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ohjection to this reasoning, however is, that it is not strictly according to the fact, but seems more like misapprehension than could be expected from so accurate a Judge, for there seems to be no propriety in considering the testator as having converted himself by the articles into an equitable remainder man. He clearly retained the whole fee simple in law, and the ultimate reversion, being a part of such fee, was comprized in the will, and afterwards conveyed out of the devisor, which brings the case clearly within the range
of the doctrine above discussed.
In alluding to the case of Brydges v. the Duchess of Chandos, his Honour observed, that it was impossible not to see that the judgment in that case which gave to the settlement the operation of a revocation was founded upon the variation of the settlement from the articles, and he took it to have been clearly the Chancellor's opinion, that if the settlement had fully followed the articles in the case before him there would have been no revocation.
It is evident, however, that if that was the inclination of the Chancellor's mind, he was furnishing reasons and authorities against his own opinion by the long preface to his very learned and able decree in that cause, wherein he has elaborately expounded the doctrine of virtual revocations by the alienation of the subject of the devise upon the principle and nature of wills, which indispensibly require a
continuation of the same interest from the making of the will to the time of the testator's death.
The facts of the case of Brydges v. the Duchess of Chandos“, were shortly these: the Duke of Chandos, on the 20th of June, 1777, by articles previous to his marriage, covenanted that he would within six months after his marriage convey lands in such manner that he should be seised in fee, and his wife entitled to: dower if she survived him, and also that he would within 12 months after the marriage settle the said estates subject to the dower of the Duchess to the use of himself for life, to trustees to preserve con• tingent remainders, remainder after the deaths of the Duke and Duchess to trustees for a term, to raise portions for
children; remainder to the first and other sons of the marriage in tail male ; remainder to his own right heirs. The Duke also covenanted that in case the dower should not be equivalent to 2000 1. per annum, his representatives should make good the deficiency. The marriage took effect, and on the 9th of January, 1780, the Duke hy his will after confirming the articles, devised all the real estates which he had by the articles agreed to settle, in case he should die without issue male, or in case of failure of issue male in his wife's life-time, to his wife for life; remainder to his daughters as tenants in common in tail, with
d 2 Vez. Jun. 417,
further limitations. The Duke afterwards executed a settlement, by which, reciting the marriage articles, he conveyed the fee to releasees to the use of himself for life, remainder to trustees to preserve
contingent remainders, remainder to other trustees for a term, to raise 20001. per annum, for the Duchess, for her jointure, and in bar of dower, remainder to the first and other sons of the marriage in tail male, remainder to the Duke and his heirs.
Upon a view of this case, as above shortly stated, there is an obvious variation in the settlement from the terms of both the articles and the will, and this variation of the interests was much dwelt upon by the Court, to meet the argument of the settlement's being attracted to the articles, so as, by the fiction of relation, to date back in contemplation of equity from a time anterior to the will. But from the whole course of reasoning and illustration adopted by the Lord Chancellor, and particularly from what he says in making the application of his general propositions to the facts of the case, viz. that “he should be apt to say that this was a conveyance of the whole fee; that the object required it; that it was a disposition that would revoke the will at law; and that that Court ought not to determine differently from the rule of law as he had before stated it,” it manifestly appears what would have been his opinion upon the case if there had not been in it the other ingredient of a substantial variance between the will and the settlement,
There seems, therefore, to have been good ground for the concession of the counsel in the case of Cave 0. Holford, in Chanceryo; that it is impossible to reconcile Williams v. Owen with Brydges v. the Duchess of Chandos. The difference, indeed, between a case circumstanced like that of Williams v. Owen (2), and that which the propriety of the decree, according to the professed principle of it, required it to resemble, may be expressed by the contrary propositions of parting with the estate and bringing home the estate.
In Watts and others v. Fullarton', the testator having previously articled to purchase an estate, became in equity the owner of the estate, from the time of the articles, and having afterwards settled the purchased property by his will, his subsequently taking a conveyance of the estate to a trustee for himself and his
• 3 Vez. Jun. 684.
(2) The opinion of the Master of the Rolls, in Williams v. Owen, supposes the articles, and marriage which followed, to have turned all the estates into equitable estates, so that when the conveyance was afterwards made of the legal estate, it was no more than clothing the equitable fee, which had been devised, with the legal estate.
See the reasoning of the Master of the Rolls, in Harmond v. Oglander, 6 Vez. Jun. 218, in explanation of the principle of his opinion in Williams v. Owen.
heirs, was on solid equitable grounds held to be no revocation ; and the trustee would, of course, be seised of the legal estate upon trusts, corresponding to the directions of the will.
Lord Bathurst, who decided that case, was said by Lord Mansfield to have relied much on the general proposition laid down by Lord Hardwicke, in Parsons v. Freemans, that “ where a man has an equitable interest in fee in an estate, and devises it, and afterwards directs a conveyance of the legal estate to the same uses, this is no revocation." It is evident, however, that this case of Watts 7. Fullarton, exceeded the bounds of Lord Hardwicke's proposition, which supposed the legal estate to be afterwards conveyed upon the sume trusts as directed by the will; which would be the case of a simple change of the trustee; whereas, in the case last-mentioned, the will had settled the estate in a strict form, and the subsequent conveyance from the vendor was for the benefit of the purchaser and his heirs.
The act which succeeded the will in the case of Watts v. Fullarton, was in effect nothing more than a completion of the contract, and upon the strength of what has been laid down by Lord Hardwicke, in Parsons v. Freeman', and confirmed by later authorities, we are warranted in concluding, that if the
6 3 Atk. 741. 749.
* 3 Atk. 741.]