575

CHAPTER XLV.

REVOCATION.

Act.

PRIOR to the Wills Act a devise was revoked if the Revocation before testator afterwards made a conveyance of the land for any the Wills purpose (except a mortgage), though the conveyance was only of the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.

pro- Effect of sub-section of

the 23rd

the Wills

any Act.

Now, by the 23rd section of the Wills Act, it is vided that no conveyance or other act made or done sequently to the execution of a will of or relating to 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.

tion does

This section applies to cases in which a gift would have The secbeen formerly revoked by alteration of estate, but not to not apply cases of ademption. Moor v. Raisbeck, 12 Sim. 123; Ford v. De Pontes, 30 B. 572.

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

to cases of ademption.

It must be reasonably clear that

is meant to

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 clear that it was meant to be cut down. The rule is nut a bequest that the words of revocation must be as clear as the words be revoked. of original gift. See Randfield v. Randfield, 8 H. L. 225; Wallace v. Seymour, 20 W. R. 334; Beamish v. Beamish, 1 L. R. Ir. 501.

Gifts will

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. v. Tribe, 27 W, R. 39.

Greca

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 re

voked

further

than is

codicil.

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

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. Tupper 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.

directed to

the trusts

which are

When personalty is directed to go upon the same trusts Personalty as realty and the trusts of the realty are afterwards revoked, go upon the gift of the personalty remains. Lord Beauclerk v. of realty Mead, 2 Atk. 167; Darley v. Longworth, 3 B. P. C. 359; which ar 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.

recital will

3. A gift by will is not revoked by an erroneous recital Erroneous of it by a codicil. Re Smith, 2 J. & H. 594; Mann v. not revoke Fuller, Kay, 624.

a gift.

tion owing

neous as

4. An alteration or addition to a gift in a will expressed Revocato be made upon an assumption of fact, which turns out to an erroto be erroneous, does not take effect. Campbell v. French, 3 Ves. 321; Doe d. Evans v. Evans, 2 Per. & D. 378; 10 Ad. & E. 228; Barclay v. Maskelyne, Johns. 124.

PP

sumption

of fact.

But if the alteration or addition is made because the testator is doubtful whether some fact is true or not, the alteration takes effect. A.-G. v. Lloyd, 3 Atk. 552; 1 Ves sen. 32; A.-G. v. Ward, 3 Ves. 327.

The distinction seems to be not between the fact and the testator's belief in the fact, but between a fact and a possibility which the testator is unable to verify, and therefore an additional gift founded upon an erroneous belief would fall under the former head. Howell, 18 Eq. 198.

Thomas v.

The later

of two in

consistent

gifts takes

effect.

Gift of the

same pro

perty to

two per

sons.

INCONSISTENCY.

When two clauses in a will are absolutely irreconcileable the later one is to be preferred. Crone v. Odell, 1 Ba. & B. 449; 3 Dow. 61; Ulrich v. Lichfield, 2 Atk. 372; Morrall v. Sutton, 1 Ph. 533; Paice v. Archbishop of Canterbury, 14 Ves. 366.

But if possible the Court will reconcile two dispositions apparently inconsistent. See Kerr v. Baroness Clinton, 8 Eq. 462.

Thus, if the same property is given to two persons in fee in two different parts of the will, they will take as joint tenants. Paramour v. Yardley, Plow. 541; Bennett's Case, Cro. Eliz. 9; see Sherratt v. Bentley, 2 M. & K. 149, 162.

This does not, however, apply as between will and codicil. Re Hough's Estate, 15 Jur. 943; 20 L. J. Ch. 422; Evans v. Evans, 17 Sim. 107.

So, too, if land is given to one person without and to another person with words of limitation, the latter will take a fee in remainder. Gravenor v. Watkins, L. R. 6 C. P. 500.

Similarly where immediate interests in fee and in tail or in fee and for life are given in the same lands, the devise of the fee will be construed as a remainder whether the devise of particular estate precedes the devise of the fee or not. Wallop v. Derby, Yelv. 209; see Conquest v Conquest, 16 W. R. 453.

the testa

estate, and

In cases where the whole personalty is given to a person Gifts of absolutely and then there is a gift of the residue at her tor's whole decease, the earlier gift has been held to be for life only. of a residue Sherratt v. Bentley, 2 M. & K. 149; Re Brook's Will, 13 in the W. R. 573; Hare v. Westropp, 9 W. R. 689.

same will.

And the same construction has been adopted where there were no words referring to the death of the first legatee, but the gift was to her children. In re Bagshaw's Trusts, 24 W. R. 875; 25 W. R. 659; 46 L. J. Ch. 567. So, if a testator gives the remainder of his property Gifts of to A. and makes B. his residuary legatee, B. will take and of the only lapsed legacies. Re Jessop, 11 Ir. Ch. 424; in the Dawes v. Bennett, 30 B. 226; Kelvington v. Parker, same will. 21 W. R. 121.

But a residuary gift by codicil revokes a residuary gift by will.

F. 795.

Earl of Hardwicke v. Douglas, 7 C. &

the residue

remainder

the testa

lowed by

Similarly, a gift of all the testator's property, followed Gifts of all by gifts of specific portions of it or vice versa, may tor's proboth take effect. Cuthbert v. Lempriere, 3 Mau. & S. perty, fol158; Doe d. Snape v. Nevile, 11 Q. B. 466; Blamire gifts of v. Geldart, 16 Ves. 314; In re Arrowsmith's Trusts, 8 it. W. R. 555; 2 D. F. & J. 474; Robertson v. Powell, 3 N. R. 433.

Where, however, all the testator's personal property was given to his widow for life, subsequent legacies were held to be not payable till after her death. Burdett v. Young, 9 Mad. 93; 5 B. P. C. 54.

portions of

As between a will and codicil, however, the argument As be