But Courts of Law are rigid even in this indulgence; for in Tickner v. Tickner, Chief Justice Lee, one of the Judges, who had signed the certificate in Luther v. Kidby, held, that the deed giving a moiety to such uses, as the testator should appoint, and in default of appointment, to him in fee, was a revocation (1). That case is mentioned and acceded to by Lord Hardwicke in Parsons v. Free

man.

There are other exceptions: namely, mortgages and conveyances for payment of debts. It is not necessary to notice them: as they are subjects of equitable jurisdiction, and we are sitting in a Court of Law. Notwithstanding these exceptions the general rule of law is, that where a testator conveys his whole interest, whether by feoffment, lease and release, bargain and sale, fine or recovery, the will is ineffectual at law. It is [* 655] often contrary to the intention of the testator, that the will should be annulled: it often bears hard upon individuals to enfore the rule strictly: but the rule is so; and if it produces more mischief than good, the Legislature in its wisdom may alter it: but we are bound as Judges to declare and to abide by it. In vindication of the rule however I must observe some circumstances. First, it is in favor of the heir-at-law: who is always an object of legal favor: Secondly, it is ancient, and as much a part of our jurisprudence as the rule, that excludes the father from inheriting immediately to his son, and the rule, that excludes the half blood from inheriting at all; and thirdly, it cannot operate upon one, that is inops consilii, who has no opportunity of being advised upon the subject, for if a man is sufficiently strong in mind and body, and well enough assisted, to execute a solemn deed, which passes away his legal interest, he surely may, if he pays attention to it, republish his will; and it is a plain, simple, and perfectly intelligible, rule; for it is only, that, if he will not run the risk of being within some of the exceptions, he must republish his will after making the conveyance. If where there is so plain a rule, the party omits to conform to it, the disappointment of the devisee is to be attributed, not to the rigor of the law, but the negligence of the parties; who will either take no advice or such as is likely to mislead them.

Having laid down this as my notion of the rule of law, let us see, what is this case. I lay the articles quite out of the case; for they were to be performed after marriage, and this is a voluntary performance before marriage; and if this was a question merely of performance of articles, it would be more a case for a Court of Equity than of Law. The deeds as to the Swinford and South Kilworth estates I consider as a conveyance to trustees in fee for the special purpose of securing a jointure to the wife. Had he conveyed for the life of the wife, I should have thought it a revocation pro tanto only: but being a conveyance in fee, I am of opinion, it is a revocation of the will as to these estates; and it is much

(1) Nott v. Shirley, ante, vol. ii. 604, n.

stronger as to the Stanford estates. Therefore my opinion is, that there must be judgment for the heir-at-law.

HEATH, J. (a) We are all agreed, that the will is revoked as to

the Stanford estates: we are divided as to the Swinford [* 656] and South Kilworth estates. The rule must be extracted from the series of authorities in the books. They

(a) He became a Justice of the Common Pleas in 1780, and died in 1815. The following sketch of this respectable magistrate is taken from the series of articles entitled, My Contemporaries; from the Note-Book of a Retired Barrister, [Mr. Espinasse]; Frazer's Magazine, vol. vi. pp. 427, 428:

"Mr. Justice Heath was almost invariably one of the judges who went the circuit for very many years. I had the good fortune to practise before him. He was in some measure considered as identified with its members, and was with them equally an object of attachment and respect. He was a most able lawyer, of deep and extensive reading, and of the soundest judgment. He affected no parade of judicial dignity, nor assumption from his station. Plain and unassuming, his whole mind was bent upon business, from which nothing could divert his attention. When a cause before him was called on, with almost immovable taciturnity, and with his eyes close to the paper on which he wrote, he took down the evidence of the witnesses as they appeared before him. He never broke in upon their examition by observation or comment; but a powerful discernment soon enabled him to make up his mind; and when he asked the question, addressing himself to the counsel against whose case the weight of evidence appeared to bear, Well, Mr. what do you say to this?' we knew the opinion which he had formed, and that it was not easily shaken, and submitted to it without contest. We knew the depth of his learning and the solidity of his judgment.

"He heard every objection taken, or point raised on matter of law, in the course of the cause, without interruption, and with exemplary patience. He pronounced his opinion on them with promptness and precision; and the correctness of the points which he ruled was such, that in the course of so many years I do not recollect one in which he was found to have given a misdirection to a jury. Their accuracy could only be equalled by the brevity with which they were delivered; though it must be allowed that they possessed little of the graces of diction or delivery. His language was unstudied, and his voice harsh and indistinct.

"I reverenced the character of this learned judge, and always listened to him with profound attention. The ideas which I formed of it were the result of observation on his mode of administering justice during the very long period of his going the circuit. He was an admirable judge of human nature, and scanned with great depth of discernment the motives, the partialities, and prejudices, of those who were called as witnesses before him. He addressed no observation to them while under examination; but he never failed to make them to the jury, as they affected the credit due to their testimony. He seemed never to overlook an inaccuracy, nor to let a contradiction escape him. They were observed upon in the plainest language, which detracted nothing from their effect; they were unincumbered with distinctions, and delivered in the fewest words which our language could furnish, but their accuracy was unequalled.

"As a criminal judge, Mr. Justice Heath possessed in a superior degree the talent of seeing into the true characters of those whom he had to try. He drew the just distinction between settled depravity in the commission of crime, and what was unmarked by habitual delinquency. To the former he was inflexibly severe, to the latter lenient and merciful. He held the mawkish or affected feelings of those who were for the indiscriminate abolishing of capital punishments, in all cases where the offence was against private property only, in great contempt. For what purpose, he would say, were laws made but for its protection? Severity in him proceeded not from a want of merciful feeling, but from a firm conviction of its necessity, to guard against the commission of crime. That there are those in society upon whom nothing short of the fear of death can have effect or deter from the perpetration of crime, was the sound, the deliberate, and well-formed opinion of that excellent judge, I feel no difficulty in asserting.

have been very ably reviewed by my Brother Rooke; therefore I shall only allude to them. I observe, my Brother Rooke seems to think, that what is laid down by Brook is not of much authority: but I have always understood that the abridgers had access to the records themselves: and many cases, that appear in the Year Books with an Adjornatur, are laid down by them as decided; which could be only by their having access to records. A revocation of a will is effected by operation of law, sometimes even against the intention; of which there are cases referred to in 1 Rol. Ab. 614, 615. To show, that any change of the estate would operate as a revocation as well after the Statute of Uses as before, there are Mountague v. Jefferies, Lord Lincoln's Case, Parsons v. Freeman, Sparrow v. Hardcastle, Darley v. Darley, and Brydges v. The Duchess of Chandos. Some of these cases were at Law; others in Equity. Upon these authorities I think, the will as to the Stanford estates is revoked by the settlement.

It remains to be discussed, whether that settlement differs essentially from that of the Swinford and South Kilworth estates; and the latter is to receive a different construction. It is material to observe, that in both conveyances the whole legal estate is vested in trustees to the use of the settlor till the marriage. The subsequent estates are merely springing uses, arising after the marriage. This is precisely the case of Mountague v. Jefferies, and that of the Earl of Lincoln. The circumstance of the marriage taking effect is totally immaterial: the revocation is complete by the execution of the settlement. In both of these settlements there are many limitations in pursuance of the articles with the remainder in fee to the settlor. Luther v. Kidby and Tickner v. Tickner appear to me very difficult to be reconciled with some of the other cases and with each other. We are not told, but, as my Brother Rooke has observed, we are left to conjecture, the grounds of the former. It might influence the opinion of the Court, that a partition is compulsory

"I sat next to him, at an assize at Maidstone, at the circuit-table. It was at the time that Sir Samuel Romilly's acts were depending before Parliament. The effect of them was much canvassed, and serious doubts raised whether it would not to be to strip the criminal code of the country of the only sanction by which it could be enforced, - punishment by death. It became the subject of conversation. 'Mr. -,' said the learned judge to me, 'Sir Samuel Romilly is endeavoring to make a great change in our criminal law, by abolishing capital punishments. I do not approve of it; they cannot be dispensed with; and I'll give you a proof of the necessity and effect of them.

"At one time the robbing of bleach-grounds had grown to a great extent, almost ruinous to the manufacturers and the proprietors of the grounds. It had arisen to that pitch, that the thieves had been known to bring down a waggon, and to have swept off at once the whole of the goods on the bleaching-ground. The law as it then stood was unequal to the protection of the proprietors of the grounds, and it became necessary to apply to Parliament for redress. An act was accordingly passed (stat. 51, Geo. III. ch. 51) for the purpose, making the robbing of bleach-grounds a capital felony. At the next assizes for Surrey, after the passing of it, three men were indicted before me for robbing a bleach-green at Croydon. They were capitally convicted: I hanged them all. There was no more robbing of bleach-greens afterwards in Surrey.""

and not voluntary. To refuse it is stated in the writ of partition to be an injustice. The writ is merely brought to affirm the possession; as in Dyer, 79 b, or to ascertain the possession; as is stated in Lord Hale's Commentary upon the writ De partitione facienda in Fitzherbert's Abridgment, 142. The legal estate of the party is not touched by the writ of partition. It might be, that [*657] the Judges thought, partition by deed ought not * to have a greater effect than partition by writ: and that no act of the testator, that was not voluntary, ought to operate as an implied revocation; considering too, that the parties were tenants in common; that they could not make partition by release; and could do it voluntarily no other way than by parting with the whole fee. However that may be, it is difficult to reconcile that case with Tickner v. Tickner. The only difference between them is the power of appointment in the latter; and though the execution of the power would operate as a revocation of the will, yet the reservation of the power in my apprehension would not have that effect. It is introduced into the conveyance, not lightly and without reason, but for a very important purpose; to enable them to bar the claim of dower (1); therefore as well in respect of dower as the prior devise, if the power was executed, the former would be defeated, the latter revoked. In Mountague v. Jefferies a covenant to make a feoffment was held no revocation, 1 Rol. Abr. 615 (2); though a feoffment is so; which was much stronger than the case of a power. Luther v. Kidby is therefore, I think, over-ruled by Tickner v. Tickner (3). We are relieved from the cases of conveyances of the whole fee for partial and particular purposes; for they belong to Courts of Equity, not of Law.

I think myself bound by the series of these decisions, with the single exception of Luther v. Kidby, and that with the explanation, I have given to it, to say, that the testator has revoked the will by the conveyance; the old use remaining untouched.

BULLER, J (a). This case has been already spoken to so fully and elaborately, that I shall observe only upon a few of the arguments used at the bar. The principal ground for the Plaintiff was that the articles, the will and the deeds, are to be taken as one transaction: and therefore upon the authority of Selwyn v. Selwyn, 2 Bur. 1131, there is no revocation: but this case and that appear to me as different as any two, that can be named. In that the deed to make the tenant to the præcipe was the most essential part of the recovery; and therefore the recovery related to that deed; which

(1) Post, vol. x. 263; Ray v. Pung, 5 Madd. 310, and 5 Barn. & Ald. 561. (2) Later authorities have established, that a will may be revoked by a covenant: Rider v. Wager, Cotter v. Layer, 2 P. Wms. 328, 622; which cases are admitted by the Lord Chancellor in Brydges v. The Duchess of Chandos, ante, vol. ii. 436 ; post, Knollys v. Alcock, v. 648; vii. 558; Vawser v. Jeffrey, xvi. 519.

(3) See post, vol. x. 256.

(a) For a sketch of the character of Mr. Justice Buller, see ante, note (a) to Lewis v. Praed, 1 V. 19.

was executed long before the date of the will. Besides we are told by Sir James Burrow, who had certainly the highest *assistance (a) in stating what he calls a probable ground [*658] of the judgment, that the ground was, that the testator had a voidable use under the bargain and sale; which use was devisable; and that the subsequent recovery executed such use, and made it absolute. In this case the articles form no part of the deeds. The parties might have made very different provisions from those of the articles: and if that was done before marriage, neither Law nor Equity could have altered it. Though in the present case the deed is said to be made in pursuance of the articles, it could not relate back to the articles, or give the legal estate from that time; as in Selwyn v. Selwyn. The will has neither an express nor a necessary reference to the articles or the settlement. It does not profess to carry the articles into execution; but is made with a more general view to the circumstances the testator and his relations then stood in. By the articles he contracted to settle the Stanford estates upon his eldest son and his heirs male in strict settlement. By the settlement the estate is given to the first and other sons of that marriage only; which I presume was the subsequent intention and agreement of the parties. The will is made diverso intuitu, and is not to take effect, if he leaves any issue, male or female. The will is not confined to the jointure agreed to be secured to Lady Lucy Sherrard ; but is subject to any jointure or jointures, he might make upon the woman, he might happen to marry. If I was at liberty to conjecture from the time of making the will and his state of health, I should think, the will was intended to take place only if he died before he married: but I am not at liberty to go out of the record. Upon this record we are to pronounce, whether the will is revoked or not. We are now to pronounce upon different instruments conveying the legal estate. The articles do not convey any legal interest, and are not noticed in the will; therefore I think now, as I thought at the trial, that they ought not to have formed a part of the special verdict, and we cannot take notice of them. We cannot set right any mistake; but are bound to pronounce upon the effect of the deed, as it stands upon the record. Then the question is, whether the deed makes such an alteration in the estate as to be a revocation of the will. All the estate is conveyed to trustees in fee; therefore I can make no difference between the different parts of the property. Considering it in this light, the point of revocation is so fully established by ancient and modern authorities, that any doubt about it at this time seems calculated to shake the rules of property. I shall only * state them shortly. The case in Roll's Abridgment goes upon the ground, that the testator had the old reversion; yet it is said to be a revocation. In Godbolt v. Freeman, 3 Lev. 406, the estate taken back was held to be the old use, and therefore to go to the heir ex parte materna. In Abbot v.

(a) The notes of Lord Mansfield.

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