15. Such a contract to convey, as equity will enforce, is a revocation.

16. The conveyance of so large a portion, as to break up the scheme of a will, a revocation.

17. Grant in fee reserving rent, or conveyance to devisee, is a revocation. 18. Conveyance in trust during life, or for payment of debts, no revocation. 19. A deed conveying land to uses, declared in an existing will, is irrevocable. 20. A conveyance in trust for the same uses declared under the will, no revocation.

§ 26. 1. The will only operated upon such real estate as the testator possessed at the time of making it, at common law and under the earlier English statutes. And not only newlyacquired estates, but where the form of the interest had been materially changed, after the date of the will, such change in the estate is construed as a revocation of the will. And even where one seized of a lease for lives, devises it, and afterwards renews the lease, it is held a revocation.2 But it has been held, that the mere fact of a possibility becoming vested, or a contingent estate becoming absolute, without any agency of the testator, will not amount to a revocation.3

2. The English treatises upon the subject of wills contain much nice learning, and many rather unsatisfactory distinctions, in regard to what change in an estate will amount, either to a revocation of the particular devise, or of the will itself, all of which have become inapplicable to cases of wills executed in England since 1837, the date of the present English statute,1 which provides, that no conveyance of real estate made after the execution of a will, or other act in relation to such estate, shall prevent the operation of the will upon such portion of the estate, as the testator may have power to dispose of at his

1 1 Jarman, 136.

Marwood v. Turner, 3 P. Wms. 163. This was where the testator held an estate tail, and suffered a common recovery to the use of himself in fee, the remainder in fee being before in him, and it was held a revocation of the will.

death. Since this statute came in force, the old learning upon this subject has become of no avail, even in England, except in regard to wills of a date anterior to the statute, which are now very few, it is presumed.

3. And as most of the American states have similar statutes, or else have adopted the substance of its provisions, by construction, on the ground of their reasonableness and conformity to the probable intentions of testators, we may content ourselves with a very brief and general analysis of the cases upon this question.

4. Before the late statute, the rule in England seems to have been, that any change in the estate, which resulted from mere lapse of time, and the happening of events, without the agency of the testator, would not effect a revocation of the will, either in whole or in part. And even where the change was nothing more than what the form of the title to the estate provided for, as the payment of the money due upon a mortgage, it did not effect a revocation of the devise. And Sir Edward Sugden" decided, as Chancellor of Ireland, that the same rule applied to leasehold interests, with the right of renewal, where the lessee, after having devised the estate, renewed the lease. His Lordship considered, that a covenant for perpetual renewal, in equity, creates a perpetual interest. This was certainly a most reasonable decision, although opposed to many other cases.8

5. So also it was held, under the old statute, that partition between tenants in common and coparceners, was no such change in the estate of the devisor, as will defeat the devise.9

Ante, n. 3; Plowden v. Hyde, 2 Sim. N. s. 171; s. c. reversed, 2 De G., M. & G. 684.

• Plowden v. Hyde, 2 De G., M. & G. 684.

Poole v. Coates, 2 Dr. & War. 493, 1 Con. & L. 531.

1 Jarman, 147, and cases cited.

Luther v. Kidby, 3 P. Wms. 169, n.; Risley v. Baltinglass, T. Raym. 240; Barton r. Croxall, Taml. 164. See Attorney-General v. Vigor, 8 Vesey, 256, 281; Ward v. Moore, 4 Mad. 368; Rawlins v. Burgis, 2 V. & B. 382; Walton v.

6. So where the testator contracts for an estate, and after going into possession, and part performance of the contract, so as to take the case out of the statute of frauds, in equity, devises the same, and subsequently accepts a conveyance, precisely according to the contract,10 it will not operate as a revocation. But if the estate conveyed be different, in any essential particulars from that provided for in the contract, it will operate as a revocation of the devise. So also in all cases where the estate is varied, in any essential particular, by the testator, although not done with any expectation of revoking the devise, it will nevertheless have that effect.12

7. Partial alienations will, either under the rule of the earlier English law, or of the present statute, and of the rules which commonly prevail in the American courts, produce a revocation pro tanto.18 And where the estate devised is contracted to be conveyed, and the purchase-money remains due, in whole or in part, the legal estate only remains subject to the operation of the devise, and the amount due on the purchase-money becomes a part of the general personal estate, or is held in trust for the devisee, as real estate not converted.14 This. depends upon circumstances not necessary to be here discussed.

8. But where an estate, subject to a term to raise a sum of money, is sold under a decree for raising the incumbrance, and

Walton, 7 Johns. Ch. 267; Ashburner v. Macguire, 2 B. C. C. 108; Basan v. Brandon, 8 Sim. 171. If in the partition the testator becomes seized of the whole estate in severalty, it will not revoke the devise, but the additional title acquired does not pass under the will. Duffel v. Burton, 4 Harr. 290.

10 1 Jarman, ed. 1861, 145.

" Ward v. Moore, 4 Mad. 368; Bullin v. Fletcher, 1 Keen, 369; 2 My. & Cr.

432.

" Sparrow v. Hardcastle, 3 Atk. 798; s. c. Amb. 224; 1 Jarman, 138, 139. 13 Parker v. Lamb, 3 Br. P. Cases, Toml. 12; 1 Jarman, 137, 138; Arnald v. Arnald, 1 Br. C. C. 401.

14 Farrar v. Earl of Winterton, 5 Beavan, 1; Moor v. Raisbeck, 12 Sim. 123; Ex parte Hawkins, 13 Sim. 569. See Clingan v. Micheltree, 31 Penn. St. 25.

an excessive sale is made beyond what was required to raise the amount due, and the surplus remained in court, it was held, that the surplus retained the character of real estate, and as such would go to the devisee, the devise remaining unrevoked, notwithstanding the sale and conveyance of the estate.15. But if the sale is made under a power of sale in another, the will is revoked, unless the sale is made after the death of the testator.16

9. Where the transfer is made under compulsory powers granted to railways and other public works, the English cases do not seem to have established any definite rule in regard to whether it shall be regarded as a conversion of the realty into personalty, so as to work a revocation of the devise, or not. It seems to be considered, that it depends upon the phraseology of the statute.17

10. As we have already intimated, where there is an essential change in the character of an estate, either real or personal, it will no longer pass under a specific bequest, the terms of the will being no longer applicable to the subject-matter. This will be more extensively considered under the title of Legacies, under the head of ademption.

11. It may be proper to notice here one very common case, where mere personalty, as the estate or interest of the mortgagee, is devised, and the mortgage subsequently foreclosed, and the absolute title of the estate vested in the testator. This seems generally to be regarded as a revocation of the devise.18

15 Jermy v. Preston, 13 Sim. 356; Coote v. Dealey, 22 Beavan, 196.

16 Wright v. Rose, 2 Sim. & Stu. 323; Bourne v. Bourne, 2 Hare, 35; Gale v. Gale, 21 Beavan, 349.

17 Midland Counties Railway v. Oswin, 1 Coll. 80; Same v. Wescomb, 2 Railw. Cas. 211; Same v. Caldecott, id. 394; Ex parte Flamank, 1 Sim. N. s. 261; Re Horner's estate, 5 De G. & Sm. 483; Re Stewart, 1 Sm. & Gif. 32; Re Taylor's Settlement, 9 Hare, 596; Re Walker's Est. 1 Drew. 508; Re Harrop, 3 Drew. 726; Cant's Est. 4 De Gex & Jones, 503; 1 Jarman, 152.

18 Ballard v. Carter, 5 Pick. 112. See Swift v. Edson, 5 Conn. 531. And even

And in Ballard v. Carter, it is said to make no difference in that respect, whether the mortgagee take a release of the equity of redemption, or extinguish it by decree of foreclosure, or otherwise, as by entry under statutory provisions, and foreclosure by lapse of time after such entry, it will be a revocation of the devise. In the very able opinion in this case, by Parker, Ch. J., the revocation is placed upon the ground of a change in the estate of the devisor. The language of the learned judge is so applicable to our purpose here, that we shall adopt it. "Qn this subject of revocation there seems to have been an excessive degree of refinement, in the English books, as well as some contradiction; and so it has been thought by Lord Chief Justice Eyre, and Lord Mansfield, as appears in the case of Goodtitle v. Otway,19 and the case of Swift v. Roberts.20 Still, one principle runs through all the cases, and is admitted by all the judges, as well those who quarrel with, as those who support the doctrine of revocation to the extent to which it has been carried, and that is, that the devisor must be seized of the same estate, at the time of his death, that he was seized of when he made his will, to make it a good devise. In other words, that any alteration in the estate, after the making of the will, amounts to a revocation. Lord Chief Justice Eyre admits this ... in Goodtitle v. Otway; . . . and Lord Mansfield, though he considers the doctrine of revocation to have been carried to an inconvenient, if not an absurd, extent, admits the same principle. Doe v. Pott.21 In assenting to this doctrine, we would' understand by any alteration of an estate a material alteration;

where after the foreclosure, the estate is sold to the same party, and a bond and mortgage taken for the same amount, and a writing is found among the testator's papers, saying it is for the same debt, and shall pass under the will, it cannot so pass, the foreclosure having operated to revoke the devise. Beck v. M'Gillis, 9 Barb. (S. C.), 35.