1754. LETHIEU LIER agt. TRACY. CHANC. my daughter for life, remainder to her sons in tail male, remainder to her daughters in tail, remainder to such issue of my daughter as she should leave at her decease, she dying in the minority of Sir H. N." That would not be an estate tail, the particular issue there would take by purchase. In the case of Langley v. Baldwin, the words, turned into an express limitation, would create an estate tail; but these words, if they receive that construction which I think they ought, (confining them to the minority of Sir H. N.) place them where you will, create no estate tail. It has been said, it will be a hardship, if any issue of the daughter are excluded: but how has this been argued ? It is agreed there was a mistake in the will, and it has been candidly admitted, that it is more probable the mistake was the letting in any of the daughters, than the omitting those. What then am I to do? Instead of rectifying a mistake, to increase it, by letting in all the daughters, because the testator by mistake has let in some; and I am to do this, notwithstanding the great anxiety he has expressed about accumulating, and strictly settling these estates, by such a construction as will defeat all this settlement. Besides, if there be any thing in the objection, it is not likely the infant will marry, and have issue, before twenty-one, and if he lives to that age, he may join with his mother, and bar all the limitations. In the case of Blackburn v. Edgley, mentioned by Mr. Wilbraham, (where the words, from which the implication, turning the estate for life into an estate tail, was contended to arise, are, " and for default of issue," generally, not, as here, under a particular restriction) there is the like reasoning as here, and the present case is much stronger, on account of the restriction on the word issue, especially if the mistake was what it is admitted likely to have been. Though it is true in general, as Mr. Attorney General contended, that the consequential power of barring the limitations (which would have followed the construction desired by the defendants) is not to be considered in the construction of a devise, yet (as in Bamfylde v. Popham) that consequential power has been regarded where the meaning is uncertain; and therefore, to rectify a casus omissus in the will, I must not destroy all those limitations which the testator has expressed so much anxiety to establish. But what I ground myself principally on, is, that the words, being turned into a limitation, would not convey an estate tail. 1754. LETHIEU LIER agt. TRACY. CHANC.. F EASTER TERM, 27 Geo. II. 1754. PHILIP LORD HARDWICKE, Lord High Chancellor. Sir JOHN STRANGE, Knt. Master of the Rolls. SPARROW agt. HARDCASTLE.-CHANC. and On 6th May. vise of an estate gene rally, a conveyance exe cuted to trus. tees of an ad vowson, included in the devise, is a revocation of it, with reSpect to the advowson. LORD CHANCELLOR.-The general question in this After a decause is, whether the devise of the advowson of Addle, (as part of the testator's real estate) has been revoked or not? And that depends on one short fact. Cyril Arthington, by his will, dated the 28th of July, 1716, devised all his estate, real and personal, (without mentioning this advowson particularly) to trustees, &c. and thereby makes his nephew, Cyril Arthington, tenant for life, with remainders over. After this, by a codicil, he revokes that disposition with respect to his nephews C. A. and C. II. &c. Subsequently, by a second codicil, dated the 21st of November, 1723, he revokes the former codicil, leaves the former devise to operate as to C. A. &c. the same day, he executes a grant of this advowson of Addle to Sir W. Hawkesworth, and others, and their heirs; and it stands on the evidence that this grant was executed after the codicil. After this, a deed of trust was executed by Sir W. H. &c., whereby the conveyance of the advowson was declared to be in trust, that the trustees should present such son of Robert Jackson as should be qualified to accept it on the first, or any future avoidance; and if none should be then qualified, present another person in the mean time, taking a bond from him to resign; and then follows this proviso, that in case when the church shall first become void, or on any future vacancy, Jackson should have no son, or one of his sons should be presented, and refuse to accept the same, the trustees were to stand seised for the grantor, and his heirs, and to reconvey on request, and in the mean time to present such person as the grantor, or his heirs, should direct, and for want of such direction, 1754. SPARROW agt. HARD CASTLE. CHANC. whomsoever they should think meet. A son of Jackson has been presented, so that the trust is performed: and now this bill is brought by the heirs of the grantor, to have a conveyance. Whether or no they are entitled to it, must depend on the question, whether the will, as to the advowson in question, was revoked by the conveyance, or whether any thing therein passes to the devisee? To effectuate a devise, the general principles are, that, at the time of making it, the testator must have a disposing capacity of mind, and an estate in the premises which he takes upon himself to dispose of, and that estate must remain in the same condition till his death; for any alteration, any new modelling of the estate after the will, will be a revocation of it; unless in certain cases which shall be mentioned. Such are the general principles, and the cases supporting them are strong. If a man makes a will devising land, and after executes a feoffment to his own use, it is a revocation of the will, notwithstanding it is in point of law the old use, and will descend ex parte paterná, or materná, as before: so likewise a feoffment without livery, a bargain and sale not inrolled, or any other imperfect conveyance, will be a revocation, because it imports an intention of altering the condition of the estate. So where, after making a will, the testator executes any legal conveyance, it is a revocation, because the estate is gone, and the will has lost the subject of its operation. Thus in the case of Lord Lincoln v. Rolls, Eq. Ca. Ab. 411, Edward, Earl of Lincoln, made a marriage settlement on a person whom he never married, or asked to marry him: though this was a conveyance made for a special purpose, and he was in of the old use, it was determined by the House of Lords to be a revocation of his will. Nay, it has been carried so far, that where a man, after making his will, thinking he had only an estate tail, suffered a recovery to confirm the will, it was held to be |