one which changes the nature and effect of the seizin of the testator. For there are some cases in the books, which we should not incline by anticipation to adopt as law here." The learned judge concludes, that all which is requisite is, that the testator shall, at the time of his death, be seized of substantially the same estate of which he was seized at the time of his making his will.22 And according to the present English statute, and those of most of the American states, it is only necessary that the will shall be so expressed, in order to operate upon such estate as the testator may have at his decease, and it is not material, even as to real estate, that he should be seized of the same estate at the time of executing the will, since the instrument will operate upon any estate, coming fairly within its terms, in which the testator is seized of a disposable interest at the time of his death.

12. In a later case than Ballard v. Carter,23 the same court reaffirmed the same principle, and we believe the American courts would never be induced to carry the doctrine of an implied revocation, from a change of the estate of the testator, beyond this safe limit, which seems to be equally recommended by sound reason and the obvious intent of the testator, as indicated by the evident probabilities of the case. There may be some reason to say, perhaps, in the majority of cases, that where the testator devises all his personal estate, in a residuary clause, to legatees by name, which would, at the time of the execution of his will, pass securities, included in a mortgage, that after the foreclosure of the mortgage, the testator may naturally be expected to desire to have the estate go in the same direction. But this, it is obvious, cannot be the case, without too great a departure from the natural import of language, after that estate has so essentially changed its character as to be no longer described by the language of the will, which, in general, is reregarded as speaking from the time of the death of the testator,

22 Ashurst, J., in Goodtitle d. v. Otway, 7 Term Rep. 419.

23 Brigham v. Winchester, 1 Met. 390.

when it comes in force. This subject is very learnedly discussed by Aikens, J., in an early case,24 and the following conclusions reached; that an alteration in the circumstances of the devisor will not, in any case, amount to a revocation in law. If a part of the estate devised be conveyed by the testator, it will amount to a revocation pro tanto only, and if the devisor convey the whole estate, it is a revocation of the devise ex necessitate; and no revocation is allowable by way of implication, except from necessity. We think such reasonable doctrines will meet with no resistance in this country.

13. It seems well settled, by the other American cases, that the revocation of a will pro tanto is effected, and that only, by a conveyance of a portion of the real estate owned by the testator at the date of his will, and which, but for the alienation would pass under it.25 And it has been held, that if the will be made so as to operate upon both real and personal estate, and subsequently the real estate be conveyed by the testator so as to revoke the will as to the real estate, it will then attach as a will of personalty merely, and after that may be revoked in any mode which is effectual to revoke a will of personal estate.26

24 Graves v. Sheldon, 2 D. Chip. 71. It seems to have been supposed, that a devise of an estate by name, which the testator had contracted to sell, would only pass the legal estate, for the purpose of enabling the devisee to carry the contract into effect. Knollys v. Shepherd, cited by the Master of the Rolls in Wall v. Bright, 1 J. & W. 499. In this case, the Lord Chancellor thought the purchase-money would not pass under the devise, but unless there was some special reason leading to that conclusion, it would seem natural to conclude such would be the purpose of such a devise. It ought to be construed a devise of the estate subject to the contract, and of the price, when that came into the place of the estate. Ante, n. 14.

25 Hawes v. Humphrey, 9 Pick. 350; Brush v. Brush, 11 Ohio, 287; Carter v. Thomas, 4 Greenl. 341; Skerrett v. Burd, 1 Whart. 246; M'Rainy v. Clark, Taylor, 278; M'Taggart v. Thompson, 14 Penn. St. 149; Floyd v. Floyd, 7 B. Mon. 290; Arthur v. Arthur, 10 Barb. (S. C.), 9; Sargeant, J., in Wharton, 250; Bowen v. Johnson, 6 Ind. 110; Epps v. Dean, 28 Ga. 533; Wells v. Wells, 35 Miss. 638.

26 Brown v. Thorndike, 15 Pick, 388. It seems clear that the purchase of

14. And where the testator devised certain portions of his real estate to his several children, and among others to his two daughters, and gave the residue of his estate to be equally divided amongst all his children, and subsequently sold and conveyed a portion of that devised to his daughters, taking back a bond and mortgage to secure the purchase money, it was held to have revoked the devise to his daughters, as to the portion so sold, and that the securities became, by the transaction, a portion of the residuum of the estate, to be divided equally among all the children under the residuary clause in the will.27 And a lease for ninety-nine years, with the right in the lessee to extinguish the reversion by the payment of a fixed sum, will revoke a devise of the same estate.28

15. A valid agreement or covenant to convey, which a court of chancery will specifically enforce, will operate in equity as a revocation of a former devise of the same estate.2 29 This rule. is maintained in equity, upon the ground that, from the date of the contract, the estate is regarded as the real estate of the vendee, the same as if it had been conveyed.29 And even where the

additional real estate by the testator, after the date of his will, cannot operate to revoke the will, whether the estate pass under the will or not. Blandin v. Blandin, 9 Vt. 210.

27 Adams v. Winne, 7 Paige, 97; Beck v. M'Gillis, 9 Barb. Sup. C. 35. But in Alabama, it would seem that the subsequent execution of a deed of the same land devised, is not a revocation of the will per se, or unless the intention to revoke the will plainly appears, and it was held, that it is not to be so regarded where the deed is liable to be set aside for fraud, or where a large portion of purchase-money remains unpaid. Nor is a subsequent mortgage of a portion of the estate to the sole beneficiary, under the apprehension that the will is invalid, a revocation. Stubbs v. Houston, 33 Ala. 555.

28 Bosley v. Bosley, 14 How. (U. S.), 390.

29 4 Kent, Comm. 528; Cotter v. Layer, 2 P. Wms. 623; Rider v. Wager, id. 382; Mayer v. Gowland, Dickens, 563; Knollys v. Alcock, 5 Vesey, 654; Vawser v. Jeffrey, 2 Swanst. 268; Walton v. Walton, 7 Johns. Ch. 258. But in Hull v. Bray, Coxe, 212, it was held, that a mere agreement to sell the land devised, made after the date of the devise, will not effect a revocation.

testator conveys the estate, and it reverts back again, by the same instrument, or otherwise, it will operate to revoke a prior devise of the same.30

16. The sale and conveyance of so large a portion of the real estate devised, as to render it impracticable to give effect to the dispositions of the will, operates as a revocation of the will.31 And the mortgage of a portion of the estate will operate to revoke a devise of the same pro tanto, as much as an absolute conveyance.82

17. So a grant in fee of the estate devised, reserving rent, with a clause of reëntry, operates to revoke the devise.33 And the conveyance of the estate to the devisee operates to revoke the will, and the destruction of the deed during the lifetime of the testator, will not enable the devisee to take under the will, unless there was a republication.34

35

18. It has been held, that a conveyance in trust during the life of the testator will not operate as a revocation, nor will a commission of lunacy antedating the conveyance.35 Nor will a conveyance in trust to pay debts, with an express reservation of the reversion thereafter.8 86

19. It has been held, that where a deed conveys land in trust, for such uses as are declared in the will of the grantor, already made, it creates an irrevocable trust, unless some power of revocation is reserved in the deed.37 But if the conveyance be to such uses as the grantor may thereafter declare by his will, then

"Walton v. Walton, 7 Johns. Ch. 258.

In re Cooper's Estate, 4 Barr, 88.

"M'Taggart v. Thompson, 14 Penn. St. 149; Temple v. Chandos, 3 Vesey, 685. Herrington v. Budd, 5 Denio, 321.

it is competent for the testator, from time to time, to make and alter such appointment; but it is otherwise where the appointment is by deed, and no power of revocation reserved.38 A will made in execution of a power is ambulatory and revocable the same as any other will.39

20. Where the testator had bequeathed all his property to his wife, a subsequent conveyance of a portion of the testator's real and personal estate to trustees, for the use of the wife, was held not to amount to a revocation of the bequest.38

SECTION IV.

BY VOID CONVEYANCE, OR AN ATTEMPT TO CONVEY ESTATE.

1. A conveyance inoperative, as such, will revoke a devise of the same estate.

2. But it should clearly appear such was the intention of the grantor.

3. Thus a void conveyance to charitable uses, will not operate to revoke a devise. 4. And so of the deed of a feme covert.

5. And a deed void, for fraud, will not revoke a devise.

§ 27. 1. It seems to have been considered, in the English courts, that, by the statute of frauds, any attempt to convey the estate devised, which showed a clear intent to revoke, should be held to have that effect, notwithstanding the conveyance failed to take effect, through the incapacity of the grantee, or from the want of some indispensable ceremony.1 Thus a feofment, without livery of seizin, and a bargain and sale, without enrolment, although inoperative to pass the title,

38 Clingan v. Mitcheltree, 31 Penn. St. 25.

Van Wert v. Benedict, 1 Bradf. Sur. Rep. 114; Southby v. Stonehouse, 2 Ves. Sen. 610, 612; Cotter v. Layer, 2 P. Wms. 623; Duke of Marlboro' v. Godolphin, 2 Ves. Sen. 61, 75.

1 Beard v. Beard, 3 Atk. 72. This was a deed of gift by the testator to his wife, of personal estate, and it was held, that it operated to revoke the will, but as it could not operate in favor of the wife, the property must be distributed.