Taylor v Stibbert
| Jurisdiction | England & Wales |
| Date | 1817 |
| Court | High Court of Chancery |
| Year | 1817 |
English Reports Citation: 34 E.R. 792
IN CHANCERY
'792 TAYLOR V. STIIiBERT, 2 VES. JOT. 437 1 VES. JUN. SUPP. 286. a security for a sum of money, Vawser v. Jeffery, 2 Swanst. 273), then neither of these acts revokes a previous devise of tho estate so conveyed, further than is necessary for that express.-.purpose. Parsons v. Freeman, 3 Atk. 748. Upon this ground, a devise of real estate is not held to be revoked merely because [2861 a commission of bankruptcy has issued against the testator ; for the bankrupt laws take the property out of the bankrupt only for the purpose of paying his creditors ò and from the moment the debts are paid, the assignees are mere trustees for the. bankrupt. Oiiarman v. Charman, 14 Ves. 08.1. Thus, also, if a person mortgage an estate which he has devised, although such mortgage be not merely by lease and release, but by fine, this, in Equity, will bo a revocation only pro ianto. Casborne v. Scarfe, 1 Atk. 606. Rider v. Wager, 2 P. Wins. 334. Even a mortgage in fee to the devisee does not revoke the devise. Baxter v. Dyer, 5 Ves, 664. Upon similar principles, a subsequent lease does not revoke, though it qualifies, a previous devise of the property. Lambe v. Parker, 2 Freem. 284. Roe v. Wec/g, 6 T. R. 710. The reason of the thing would be tho same although such lease were made to the devisee himself, for the devisee might naturally choose to reserve a rent during his life-time : the case would be different if the lease wore made to commence after the testators death,-that would bo a revocation of the devise in toto, for the two dispositions would bo altogether inconsistent. Coke v. Bullock, Cro. Jac. 49. llodykinson v. Wood, Cro. Car. 24. Where,- however, a subsequent disposition of property is inconsistent with a devise of earlier date, if there be but an inconsistency in part, it is a revocation of that part only. Harwood v. Goodright, Cowp. 90. S. G. in Dom. Proc. 7 Br. P. 0. 349, fol. edit. But where a testator has, by a codicil, expressly revoked tho whole of a previous devise, and has taken upon himself to declare over again all the trusts, it is in his new disposition alone that the testamentary title to his property must be sought. There may be strong ground for supposing that it was by a mere slip ho omitted to dispose of part by the codicil in the same manner as he had done by his will; but this omission a Court of Equity cannot supply. Holder v. Hoioell, 8 Ves. 103. 5. A conveyance, or other instrument, obtained by such fraud and covin as would render it a nullity oven at common law, cannot, of course, revoke a will : Hicks v. M'orse, Ambl. 215 : but in what cases a deed, though liable to be impeached in Equity, and ordered to be delivered up as improperly obtained, may, notwith standing, operate a revocation, is, perhaps, hardly settled. Where the party executing thought [287] that, by such conveyance, his will was revoked, and whore a reconveyance would bo necessary to remedy the fraud, Lord Alvanley was of opinion that the impeached instrument, though set aside and made ineffectual for other purposes, would still be a revocation : Hawes v. Wyatt, 2 Cox, 268 : Lord Thurlow thought differently : Ilawes v. Wyatt, on appeal, 3 Brown, 107 : Lord Alvariloy, however, remained firm in his opinion (Harmood v. Oglander, 6 Ves. 210...
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