house and demesne lands at Highmead aforesaid, and other his corporeal real estates in the counties of Carmarthen, Cardigan and Pembroke.

The plaintiffs contend that the gift or devise, in the will contained, of the tithes or rent charges in lieu of tithes, sought to be recovered in this action, is not revoked, postponed or altered by the fourth codicil, or otherwise; and that they, or one of them, are entitled to the possession or receipt of the tithes or rent charges.

Either party to be at liberty to turn this case into a special verdict, and take the opinion of the Court of Error thereon.

The question for the consideration of the Court was stated to be: Whether the plaintiffs, or either of them, are or is entitled at law to an estate for their or his heirs, or life, or for any other estate in possession, in the tithes or rent charges, sought to be recovered in this action, or to the perception or receipt thereof.

The case was argued in last term (a).

Crowder, for the plaintiffs. The words "real estates," in the fourth codicil, would certainly pass the tithes to the defendant, if taken by themselves: but the question is whether, on looking at the will and the other codicils, it does not sufficiently appear that these words are intended to comprehend only the corporeal hereditaments. Now in the will there is a clear distinction between tithes and lands; and "real estate" is confined to the latter. After an express devise of the tithes, there is a proviso that, in a certain event, the tithes shall go to W. L. G. Williams for life," and, after the expiration thereof, to the

(a) January 25, 1853. Before Lord Campbell C. J., Coleridge, Wightman and Crompton Js.

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several provisions and uses herein expressed and contained of and concerning my real estate." Afterwards there is a direction that inventories of the property bequeathed as heir looms shall be deposited "with the writings and the deeds concerning my real estates." [Coleridge J. I observe that the word used is sometimes "estate" and sometimes "estates:" do you find that these expressions have different meanings in the will?] They appear to be used indiscriminately. Then follows, in the will, a devise of "all my real estate, of what nature or kind soever, and wheresoever situate." The argument on the other side, if correct, would shew that this is, even in the will, a revocation of the devise of the tithes: but that is manifestly inconsistent with the use of the words in the will. [Lord Campbell C. J. W. L. G. Williams would take an interest in remainder in the tithes, under the limitation of the real estate, if it comprehended tithes.] Again, the bequest of 500l. to the widow is on condition that she execute an instrument, binding herself to receive an annuity "from the person who for the time being shall be in possession of my real estate, under the limitations aforesaid," in lieu of herself taking possession of the hereditaments settled on her by way of jointure. That must refer exclusively to land. In Evans v. Evans (a) this devise was before Shadwell V. C., who decided that the devise of "real estates" in the codicil comprehended tithes, and therefore revoked the devise of tithes in the will; but he admitted that the same words in the will did not comprehend tithes: the question is whether the two views are consistent, and, if not, which is to prevail. The second codicil changes the order of persons "in the

(a) 17 Sim. 86.

entail in my estates real and personal:" now this entail of the realty is confined to the lands, unless the "real estate" in the will comprehended the tithes. In the third codicil it is declared that all the "estates" disposed of in the will are to be without impeachment of waste, and timber may be cut for "all buildings on the estate;" language inapplicable to incorporeal hereditaments. Then can a larger meaning be assigned to the words in the fourth codicil? In Doe dem. Hearle v. Hicks (a) the House of Lords held that a clear life estate given by will to the testator's wife in a copyhold was not revoked by a codicil "revoking and making null and void several of the dispositions heretofore made by me in my said will and codicils of all my freehold, copyhold and personal estate and effects of all and every kind and description." In Sugden's Treatise of the Law of Property, as administered by the House of Lords, p. 215. note (1), an analysis of this case is given, which is fuller than the report of the case in the House of Lords.

Sir Fitzroy Kelly, contrà. If the will stood alone, the plaintiffs would be entitled to the tithes : it is not suggested, on the part of the defendant, that the devise of the tithes is revoked in the will itself. The question

arises on the general devise in the codicil. It is important to keep in view the distinction between questions as to revocations of limitations in a devise by other limitations in the devise itself, and questions as to revocations by a codicil: the presumption against the revocation is much less strong in the latter case than in the former.

(a) 1 Cl. & Fin. 20; S. C. 8 Bing. 475: affirming the judgment of Exch. Ch., which reversed the judgment in Exch.; Hicks v. Doe dem. Hearle, 1 Y. & J. 470. For another point in the same will, see Graves v. Hicks, 5 A. & E. 38.

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The subject is discussed in 1 Jarman on Wills, 158.
The devisor here meant to make his niece Mary Ann
Elizabeth Evans, the mother of the defendant, the first
object of his bounty: by the will the real estate is given
to her for life, remainder to her first and other sons in tail,
the tithes having been first excepted. The real estates
are afterwards by the codicil given, without exception,
to her son the defendant. This is the natural as well as
the legal effect of the language in the fourth codicil.
The rearrangement of the order of the interests in the
entail is a revocation: one limitation is in fact annulled
and another substituted for it. [Lord Campbell, C. J.
Do not the codicils refer us back to the will, so as to
shew what "real estate" means throughout?] Suppose
the testator had said in express words that he revoked
the devise of real estates contained in the will: would
not that revocation have affected the tithes? It is to be
observed that the defendant, even by the
already a contingent interest in the tithes.
fourth codicil makes a new provision for the plaintiff
D. H. T. G. Williams, by constituting him residuary
legatee. In Doe dem Hearle v. Hicks (a) the question
lay between holding the whole will revoked, or the
devise of the copyhold unrevoked: and, inasmuch as
the language of the codicil shewed an intention to leave
some of the will unrevoked, the latter construction was
preferred. That reasoning is inapplicable to the present

case.

will, had And the

Crowder, in reply. The language of the will may be construed as if the devisor had expressly said that by "real estate" he did not mean to include tithes. The

(a) 1 Cl. & Fin. 20.

distinction in support of which Jarman on Wills has been cited is undoubtedly sound; but it is inapplicable to a case where a codicil expressly refers to a will: there the effect is to make the whole one instrument, so far at least as regards language. The codicil contains no express words of revocation.

Cur. adv. vult.

Lord CAMPBELL C. J. now delivered the judgment of the Court.

We have taken time deliberately to consider this case, out of respect for the opinion of the late Vice Chancellor Shadwell, as reported in 17 Simons, 98, "that it is perfectly plain," "that the gift of the tithes, made by the will, to David and Watkin Williams, in succession, is revoked by the devise in the last codicil." After carefully looking at the will and codicils, and referring to the authorities relied upon in the argument, we feel ourselves obliged to adhere to the contrary opinion, that the gift of the tithes in question to the plaintiffs remains unrevoked, and that they are entitled to our judgment.

Their right to life estates in succession under the will being clear and undisputed, it lies on the defendant to shew clearly that the devise in their favour in the will has been revoked. There is no express revocation; and reliance can only be placed upon a subsequent inconsistent disposition, by codicil, of the previously devised property.

The leading case upon this subject is Doe dem. Hearle v. Hicks (a), Sugden's Treatise of the Law of Property,

(a) 1 Cl. & Fin. 20.

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