(q) Christopher v. Christopher, Scacch. 6 Jul. 1771; Spragge v. Stone, at the Cockpit, 27 Mar. 1773, by Wil

and Finch v. Fordham, 1 Addams, 78.) But, the obliteration of a codicil may have the effect of cancelling an interlineation in a will, if it clearly appear that the testator, by obliterating the codicil, intended to renounce its object, and not merely the mode of effecting it. (Utterson v. Utterson, 3 Ves. & Bea. 123.) And as a codicil is, prima facie, dependent on the will, cancellation of the will is, generally, an implied revocation of the codicil: there have, indeed, been cases where a codicil has appeared to be so independent of, and unconnected with, the will, that, under circumstances, the codicil has been established, though the will has been held invalid. Such cases have turned upon plain intention, repelling the legal presumption, and showing that the testator designed to leave the codicil operative, notwithstanding the revocation of the will. (Medlycott v. Assheton, 2 Addams, 231.)

A second will being no revocation of a former one, further than as it is inconsistent therewith, (Harwood v. Goodright, Cowp. 90; S. C. in Dom. Proc. 7 Br. P. C. 349, fol. ed.,) it will not be enough to prove that a second will was made, without producing it, and showing it to be not merely different from, but incompatible with, the former. Otherwise, the fraudulent suppression of a second will, which was intended merely as a confirmation, might be made to operate as a revocation. (Hitchins v. Basset, 3 Mod. 208, affirmed in Dom. Proc. Show. P. C. 149.) It would be an untenable position, to maintain that a devisor, by making a second will in terms large enough to include all his property, must, necessarily, have meant to revoke a former will:

mot, De Grey, and Parker. See pag. 502.

to have this effect, it must be shown that, the disposition of the property made by the two wills is inconsistent. It would be an assumption of what is not a necessary consequence, to say that, by his second will, the testator must have intended either to confirm, or to revoke, the dispositions contained in the first will: there is a third proposition, he might not have contemplated to do either, but to make a mere collateral disposition. (Thomas v. Evans, 2 East, 494.)

Certainly, where a testator has by a codicil expressly revoked the whole of a previous devise, and has declared over again all the trusts, it is in his new disposition alone that the testamentary title to his property must be sought. There may be strong ground for supposing, that it was by a mere slip he omitted to dispose of part by the codicil as he had done by his will; but this omission no court can supply. (Holder v. Howell, 8 Ves. 103.)

However, where an instrument revoking bequests, bears, upon the face of it, evidence that it was entirely grounded upon misinformation or mistake, the bequests made by the will remain good. (Campbell v. French, 3 Ves. 323. See 1 Hovenden on Frauds, 296, et seq., where the doctrine of revocation is treated more at length.)

(11) Revocations of wills disposing of lands, may be implied by operation of law, notwithstanding the statute of frauds, and without reference to the intent of the testator. (Cave v. Holford, 3 Ves. 653; Brydges v. Duchess of Chandos, 2 Ves. jun. 430.) Thus, the least alteration or new modelling of the devised estate, subsequently to the will, operates as a revocation. (Sparrow v. Hardcastle, 3 Atk. 802;

Decisions on the construction of the statute.

Williams v. Owens, 2 Ves. jun. 599.) And if a devisor, after making his will, puts the whole interest in the lands devised out of himself, by any conveyance whatever, it is a revocation, although he immediately takes back the very same estate; (Parsons v. Freeman, 3 Atk. 747; Vawser v. Jeffery, 2 Swanst. 274. See ante, p. 357, note (13) to chapter 21;) or, although without express limitation, it results to him. (Harmood v. Oglander, 6 Ves. 222; Cave v. Holford, 3 Ves. 659. See ante, p. 296, with note (1) to chapter 20.) Upon the same principles, a binding contract for the sale of lands devised is, in equity, as much a revocation as a conveyance of the lands would be at law. (Cotter v. Layer, 2 P. Wms. 624; Attorney General v. Vigor, 8 Ves. 289.) The will, it seems, would not be set up again, even by an abandonment of the contract in the testator's lifetime. (Bennet v. Earl of Tankerville, 19 Ves. 178.)

It should be observed, that, if the owner of an unqualified equitable fee devises it by will, and afterwards takes a conveyance of the unqualified legal fee, this is no revocation, because the conveyance was incident to the equitable fee; just as a partition is no revocation, because incident to the estate of tenants in common; (see ante, p. 185;) though, as before observed, any qualified conveyance of the legal fee, or the least addition to the mere object of partition, however slight the modification, would operate a revocation. (Ward v. Moore, 4 Mad. 372; Rose v. Conynghame, 11 Ves. 554; Knollys v. Alcock, 7 Ves. 564; Rawlins v. Burgess, 2 Ves. & Bea. 387.)

If a conveyance be intended only for a particular limited purpose, (supposing that purpose is merely to give

a security for money, Vawser v. Jef. fery, 2 Swanst. 273; Brain v. Brain, 6 Mad. 228,) this will not revoke a previous devise of the estate so conveyed, further than is necessary for that express purpose. (Parsons v. Freeman, 3 Atk. 748.) Upon this ground, a devise of real estate is not held to be revoked merely because a commission of bankruptcy has issued against the testator; for, the bankrupt laws take the property out of the bankrupt only for the purpose of paying his creditors; and from the moment the debts are paid, the assig nees are mere trustees for the bankrupt. (Charman v. Charman, 14 Ves. 585.) Thus, also, if a person mortgage an estate which he has devised, although such mortgage be not merely by lease and release, but by fine, this, in equity, will be a revocation only pro tanto. (Casborne v. Scarfe, 1 Atk. 606; Rider v. Wager, 2 P. Wms. 334.) Even a mortgage in fee to the devisee, does not revoke the devise. (Baxter v. Dyer, 5 Ves. 664.) Upon similar reasoning, a subsequent lease does not revoke, though it qualifies, a previous devise of the property. (Lambe v. Parker, 2 Freem. 284; Doe v. Wegg, 6 T. R. 710.) The case would be the same, although such lease were made to the devisee himself; for the devisor might naturally choose to reserve a rent during his lifetime: but this reason would fail if the lease were made to commence after the testator's death ;— that would be a revocation of the devise in toto, for the two dispositions would be altogether inconsistent. (Coke v. Bullock, Cro. Jac. 49; Hodgkinson v. Wood, Cro. Car. 24.)

A feoffment of lands, previously devised, may fail, for want of due livery of seisin; yet, the intent of the feoffor being apparent, the devise will

be revoked. (Ex parte the Earl of Ilchester, 7 Ves. 370.) The same rule holds as to a bargain and sale, which, though not enrolled before the testator's death, is a revocation. (Sparrow v. Hardcastle, 3 Atk. 802; Vawser v. Jeffery, 2 Swanst. 274.) Even a grant, which, from the incompetency of the party in whose favour it was made, cannot take effect, may operate as a revocation of a previous will, disposing of the same subject; (Beard v. Beard, 3 Atk. 72;) and if, after a devise, a man convey his freehold estate, by lease and release, to trustees, to the use of himself and his heirs until his marriage, and, after his marriage, to himself for life, with the usual remainders; though the party should die before marriage, this will amount to a revocation. (Earl of Lincoln's case, 2 Freem. 202, confirmed on appeal, in Dom. Proc. Show. P. C. 154; Arthur v. Bockenham, FitzGib. 241; and see Doe v. Pott, 2 Dougl. 722; Goodtitle v. Otway, 7 T. R. 220.)

A conveyance, or other instrument, obtained by such fraud and covin as would render it a nullity even at common law, cannot, of course, revoke a will; (Hicks v. Morse, Ambl. 215;) but, in what cases a deed, though liable to be impeached in equity, and ordered to be delivered up as improperly obtained, may, notwithstanding, operate a revocation, is, perhaps, hardly settled. Where the party executing thought that by such conveyance his will was revoked, and where a re-conveyance would be necessary to remedy the fraud, Lord Alvanley was of opinion that the impeached instrument, though set aside and made ineffectual for other purposes, would still be a revocation. (Hawes v. Wyatt, 2 Cox, 268.) Lord Thurlow thought differently, when the same case was

brought before him by appeal; (see 3 Brown, 157;) Lord Alvanley, however, remained firm in his opinion; (Harmood v. Oglander, 6 Ves. 215; Ex parte the Earl of Ilchester, 7 Ves. 374;) and Lord Eldon appears to have inclined in favour of the same doctrine. (Attorney General v. Vigor, 8 Ves. 283.)

Generally speaking, a devise of a leasehold interest is revoked, if, after such devise, the testator surrenders the old lease and takes a renewal; (Marwood v. Turner, 3 P. Wms. 170; Rudstone v. Anderson, 2 Ves. sen. 419; Hone v. Medcraft, 1 Br. 263; Abney v. Miller, 2 Atk. 597;) but the context of the will may, it seems, control this construction: (James v. Dean, 11 Ves. 390, and 15 Ves. 239; Carte v. Carte, 3 Atk. 176; S. C. Ridgw. 222; Stirling v. Lidyard, 3 Atk. 199) the question in these cases turns upon the intention of the testator, to be collected from the language of his will. (Slatter v. Noton, 16 Ves. 201; Colegrave v. Manby, 6 Mad. 84; S. C. on appeal, 2 Russ. 252.)

Where a single man, after devising his whole estate, marries, and has issue, a revocation of the will has been presumed, where the devisor has left his widow and issue unprovided for; (Kenebel v. Scrafton, 2 East, 542; Wilkinson v. Adam, 1 Ves. & Bea. 465; Moore v. Moore, 1 Phillim. 433; Wright v. Surmuda, 2 Phillim. 267, n. ;) this presumption, however, like all others, may be rebutted. (Gibbens v. Cross, 2 Addams, 455.) Both the principles and practice apply equally in favour of a posthumous child. (Doe v. Lancashire, 5 T. R. 59.) But it rather seems, that neither marriage alone, nor the birth of children alone, will, without other special circumstances, revoke a

(s) Freem. 486; 2 Ch. Cas. 109; Pr. Ch. 185.

will. (Shepherd v. Shepherd, 5 T. R. 52, n; Doe v. Barford, 4 Mau. & Sel. 12. See, however, Johnstone v. Johnstone, 1 Phillim. 467, 474.)

Of course there could be no good ground for presuming that a will of real estate was revoked by the subse. quent marriage of the testator, who was at the time he made such will, a widower having children, of whom one was his heir apparent. In such case, to hold the will revoked as to the real estate, on account of the birth of children of a second marriage, would only have the effect of letting the eldest son by the first marriage into the whole. (Sheath v. York, 1 Ves. & Bea. 397; and see 7 Ves. 366.) But, where a testator, after having made a provision by will for children by his then subsisting marriage, becomes a widower, and afterwards marries again, and has a family by his second wife; the ecclesiastical court may, perhaps, on reasonable grounds, declare the will revoked as to the personal estate, thereby letting in the after-born children to participate with those of the first marriage. (Hollway v. Clark, 1 Phillim. 342; Emerson v. Boville, 1 Phillim. 344. See, however, Thompson v. Shepherd, 2 Cox, 165, 168; Johnstone v. Johnstone, 1 Phillim. 472. It is at present, (May, 1836,) under the consideration of our legislators whether marriage shall not, in all cases, operate as a revocation of a previous will.

(12) Mr. Christian, in his note upon the text, says, "I conceive that writing the name at the beginning would never be considered a signing according to the statute, unless the whole will was written by the testator himself: for whatever is written by a stranger after the name of the testator, affords no evidence of the testator's assent to it, if the subscription of his name in his own hand is not subjoined." [See Coles v. Trecothick, 9 Ves. 248; Morison v. Turnour, 18 Ves. 183; Stokes v. Moore, 1 Cox, 223.— ED.]

(13) Mr. Christian observes, that "it has been determined to be in his presence, if he is apprised at the time of the attestation of the witnesses, and was in a situation from which he might have seen the witnesses subscribe their names. As in a case where the testator's carriage was drawn opposite the windows of an attorney's office, in which the witnesses attested the will, this was clearly determined to be in the testator's presence. 1 Bro. 99. [See Brodrick v. Brodrick, 1 P. Wms. 239; Doe v. Manifold, 1 Mau, & Sel. 296.] The object of this requisition in the statute is, to prevent the testator and the witnesses from being imposed upon by the substitution of another instrument, or a fabricated will. Hence the attestation of a will is void, if at the time the testator is in a state of insensibility. (Doug. 229.)"