man, in Ambler, shews it was so considered, for Lord Hardwicke approved of Tickner v. Tickner, and said it was the same case as that before him (3).”

I find no earlier notice of this question as to the revocation of a will by a deed of partition and find than that of Lestrange v. Temple, in Siderfin', where a quære is made whether, if one holding lands in common with another makes his will and devises all kis lands, and afterwards makes a partition by agreement and not by writ, the partition is a revocation. Soon after in the case of Temple v. Webb, where a tenant in common of a manor, devised all his interest in the manor, and afterwards a partition was made, and a fine levied to corroborate the partition, and the question was, whether this partition and fine were a revocation or not, they were adjudged to be no revocation. And the Judges are said by the Reporter to have entertained the same opinion, (though no judgment was given) in Risley v. Baltinglass',

f P. 90.

Freem. Rep. 542, pl. 735, Vin. tit. dev. (R. 6) pl. 6. in the Notes. Sir Thomas Raym. 240, in the Exchequer.

(3) But as that case is reported in Atkins, a better Reporter, Lord H.'s observation was that Tickner v. Tickner, came vy near the present; it was not merely to effectuate a partition, but for other purpose and therefore Lord C. J. Lee, held it amounted to a revocation, and I am, said his Lordship, for the same reason of opinion that the recovery here is also a revocation.

This case was sent

Luther v. Kidby* was thus: A. and B. were tenants in common of lands in fee simple. A. by his will dated 25th January, 1719, devised his moiety in fee; afterwards A. and B. made partition by deed dated 16 May, 1722, and fine, declaring the use as to one moiety in severalty to A. in fee, and as to the other moiety in severalty to B. in fee. by Lord Chancellor King to the Judges of the King's Bench, for their opinion, whether, the will was revoked, and it appears by the Register's book, that that court composed of Lord Raymond, C. J.Page, Probyn and Lee, justices, certified," that they were all of opinion that the will of the said A. was not revoked by the deed, and fine levied in pursuance thereof; and that the said A.'s share of the

lands contained in the deed, and the fine levied thereon, did pass by the will of the said A." with which opinion the Lord Chancellor concurred.

About 20 years after Lord Chief Justice Lee, who has signed the certificate as puisne Judge, in Luther v. Kidby or Kirby, decided the case of Tickner v. Tickner, which was as follows': Robert Tickner, seised in fee of the estate in question, which was of Gavelkind, died, intestate and left two sons, Henry and Robert, who entered on his death and became seised in Gavelkind; Robert being possessed of an

* Vin. tit. dev. (R. 6.) pl, 30, 1730, and see 3 P. Wms. 169, Note by the Reporter.]

1 Cited in Parsons v. Freeman, 3 Atk. 742.

undivided moiety made his will, and devised it to his wife Elizabeth Tickner, and her heirs. After this will of Robert, by a deed of partition between Robert and Henry Tickner, and by a fine, all the Gavelkind lands were divided, and Robert's share was allotted to him to such uses as he should appoint by deed or writing, and in default of such appointment to him in fee. A verdict was found in ejectment, subject to the opinion of Lord Chief Justice Lee, who, after mature deliberation held the transaction to be a revocation of the will.

The doctrine in respect to the question of revoca- Great opinions tion by partition is founded upon the foregoing

on the propriety of the decisions

in Luther v.

Kidby and Tick

ner v. Tickner,

cases; but it has been shewn that a part of the Bench in the discussion of the great case of Goodtitle v. Otway, doubted of the principle on which Luther v. Kidby, was determined; and considered that case and the case of Tickner v. Tickner, though the Judge who concurred in the one decided the other, as irreconcileable. Great Judges however, have thought very differently upon this subject. To Lord Chancellor Loughborough both Opinion of Lord these cases appeared to be rightly and consistently determined, and this opinion was expressed by him in a judgment which displayed in language and argument the most graceful and luminous, his deep acquaintance with the whole subject and its principles. Speaking of Luther v. Kidby, his

Vid. 1 Brydges v. the Duchess of Chandos, 2 Vez. 429.

Loughborough.

Lordship observed, "It was sent to law; and the court of law being of opinion, and wisely, that it was not a revocation, this court determined in conformity to the law, following the law. But where the object of the deed went further than a mere partition by conveying the estate to such uses as the party should appoint, Lord Chief Justice Lee held it an alteration in the estate, and that it would not pass by the will at law, and Lord Hardwicke has given his sanction to that authority, and would not determine against the rule of law.

The present Chancellor in a case determined by him in 1802, has recognized the law upon these two cases of Luther v. Kidby, and Tickner v. Tickner, to stand thus: " that mere partition, whether by compulsion or agreement, is not a revocation of a will; but the slightest addition, as a power of appointment prior to the limitation of the uses, is sufficient". And again in another case decided by him in the ensuing year, his Lordship put the seal of his high authority upon this much agitated question. The case of partition," said his Lordship, " is a sort of special case. Each party can compel the other to make partition: the estate is the same enjoyed afterwards in a different quality, and in another mode: and upon a principle compounded a little of those two reasons, that which can be compelled, if done voluntarily, and provided nothing more is done

7 Vez. Jun. 564.

than mere partition, shall not revoke the will. I say, provided nothing more is done, for it has been long established, that if the object is to do any thing beyond the partition, it will be a revocation: it is tried by the fact whether the acts demonstrate any intention to go beyond the mere partition and notwithstanding the expressions of the Judges in some of the reports, that Luther v. Kidby, and Tickner v. Tickner, cannot stand together, they have stood together a considerable time and in my opinion are perfectly reconcileable"."

be so confined in

of necessity re

tion.

One distinction upon this subject it is very neces- But a will may sary to recollect.-That if the manner in which the terms as to be partition is made destroys the interest of the testator voked by partiin the thing given, so that at his death there is nothing in him to answer to the description of the specific subject of the devise, it must follow, notwithstanding the rule that mere partition is not a revocation, that the devise is revoked, since it cannot operate, the thing being withdrawn upon which it was to operate. Thus if A. seised as a tenant in common, or co-parcener, of a moiety of two estates, the one in Berkshire, and the other in Lincolnshire, devises his Berkshire estate in terms, and then by a partition between himself and his co-proprietor B. the Berkshire estate is allotted wholly to B., and the Lincolnshire estate to A. the devise is of necesşity revoked".

• 8 Vez. Jun. 281..

? See the case of Knollys v. Alcock, 7 Vez. Jun. 558.