equity. In Parsons v. Freeman, which he had looked into very attentively, Lord Hardwicke established this principle, that wherever the estate is modified in a manner different from that in which it stood at the time of making the will, there is a revocation; but wherever the testator remains with the same estate and interest exactly, and disposable by the same means, without any fresh modification, there is no revocation, and the testator will be taken to have passed to the devisee the same interest he acquired, though the one may be legal, the other equitable.* Upon the whole he considered that the devisor had nothing but the reversion in fee; that his acquiring the legal interest made no difference; and that the person to whom the estate was conveyed, was a trustee for the purposes of the will. 90. It has been determined upon the same principle, that where a person devised a copyhold estate, and was afterwards admitted to it; this did not operate as a revocation of the devise. 91. B. North being seised in fee of a copyhold estate, surrendered the same, in consideration of marriage, to the use of himself and his heirs, till the solemnization of the marriage; then to his own use for life, remainder to his intended wife for life, remainder to the children of the marriage, remainder to the said B. North in fee. The marriage took effect, and the next year, 1725, B. North surrendered the premises to the use of his will. In 1743, B. North made his will, by which he devised his copyhold estates to his * In the cases of Brydges v. Chandos, and Goodtitle v. Otway, the conveyances did not pursue the articles, but went beyond them. wife in fee. In the year 1751, B. North was admitted to the uses of the marriage settlement. It was resolved by the Court of King's Bench, that this admission did not operate as a revocation of the will. 92. In consequence of this doctrine it is held, that Nor the the mere change of a trustee does not operate as a Change of revocation of a devise. Trustee. Doug. 718. 93. W. Watts devised all his real estates to trustees Watts v. Fullarton, upon certain trusts; he afterwards made a codicil, reciting that, since the publication of his will, he had contracted for the purchase of certain lands; and thereby directed the trustees and executors named in his will to pay the purchase money; and that the said purchased premises should be conveyed to the same uses as he had declared concerning his other Afterwards the testator himself completed the purchase, and took a conveyance of the estates to trustees, in trust for himself and his heirs. The question was, whether the conveyance of the new purchased lands to the trustees, subsequent to the codicil, was not a revocation; the testator, at the time of making the codicil, having only a trust estate, and the vendor being a trustee for him; so that, before his death, the legal estate was conveyed to other estates. trustees. Lord Bathurst decreed there was no revocation; relying much on the general proposition laid down by Lord Hardwicke in Parsons v. Freeman. ante. 94. Sir J. Gibbon having mortgaged his estates Doe v. Pott, in fee, made his will, by which he devised them. Doug. 709. Afterwards he paid off the mortgage, and took a ༔ conveyance of the estate to a trustee for himself. The Court of King's Bench held, that this being no Nor a Partition. Risley v. Baltinglass, T. Raym. 240. Webb v. Temple, 1 Freem. 542. Luther v. more than a bare change of a trustee, the will was not revoked. 95. A partition between tenants in common does not operate as a revocation of a prior devise even though such partition be corroborated by a fine. 96. One Temple and two others were tenants in common; Temple made his will in writing of his third part; afterwards, by indenture and fine, a partition was made between the tenants in common; and if this partition was a revocation of the will, was the question. It seemed to all the Barons, Montague, Littleton, Thurland, and Bertie, that it was not any revocation. But judgment was not given, because the plaintiff obtained leave to discontinue his action. 97. Dorothy Kirby, by her will, taking notice that Kirby, 8 Vin. she was tenant in common with another person, Ab. 148. 3 P. Wms. 169. devised her moiety to trustees. She afterwards, by indenture between her and the other tenant in common, covenanted to levy a fine of all the premises, and declared the uses thereof, as to certain farms, &c., being one moiety, to Dorothy Kirby and her heirs; and as to the other farms, &c. being the other moiety, to the other tenant in common and her heirs; and a fine was levied accordingly. A question having arisen whether this deed and fine operated as a revocation of the will, the Lord Chancellor referred it to the Judges of the Court of King's Bench; who certified their opinion, that they were not a revocation; with which the Chancellor agreed, and decreed accordingly. other Things. 98. But where a partition is made, and a fine is Unless it levied, not merely to establish the partition, but also extends to for another purpose, and the estate in the land is altered; it will then operate as a revocation of a former devise. Tickner, 99. Henry and Robert Tickner being seised of an Tickner v. estate in gavelkind, Robert devised his undivided cited 3 Atk. moiety to his wife in fee; afterwards, by deed of 742. partition and fine, all the gavelkind estate which Robert had devised, was allotted entirely to Robert; to such uses as he should appoint, and in default of Vide 7 Ves. appointment, to him in fee. Lord Ch. J. Lee, after 8 Ves. 281. mature deliberation, held this transaction to be a 10 Ves. 249. revocation of the will. 564. Revocations. 100. A conveyance to revoke a will, must be of the Of Partial whole estate, and must be co-extensive with the disposition made by the will; for if it is but of a part, it affects the will no farther than that part goes: if it is of a particular interest only, it will not operate as a revocation of the rest; and it has been determined, upon this ground, that a lease made of lands, already devised by will, only operates as a partial revocation, or a revocation pro tanto, of such will. 101. A person devised his lands to his eldest son, and afterwards made a lease of them, for thirty years, Hodgkinson v. Whood, Cro. Car. 23. 1 Vern. 97. Coke v. Cro. Ja. 49. to his second son, to begin after his death. It was resolved, that this lease only operated as a partial Bullock, revocation of the will, quoad the lease; for both might well stand together. But if the lease had been Parker v. made to the devisee; then it would have been a 3 Bro. Parl. revocation; because the estates would have been Ca. 12. inconsistent with one another. Lamb, 102. Although a mortgage in fee, made after the Hall v. publication of a will, is a revocation of such will at 1 Vern. 329. Dunch, 3 Atk. 805. 2 P. Wms. 334. Harkness v. Prec. in Cha. 514. Vernon v. Jones, Prec. in Cha. law ; yet, in equity, it is only a revocation pro tanto, and the equity of redemption shall go to the devisee. 103. But if lands are devised to a person in fee, and the testator afterwards mortgages them to the devisee, it is a revocation in toto, being inconsistent with the devise. 104. A conveyance in fee to trustees, for raising money to pay debts, being made for a particular purpose, will only operate as a revocation pro tanto of Ogle v. Cook, a prior devise, so far as relates to the payment of the debts, and no farther. 32. 2 Bro. R.592. 7 Bro. Parl. Ca. 517. 105. It is observable, that in the above cases, the whole fee simple being limited to the use of the mortgagee or trustee, the grantor parted with his whole estate at law, without taking back any legal estate or use to himself; and therefore, at law, nothing remained upon which the will could operate, or which could descend to the heir. In these cases, therefore, nothing being left to descend at law, the question has been, to whom the equitable interest should belong; and the courts of equity have held these cases to be exceptions from the general rule of law, which they ordinarily follow, on these grounds, as stated by Lord Hardwicke, namely, that although the conveyance is of the fee simple of the land, yet in the consideration of a court of equity, the interest conveyed is merely a personal interest, having no quality of a real estate; and that therefore the testator is to be deemed, in equity, to have created only a chattel interest, as if he had created a term for years, which would have been a revocation pro tanto only at law. All that remained to the grantor was a right of 3 Ves. 685. redemption, and that right of redemption did not pass by the conveyance. 3 Atk. 805. Temple v. * |