but Lord Hardwicke rejected this reasoning, and declared his opinion to be, that if a man seised of a real estate devised it, and afterwards conveyed the legal estate, though only upon a special trust, yet as he granted the whole legal estate, it was a total revocation of the will.

Lord Lincoln's case (2), which was decided by Lord Somers, is a strong authority to the same point; and, as was observed in Sparrow v. Hardcastle, there could not be a more special case. Edward Earl of Lincoln had mortgaged the manor of S. to Wynn by a conveyance in fee, and afterwards by will, in default of issue male of his own body, devised it to Sir Francis Clinton (who was to succeed to the title) for his life, with remainder to his first and other sons in tail, with remainders over. The Earl having afterwards taken a fancy to one Mrs. Calvert, and having some notion he might marry her, (though it was proved in the cause there never was any intention in the lady or her relations respecting such mar→ riage, nor any treaty about it) made a lease and release of the devised premises to trustees, to the use of himself and his heirs till the said intended marriage should take effect, then as to part in trust for Mrs. Calvert and her heirs, in lieu of dower, and

(2) Show. P. C. 154. 1 Eq. Ca. Abr. 411. 2 Freeman, 202. and said by Lord Hardwicke in Sparrow v. Hardcastle, vid. 7 T. -R. 418. in Not. to be well reported in Fitz Gibbon, 241, which was in general a book of no authority.

as to the rest in trust that the trustees should sell it, to disencumber the part limited to Mrs. Calvert, and to pay the surplus of the monies to his executors and administrators. Nothing was afterwards done towards the marriage, and sometime after the will the Earl died without making any alteration of it, leaving his honours to descend to Sir Francis Clinton, who had but a small estate, if any, and who died soon afterwards. The plaintiff, the eldest son of Sir Francis, brought his bill to have a redemption of the mortgage and a conveyance of the estate. And the defendants, who were cousins and co-heirs of the testator, brought their cross bill to be allowed to redeem and to have the estate conveyed to them.

The question was, whether the lease and release by the testator was a revocation; and though it was plain he did not intend, in the event which happened, to revoke his will, and though by the release the estate was limited until the marriage (which it did not appear was ever seriously either in his contemplation or in that of the lady) to continue in the testator just as before; the will was nevertheless held to be revoked. It is to be observed that the conversion of this estate into an equitable interest by the mortgage in fee, was the circumstance which brought this case into the court of equity, and that there was nothing in it of peculiarity which varied the effect of it in the view of that court; so that the doctrine of equitas sequitur legem was entirely ap

U

Where that

which is done to an equitable

estate, would, if the estate were legal, pass it out

another, such

act is a revoca

tion in equity,

equitas sequitur legem.

plicable to it; and as by the rule of law, if this had been a legal estate the will would have been revoked, there was no reason why a court of equity should proceed on a different rule in determining the case. The decree was confirmed in the House of Lords by a majority of two lords only.

The deeds executed in the above case were such as, had the estate been legal, would have passed the estate out of the testator, and wherever that is the

of one person to case, the will is revoked at law(3): Upon the principle of analogy, therefore, and of that uniformity upon the rule of in the rules regarding property which is so important to be preserved, a court of equity was bound to follow the authorities of the common law courts in the decision of the case just cited, whatever inconvenience to the parties, or repugnancy to common feelings, might be the consequence: and in this view, that is, in reference to the consistency and generality of an artificial system of reasoning, there does not appear to be that absurdity in the case of Lord Lincoln which has been charged upon it by a great judge.

Lord Mansfield, Doug. 722.

(3) The uses of the intended settlement were certainly inconsistent with the will; but that made no part of the reason for holding the will to be revoked by the lease and release; it was so held solely upon the ground that the devised estate was for a moment parted with and put out of the testator, notwithstanding the old estate was taken back by the same conveyance.

But by a case of great importance, which has lately been decided in K. B. on a writ of error from the common pleas, whose judgment the superior court confirmed, the general rule may be considered as established to the effect following: That where a person seised of an estate, devises it, and afterwards conveys away his whole estate, though but for an instant, as merely to give a seisin to serve an use, and though he takes back the same estate to the same use as before, or such use is left to result to him 80 as to be descendible from him either in the paternal or maternal line as it was before, yet the conveyance operates as a total revocation of the will. And though the object of the conveyance be ever so partial or minute, and whether such object be certain or contingent, the same consequence of a total revocation flows from the mere act of parting with the estate. And from the authority of this case together with that of Lord Lincoln above cited, the conclusion is, that whether such estate be legal or only equitable, the same mode of acting upon it by passing it out of the testator, or if that cannot be strictly said of an equitable interest, by doing that with respect to it, which, if it were a legal estate, would pass it out of him but for a moment," will produce the same consequence of a total revocation.

7 T. R. 399. 1 Bos. et Pull, 576. Goodtitle on dem. Holford and others, v. Otway.

If the estate of the restator is parted

In the case last referred to, A. being seised of cer

with but for tain estates in fee simple, agreed by his marriage arti

moment, and the

same use is taken cles to settle the same so as to secure his intended wife's back, the will is revoked. jointure, and the portions of younger children, and then upon his eldest son and his heirs male. He afterwards devised the same estates, in case he should happen to die without leaving any issue of his body living at his decease, subject to any jointure he might make to trustees, for a term of 500 years, upon the trusts therein after declared, and subject thereto he devised all his real estate to B. The testator afterwards conveyed the same estates by lease and release to releasees, to the use of himself and his heirs, till the marriage, and then to uses correspondent to the various purposes expressed in the marriage articles, and for default of issue, subject to a term for securing his wife's jointure, to himself in fee. The testator married accordingly, and died without issue. And whether his will was revoked by the settlement was the question.

Those who argued against the revocation contended that the intention of the testator was evidently not to revoke the will, and that as this intention appeared without any resort to extrinsic evidence from the instruments themselves, the court was bound to give it effect. That though in point of form an estate did pass out of the testator to the releasees, yet that was but a momentary effect of the conveyance, for by the limitation of the use to himself, and his heirs,