Goodtitle on the Several Demises of Holford, Jervoise, and Cave, Bart. v Otway
| Jurisdiction | England & Wales |
| Judgment Date | 25 November 1796 |
| Date | 25 November 1796 |
| Court | House of Lords |
English Reports Citation: 126 E.R. 1074
IN THE COURTS OF COMMON PLEAS AND EXCHEQUER CHAMBER AND IN THE HOUSE OF LORDS
Affirmed, 7 T. R. 399.
1074? GOODTITLB V. OTWAY 1 BOS. & PUL. 8T7. GOOBTTITLE ON THE SEVERAL DEMISES OF HOLFORD, JERVOISE, AND CAVE, BART. j). otway. Nov. 25tb, 1796. [Affirmed, 7 T. R. 399.] A. seised in fee of the manors of Stamford &c. and also of the manors of Swinford and South Kitworth, entered into marriage-articles to secure a jointure to his intended wife upon the above estates, and to make provision for younger children, and agreed to settle the Stamford estate upon his eldest aon in strict settlement, subject to part of such jointure and provision ; he then deviaed those estates, in case he should happen to die without issue, and subject to such jointure as he might make, to the lessors of tBe plaintiff for five hundred years, upon certain trusts in the devise expressed ; afterwards, by separate deeds of lease and release, he conveyed, 1st, the Stamford estate to trustees in fee to the use of himself in fee till the marriage, with diveta limitations, in pursuance of the articles, and subject to a term of five hundred yean, for securing part of his wife's jointure, remainder to himself in fee ; 2dly, the Swinrford and South Kilworth estate to trustees in fee, to the use of himself in fee till tha marriage, to the use and intent that his intended wife should take the other paft of her jointure thereout if she survived him, and after his death remainder to trustees for five hundred years, to secure such jointure, remainder to himself in fee=; he afterwards married, and died without issue. Held that the will was revoked as to both estates by the deeds of settlement, though they were consistent with tha provisions of the will, and though the devisor took back the estate he parted with bythersame instruments ; and also held that the latter estate was not excepted from this revocation by the circumstance of the conveyance of that estate to trustees, being merely- for the purpose of creating a term to secure the wife's jointure (a). The facts of this case having twice appeared in print; 1st, in the report of the trial afe bar, 2 H. Bl. 516, and 2dly, in the report of the case in error, 7 Term Eep. 399, they are here altogether omitted. There were two arguments in this court; one iti Trinity Term, 1795, by Williams Serjb. for the leaser of the Plaintiff, and Heywood Serjb. for tha Defendant; and another in Easter Term 1796, by Le Blanc Serjt. for the former, and Adair Serjt. for the latter ; but as they were much commented upon in the following' judgments, (each of which comes from the highest authority,) they are not inserted in this report. Ths Court took time to consider of their opinions; and on this day delivered them seriatim, there feeing a. difference upon the bench. bookb J. On this verdict it appears, that Sir T. Cave made his will and devised all the premises, contained in the declaration to trustees in fee upon certain trusts and uses, that he afterwards, by two deeds of lease and release, conveyed the same premises bo tfuttees in fee upon certain other trusts and uses, with remainder to the use of himself iu fee, and that he died without repablishing his will. The qwBtkm is, Whether by both or either of these deeds the devise of the premises contained, in either of the counts in the declaration is rendered ineffectual; or, according to the common language of our books, is revoked 1 [577] To decide this question, it is necessary to consider the general nature and effect of a will of lands. A will of lands is a conveyance, authorised by the stat. 32 H. 8, o. 1. It ia not to be considered as a declaration of uses, or aa conveying uses which are. executed by the stat. 27 H. 8, c. 10. It is a conveyance of the land itself; or, in the words of Lord Trevor Fitzg. 239, it is a provision and direction by the testator bow bis estate and land shall go when he can keep them no longer. This is plain from the^ woids of 32 H. 8, c. 1, s. 1. "Every person having lands, &c. may givei dispose, will, and devise, as well by last will and testament, in writing or otherwise, by aets^lawfully executed iu his life, all his said lands, &c. at his free will and pleasure." No interest passes till the death of the testator. When he dies the will conreya to the devisee such interest as the testator has devised to him out of that estate or legal interest of which the testator was seised when he executed the will; but under this restriction, that the testator has continued to be seised or possessed of (a) Vide Dvt v. DUnot, "2 N. R. 404, Beckett v. Harden^ 4 M. & S, 1, 9, Vawsejf v, Jefferyf 3 B, & A. 462, I BOS. ft PHL. 578. QOODTITLE V. OTWAY 1075 It from the time of executing the will to the hour of his death. To understand this operation of a will, we must bear in mind, that in contemplation of law there ia a distinction between, first, the land itself; secondly, the legal fee-simple or possessory right of inheritance in the land ; and thirdly, the use or equitable right of inheritance. A man may at this day make a conveyance of the fee-simple of his land, without parting with the actual possession; and though the legal fee will pass from him, yet it may be revested in him, under the statute of uses, together with his old use or right of inheritance. But though he is seised of his old uses, still if he has by any conveyance for one moment passed away the fee-simple of his land, the law considers him as baying another seisin, and not the same which he had before he made the conveyance. If, therefore, a testator having executed his will, conveys away his whole fee-simple, though it be to his own use, and though he is seised again of his old use, yet, according to the rules of law, as I understand them, this conveyance renders the will ineffectual; not because the testator intended to revoke it, but because by the rules of law it cannot operate; for he has altered his legal seisin. The rule is laid down by Lord Trevor Fitzg. 240. " One necessary qualification which goes to the power of disposing by will, is the 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 [B78] the testator should have a disposing power at the time of making the will; for it is so far from allowing a subsequent power by acquisition 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 fche least alteration of the interest, is an actual revocation of such will." Lord Hardwicke expresses himself to the same effect, and almost in the same words, according to the report of Sparrow v. Hardcastle, 3 Atk. 803. Lord Mansfield laya down the rule in these words, 4 Burrow, 1960: "When a man seised of an estate makes his will and devises it, and afterwards conveys it entirely away; though he takes it back by the same instrument, or by a declaration of uses, it is a revocation ; because, as it is said in the books, he has parted with hia whole estate." In confirmation of this rule, we may observe, that the form of pleading a devise of lands is, that the testator was seised, &c, and being so seised he made hia will, and thereby devised, &c. and of such hia estate in the said lauds died seised. The devise then operates upon that seisin which the testator had at the time of making his will. This rule of law is very ancient. The books refer us to a case in the 44 Ed. 3, which is reported both in the year book (fol. 33) and the book of assize (lib. 44, pi. 36). In assize the tenant pleads in bar a devise made by the father of the Plaintiff; the lands being devisable by custom. The Plaintiff entitles himself as heir, and says, that the father after the devise made a feoffment to defeat the devise, and took back the estate. The tenant rejoins, that he re-published the will by delivering it to the vicar : and issue was joined on the delivery. It is to be remembered, that at this time a parole revocation or republication was sufficient. This will, therefore, might have been revoked without the ceremony of alienation and taking back : it might also have been re published without a delivery to the vicar. It seems doubtful from Fitzh. Abr. tit. Devise, pi. 16, whether Thorp and Wilby thought that a feoffment and taking back would revoke; and also in Bro. Abr. tit. Devise, pi. 8, a quaere is made as to the alienation and taking back; and it is said, that it ought not to defeat the will madei before; for it is no will till death. It appears from the year book and book of assize, that a doubt was entertained as to the propriety of the form of the issue; because the heir does not deny that it is the last will, but denies that the testator delivered it to the vicar. Whatever doubts might be entertained of the authority of [579] this case, if it stood alone, or long series of authorities from very early time, forbids u at this day to doubt the principle, which is supposed to be established by it, viz. that a feoffment or alienation, and taking back, is a revocation of a prior will. Dyer (fo. 143, P. 3 & 4 Ph. & M.) cites the case 44 Ed. 3, and considers it as a settled point that the will is void, without a new agreement; because the alienation was a disagreement to it; and without other express agreement it shall not be taken as his last will, for it was once revoked. That a man must have the lands at the time he devises them has been long settled; ib was so agreed in Butler and Baker's case, M. 33 & 34 Eliz. 3 Co. 30 b.; and was the common law of the land, as to customary devises, before the statute 32 H. 8. Lord Mansfield assigns this reason for it; That a will ia 1076 GOODTITLE V. OTWAY 1 BOS. & PUL. 8fO. in tha nature ef a revocable...
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