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no such fresh power of revocation need be reserved“; the nature of the instrument supplies it.
By the case of Cotter v. Layer', which has been already cited to shew that a covenant entered into for, valuable consideration amounts to a conveyance in Courts of equity, and is therefore, in those Courts, held a revocation of a will, it also appears that where the will works as an appointment under a power, it is equally revoked in equity by such executory contract under scal. In that case, though the will was made in execution of a power by a married woman, who cannot in strictness make a will at all, and the conveyance was only in fieri, and the instrument purporting to be a will was not strictly a will but an appointment, the person making such instrument being under a disability in law (2), yet
e Hatcher v. Curtis, 2 Freem. 61, and see 1 Vez. 139. i Bro. C. C. 533, 2 Bro. C. C. 319.
F2P. Wms. 662.
(2) It seems that a married woman may, with the consent of her husband, make a proper will, and proveable in the Ecclesiastical Court, Mariot o. Kinsman, Cro. Car. 219, and that the will of a femme covert cannot be given in evidence until it has been proved in ibe Spiritual Court; see Jenkin v. Whitehouse, Burr. 431, and Stone v. Forsyth, Doug. 707, where Lord Mansfield says, if the Ecclesiastical Court will not grant probate, the proper course is to appeal to the delegates. Mr. Douglas in note (+ 150) ib. observes, that the regular course in cases like this is, for the Spiritual Court
the first instrument was 'adjudged to be revoked by the second.
Lord Hardwicke decided the case of Oke o, Heath, agreeably to this doctrine, declaring that the foundation of his opinion was, that wherever such a power to appoint is given to a married woman, which she executes by will, it is sulject to all the qualities of a will. She has, said his Lordship, executed her power by will, and called it so throughout: the whole frame is testamentary. And although this arises out of her power to make a will, and it is a general notion of law as to powers, that any one taking under the directions of the will, takes under the power in the same manner as if their names were inserted there; yet they must take according to the nature of the power and instrument taken together. And in another places, Lord Hardwicke is more explanatory on this particular point, where he says, that the meaning of persons taking under the power, or as if their names had been inserted in the power, is that they shall take in the same manner, as if the power and instrument executing the power had been incorporated in one instrument; they shall take as if all that was in the instrument executing had been expressed in that giving the power. So it is, said his Lordship, in the appointnient of uses. If a feofsment is executed to such uses as he shall appoint by will ; when the will is made, it is clear that the appointee is in by the feofsment; but he has nothing from the time of the execution of the feoffment, so as to vest the estate in him. The estate will vest in him according to the nature of the act done, and the appointment of the use from the time of the testator's death. This, therefore, is not a relation 'so as to make things vest from the time of the creation of the power, but according to the time of the act executing the power".
& 2 Vez. 78.
not to gire probate of the will, but administration with the will as a testamentary paper annexed.-See 3 Atk. 160. Ross v. Ewer, and note (1) by Mr. Saunders.
Subsequent marriage, and children.
AMONG implied revocations, and as such not falling within the statute of frauds, is that which is produced by a subsequent marriage and the birth of a child or children, on which point the case of Lugg
• And see Vanderzee v. Aclom, 4 Vez. Jun. 771.
as well of a will
v. Lugg (1), is said to have been the first affirmaThe general rule tive decision. The point was said to have been is, that marriage and the birth of afterwards doubted, but was at length recognized as a child is an implied revocation a rule of law (2), though it received no adjudication of real as of per- as to real estate till the case of Christopher v. Chris
topher was determined in the Court of Exchequer in 1771'. It appears from the report in Ambler, of Parsons v. Lanoe, that Lord Hardwicke entertained doubts as to the applicability of this rule to real estates, but we have observed that it has since been carried to that extent, if that could be said to be extending the rule which was no enlargement of its principle, for there seems to be no foundation for saying, that the presumption on which it grounds itself is less applicable to one description of estate than another (3).
• See 4 Burr, 2171, 2182. Dougl. 35.
(1) ? Salk. 592. 1 Lord Raym. 441. by the delegates, among whom was Lord Chief Justice Treby,
(2) Brown v. Thompson, 3 Eq. Ca. Abr. 413, Parsons a
Lanoe, 1 Vez. 189. - Ambl. 557. Origin and gra.
(3) It appears that the rule under consideration was borrowed dual adoption of from the civil law, and incorporated into our law, with some hesitathe rule.
tion, and by very gradual adoption. Lord Kenyon has remarked that a very able lawyer, Mr. Justice Perrott, dissented from the decision in Christopher v. Christopher, lest the statute of frauds should be thereby repealed, and having a jealousy of introducing the civil law, he resisted the force of those arguments which found their way to Dougl. 31.
PART XVI. Subsequent marriage, &c.
The general rule was admitted in Brady, lessee of LordMansfield's
doctrine in reNorris v. Cubitt", the Chief Justice at the same time spect to the ad
missibility of exobserving that in his recollection there was no case trinsic evidence
to rebut the prein which marriage, and the birth of a child had sumption. been held to raise an implied revocation, where there had not been a disposition of the whole estate (4). In the last-mentioned case, Lord Mansfield expressed great doubt whether the circumstances of the case were such as would raise the presumption, the testator having in contemplation of his marriage settled 8001. a year upon his intended wife, so that he not only contemplated the change in his situation
the other Judges who determined that case. But his Lordship added, he was glad those Judges did over-rule his opinion, because no person could wish that his family should be put into such a situation as to be deprived of all provision, and that the secondary objects of his bounty should be preferred to his immediate children. 5 T. R. 58. (4) Whether the rule is still to be so understood in the full extent, Whether the pre
vious disposition or whether an insufficiency left to provide a reasonable support to the of the whole
estate is neces family, is foundation enough for the application of the rule, seems not
sary to ground yet to have been positively determined. But it is evident the rule the application of
the rule. would be made to depend upon very loose criteria, if it were to have place where the marriage, and birth of a child, were not preceded by a total disposition ; for it must in such case either depend upon the Auctuating question of what was enough for the family in each case ; or if every partial disposition, however small, were to be revoked by these events, then it must rest upon this proposition, viz. that every man who marries, and has issue, must neces
cessarily mean all he has in the world to become theirs.