a

newal of a chat

tel lease is a revocation depends

upon whether

the design is spe

cific or general.

It appears from a careful comparison of the cases, Whether the rethat for the renewal of these chattel leases to be revocation, the devise of them must be specific, and that whether revocation or not is a question to be determined by that short criterion (3). The case of Stirling v. Lydiard amounts in effect to settle it upon this basis. There the testator gave all and singular his leasehold estate, goods, chattels, and personal estate whatsoever, to his daughter, and if she died without issue living, then to the defendant. The testator afterwards renewed a lease with the Dean and Chapter of Windsor; this was held to be no revocation, and the lease passed by the will; the Lord Chancellor observing, that "it was a mistake to suppose this a specific legacy; it was a general devise of the whole. Suppose the testator had purchased a new lease, would not that have passed? Why then should not a new term in a lease equally pass?" If I were to construe this a revocation," said his Lord

3 Atk. 199.

&c. the words he prescribes are, all my estate, right, and interest, which I shall have to come in this lease. And in Rudstone v. Anderson, 2 Vez. 418, the Master of the Rolls, Sir J. Strange, would not allow there was any real distinction between the import of the words all my tithes and all my estate in the tithes. If a new interest were acquired after the will, it would not pass by words devising all the testator's subsisting interest.

(3) A. bequeathed his black gelding to B. and afterwards gives him away or sells him, and buys another black gelding; this new bought horse shall not pass by the will. Wentw. Office Executor, 23.

A A

ship, I do not know, but that if a man were to give all his Bank, East India, and South Sea stock, and should afterwards turn it into money, it might as well be insisted that this was a revocation (4).

So

Bequests of stock, when spe cific and when

(4) In the case of Purse v. Snaplin, 1 Atk. 413, and in the judicious note of the learned Editor Mr. Saunders, the reader will find the learning upon this subject collected and simplified. That case was as follows; R. R gave to his niece A. S. 5000 l. in the old S. S. Annuity Stock of the South Sea Company, and to his nephew R. P. 5000 l. in the old S. S. Annuity Stock of the S. S. Company. At the time of his making his will, and at his death the testator had only 5000 7. in old S. S. Annuity Stock. The question was between the residuary legatee, and the two particular legatees, whether these last were to have each 5000%. made good to them, or to divide between them only the one sum of 50001. of which the testator was possessed, answering specifically to the description of the gift; and at the Rolls, his Honour was of opinion, that there could but one 5000 7. Old S. S. Annuities pass by the will; but Lord Chancellor Hardwicke held that these legacies were to be considered as two distinct legacies, and that A. S. and R. P. were entitled to have them made good out of the personal assets; his Lordship at the same time observing, that where a particular chattel is specifically described and distinguished from all other things of the same kind, and is not found among the testator's effects, it fails; or if first given to A. and then to B they must divide it; or if disposed of in the testator's life-time it is an ademption of such legacy. The learned annotator observes upon this case, that Lord Hardwicke determined it upon the principle that notwithstanding one of the identical legacies did actually exist at the time of the making of the will, yet as the testator had not so specifically described either of them as to distinguish them from all other things of the same kind, they were to be considered merely as legacies of quantity and number. See Partridge v. Partridge, Ca. temp. Talb.

that it appears clearly to have been the settled opinion of Lord Hardwicke, that whether the future lease taken by renewal would pass or not by the antecedent will would depend entirely upon the question whether the words of the bequest confined. the supposeable intention to the thing then actually subsisting or extended to future interests growing out of it, in a word, whether the legacy was specific or general (5).

But it should seem according to Abney v. Miller, which is a very leading case on this subject, that if the renewed lease be not perfected by execution in the testator's life-time, not only will an agreement for such new lease be ineffectual to operate a revocation, but the actual surrender will not effect the previous disposition of the lease: it was accordingly

226. But in Jeffreys v. Jeffreys, 3 Atk. 120, the testator having at the time he made his will actually so much stock as would exactly answer the two legacies which he thereby bequeathed, they were both held to be specific. So where a legacy of this kind is particularized by the word my' (as my stock), or by any other expression or description which indicates the testator's intention to make it specific or individual, (as money in such a bag, &c.) then it shall be deemed a specific legacy. Ashton v. Ashton, Ca. temp. Talb. 152. 3 P. Wms. 384, and see Mr. Coxe's note to Hinton v. Pinke, 1 P. Wms. 540.

(5) See the case of Hone v. Medcraft, 1 Bro. C. C. 261, where the same ground of distinction is adopted. See also Copin v. Fernyhough, 2 Bro. C. C. 291.

held by Lord Hardwicke, that as the college seal had not been affixed to one of the renewed leases in Abney v. Miller, though the old lease had been surrendered and the new one prepared and accepted, yet the bequest of such lease was not revoked. But this part of the case is not very clear if it can be said to be intelligible at all, without supposing that, the surrender being made by the same instrument as the new lease, probably being stated as the consideration of the new lease, or perhaps implicitly (6) contained in the acceptance of such new lease, such surrender would not be complete according to the intention of the parties until the change and substitution was completed by the execution of the instrument designed to effectuate the renewal. And indeed, supposing the surrender to be made by a separate instrument, yet the making of the new lease, and the yielding up of the old, being reciprocal acts, perhaps the surrender can scarcely be

law is an ademp

devise.

A surrender in (6) This surrender in law is without doubt an ademption of a tion of a specific specific devise as much as the express surrender, for in these cases the effect produced is not so correctly expressed by revocation, as by ademption. See Wentworth's Office of Executor, 22 et seq. It is not by countermanding the disposition, but by withdrawing or destroying the subject matter of the disposition that the effect is properly understood to be produced. And whatever destroys the subject of a specific devise, must of necessity annul its operation; thus if after devising an estate held upon lives, the testator purchases the reversion, the devise is revoked and the estate descends. See 2 Atk. 425.

said to be complete, in equity at least, until the fresh lease has been granted.

It is very desirable on a subject into which so much refinement has been introduced, to rest upon some steady propositions. All the cases appear to agree in this-that the surrender of the old and the taking of a new lease, will be an ademption or not of the previous disposition by will according as the disposing words import, a specific or general bequest; but whether particular terms denote the one or the other intention will perhaps long remain a source of controversy. It appears according to the report of Carte v. Carte, as has before been mentioned, that Lord Hardwicke was of opinion that if in Abney v. Miller, the testator had said "I give all the interest I have in the lease," the will would have passed the renewed lease, that is, such words would have made the bequest general and prospective. Sir John Strange, as appears from the above cited case of Rudstone v. Anderson, thought that the bequest was not the less specific by reason of the words estate and interest; and we have seen that Lord Hardwicke, in Abney v. Miller, suggests other words of future import to be added to the words estate and interest, when he points out a mode of embracing within the will future renewals.

Another safe proposition is this, viz. that a testator may by his will pass his future chattel interests whatever they may be, provided they come within

What propo

fitions appear to be well settled on this subject.