A. wrote his will on one side of a sheet of paper, but neither signed nor sealed it. On the other side he wrote another will, and signed and sealed it. They appeared to be both written at the same time, though it seemed impossible to determine which had been written first. There was a trifling difference. He had provided for the infant then in ventre sa mere, and who afterwards was born in his life-time. Sometime after this A. died, leaving his wife ensient with a child which was afterwards born. The question was, whether the will was thereby revoked, as the posthumous child was entirely unprovided for. Evidence was produced to shew that in his most serious moments he had declared that he had made no will, but was resolved to do so on the first opportunity, mentioning that the situation of his family required such precaution.

While he was in this state of mind, he had the misfortune to receive his death wound by a fall from his horse, and in the short interval between the fall and his death, his thoughts were employed on the making of his will; and accordingly he sent for a professional person; but losing his senses and dying soon after, the paper was all that was found. The great doubt with the court was, whether the will was prior or posterior to the paper written on the back of it. And in order to come at this, they adjourned the case for six months, that they might enquire further as to that fact. But this enquiry was fruitless; and therefore the Court directed that it should stand for argument on its particular circumstances. And at length, the Lords of the Council, upon a view of the whole matter, and the co-operating argument of a child's being then unprovided for, set aside the

will. The decision did not turn upon the naked fact of the birth of a child unprovided for, but upon that and the frequent declarations of the testator; the state of his mind; and his repeatedly declared intention in the interval between the fall and his death."

This is the manner in which the judgment in that case is accounted for by the learned Judge of the Prerogative Court, in Shepherd v. Shepherd. He seems, however, to have omitted that circumstance in the case, without adverting to which, the propriety of admitting the evidence of declared intention, seems palpably open to the objections arising from the statute of frauds, viz. the suddenness of the accident, which was a surprise upon those intentions so natural under the circumstances of the testator's family to have existed in his mind, and which afforded a foundation for the reception of that testimony, which, without such a foundation, has always been rejected by the better opinions. A case of this sort is mentioned in the first volume of Roll's Abridgment. A. made his will, according to the statute, and afterwards revoked it by parol, and then declared his intention to alter it when he came to D., but before he could come to D. was murdered; the will was held to be revoked.

614.

SECTION XVI.

Of the Revocation of Wills made under Powers.

IN a former part of this Treatise, where the execution of wills was under consideration, that part of the subject was viewed in its connection with wills made under, and in execution of, powers: it seems important also to consider how the law in respect to revocations applies to this description of wills.

pointment

works by

according

to the na

ture and

such an

ment.

It appears to be a general, established, point, that An apthe instrument by which a power is directed to be by will executed, must have the requisites which specifically belong to its nature, and proper constitution, and be attended also by all the train of incidents which qualities of legally accompany it". Upon this principle it is that instru a will made in execution of a power, is, to all intents, a will it is ambulatory and incomplete till death, and alterable and revocable by cancellation, or any of the methods whereby a will, in the strictest and most absolute sense, is so affected. It is also equally clear that if an appointee under a power executed by will, die before the appointer, the interest under the appointment fails by lapse, as in the ordinary

cases.

spect to a

pyhold,

This rule is universal. It extends to a will of copy- So in rehold, which, though not considered as the act by will of cowhich the estate is transferred, (that being the ration of the surrender), is nevertheless in its nature specifically a will, though in its instrumentary

a 2 Freem. 61.

ope- though not

own

properly

the act by

which the

estate is

transferred,

operation it is only directory of the uses of the surrender. Thus, if a copyholder surrenders to the use of his will, and then makes his will in favour of A. and survives him, the benefit is gone; for, as a will, the appointing instrument is inefficacious till the death of the appointer, and if the appointee is not then in existence, the gift cannot take place.

It cannot be doubted, that an appointee under a power must claim according to the nature of the instrument by which the power is directed to be executed. Thus, if a power is given by deed to appoint lands by will, and the person to whom the power is given makes his will accordingly, and gives the lands to A. and his issue, which words in a deed convey only an estate for life to the grantee, though the devisee takes properly under the power; yet, because the appointment is by will, the words are construed to convey an estate tail. So, it is conceived, if it were "to A. for ever," the estate would be construed a fee simple for the same reason.

Upon the same grounds, such an appointment by will, in execution of a power, is held to be revocable; and therefore, though, where a power is executed by deed, unless a power of revocation is reserved by the deed, (and such fresh reservation of power to revoke may be made toties quoties,) the appointment cannot be revoked (1), yet if it be

See the great case of the Duke of Marlborough v. Lord Godolphin, 2 Vez. 61.

• 2 Vez. 77. S. C. ibid. 610. and see Robinson v. Hardcastle, 2 Bro. C. C. 30. Reid v. Shergold, 10 Vez. Jun. 370.

(1) Hatcher v. Curtis, 2 Freem. 61.

Such appointment by

executed by will no such fresh power of revocation need be reserved"; the nature of the instrument supplies it.

By the case of Cotter v. Layer, which has been already cited to shew that a covenant entered into for valuable consideration amounts to a conveyance in Courts of equity, and is therefore, in those Courts, held a revocation of a will, it also appears that, where the will works as an appointment under a power, it is equally revoked in equity by such executory contract under seal. In that case, though the will was made in execution of a power by a married woman, who cannot in strictness make a will at all, (2) and the conveyance was only in fieri, yet the first instrument was adjudged to be revoked by the second.

Lord Hardwicke decided the case of Oke v. Heath,

Hatcher v. Curtis, 2 Freem. 61. and see 1 Vez. 139. 1 Bro. C. C. 533. 2 Bro. C. C. 319.

* 2 P. Wms. 662.

deed cannot be revoked without a fresh reservation of a power in the executing instrument for that purpose, though the original deed should expressly authorize such future revocations, as was adjudged in the leading case of Hele v. Bond, Prec. in Ch. 474.

(2) It is true, nevertheless, that if a married woman, with the consent of her husband, make a will, the same must be proved in the Ecclesiastical Court, Mariot v. Kinsman, Cro. Car. 219. and the will of a femme covert cannot be given in evidence until it has been proved in the Spiritual Court; see Jenkin v. Whitehouse, Burr. 431. and Stone v. Forsyth, Doug. 707. where Lord Mansfield says, if the Ecclesiastical Court will not grant probate, the proper course is to appeal to the delegates. Mr. Douglas in note (+ 150) ib. observes, that the regular course in cases like this, is for the Spiritual Court not to give probate of the will, but administration with the will, as a testamentary paper, annexed.-See Ross v. Ewer, 3 Atk. 160. and note (1) by M. Sanders.