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and that therefore to permit it to stand would be against principle; that though Lord Thurlow differed from him, he believed Hick v. Mors was not adverted to, but that there was the authority of Lord Hardwicke that such an instrument was sufficient to revoke a will.”
It does not however, in the only report of the case of Hick v. Mors, distinctly appear that
fraudulent means were taken to induce the testator to execute the revoking instrument. The words of the reporter are," he was prevailed upon;" and to be sure the facts of the case induce a suspicion of improper
influence. No fraudulent arts or undue influence, however, are stated to have been used, nor are any such distinctly alluded to by Lord Hardwicke, who refers the case to that class of cases above considered, where imperfect conveyances have been held to revoke antecedent wills. Stripped of any colouring of fraud, the case was simply this: A testator covenanted by indenture to levy a fine, and in the deed specified the use of the future fine to be to H. for 1000 years, which fine was accordingly levied; he afterwards made his will, properly attested, and devised the fee of the same premises to H. and in the year following executed a fresh covenant by indenture, reciting the first, declaring a new and different use of the fine, viz. to H. in fee; and whether by this the will was revoked was the question. But whether the second indenture of
covenant was good as to the new use of the fine may be questioned, since if a precedent indenture be made to direct the uses of an assurance, and the assurance follows, the Touchstone says, that the conusor or recoveree cannot by any act of his, subsequent to such assurance, change or avoid the prior use". The second indenture might, therefore, have been regarded as inoperative to its express purpose, and was probably attacked on that ground, for that seems to have been the view in which it presented itself to the court.
It is, to be sure, somewhat difficult to apprehend how a deed which is void, as being fraudulently, surreptitiously, or coercively obtained, and so not moving from the will, or speaking the real sense of the party, should yet revoke a previous act deliberately and formally done. Where a part only of a deed is liable to the imputation of fraud, there may be good reason for holding the other uncorrupted part a revocation of a prior testamentary disposition, as far as it is inconsistent with it; but whatever may ultimately be determined on this point, the understanding does certainly struggle against giving to an act admitted to be invalid against the person performing it, on account of the fraud or compulsion accompanying it, an operation destructive of a prior act considerately and carefully performed. It is true however that, in giving his opinion in the case last mentioned, Lord Hardwicke observed, that it was
Vid. Touchst. Ch. on Uses, Sect. 5.
not like the case of a conveyance by covin, which would make it not the testator's deed at law; and which, his Lordship said, would be a nullity. There is, to be sure, a difference between the case of a deed void at law for cavin to which non est factuin may be pleaded, and that of a deed liable to be set aside by cancelling'or directing a reconveyance, on account of the fraud or compulsion used in obtaining it. But it seems reasonable for a court of equity to act upon its own maxims, in analogy to the rules of law; and if that which in that court is treated as deserving of being frustrated and rescinded, on account of the turpitude of the intent and contrivance, should also be treated as incapable of the collateral effect of revoking a will, this, as it seems, would be no more than a just application of the rule of equitas sequitur legem.
THE general rule that where, after making a will, the testator executes any legal conveyance, the will is revoked, has long been established. This rule seems to rest upon technical grounds, and in regarding its whole extent we shall find that the inference of intention to revoke by no means affords a satis
factory foundation for it. The true reason seems to be that which Lord - Hardwicke gives in Sparrow v. Hardcastle, “ that the estate being gone by the conveyance, the will has lost the subject of its operation."
The alteration of the devised estate by the act of the devisor himself is a case of daily occurrence, and admits of some distinctions of great nicety. It will be proper to begin with some examples illustrative of the general rule.
A recovery by
If a tenant in tail makes his will and devises his tenant in tail, after making his land, and then by bargain and sale inrolled makes will, to his own use in fee, is a a tenant to the præcipe, against whom a common revocation. And this thougha recovery is suffered to the use of the testator in clares he does it fce, this is a revocation of the will. And it was said to confirm his will.
by Lord Hardwicke to have been holden that where a man, after making his will, thinking he had only an estate tail, suffered a recovery to confirm the will, such act by the testator was a revocation instead of a confirmation of the will
A feoffment And if a tenant in fee simple devises his lands, by a tenant in fee, after mak- and before his death makes a feoffment of those lands ing his will, to his own use in to another, to the use of himself and his heirs, fee, is a revocation though this to many purposes is no alteration of the
• Dister v. Dister, 3 Lev. 108. see also to the same point, Marwood v. Turner, 3 P. Wms. 163. Edit. Coxe.
Per Lord Hardwicke in Sparrow v. Hardcastle, 7 T. R. ia. the notes.
estate, for he is absolute owner as he was before, yet it is a revocation. And wherę a tenant for So is an ineffeca life, remainder •to trustees to support contingent remainders, remainder to his first and other sons in tail, with reversion to himself in fee, made his will: disposing of the reversion, and afterwards suffered a recovery and limited the use to himself in fee, this though an ineffectúal recovery, was nevertheless a revocation of the will(1).
The apparent hardship of this rule has occasioned Conveyance up: some struggles to oppose its application, where it has trust, or for a
particular purbeen most obviously opposed to the testator's inten- pose, how far a tion. Thus it has been often contended that where the alteration of the estate was only for an express particular and partial purpose, not affecting the substantial and beneficial interest given by the will, the will should not be affected by it. Upon this ground, in Sparrow v. Hardcastle, it was endeavoured to be maintained that the conveyance being designed for a particular purpose, viz. to create a trust for the benefit of a person named in it, subject to which the trust deelared was to the grantor and his heirs, it was the same as if he had left it to result, and so much of the trust as remained in him would pass by the will ;
1 Roll. Abr. 615.
(1) 3 Wils. 6. Darley v. Darley, and see the remarks made upon this case by the late Lord Loughborough in Brydges v. the Dutchess of Chandos, 2 Vez. jun. 480.