Cave v Holford
| Jurisdiction | England & Wales |
| Date | 1798 |
| Year | 1798 |
| Court | High Court of Chancery |
English Reports Citation: 30 E.R. 1203
HIGH COURT OF CHANCERY
S. C. on appeal, 7 Bro. P. C. 593. See Walker v. Armstrong, 1856, 21 Beav. 303.
cave v. holford. March 9th, 1798. [S. C. on appeal, 7 Bro. P. C. 593. See Walker v. Armstrong, 1856, 21 Beav. 303.] Devise by tenant in fee, in case he should die without leaving any issue living at his decease, and subject to such jointure or jointures, as he might make upon the woman he might marry : by lease and release, previous to the marriage of the devisor, the devised estates were conveyed to trustees and their heirs, as to part, subject to certain trusts, to the use of the devisor and his heirs till the marriage ; and afterwards, subject to other trusts, to the use of him for life ; remainder to trustees, to preserve, &c., remainder, subject to farther trusts, to the use of the first and other sons of the marriage in tail male ; remainder to the devisor in fee ; and as to the other part, to the use of the devisor till the marriage ; and afterwards, subject to a jointure to the intended wife, to the use of the devisor in fee : by an article executed previously to the will in contemplation of the said marriage provisions were made as the basis of a settlement of the same nature, but in certain respects, different from that, which was executed : the will is revoked as to the whole estate both in law and equity : a settlement having been made previously to the marriage, the articles were laid out of the case ; and parol evidence of an intention not to revoke was rejected. For the state of this case, and the proceedings that took place when it first came before the Lord Chancellor, see the note, 2 Ves. jun. 604. The special verdict found upon the ejectment brought under the direction of this Court, and tried at the bar of the Court of Common Pleas, was argued before that Court in Trinity Term 1795, by Williams, Serjeant, for the devisee Sir Charles Cave, lessor of the Plaintiff, and Heywood, Serjeant, for Mr. Otway, Defendant in right of his wife, the heir-at-law ; and again in Easter Term 1796, by Le Blanc, Serjeant, for the lessor of the Plaintiff, and Adair, Serjeant, for the Defendant. (Goodtitle on the Demise of Holford and Others v. Otway, 2 H. Blackst. 516; 1 Bos. & Pul. 570; 7 Term Sep. 399.) On the 25th of November 1796, the Court pronounced judgment. Booke, J. (after stating the case). The great question upon the special verdict in this ejectment is, whether the will is revoked by this conveyance of lease and release ; the lessor of the Plaintiff [651] claiming under the will: the Defendant in right of his wife, as heir-at-law: whether by force of either of these deeds the devise of the premises in either count is revoked. To decide this question it is necessary to consider the general nature and effect of a will of lands. According to Blackstone's Commentaries and Lord Mansfield's doctrine in two or three cases, which I will state presently, it is considered as a conveyance declaring the uses : but it differs from other conveyances in this, that it raises no use and passes no interest till the death of the testator : when he dies, it passes to the devisee such estate and interest as is devised out of that legal interest, of which the testator was seised, when he executed the will; but with this proviso ; that the testator has continued to be seised or possessed without any alteration of the estate from the time of executing the will to the time of his death. To understand this operation of a will we must bear in mind, that in contemplation of law there is a distinction between the land itself, the legal fee or possessory right of inheritance, and the use or equitable right of inheritance. A man may make a conveyance without parting with the actual possession; and though the legal right passes from him, it will be revested in him as his old use. But if he had parted with the legal fee, the law considers him according to my idea as having another seisin. If therefore the testator 1204 CAVE V. HOLFORD 3 VE. JTTlf. 652. conveys away the whole fee-simple after making the will, though he becomes seised again of the old use, yet the conveyance renders the will ineffectual; not because he intended to revoke the will, but because by the rules of law the will cannot operate. In Fitzg. 240, the rule is laid down by Lord Trevor : " then as to the other part or necessary " qualification, which goes to the power of disposing, which is ownership of the land : " the law requires that to be complete at the time of making the will : consider, as to " this point the law is very strict, that the testator should have a disposing power at " the time of making the will; for it is so far from allowing a subsequent power byacquisi-" tion after to make the will good, that it requires a continuance of the same interest, " the devisor had at the time of making the will, to remain unaltered even to the time " of his death ; for that any even the least alteration of this interest is an actual revoca-" tion of such will." Lord Hardwicke in Sparrow v. Hardcastle (3 Atk. 799; Amb. 224) uses Lord Trevor's very words almost, or [652] at least exactly to the same effect; and agreeable to this rule the manner of pleading a devise of land is, that the testator was seised, and being seised he made his will and thereby devised ; -and that of such estate in the premises he died seised. This rule of law is very ancient. The books refer so far back as the 44th year of Edward III. [1369-70]; which is reported both in the Year Book 33, and in the Book of Assises. Upon that case it must be observed, that at that time a parol revocation or republication was sufficient: the will therefore might have been revoked without the ceremony of alienation and taking back, and republished without the delivery to the vicar. It seems doubtful from Fitsh. Ab. tit. Devise, pi. 16, and Brook in his Abridgment, tit. Devise, pi. 8, makes a qucere (as to which, whether it is Lord Brook's or not, we are not informed), as to an alienation and taking back : and says, it does not defeat the will made before; because it is no will till death. It seems from the Year Book, that a doubt was entertained as to the form of the issue ; because the heir does not deny, that it is the last will, but only denies, that the testator delivered it to the vicar : but whatever doubt there might be upon that case only, if it stood alone, a long series of authorities forbids us at this time to doubt the principle, that a feoff-inent in fee of a devised estate and taking back the same estate is a revocation of the will. Dyer, 143 6, states the case of 44 Edw. III. [1369-70], and considers it as settled, that the will is void without a new agreement to it; because the alienation is a disagreement. That the devisor must have the, land at the time, the devise is made, has never been disputed. It is laid down by Lord Coke in Butler and Baker's Case; and it appears from Lord Mansfield, 3 Bur. 1487, to have been the common law as to customary devises before the Statute of Wills. But the question is as to the change of the legal interest, though the testator dies seised of the same uses in the same land. The cases are very strong to shew, that is a revocation : 1 Boll. Ab. 615, states, that if a man devise land to /. S. and after makes a feoffment in fee to a stranger to the use of himself in fee, though he is in of his old estate, yet it seems, this is a revocation ; for his intent is to have it by the new limitation; and by the feoffment he passes the estate, and the Statute revests it in him; which is as a new purchase. Lord Hardwicke, 3 Atk. 748, considers this as a settled point; so that it does not rest upon Lord Bolle s saying, it seems to be a revocation. Lord Hardwicke states it in Parsons v. Freeman, and observes, that it is a prodigious strong case. So if a man devises land to /. S. in fee, and after makes a feoffment of it to [653] the use of himself for life ; remainder to his wife for life ; remainder to his own right heirs in fee ; there, says Lord Bolle, 616, though he has his old reversion, yet it seems, that his intent was to have it pass by the livery, and to be in by the Statute and limitation; and so as a new purchase ; and for that it seems, this shall be a revocation of the fee as well as for the life of the wife. I shall observe here, that though Lord Bolle states this to have been so settled in Mountague v. Jefferies, yet according to the state of that case in Popham, 108, it was not the principal point. It is cited again by Yelverton, Cro. Car. 24. Then came Hussey's Case, Moor, 789. That is still stronger ; but upon the same principle. The feoffment was adjudged a countermand of the will: but the Court say, that it was .sufficient to declare the uses of the feoffment. Therefore though they protected the devisee, or rather the Cestuy que use, as against an escheat, yet they did it by considering the will as a declaration of uses; and held, that in strict law the feoffment was a countermand of the will. In some of these cases the intent of the party is mentioned : but you must distinguish between an intention to have the land as a new purchase and an intention to revoke the will. Lord Mansfield, when Solicitor General, arguing 3 VES. JUN. 654. CAVE V. HOLFORD 1205 Parsons v. Freeman, says, there is a revocation, which does not depend upon the intention of the testator; as where he takes back the very same estate. The consequence of law is, that the will is revoked, whether he intended to revoke it, or not. There are other cases, where, intending to revoke, a man has made use of a mode of conveyance, which is never completed. As where a man grants a reversion upon an estate for life, which he had devised; and the tenant never attorns. So in the case of bargain and sale without enrolment. But the revocation applicable to this case is, where the testator alters his legal interest without any intention to...
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