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PERKINS v. WALKER.

CHANCERY. 1682.

[Reported 1 Vern. 97.]

ONE John Walker having by a voluntary settlement made himself tenant for life, with a power to lease or grant for a thousand years at any rent, he by deed grants the whole term to trustees, in trust that he himself should enjoy the same during his life, and afterwards in trust, by sale or otherwise to raise out of the premises several sums of money for payment of his debts, and to discharge a mortgage of £200 and other sums, which he appointed to the plaintiffs, his nephews and nieces; which deed was with a power of revocation.

After this, the said John Walker having occasion for money, he mortgages this estate three several times to Sir William Humble, having before that made his will and confirmed his said first deed, and thereby appointed other legacies to be paid by his trustees.

The point insisted on was, that by these subsequent mortgages to Humble, the said Walker had revoked his will, and the former deed, that was made with a power of revocation. Sed non allocatur; it might be a revocation pro tanto, but no otherwise.

And the LORD CHANCELLOR [LORD NOTTINGHAM] cited the case of Coke and Bullock, 2 Crook, 49. That a man having by will devised a fee simple, afterwards by indenture makes a lease for years of the same lands; this lease, if not made to the same person, shall be a revocation pro tanto only, even at law and the principal case is much stronger in equity, which will charge and subject an equity of redemption.

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THE late earl devised his estate in fee, and afterwards being in treaty of marriage, he by lease and release conveyed his estate to trustees, to the use of him and his heirs until the marriage took effect, and after the marriage, to the use of himself for life, remainder to his intended wife for life, with remainder to issue, &c. The earl afterwards dying before the marriage, the question was, Whether this conveyance should amount to a revocation.

It was argued, That it was not a revocation, because when the marriage took no effect, the conveyance took none neither.

And it was said that a feoffment in fee to the use of the devisor and his heirs, would be no revocation, because it is in the nature of the old use.

That which is a revocation at law, is sometimes none in equity, as a fine levied to corroborate the will is a revocation at law in strictness; but being levied for that purpose, it was said per FINCH, that it would amount also to a republication in equity; and the same it is of a feoffment for that purpose, and so it was said it had been held in this court; and two cases were cited, of Thorne and Thorne, 1 Vern. 141, and of Hall and Dunch, 1 Vern. 339, 342; 2 Ch. Rep. 297, in 1689, where the court of equity had ruled that to be no revocation in equity, which would have been so at law; and a case was cited of Montague and Jefferies, Moor. Rep. 429; Roll. 616.

Agreed a lease for years is a revocation only pro tanto, unless made to the devisee, and then in toto, according to the case Cro. [Jac. 49]. Agreed a mortgage in fee is no absolute revocation, but the equity of redemption will go to the devisee.

Resolved afterwards, that it was a revocation, and upon an appeal so held in the House of Lords, carried only by two lords.1

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A. AND B. tenants in common of lands in fee. A. by will dated 25 January, 1719, devised his moiety in fee; afterwards A. and B. made partition by deed, dated 16 May, 1722, and fine, declaring the use, as to one moiety in severalty, to A. in fee; and as to the other moiety in severalty to B. in fee; on its being sent by the LORD CHANCELLOR KING to the judges of the King's Bench to give their opinion, whether this was a revocation of the will? it appears by the register's book, that the court, viz. LORD RAYMOND, Chief Justice, PAGE, PROBYN, and LEE, Justices, certified,

"That they were all of opinion, that the will of the said A. was not revoked by the deed and the fine levied in pursuance thereof; and that the said A.'s share of the lands contained in the deed, and the fine levied thereon, did pass by the will of the said A." with which the LORD CHANCELLOR Concurred, and ordered that the several trusts in the said will of A. should be established.

1 See Parsons v. Freeman, Ambl. 116 (1751); Sparrow v. Hardcastle, Ambl. 224 (1754). "The absurdity of Lord Lincoln's Case is shocking. However, it is now law." - Per LORD MANSFIELD, C. J., in Doe v. Pott, 2 Doug. 710 (1781); Brydges v. Chandos, 2 Ves. Jr. 417 (1794); Cave v. Holford, 3 Ves. Jr. 650 (1798), — s. c. sub nom. Goodtitle v. Otway, 2 H. Bl. 516; 7 T. R. 399.

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THOMAS BALDWIN, who was a sailor, being seised in fee by indenture 10th January, 1749, in consideration of £100 covenanted to levy a fine to the use of Hick, who was an attorney at law, for 1,000 years, by way of mortgage, to secure a sum of money, with remainder to such uses as Baldwin should appoint.

Upon the 10th of May, 1750, Thomas Baldwin made his will, and devised to Hick in fee.

Afterwards, Baldwin was prevailed upon by Hick to execute an indenture of 24th May, 1750, of three parts, between Thomas Baldwin of first part, Denton of second, and Hick of third part; whereby, after reciting the deed of 10th January, 1749, and that the fine had been levied, Thomas Baldwin, in consideration of 10s. covenanted that the fine should inure to Denton in trust for Hick in fee.

LORD HARDWICKE, Chancellor, in giving his opinion, what effect the conveyance of 24th May, 1750, would have upon the will, declared, There was no doubt at law but that it is a revocation, which depends upon intention; therefore an imperfect conveyance is a revocation. Intent doth not mean intent to revoke, but to make a different disposition. So a conveyance intended to strengthen a will operates as a revocation. Lord Lincoln's Case. Thomas Baldwin meant to make a conveyance. This is not like the case of a conveyance by covin, which would make it not his deed at law. That would be a nullity; but here the whole passed, and could not be re-invested without a reconveyance.1

1 Followed in Simpson v. Walker, 5 Sim. 1 (1831). Hawes v. Wyatt, 3 B. C. C. 156 (1790), is contra.

"As to the cases of covin at law, if a deed is void at law, absolutely void for covin, it may perhaps be treated as a nullity: but till the case of Hawes v. Wyatt I conceived there was a great difference between a deed void at law for covin and a deed which in this court could be set aside for fraud, either by cancelling it or by directing a re-conveyance, upon the ground, that at law it was not a nullity, nor admitting the plea of non est factum, but, that upon equitable circumstances, constituting a fraud in this court, the legal effect of it is reduced; and this court says, it shall not prevail, by directing an act to be done to reinstate the other party. If Hawes v. Wyatt is right, it contradicts Hick v. Mors to a very considerable extent; and must be supported upon this principle, if any that where a man is induced by fraud, this court considers him as having no will. He is compelled by fraud as much as a partition is compelled by the writ." Per LORD ELDON, C., in A. G. v. Vigor, 8 Ves. 256, 283 (1803).

See also Harmood v. Oglander, 6 Ves. 199, 215 (1801). On the general subject of this subdivision, see 1 Jarm. Wills (4th ed.), 147–167, and Walton v. Walton, 7 Johns. Ch. 258 (1823).

B. Ademption of Specific Legacies.

PARTRIDGE v. PARTRIDGE.

CHANCERY. 1736.

[Reported Cas. temp. Talb. 226.]

THE testator by his will devised £1,000 capital South Sea stock to his wife for life, for her sole use and benefit, with power to dispose of the same to such of her children as she should think fit. At the time of making his will he was possessed of £1,800 South Sea stock: he afterwards reduced such stock to £200, but after that purchased as much as made up the £200 to be £1,600, and afterwards died in July, 1733. In June next before his death the Act took place for changing three fourths of the capital South Sea stock into annuities. The questions made upon this case were, first, whether the testator selling £1,000 part of his £1,800 South Sea stock, after the making his will, should not be considered as an ademption of the legacy. If not, secondly, if the Act for turning South Sea stock into annuities should not be so considered. In the argument of this case the case of Ashton and Ashton, Cas. Temp. Talb. 152; 3 P. Will. 384, was cited, where the testator devised £6,000 South Sea stock to J. C., and at the time of his death and will was possessed of only £5,500 South Sea stock; upon which a bill was brought against the executor to have it made up £6,000. But the Master of the Rolls, and after him the Lord Chancellor, on appeal, were of opinion the deficiency should not be supplied, upon this principle, that, as general legatees have no lien on what is given to specific legatees, so a specific legatee shall have no lien on the general fund of the testator; but if any loss happens to what is specifically given to him, he must bear the burden thereof himself.

LORD CHANCELLOR [TALBOT]. All cases of ademption of legacies arise from a supposed alteration of the intention of the testator; and if the selling out the stock is an evidence to presume an alteration of such intention, surely his buying in again is as strong an evidence of his intention that the legatee should have it again. It was not the particular stock he was possessed of that he gave; but the devise was only describing the nature of the thing he gave, of which he had sufficient to answer such legacy at the time of his death. If the testator after such legacy sells out part, and dies, such sale would afterwards be looked upon as an ademption pro tanto. If he devises so much particular stock, and at the time of such devise has not any such stock, it is a direction to the executor to procure so much for the legatee. It would be very hard in the case at bar, to consider the selling as an ademption, because he might sell out for some particular purpose, and

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