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divest vested interests. The implication arises from the tations

will not be presumption against intestacy, but where there are vested

implied so interests there can be no intestacy. See Rabbeth v. Squire, as to divest 19 B. 70; 4 De G. & J. 406; Re Clark, 11 W. R. 871.

Upon the same principle, when the testator has disposed of his whole interest in realty or personalty; if, for instance, absolute vested interests have been given to several as tenants in common, with a gift over upon the death of all in certain events; cross-limitations cannot be implied between them, as there can be no intestacy, and cross-limitations would divest vested interests. Skey v. Barnes, 3 Mer. 334; Bromhead v. Hunt, 2 J. & W. 459; Buster v. Losh, 14 B. 612; Beaver v. Nowell, 25 B. 551.

8. If, however, the interests are not vested, but con- Gift over tingent with a gift over upon the death of all before the of contin

gent ininterests vest, the argument against an intestacy applies, terests

, if and no argument can be raised against cross-limitations legatees on the ground that they would divest vested gifts, and the time therefore in all probability cross-limitations would be of vesting. implied. Mackell v. Winter, 3 Ves. 236, 536; Scott v. Bargeman, 2 P. Wms. 68; 2 Eq. Abr. 542; Graves v. Waters, 10 Ir. Eq. 234.

There are no grounds for supposing Scott v. Bargeman to be overruled. The point in Beauman v. Stock, 2 Ba. & Be. 406, was totally different. It was whether benefit of survivorship would be implied between tenants in common taking vested interests, and the incidental remarks of Lord Manners cannot be considered as overruling a case expressly approved by Lord St. Leonards in Vize v. Stoney, 1 Dr. & War. 348, and followed in Graves v. Waters.

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A recital 1. A recital, that a person is entitled under another person is instrument, when he is not in fact entitled, does not in entitled under

general amount to a gift by the instrument which contains another the recital. Harris v. Harris, I. R. 3 Eq. 610; Circuit instrument. v. Perry, 23 B. 275. Recital of 2. But a recital that the testator has by the very docua supposed gift by the ment containing the recital made a particular gift, which reciting in he has not in fact made, is evidence of an intention to

confer the bounty. Adams v. Adams, 1 Ha. 537. Gift in Thus a gift alleged to be “in addition” to a prior gift, addition to a supposed where there is in fact no such prior gift, is sufficient gift.

evidence of an intention to confer the supposed prior gift. Jordan v. Fortescue, 10 B. 259; Farrar v. St. Catherine's Coll., 16 Eq. 24.

So a statement that the testator does not give a legatee a certain sum because she is absolutely entitled to it, when in fact it is in the disposition of the testator, amounts to a gift of the sum in question. Hall v. Leitch, 9 Eq. 376.

But a mere recital in a codicil of a supposed gift by will will not amount to a gift. Re Arnold's Estate, 33 B. 163, 171.

3. In order that rule 2 may apply it must be clear that a recital may that there is nothing in the will to which the recital can operate as refer. Sherratt v. Oakley, 7 T. R. 492; Smith v. Fitz

it must be

be gerald, 3 V. & B. 2; Mackenzie v. Bradbury, 35 B. 617, clear that there is 620; Nugent v. Nugent, I. R. 8 Eq. 78; Ives v. Dodgson, nothing to which it 9 Eq. 401. may refer.

4. Still less can a gift be implied from a recital when Recital will not the effect of such implication would be to cut down a cut down a prior ex

prior express gift, as from a recital of a gift to B. for life, press gift. remainder to his children, when in fact the prior gift was

to the children immediately. Re Smith, 2 J. & H. 594.

In order




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PRIOR to the Wills Act a devise was revoked if the Revoca

tion before testator afterwards made a conveyance of the land for any, the Wills

Act. purpose (except a mortgage), though the conveyance was only of the legal estate. Lord Lincoln's Case, Show. P. C. 154; 1 Eq. Ab. 411, pl. 11; 1 Jarman, 136—141; 4th Ed.150.

Partition was no exception to the general rule where a conveyance was made to a trustee to divide, though, if the partition was effected by a mere release to uses, there was no revocation. Grant v. Bridger, L. R. 3 Eq. 347. Now, by the 23rd section of the Wills Act, it is pro- Effect of

the 23rd vided that no conveyance or other act made or done sub

the Wills sequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate, as the testator shall have power to dispose of by will at the time of his death. This section applies to cases in which a gift would have The sec

tion does been formerly revoked by alteration of estate, but not to not apply cases of ademption. Moor v. Ruisbeck, 12 Sim. 123 ; to cases of

adempFord v. De Pontes, 30 B. 572.

tion. The subject of revocation of testamentary instruments has been treated ante, pp. 35-47.

The cases upon revocation as a question of construction are so special


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that they are of little use as general authorities, and hardly admit of a satisfactory classification.

The following general rules may, however, be laid down with regard to revocation =

1. To cut down a previous gift it must be reasonably reasonably

clear that it was meant to be cut down. The rule is not clear that a bequest that the words of revocation must be as clear as the words is meant to be revoked. of original gift. See Rundfield v. Randfield, 8 H. L. 225;

Wallace v. Seymour, 20 W. R. 334; Beamish v. Beamish, 1 L. R. Ir, 501.

Thus, if property is given to A. for life with remainder for her children, and by a codicil all gifts in favour of A. are revoked, the remainder to the children remains. Green v. Tribe, 27 W, R. 39.

On the other hand, where property is given to A. for life with remainders over and the gift to A. only is revoked, but the property is given absolutely to B, the whole original gift is revoked. Murray v. Johnstone, 3 D. & War. 143; Fry v. Fry, 9 Jur. 894; see Wells v. Wells, 2 W. R. 6; 17 Jur. 1020; Hargreaves v. Pennington, 12 W. R. 1047.

So, when there is a gift to A. with executory limitations over, and the trusts of the will as regards the gift to A. are revoked, the gifts over are revoked as well. Boulcott v. Boulcott, 2 Dr. 25.

2. The dispositions of the will will not be disturbed not be con more than is necessary to give effect to a revocation by sidered revoked codicil. further than is Thus, where a legacy is charged on real and personal necessary. estate and the charge on the personal estate is revoked by

a codicil, the charge on the realty remains. Kermode v. Macdonald, 3 Ch. 585; Leese v. Knight, 12 W. R. 1097.

Where a legacy is charged on two funds, one of which is afterwards by a codicil given free from the charge, the

Gifts will

charge remains on the other fund and does not abate in the proportion of the two funds. Tatlock v. Jenkins, Kay, 654.

So, too, when land is given subject to a charge to A., and the devise is afterwards revoked, the charge remains. Beckett v. Harden, 4 Mau. & S. 1; see Grice v. Funnell, 1 Sm. & G. 130.

A legacy which is revoked is not set up again because the disposition in favour of which the revocation is made is incomplete or incapable of taking effect. Turper v. Tupper, 1 K. & J. 665; Nevill v. Boddam, 28 B. 584; Quinn v. Butler, 6 Eq. 225; see Onions v. Tyrer, 1 P. Wms. 343; 2 Vern. 741; Baker v. Story, 23 W. R. 147; see ante, Ch. VI., p. 37. When personalty is directed to go upon the same trusts Personalty

directed to as realty and the trusts of the realty are afterwards revoked, go upon

the trusts the gift of the personalty remains. Lord Beauclerk v. of realty Mead, 2 Atk. 167; Darley v. Longworth, 3 B. P. C. 359; which are Agnew v. Pope, 1 De G. & J. 49; Martineau v. Briggs, 23 W. R. 889; Bridges v. Strachan, 26 W. R. 691. Lord Carrington v. Payne, 5 Ves. 404, would probably not be followed. See Re Gibson, 2 J. & H. 656.

But if the gift is of money to be laid out in repairing certain premises and the surplus is given to the same persons to whom the premises are devised and this latter devise is revoked, the gift of personalty also fails. Whiteway v. Fisher, 9 W. R. 433. 3. A gift by will is not revoked by an erroneous recital Erroneous

recital will of it by a codicil. Re Smith, 2 J. & H. 594; Mann v. not revoke

a gift. Fuller, Kay, 624. 4. An alteration or addition to a gift in a will expressed Revoca.

tion owing to be made upon an assumption of fact, which turns out to an erro. to be erroneous, does not take effect. Campbell v. French,

sumption 3 Ves. 321 ; Doe d. Evans v. Evans, 2 Per. & D. 378; 10 Ad. & E. 228; Burclay v. Maskelyne, Johns. 124.


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