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pointment of the specific estate (14). And there- All devises of
land are specific fore that course of determinations, which, with some attempts to break in upon it, has been established and fully established by Bunker v. Cooke, and Arthur v. Bockenham, has been wisely determined ; and not determined upon the literal construction of the statute of wills, but upon the nature of the instrument.
The rule is the same in respect to copyholds pur- After-purchased
copyholds do not chased by a testator after making his will: they will pass by the antenot pass by the general words of the antecedent will, unless indeed, after they are so purchased they are surrendered to the uses already declared by the last will and testament, as was done in Heylin v. Heylin', Except where where the will was held to be republished by the published by words of the surrender. But in Warde v. Warde", where the testator Thomas Warde, by his will, reciting that he was seised of a copyhold estate, (when the fact was not so) devised all his real estate, &c. and afterwards, purchased a copyhold estate and surrendered it thus, viz. “ to such uses as I by my last will shall appoint;" the will was held not to operate upon this property.
k Brydges v. Chandos, 2 Vez. Jun. 427.
ma Ambl. 299.
(14) Every gift of land, even a general residuary devise is specific. See 7 Vez. Jun. 147. Ibid. 399, because a man can devise only what he has at the time of devising.
Still, however, if a testator is possessed of the property at the time of making his will, the surrender will be operative if made after the will. And in such a case, even if the surrender made after the will, be to such uses as the surrenderor shall by his last will appoint, the copyhold will nevertheless pass by the antecedent will“ if the words of such will be general enough to comprehend them.
Of subsequent dealings with the Estate in Equity.
IT has already been shewn that equity preserves an analogy in respect to the effect given to a testator's acts, as operating to revoke his will, and that therefore any disposition or disturbance of the estate, which at law would have produced a revocation, will be followed by the same consequence where the subject is equitable only, as has remarkably appeared in Lord Lincoln's case above commented upon. But if after a will disposing of an equitable estate, the testator takes a conveyance to himself and his heirs, of the legal estate, this is
• 1 T. R. 435, Spring and Titcher v. Biles. N.
will, and after
no revocation of the will (1). For nothing here If a testator hav. passes out of the testator, and what he has sub- estate makes his sequently acquired is at least in consideration of wards takes equity nothing new, in as much as in the view of a the legal estate court of equity he had the complete estate before, his heirs, it is no and therefore that judicature does not regard the revocation. property as at all altered.
to himself and
the legal estate,
and then passes
But if this case be reversed, and the facts be sup- But if, having posed to be, that a man seised of a legal estate makes he devises it, his will, and then conveys the estate to another in it to trustees for
himself and his trust for himself, and his heirs, the will is clearly re- heirs, the devise voked in law, because the subject of the devise is parted with, and the estate which is subsequently acquired in equity is a totally new estate, and therefore not included in the will •.
In Parsons o. Freeman', it was agreed by the If where the lemarriage articles, that the wise's lands of which she ed in after a will was seised in tail, should be conveyed to the husband use is engrafted in fee ; they married; the husband made his will and pond, the wall
(1) By Lord Hardwicke, in Parsons v. Freeman, 3 Atk. 741, and by Lord Loughborough in Brydges v. Chandos, 2 Vez. Jun. 429, and see the case cited by Lord Loughborough froni Roll. Abr. 616, pl 3. Cestui que use before the statute of uses, devises; after. wards the feoffees make a feoffment of the land to the use of the devisor; and after the statute the devisor dies, the land shall pass by the devise. And see Watts v. Fullarton, Dougl. 691,
devised these lands: and afterwards the husband and wife suffered a recovery of the same lands to such uses and for such estates as they should jointly appoint, and in default of appointment to the use of the husband, and his heirs. She died without appointing, and it was decided by Lord Hardwicke, that the will was revoked; his Lordship at the same time admitting that if the husband had only taken the legal estate by the recovery to execute it into the equitable estate, it would have been no revocation ; but in the case as it stood, new uses were created, and though no appointment was made, yet, the fee was by the recovery taken differently qualified.
But the case is very different where a man having bound himself by articles, makes his will, devising so much as the articles were not intended to operate upon, and then conveys his legal estate upon trusts, by way of settlement in execution of the articles. Upon the principle of the decision in the decisive case of Goodtitle v. Otway, above cited, such a conveyance in trust as last-mentioned, would be a complete revocation of the will. The case of Williams v. Owen", which was decided at the Rolls in 1795, a few years before Goodtitle v. Holford, certainly proceeded upon a contrary doctrine ; but that case has been considered as open to great doubt, since the decision of the case of Goodtitle v. Holford.
• Et vid. Tickner v. Tickner, cited 3 Atk. 741. 1 Wils, 308.
2 Vez. Jun. 595.
chess of Chan
The case of Williams o. Owen was shortly this : Comments on a man being seised in fee, by articles prior to Williams v.
Owen, and marriage, covenanted to convey his estates to Brydges ». Dus trustees, to the use of himself for life, remainder dos. in trust to secure an annuity to his wife in bar of dower; remainder to trustees for a term to raise portions ; remainder to the sons and daughters successively in tail; remainder to his own right heirs ; he afterwards made his will, and devised the reversion in fee in the event of his dying without issue ; and afterwards and before marriage, executed a settlement in pursuance of the articles, by which he conveyed the estates to trustees, and their heirs, to the uses and upon the trusts of the articles. It was holden that this settlement did not revoke the will, being nothing more than a mere legal execution of the articles.
The Master of the Rolls compared this case in principle to that wherein a testator having devised an equitable estate, takes a conveyance of the legal estate from his trustee, to himself and his heirs, or to the uses of the will. He admitted that after the articles the devisor remained seised of the legal estate, and passed it out of himself by the conveyance; but he said that by the articles he had reduced himself to a remainder man in fee in equity; that having this ultimate trust in fee he devised it, and then the subsequent act with respeet to this fee was no more than clothing it with the legal estate. The