lands, devisable by custom, made his will, he having then two sons, and upon their death, aliened the land in fee, and took back an estate in fee; the will was thereby revoked. Show. Parl. Ca. 154. 65. Lord Lincoln made his will, by which he Lincoln's Case, 1 Ab. devised all his estates to the person to whom his title Eq. 411. was to descend: afterwards conceiving that he should marry a certain lady, though the lady never had any such intention, he conveyed his estate by lease and release to trustees, in consideration of his intended marriage, to the use of himself and his heirs, until the marriage should take effect, and then, as to part, for his intended wife, &c. No marriage ever took place, and Lord Lincoln died. It was decreed that this conveyance operated as a revocation of the will: and the decree was affirmed in the House of Lords. It is said that the Judges 3 Atk. 803. were equally divided in this case; and that all the 4 Burr. 1940. Doug. 695. Lords voted. Lord Mansfield has said of it,-"The absurdity of Lord Lincoln's case is shocking; however, it is now law." Ca. 433. 66. A. by his will, dated in 1708, gave several Pollen v. pecuniary and specific legacies, and then gave all his Huband, ¡Ab. Eq.412. real and personal estate to B., on condition he took 7 Bro. Parl. the name of A. 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. It was decreed that the lease and release was a revocation of the will; and the decree was affirmed in the House of Lords. Alienation the Devise. 67. An alienation made for the sole purpose of to strengthen strengthening or giving effect to a previous devise, has notwithstanding been held to operate as a revocation; on account of the interruption of the seisin; for in such a case no alteration of intention could be presumed. Hussey's Case, Moo. 789. 1 Roll. Ab. 614. Lutwich v. Mitton, 1RollAb.614. Hicks v. Amb. 215. Tit. 32. c. 12. § 6. Fine and Dister v. 3 Lev. 108. Marwood v. 3 P. Wms- 68. A bastard made his will, and thereby devised a certain manor. He afterwards made a feoffment of the same manor, to the use of such persons, and for such estates, as he had already declared by his will. It was adjudged that this feoffment was a revocation of the will. 69. A person covenanted by indenture to levy a fine, to the use of such persons as he should nominate by his will. He then made a will, by which he devised the lands to certain persons; and afterwards levied a fine in pursuance of the covenant. It was agreed that the fine operated as a revocation of the will; but in this and the preceding case, the will was held to be a good declaration of the uses of the fine. 70. Where a person who has made a will of his lands, afterwards levies a fine, or suffers a recovery of them; these acts will operate as a revocation of the will. 71. A tenant in tail made his will, whereby he devised certain lands; and afterwards, by bargain and sale enrolled, conveyed the same to a tenant to the præcipe, against whom a common recovery was suffered, with voucher of the tenant in tail, to the use of himself in fee. It was determined that the recovery operated as a revocation of the will. 72. Sir H. Turner being seised of a considerable estate in tail male, with remainder to himself in fee, and having no son, made his will, by which he devised his estate to his nephew, (who was not his heir,) in strict settlement. Afterwards Sir H. Turner suffered a common recovery of this estate, to the use of himself in fee. Upon the back of the will was written, this is my will; and afterwards, but not now so intended. It was determined that the recovery, and the declaration of the uses of it to Sir H. Turner and his heirs, being subsequent to the will, and inconsistent therewith, as declaring the estates should go to his heir at law, and not to his devisee, operated as a revocation of the will. And it was observed that a common recovery, as it is a solemn conveyance upon record, and stronger than a feoffiment, must needs be a revocation: the recovery being suffered by the tenant in tail, plainly gains an absolute fee, derived out of the estate tail, and which fee was never devised; consequently it must be even stronger than the case where a man, having lands, devises them, and afterwards makes a feoffiment of them; though to the use of himself and his heirs, and though this be the old use, yet according to the several cases in 1 Roll Ab. 614., it is a revocation; and the case of Dister v. Dister was cited as exactly in point. Freeman, 3 Atk. 741. 73. It was agreed by marriage articles, that the Parsons v. wife's estate, whereof she was tenant in tail, should be conveyed to the husband in fee. Subsequent to the marriage, the husband devised those lands, and afterwards the hushand and wife suffered a recovery of them, to such uses and for such estates as they should jointly appoint; and in default of appointment, to the use of the husband and his heirs. No appointment was made. It was decreed by Lord Hardwicke, that the will was revoked by the recovery. And he said,-"It is MS. Rep. admitted that if the testator had been seised in fee, Darley v. Langworthy, Amb. 653. 3 Wils. R. 6. at the date of the will, and had afterwards suffered a great variety of cases, and nice and artificial dis- 74. Vincent Darley being seised of several real estates for his life, with the reversion in fee in himself, made his will, by which he devised them to Mr. Langworthy in strict settlement; some years after, the testator suffered a common recovery of the estates devised, to the use of himself in fee. The question was, whether the will was revoked by the recovery. The Court of Chancery ordered a case to be stated for the opinion of the Court of Common Pleas, upon the following question:-" Whether the deed executed, and the recovery suffered by Vincent Darley, was a revocation of the will." The case having been fully argued before that Court, Lord Ch. J. Wilmot said, there were a great many determinations touching the revocation of wills, and very nice artificial distinctions were made in favour of heirs at law. It seemed to be clear, from the latest determinations upon the subject, that if a man seised in fee, made his will and devised; and afterwards conveyed by recovery, fine, feoffment, release, &c., and took back the same, or a different estate, it should amount to a revocation. The reason was, that it must be presumed he intended to alter his will. The Court certified their opinion, that the deeds executed and the recovery suffered by Vincent Darley, were a revocation of his will. Lord Camden 3 Bro. Parl. decreed accordingly; and the House of Lords affirm. Ca. 359. ed the decree, as to this point. § 23. 75. In the case of Selwin v. Selwin, which has ante, c. 3. been stated in a former chapter, the will, though made before the return day of the writ of entry, on which the recovery was suffered, and to which it had rela- Tit. 36. tion, was held not to be revoked by the recovery; because the bargain and sale and recovery ought to be considered as one transaction, and as constituting one whole, by reference to its inception. 76. It was held by the Court of Common Pleas, Doe v Dilnot upon a motion for a new trial, that where a testator Bos. & Pull. levied a fine to such uses as he should appoint, by 401. deed or will; a prior will was thereby revoked. N. R. vol. 2. sistent with 77. The doctrine of presumptive revocations Any Conveyappears to have been carried much too far, and has ance inconbeen disapproved of by the ablest Judges of modern the Devise. times. Lord Mansfield has observed" That 3 Burr. 1491. 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." And on another occasion he Doug. 722. said," All revocations which are not agreeable to 2 Hen.Black. Rep. 523. the intention of the testator, are founded on artificial and absurd reasoning." 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 |