till the marriage, he was still in of his old use; and the only operative part of the settlement was that which limited the uses according to the articles, in an event in which the will was to have no operation. That this was a very different case from a feoffment and refeoffment, where there was a complete alienation of the land, and an entire new estate was taken back by purchase. That the doctrine must have been originally founded upon an intent to revoke either expressed or necessarily to be implied by law, from the inconsistency of the two dispositions: but that in the case before the court, the two instruments were not only not inconsistent, but the one referred to and confirmed the other, and the settlement was only made in pursuance of the articles. That in all the cases of total revocations implied from subsequent instruments, the devisor changed the whole estate, or the dispositions were inconsistent; but that in the case under consideration there was no inconsistency, nor was the estate changed as to that part of it on which the will was to operate; for the operation of the will was confined to the old fee-simple, which by the limitation in the settlement was returned back to the testator. There was it was said no new modelling of the estate, for the acts which took place subsequent to his will were in the testator's contemplation at the time; so that the question was broadly this,-whether where the intention was manifestly against a revocation, the instrumental mode of carrying the infention into effect

should nevertheless produce the legal consequence of a revocation.

But the Court decided, that as the testator parted with the estate, notwithstanding the old use resulted to him again, still the conveyance operated as a revocation of the will, because it drew out of the testator the subject matter upon which the will was to operate.

Such a series of well-considered cases have concurred in establishing this particular doctrine on the subject of revocation by a subsequent conveyance, that the general rule, as laid down in the preceding pages, may now be considered as finally at rest. It seems a little extraordinary, indeed, that, when once it had been received in all the courts as an incontrovertible rule, that a conveyance by a man, after making his will, of the devised lands to the use of himself, and his heirs for ever, was a total revocation of his will, it should afterwards be seriously contended, that a conveyance of the fee to special and particular uses, and for a special purpose, was not a revocation beyond those uses, or the exigency of that special purpose. For if, where a testator by a subsequent conveyance takes back the entire estate, with the same dominion and the same incidents, his will is nevertheless completely revoked; it seems irrational to doubt, whether, where he takes back only a portion of the

estate, or the ultimate reversion, after intermediate interests carved out of it, his conveyance ought to be considered as a revocation.

for the testator's

making his will,

From what has been laid before the reader, of the necessity it seems sufficiently clear that the rule respect- being seised at ing the revocation of wills, above considered, does the time of not rest upon the intent to revoke, either expressed or implied, but has its foundation in the ancient maxim that the testator must actually have the interest in him, which he attempts to devise, at the time of making his will. It may be called an ancient maxim, because, notwithstanding some great lawyers (5) have grounded the reason of the necessity which exists for the testator's being seised of the lands at the time of his making his will, upon the words of the statutes 32 and 34 Hen. 8, viz. " that every person having lands, may devise them;" later authorities have with greater correctness held, that this rule is older than the abovementioned statutes of Henry the 8th: for according to all the precedents, the inefficacy of a will to pass lands, whereof the testator was not seised at the time of making and publishing it, applied as well to devises by custom, as to wills authorized by the statutes of Henry the

(5) See the case of Brett v. Rigden, Plowd. 344, where Lord Dyer grounds the reason of this rule upon the force of the word • having,' in the stat. 32 H. 8. and see Butler and Baker's case, 3 Rep. 31, and Strange, 27.

Lands acquired by purchase after the will, do not pass by it.

8th. Thus in the great case of Bunker or Bunter v. Cooke, Lord C. J. Holt observed that it appeared from the precedents, wherein it was uniformly averred that the testator was seised in fee, and that being so seised he made his will, to be absolutely necessary that the devisor of lands should be seised in fee at the time of his making his will (6).

If therefore a testator devises all his lands, and afterwards purchases other lands, and dies without

f Rep. temp. Holt, 246. 1 Salk, 237. Fitz Gibbon, 232.

Contingent and executory interests are devisable.

(6) Rastall, 274, where the devise was by force of the custom. And see the Writ ex gravi querela, in Fitzherbert, which sets out the custom, which is worded not as a general authority to devise terras et tenementa, but tenementa sua. So that, as the custom is there set forth if they are not sua at the time of the devise, they are out of the custom, and the will cannot be rendered effectual by it. But it is proper in this place to apprize the student that this usual form of pleading does not come up to the present liberal sense of the courts in respect to the nature and extent of the interest of which a testator must be possessed to qualify him to devise his estate. Modern decisions have extended the power of testamentary disposition to coptingent and executory interests, where the person who is to take is certain, so that the same would be descendible if not devised. Roe v. Jones, 1 H. Bl. 30, and 3 D. T. R. 88, in which last case Lard Kenyon said that the word having,' in the statute, must be understood to mean having an interest, and his Lordship distinguished between such a contingent interest and a mere possibility or expectation or hope of succession, as that of an heir from his ancestor. And see Fearne's Cont. Rem. 5th Ed. 463, et seq.

making a new will or republishing his former will, such after purchased lands will not pass. Serjeant Loveless, in the case of Brett v. Rigden, supposed the effect to be different where the devise was of lands specifically mentioned and intended to be purchased, because in such case the intent was manifest (7). But this position was in the abovementioned case of Bunter v. Cook, denied to be law by the Chief Justice, who added that he had looked into the case quoted in the margin, and had found nothing in it to warrant the position. That it was only a note of the opinion of two Judges, viz. Yelverton and Markham, that if a man devise land,

Bro. Tit. Devise, pl. 15, cites 39 H. 6, 18.

(7) In the case of Nannock v. Horton, 7 Vez. Jun. 399. it seemed to be the opinion of the present Chancellor, that a specific devise of personal estate, which the testator was never possessed of, might operate as a direction to the executor to purchase.

And where a real estate is contracted to be purchased, courts of Equity consider the estate as in the purchaser from the execution of the contract; and therefore, as a consequence of this maxim, it will be presently shewn, that a will disposing of the estate, before the contract is performed by a conveyance, is effectual to pass the interest, and is not revoked by a subsequent conveyance either to the purchaser and his heirs, or to a trustee for the purchaser and his heirs. So where personal estate is impressed with the character of real estate, by being agreed to be sold, and the money to be laid out in land to be settled, the person to take the ultimate reversion under such settlement, may devise it by his will, and the estate, though purchased after the will, will go in Equity according to such devise. See the case of the Attorney General v. Vigor, 8 Vez, Jun. 256.

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