sheath v. widower, having a son and two daughters, made his York, will, by which he gave all his real estate in trust for 390. those children, and afterwards married, and had other children, his will was not thereby revoked. For such revocation would operate only to let in the eldest son to the whole of the estate, which he had by the A Woman's will divided between that eldest son, and the other children of the marriage. 51. The marriage of a woman operates as a revoWill revoked cation of a will made by her prior to such marriage; by Marriage. for if the wife dies before her husband, it can have no operation. The making of the will being only the inception of it; as it does not take effect till the death of the devisor. But if in a case of this kind the wife survives her husband, the will is revived, and takes effect as if she had never been married. Forse v. Hembling, 4 Rep. 61. 2 P. Wms. 625. Hodsden v. Lloyd, 2 Bro. R. 534. Alteration of the Estate. 52. It was established as a rule, long before the statute of wills, that any alteration of the estate in lands devised, by the act of the devisor, after the publication of his will, operated as an implied revocation of such will. This doctrine is founded on three reasons: 1°. On the favour which the law shows, in every instance, to the heir. 2°. On a prinante,c.3.§31. ciple already stated, that a devisor must not only be actually seised of the lands, at the time when he makes his will, but must also continue to be so seised thereof, till the time of his death; and, 3o. Because any alteration of the estate devised, is held to be evidence of an alteration in the intention of the devisor. Alienation to 53. An actual sale or disposition of the estate by the devisor, after he has made his will, operates as a revocation; for in such case the testator does not die seised; and his alienation is undoubted evidence of an alteration of intention, in conformity to the rule of the civil law, from which this doctrine was Vin. ad Inst. probably derived; est enim rei legatæ alienatio species Lib.2.tit.20. tacitæ ademptionis, quoniam hoc ipso, quod testator rem in alium transfert, recedere a priori voluntate 12. videtur. Hardcastle, 54. A person devised all his manors, messuages, Sparrow v. and hereditaments to trustees, in trust for his nephew Amb. 224. and his issue, in strict settlement. The testator 3 Atk. 799. 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. I. It was decreed by Lord Hardwicke that the conveyance of the advowson was a complete revocation of the devise of it. Bro. R.401. 55. Eliz. Milner devised a house to her sister Arnold v. Catherine for life, and after her decease, devised the Arnold, same to trustees, in trust to sell. The testatrix 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. 56. Even an agreement or covenant to convey Contract for lands, which have been previously devised, will Sale. operate in equity, though not at law, as a revocation of such devise. Wager, 57. A person devised six houses to his wife; after- Rider v. wards the testator, by articles, covenanted, in consider- 2 P. Wms. ation of the marriage of his eldest daughter, to settle 328. a moiety of his real estate on her. Lord King held, that though this was but a covenant, and therefore did not, at law, revoke the will; yet it being for a valuable consideration, was, in equity, tantamount to Knollys v. a conveyance; and consequently a revocation of the 7 Ves. 558. will. Alcock, 2 P. Wms. 58. In a subsequent case it is said by Lord King, Cotter v. that though a covenant or articles do not, at law, Layer, revoke a will, yet if entered into for a valuable con- 622. sideration, amounting in equity to a conveyance, they must consequently be an equitable revocation of a will. Knollys v. 5 Ves. 648. Vawser v. 2 P. Wms. 626. An intended 615. 3 Atk. 73.803. 59. In a modern case Lord Rosslyn held, that an agreement for a partition operated as a revocation of a devise; and said, that where an estate was devised specifically, and was afterwards sold by the testator by a contract executory, the estate went from the devisee. And Sir Wm. Grant held, that a covenant to surrender copyhold estates operated as a revocation in equity of a prior will. 60. In cases of this kind, the legal estate passes to the devisee by the will, but he is bound to convey it to the person claiming under the equitable agreement. 61. Even an intended alteration of an estate* previously devised, which fails of taking effect, for want of some formality in the instrument, has been held to operate as a revocation. Thus a feoffment 1 Roll. Ab. without livery, and a bargain and sale not enrolled, have been held to be revocations of prior devises ; because such intended alienations were considered as proofs of an alteration of intention. Shove v. 5 Term R. Alienation to the use of 62. It was certified by the Court of King's Bench to the Court of Chancery, in a modern case, that a deed intended to operate as an appointment to uses, but not sufficient for that purpose, may have the effect of revoking a will, if the party appear to have had that intention. 63. An alienation to a trustee, without any intenthe Testator. tion of departing with the estate, and though the alienor take back the old use, has been held to operate as a revocation of a prior devise: because in such cases there is an interruption of the seisin; and also because a presumption in favour of the heir at law arises from the alienation, that there was an alteration in the intention of the testator. Dyer, 143 b. 64. Thus it was determined in Michaelmas, 44 Edw. III., that where a man seised in fee of |