By the 1 Vict. c. 26, s. 18, it is enacted, that every will made by a man or woman, shall be revoked by his or her marriage, except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not in default of such appointment, pass to his or her heir, customary heir, executor or administrator, or the person entitled as his or her next of kin under the statute of distributions. And the 19th section declares, that no will shall be revoked by any presumption of an intention on the ground of an alteration of circumstances. But as the act does not extend to any will made before the 1st of January 1838, the old law as respects such wills must be attended to.

With respect to implied revocations, they depend altogether on the supposed intention of the party. The law will presume such intention, and allow it to prevail, in case the circumstances of the testator's situation be materially altered. Hence, if, after the making of his will, he marry, and have a child, this is a constructive revocation of the will which he made in a state of celibacy; (b) so marriage, and the birth of a posthumous child, afford the same inference; or rather in such cases a tacit condition is annexed to the will at the time of making it, that the party did not then intend that it should take effect, if a total change should happen in the situation of the family. (c) But the presumption, like all others, may be rebutted by every sort of evidence. (d)

Yet it seems there is no case in which marriage and the birth of a child have been held to raise an implied revocation, unless there has been a total disposition of the whole estate. In cases of personal property it is always a total disposition, because by the appointment of an executor, the whole is vested in him. (e)

(b) Lugg v. Lugg, Ld. Raym. 441. Cook v. Oakley, 1 P. Wms. 304. Spraage v. Stone, Ambl. 721. and vide Christopher v. Chrispher, 4 Burr. 2182, note.

(c) Lancashire v. Lancashire, 5

Term Rep. 49.

(d) Brady v. Cubitt, Doug. 31. See 1 P. Wms. 304, note 4.

(e) Brady v. Cubitt, Doug. 39. Southcot v. Watson, 3 Atk. 228.

[19] To raise this presumption of a revocation, both the circumstances of a man's marriage and of the birth of a child must conspire: (ƒ) neither the subsequent marriage of a man, nor the subsequent birth of a child, shall of itself have that effect. (g)

But a will made in favour of children of a first marriage shall not be revoked by a subsequent marriage, and the birth of children of such subsequent marriage, the second wife and her children being provided for by settlement. (h)

In a case where a testator, a widower, having a son and two daughters, by will gave all his real and personal estates in trust, subject to debts, for those children, and in case of their deaths over, and afterwards married, had a daughter and died; the general principles of this branch of the law are so clearly defined by the Master of the Rolls, that it is thought most useful to introduce his judgment verbatim. "Long "after it had been settled by decisions of the ecclesiastical "court, with the concurrence of common law Judges sitting in "the Court of Delegates, that marriage and the birth of a "child would amount to a revocation of a will of personal

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property, it remained a doubt whether such an alteration of "circumstances would have the same effect with regard to a "will of real estate: but it is now settled, that even a devise "of land may be revoked by what Lord Kenyon, in the case "of Doe on the demise of Lancashire v. Lancashire, 5 T. Rep. 58, calls a total change in the situation of the testa"tor's family.' What may be deemed such a total change "may be matter of controversy in each new case; but all the 66 cases, in which hitherto wills of land have been set aside upon this doctrine, have been very simple in their circum66 stances; and such as, when the doctrine was once received,

(ƒ) Woodes. 373. Vide Goodtitle v. Newman, 3 Wils. 516, and 2 Fonbl. 2d edit. 350, note (b). Sed vide Lancashire v. Lancashire, 5 Term Rep. 52, in note.

(g) Lancashire v. Lancashire, 5

Term Rep. 51, in note. White v.
Barford, 4 Maul. & Sel. 10.

(h) Ex-parte the Earl of Ilchester, 7 Ves. jun. 348. Talbot v. Talbot, 1 Hagg. N. R. 705. Johnson v. Wells, 2 Hagg. N. R. 561.

"could admit of no doubt with respect to its application. In "all of them the will has been that of a person, who, having "no children at the time of making it, has afterwards mar"ried, and had an heir born to him. The effect has been to "let in such after-born heir to take an estate, disposed of by "a will, made before his birth. The condition, implied in "those cases, was, that the testator, when he made his will "in favour of a stranger or some more remote relation, in"tended that it should not operate if he should have an heir "of his own body. In this case there is no room for the "operation of such a condition; as this testator had children "at the date of the will, of whom one was his heir apparent "who was alive at the time of the second marriage, of the "birth of the children by that marriage, and of the testator's "death. Upon no rational principle, therefore, can this tes"tator be supposed to have intended to revoke his will on "account of the birth of other children; those children not deriving any benefit whatsoever from the revocation; which "would have operated only to let in the eldest son to the "whole of that estate, which he had by the will divided be"tween that eldest son and the other children of the first marriage. It is true, the ecclesiastical court has decided, "that the will was revoked as to the personal estate; that is,

in opposition to their decision in Thompson v. Sheppard in "1779; where, under circumstances precisely the same, the "will was held not revoked even as to the personal estate. "There was in that case an appeal to the Delegates, but it "was not prosecuted. The revocation, however, as to the "personal estate had an effect, which might perhaps have "been intended by the testator-that of letting in the after"born children with those of the first marriage; but the principle of the decision has no bearing whatsoever upon "the devise of the real estate; which, according to my opinion, stands unrevoked.” (i)

(i) Sheath v. York, 1 Ves. & Bea. 390, and see Holloway v. Clarke, 1

Phill. Rep. 339. Emerson v. Boville, ibid. 342.

In a late most important case, where a man made a will, providing for all his children then living, and with which his wife was enceinte, the birth of other children, combined with circumstances of large increase of property, and declarations of the testator, were held to revoke his will. (k)

If a single woman make a will, her subsequent marriage shall alone revoke it; (7) nor shall it be revived by the death of her husband. (m)

There are also revocations (n) in the nature of ademptions. If the testator do any act inconsistent with the operation of the will, such act shall amount to a revocation of it; but this proposition must now be modified, as by the 1 Vict. c. 26, s. 23, it is enacted, that no conveyance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid; shall prevent the operation of the will, with respect to such estate, or interest in such real or personal estate, as the testator shall have power to dispose of by will at the time of his death.

We will now consider the law of revocation as it existed before the passing of the late statute.

To render a cancellation effectual, we have seen, the intention of the testator must in all cases concur, and an implied revocation is founded entirely on the intention: but the species of revocation I have just mentioned is altogether independent of intention, (o) and may prevail even in opposition to it. It is true that before the statute of frauds the intention [20] was the criterion. It was therefore held, that where A. having devised lands to B. in fee, granted to B. a lease of the same lands, to commence after A.'s death, such act revoked the disposition of the will, on the ground that the lease

(k) Johnston v.Johnston, 1 Phill. Rep. 445.

(1) 4 Co. 60. Cotter v. Layer, 2 P. Wms. 624. Hodsden v. Lloyd, 2 Bro. Ch. Ca. 534.

(m) Doe v. Staple, 2 Term Rep.

695.

(n) Brudenell v. Boughton, 2 Atk. 272.

(0) Abury v. Miller, 2 Atk, 598. Parsons v. Freeman, 3 Atk. 745.

clearly implied an alteration of intention, namely, to give the devisee a less estate. (p) But since the statute, I conceive, such a case would be differently decided: The lease effectuating no alienation of the subject matter of the devise, would not be held to defeat the operation of the will; nor if A. were to devise lands to B. in fee, and afterwards mortgage to him the same lands for a term of years, would the devise be revoked. (q) On the same principle, since the statute of frauds, the subsequent act of the devisor, must be complete, to produce such effect. Before the statute, a deed of feoffment without livery, a bargain and sale without enrolment, a grant of reversion without attornment, were held to revoke a will of lands, on the ground, that although these acts were themselves imperfect, yet they equally indicated a change of the devisor's intention; but since the statute, I apprehend that acts thus incomplete, not amounting to an alienation of the estate inconsistent with such will, would not be more effectual to revoke it than a subsequent will imperfectly executed. (r)

And altogether to defeat the disposition by the will, there must be a subsequent conveyance of the whole estate. It [21] must be commensurate with the appointment which the will has made. If the inconsistency between the disposition by the will, and the subsequent disposition be merely partial, the revocation shall not extend beyond such inconsistency. As, where A. devises an absolute estate in fee to B., and afterwards, by a subsequent devise, gives him only an estate tail in the same land, it is a revocation merely to the extent of the difference between an estate tail, and an estate in fee. (rr) So, if A. devise all his real estate to B., and afterwards, on B.'s marriage, settle upon her a part of such es

49.

(p) Coke v. Bullock, Cro. Jac.

(q) As to the subsequent case of Harkness v. Bailey, Prec. in Ch. 514, it is inaccurate; and see Baxter v. Dyer, 5 Ves. jun. 656; and

Peach v. Phillips, ibid. 664.

(r) Sed vide ex-parte the Earl of Ilchester, 7 Ves. jun. 378. (rr) Harwood V. Goodright, Cowp. 90.