PART XI.

Leases.

THE subject of revocation includes some questions of great nicety in respect to devises of leases and specific chattels. Whether the fresh lease taken by renewal passed under a prior disposition by will of the subsisting original lease was a point in the case of Marwood v. Turner, before Lord Chancellor King. The argument against the revocation supported itself on the following reasons.-That the testator had expressed in his will his ardent desire that his trustees, to whom the lease was devised, should use their utmost endeavours to continue the lease in the male line, as long as there were any to inherit the title. That as to the surrender of the old lease, that being only to take a better and more beneficial estate, was intended for the advantage of the devisee, to give him a larger and more extensive interest, and to encrease the bounty that was before designed him. Now to make such an intended act of kindness a destruction of the will, would be to invert in the highest degree, the meaning of the testator. That the renewal of the lease was only ingrafting upon the old stock, that which was of the same nature with the old stock, and was a continuation of the same estate with

3 P. Wms. 168,

some little addition to it. That this was demonstrated by the common case, where a trustee of a lease for lives, when all the lives but one are expired, renews for the old life and two new ones, and then the old life dies; here though, but for the renewal, the lease would have been quite at an end, yet the renewed lease is held subject to the same trusts as the old lease was, and is considered as a continuation of the same estate. That it was very usual to make provision for younger children out of these leases, which commonly require a renewal every seven years, or upon the dropping of a life. And if one, so seised or possessed, having made his will and thereby provided for a younger child or children, should soon afterwards renew his lease, but forget to republish his will, (which might often happen) such a construction would create the greatest inconveniences. That no judgment at law, nor decree in equity, had been cited, whereby it had been determined, that the bare renewal of a lease was a revocation of a will. And it was further urged that if this renewal of the lease was a revocation in law, yet it would not be so in equity, but the renewed lease would be subject to a trust for the devisee.

newal is a revo+

it be of a chattel

or a freehold

lease.

But it was held and decreed by the Lord Chancel-In general a relor, that the renewal of the lease for lives in that case cation, whether was a revocation of the will as to this particular, for that by the surrender of the old lease the testator had put all out of him, and had devested himself of the whole interest, so that there being nothing left for the devise to work upon, the will must fall, and the

A material dif

ference in this

freehold and

chattel leases.

new purchase being of a freehold descendible could not pass by a will made before that purchase. And his Lordship expressed surprise that this case which must have often happened, had not been before determined.

We should observe that the true reason upon which this point of revocation turns, is, that the specific thing which was the subject of devise is gone, so that the words of the devise can have no operation. And this reason applies as much to a chattel lease renewed after a will containing a bequest of it, as to a freehold lease, for every specific bequest must upon the same principle be considered as revoked or rather adeemed by the subsequent disposition, alienation, or destruction of the particular subject in the testator's life-time.

There is, however, a material difference as to this respect between point between freehold and chattel property. If a lease held upon lives be devised and afterwards. renewed by the testator, the devise is revoked although the will should contain words of future import applicable to that interest, for the renewal being a new purchase (1) of a freehold cannot pass by an

(1) A woman purchased a church lease to her and her heirs, for three lives, and died, leaving an infant daughter; two of the lives dropped; the infant's guardian renewed the lease, and then the infant died without issue; the freehold lease was held to be a new acquisition, and of consequence as descendible to the heirs, ex partė paterna, Mason v. Day, Prec, in Ch. 319.

antecedent will, as has been fully explained in a former part of this work. Whereas if a testator possessed of a chattel renewable lease devises all his estate, right and interest, which he shall have to • come in the particular lands so in lease to him at the time of his death, or includes it in a general devise of his residuary property, a lease taken by him after making his will, by way of renewal, will by it".

In the case of Carte v. Carte, Lord Hardwicke appears to rest much upon a distinction between trusts and legal estates in respect to the operation of a will upon these renewed chattel leases, and he alludes to Abney v. Miller, as being the case of a legal estate, whereas in Carte v. Carte, the testator was only cestui que trust. But in Abney v. Miller, his Lordship had said that the rule of revocations must be the same in law and in equity; and the same observation has been made by almost every succeeding Chancellor. In truth it would be difficult to point out a single case, which, when the principles and analogies of equity, and the views, which, from the genius of its particular jurisdiction, it takes of the instrumentary transactions concerning property, are properly attended to, is inconsistent with the rule of equitas sequitur legem.

The decision of Carte v. Carte, did not seem to

> See the case of Abney v. Miller, 2 Atk. 595.

< 3 Atk. 174.

require any other distinction to support it than that which arises out of the different import of the words used in the will. The testator in that case bequeathed to his eldest son Thomas, after giving some legacies to other persons, all the rest of his goods, chattels and estate whatsoever, whether real or personal, in possession and reversion, and then by a supplemental clause directed that he should have the disposal of his lease and receive to himself all the profits and advantages accruing from it; which words upon the principles of reasoning adopted by his Lordship, seemed amply sufficient to pass the beneficial interest then subsisting, together with the benefit of all subsequent renewals, and would have comprehended and passed the subsisting lease, and future renewals, had the interest been legal instead of equitable. For his Lordship in the last-mentioned case observed, "there is no question but that a man by will may bequeath a term of years which he has not in him at that time, but which comes to him afterwards. Therefore all these cases of revocations of legacies, or bequests of terms of years, arise from the short penning of the will; and if in the case of Abney v. Miller, the testator had said, I give all the interest I have in the lease, there is no doubt but. that the renewed lease would have passed (2)."

(2) In Abney. Miller, however, his Lordship intimating the proper words for conveying these after-taken leases, suggests words of a future import as necessary in addition to the words, all my estate,