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degree of uncertainty. If we look to the judgment and certificate", it is plain that this point cannot be considered as judicially decided by this
Lord Kenyon indeed observed, that even supposing the appointment made in that case to be an inadequate conveyance for the purpose for which it was intended, still if it demonstrated an intention to revoke the will, it amounted in law to a revocation (5). He added, that if it were necessary to decide the point, he did not see why it might not operate as a grant of the reversion. But although the late Chief Justice seemed clearly to be of opinion, that a void appointment would have the effect of revoking a prior disposition by will of the same property, such effect was not, as far as appears by the report, at all adverted to by the other judges, and in the certificate mention was only made of the operation of the deed as a grant of the reversion, or as a covenant to stand seised to uses (6).
The failure of the appointment in the case of
5 T.R. 310.
(5) In the cases of feoffment without livery and bargain and sale without inrolment, the instrument itself is complete, and there is no intrinsic defect in it, but something subsequent is wanting to its specific operation. Between these cases therefore, and that of an appointment infirmally executed, or without authority, there is a difference ; the informity in this latter case being in the instrument itself.
(6) See the observations made upon this case by Lord Alvanley, in the important case of the Earl of Ilchester, 7 Vez. jun. 374.
Shove v. Pincke arose from the defect of a power to make it, the power originally reserved having been exercised without a fresh reservation (7), but there does not appear to be any sound distinction between • such a case and one wherein the failure happens by reason of an omission of
any ceremony, made necessary by the person creating the power, to its valid execution. Supposing the revocation to be produced by inference of intention, it is plain that the failure, whether it arise from one cause or the other, affords an equal inference of intention (8).
sons under dis
It has been long a settled point, that a grant of grants to permade to a person incapable of taking under it, may abilities. nevertheless operate as a revocation of a will. Thus, where a mano, after having made his will in November, 1739, and thereby given all his real and personal estate to his brother, by a deed poll made in November, 1740, gave and granted to his wife all his substance which he then had, or thereafter might have, it was decreed that the grant was void, because the law would not permit a man to make a grant or conveyance to his wise in his life-time; neither would
* 3 Atk. 72. Beard v. Beard.
(7) For this point see the leading case of Heli v. Bond, 1 Eq. Ca. Abr. 342.
(8) The instrument endeavoured to be set up in Clymer v. Littler, 3 Burr. 1244, had no definite legal character, or specific tendency, and was therefore insufficient to ground any inference of intention, besides that it laboured under a suspicion of forgery.
a court of equity suffer a wife to take the whole of a husband's estate beneficially, in his life-time, for it could not be in the nature of a provision, when it comprehended all the husband was entitled to. Yet as being an act inconsistent with and repugnant to the will, though not strictly legal, it amounted to a revocation. It produced, therefore, an intestacy as to the legacies: and though the appointment of the brother as executor remained unrevoked, yet the revocation of the legacies given to him made him a trustee in equity for the next of kin.
In the same manner a subsequent devise to a person incapable of taking under it is a revocation of a prior will; as was determined in the case of Roper 0. Radcliffe', in the House of Lords, where lands were given, by the second will, to a papist. And the same effect has been adjudged to wills devising an estate to the poor of a parish, and to a corporation".
But in these cases of invalid instruments it does not seem to be so correct a construction of their operation, to ascribe their revoking efficacy to the indication they afford of an intention to revoke, as to the indication they afford of an intention to do
' In dom. proc. 1 Bre. P. C. 450. 10 Mod. 233. 2 Abr. Eq. Ca. 771.
& Frenche's case, cited in Montague's case, Vin. tit. Der (0) 4. and 10 Mod. 94.
! Vin. tit. Der. (0) 5.
that which by a positive rule of law is an act of revocation (9). For unless the act if done so as to be effectual to its purpose would have the effect of revoking, an ineffectual attempt to do the act could not produce such a consequence; and, as it will appear hereafter, this effect of these acts themselves, when executed completely, cannot for the most part be satisfactorily explained on the principle of intention.
Acts fraudulently done, or procured to be done.
Where a deed is void as being covenously made, it seems clearly held to be incapable of operating as a revocation, for it is a complete nullity. And, in a court of equity, a deed which has been obtained by fraud or by compulsion has, in a case before Lord Thurlow, been held equally inoperative against a subsisting will. His Lordship observed, that the
(9) Lord Hardwicke expresses this opinion in the case of Hick 0. Mors, Ambl. 216, and Abney v. Miller, 2 Atk, 598, and again more pointedly in Sparrow v. Hardcastle, of which the reader will find an accurate note in 7 T. R. 416, where his Lordship says that “ these imperfect conveyances are revocations, because they import an intention of altering the condition of the estate."
reason against admitting such an instrument to have the effect of a revocation was strong in that court, since when application is made by the proper party it will be ordered to be delivered up, and where a deed is ordered to be delivered up it is implicitly declared to be no deed (1).
The case just cited of Hawes v. Wyatt was first decided by the late Lord Alvanley, when Master of the Rolls, against the revoking effect of the deed, and his decision was reversed, upon appeal, by the late Lord Chancellor Thurlow. It appears, however, that Lord Alvanley, when, as Lord Chief Justice of the Common Pleas, he sat with the Chancellor in the case ex parte Ilchester“, remained of his original opinion. He observed, that in that case the son, who was the testator, after the disposition, went abroad; that during his life he never intimated any intention to quarrel with it; that the bill was filed to set it aside upon such an exertion of parental authority, as, that that court would not permit an instrument so framed to stand; his Lordship allowed that the deed could not operate against the heirs of the son; yet "he was of opinion it would revoke the will, for the son thought it was actually revoked,
(1) See the case of Hawes v. Wyatt, 3 Bro. C. C, 156. It seems also to be held in this court that a deed executed by mistake is also no revocation of a will, vid. 6 Vez. jun. 215. and see post tit. • mistake.'