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testator in this case of Watts v. Fullarton, had taken the conveyance to himself and his heirs, instead of taking it to a trustee for himself and his heirs, such conveyance would have been no revocation in equity, and the effect thereof would have been to have made the heir a trustee for the persons taking under the will.
That the change of trustees is no revocation of a will was held also in the case of Bark v. Zouch', where A. having made his will, and devised that his feoffees in trust should make a lease to C. and D. for 80 years, at a certain rent, payable to his executors, afterwards procured them to join with him in making a feoffment of the devised hereditaments to new trustees and their heirs, to the use of himself, until he limited new uses thereof, which he never did. It was held that the feoffment was no revocation of his will. And again, in the case of Doe, lessee of Sir William Gibbons v. Pott", where a mortgagor devised the mortgaged lands, and afterwards paid off the mortgage, and caused a conveyance to be made by the mortgagee of the legal estate 10 a trustee, in trust for himself and his heirs, such a transfer of the legal estate was held not to operate as a revocation of the will.
But between the two last-mentioned cases there is
11 Ch. Rep. 23.
this observable difference, that in Bark v. Zouch, the owner of the equitable estate, after devising it, joined in the conveyance
from the old to the new trustee; whereas in Doe v. Pott, it does not appear from the report of the case that the mortgagor was a convey. ing party in the instrument, whereby the legal estate was transferred to the new trustee. It is probable he was not, having already, and before his will, conveyed his equity of redemption to the trustees of his marriage settlement. It seems, however, that the decision of Bark v. Zouch, is agreeable to sound equitable principles ; for the reason for a will's not being revoked by a mere change of trustees, viz. because no estate in equity passes out of, or is acted upon by, the testator, seems equally to hold where the owner of the equitable estate joins with the old trustee in conveying to the new, since such act is as inoperative in equity with respect to the beneficial interests, as at law, except for the purpose of being directory of the intended transfer.
In a case where the first of two wills devised land to trustees upon certain trusts, and the second devised the same lands, together with another piece of land, to the old trustees, with others, but upon the same trusts, the second will was held to be no revocation of the first', and as it should seem, upon the clearest equitable grounds. For in such a case the estate
devised by the first will did not pass out of the testator till his death, and there was no inconsistency in the devises. The peculiar facts of that case made it important to decide whether the first will was revoked, for though the second will included all the purposes of the first, yet the statute of mortmain having passed between the making of the two wills, unless the estate could pass by the first it could not pass at all, as being for a charitable object. It is true, the second will devised the legal estate to three new trustees, in addition to the old, but still in respect to the two former trustees, and in respect to the trusts themselves, there was no disagreement; and we may remember that the rule with its three branches is this—that a subsequent devise, to revoke a subsisting devise of land, must be inconsistent with such former devise; that the
apparent inconsistency must be irreconcileable; and that the first of two wills is, upon the ground of inconsistency, revoked only to the extent of the inconsistency.
Equity holds a very steady course in respect Revocation is to these revocations of wills by subsequent aliena- tieles to sell for tions, applying the rule of law to those interests deration. which are looked upon as the estate itself in equitable consideration, and to equitable purposes, in such manner as to keep the decisions of law and equity, in this repsect, the same in principle. Thus, it being the maxim of equity to treat an estate which has been articled to be con
veyed by the owner to a purchaser for valuable consideration, from the moment the articles are executed, as vested in the purchaser, and therefore as capable of passing by his will, if properly executed", and the subsequent conveyance of the legal interest as having no effect upon the will, being only the medium of carrying the estate home ; in pursuance of the same maxim, that Court considers a devise of land to be revoked by subsequent articles to convey or settle the devised premises for valuable consideration ; for if the estate, after the articles are executed, is to be regarded as vested in the purchaser, it ought to be regarded as passing by the same act out of the vendor or settler, and therefore by a plain consequence of this rule of equity, a testator by a subsequent covenant for valuable consideration, to sell or settle the devised estate, must be held to have revoked such prior testamentary disposition.
Thus where a testator devised to his wife six houses in bar of dower, and the rest of his real estate to his two daughters and their heirs, in moieties, and afterwards, in consideration of the marriage of his eldest daughter, by marriage articles covenanted to settle one moiety of his real estate to the use of himself for life, remainder to the husband and wife
m See the case of Broome v. Monck, 10 Vez. jun. 604, an equitable title acquired after a general devise passes by republication.
n Sir Barnham Rider v. Sir Charles Wager, et al. 2 P. Wms, 328.
for their lives, remainder to the younger children of the marriage in tail general, remainder to the husband in fee; Lord Chancellor King held that although it was but a covenant, and therefore at law no revocation of the will, yet that the same being for valuable consideration, was in equity tantamount to a conveyance, and consequently a revocation of the will, as to the six houses devised to the wife. So that the husband was; entitled to one clear moiety of the rents of the real estate, from the death of the testator. And the same doctrine was again laid down by the same Chancellor in a subsequent case', and confirmed by the learned Lord who at present holds that high station, in the case Knollys v. Alcockp.
The Doctrine of Relation.
SOMETHING ñas already been said on the doctrine of relation, as it applies to this subject. It seems to call for a particular notice, as there is some apparent confusion in the cases upon wills which have turned upon it—a confusion which seems in some measure to have arisen from a neglect to advert
• 2 P. Wms. 624. Cotter v. Layer,
5 Vez. jun. 654.