govern the law, to which those several instances are to be referred, and upon which they are to be determined; and it is not enough to say, every one alteration shall be sufficient, without pointing out the principle, upon which that particular alteration shall amount to it. It is clear, if it shows, the intention is altered: so, if, though the intention is not altered, the same estate never got back again.

When we are trying cases by principles, the law of England is indeed a science: (a) but what shall we say, if it can be argued, that if the testator makes a lease for years or for life directly, the will is not revoked, but if he should unfortunately be advised to do the same thing by lease and release, it shall be revoked? Why? It shall because it shall! The rule is positive, and must not be examined. It must be shielded from examination and inquiry, because they would show the falsehood of it. The old law is adapted to the rule, that the testator must be seised of the same estate; and the necessary consequence is, that the will cannot operate upon the estate taken; as in the case of 44 Edw. III. which was an alienation and re-purchasing. The argument goes upon a refinement. They say, if it is intended to revoke, the will is revoked; and that all acts inconsistent with the will are a ground to infer an intention to revoke. All this is perfectly clear; and if the series of cases, the books are loaded with, had been brought to the test of this principle, we should not at this time have the misfortune to differ in opinion upon this point. But the principles are in the cases reported so confounded, that it is impossible to find out the principles; and it gives them the appearance of mere arbitrary decisions, which in truth they are not, if they are referred to their principles. The cases selected from the last in the books, would, if they were looked into, be a very good

specimen of the whole. The early cases are clear and re[*672] ferable to principle. In the *modern cases they are all huddled together without reference to principle; and the principle cannot with any reasonable certainty be collected. It is necessary to take some notice of those cases.

The case 44 Edw. III. was mentioned by my Brother Heywood as the oldest case. I agree, that it is good law. I rely upon it as the main security of my argument. It is my polar star, guiding me to this conclusion, that if the testator dies seised of the same estate, he has neither aliened nor repurchased. Winkfield's Case, Godb. 132. From the conversation there stated the doubt seems to have been, whether so much of the land, whereof no livery was made, would pass by the will, or not. I collect, though it is not distinct, that the Judges were ultimately of opinion, that the land would not pass. The principle is not distinctly stated. Reduce the case to its principle, and it is very plain. The testator preferred, that the devisee should take the estate under the feoffment in preference to his will; or why did he propose a feoffment at all? The moment, he demonstrated that preference, the will was revoked upon the ground

(a) These words of Lord Chief Justice Eyre are worthy of remark, as evincing the spirit of a jurist.

of an implied intention. Apprehensive, that he might not live long enough to make livery, before he sealed the deed, he asked, if it would be any prejudice to his will: being answered, that it would not, he said, he would seal it; for his intent was, that his will should stand. He certainly did mean, that his will should not stand, if he lived to make the feoffment. Those who were about him, gave him very bad advice. They thought, he might go on with the feoffment, and that his will would not be revoked. The law is in direct opposition to his wishes; for having demonstrated his intention to revoke the will, it was revoked as to that part also, upon which he had only begun the feoffment. He did manifestly intend to revoke it, and to make terms with the law, which he could not make, that the will should not be revoked, till he had completed the feoffment. The act, he had begun, was in opposition to the will and to the operation of the will. When he had resolved, that the devisee should have the estate by another instrument, he did not intend, he should have it by the operation of the will. As to that part, with regard to which the feoffment was completed, he has revoked it upon both grounds: he intended to revoke it, and he had parted with the estate. The case of bargain and sale without enrolment proceeds exactly upon the same principle. That case and another case upon the effect of incomplete conveyances as revocations are in 1 Rolle's Ab. 615, pl. 5 & 6; and the ground is stated. The grant of the reversion upon an * estate for life where the lessee never [*673] attorns, is a revocation: Why? not merely because it was

an incomplete conveyance; but because the testator has shown his intent, that another should have it, and has put it in the power of the lessee by attorning to complete the grant; and the other case of bargain and sale without enrolment is said to be a revocation "for the cause aforesaid." This shows, upon what principle the revocation by these incomplete acts proceeds. It is not an arbitrary rule, but a clear, distinct principle, founded in good sense; an act demonstrating an intention to revoke. I have dwelt the longer upon this case, because the principle of the case is perfectly clear; and the case is an illustration of almost the whole doctrine of revocation.

The next is Hussey's Case in the Exchequer, Moor, 789, cited by my Brother Rooke. This case is a good illustration of the doctrine also. The feoffment revoked the will, because the testator parted with his estate. It is said to be against the intention of the testator, and is put as one of the strongest instances of the operation of the law upon the mere ground of alteration of the estate; whereas, first, he intended it to pass, not by the will, but by the feoffment; secondly, it was so altered, that according to all the rules it was absolutely impossible, the will could from that time operate as a conveyance of the estate. The reason is apparent: the testator did not die seised of it; and yet it is extremely observable as to the doctrine of revocation, that this will was not revoked ultimately, though it could not take effect as a will; for it was allowed to be a good declaration of the uses of the feoffment: but a revoked will is no will at

all. It shows extremely satisfactorily, in what sense the word "countermand" is there meant to be used. It is used in the same sense as Wentworth says "annulled." It was certainly a very particular case to have occurred; for the will was allowed to operate as a declaration of the uses of that very instrument, which prevented it from operating immediately upon the estate itself. The Court of Exchequer carried this odious doctrine of revocation no farther, than they were absolutely obliged to go.

Lutwich v. Mitton, 1 Roll. Ab. 614, 1 Bro. Ab. does not resemble the case in Moor in circumstances; yet it is referable to the same class of cases. I agree to the observation of my Brother Buller

upon that part of the case, that seems to be admitted here, [*674] * and which was resolved there upon debate. There was a struggle for a relation back to the covenant to levy the fine: the Court thought, it could not be ; and I am not called upon to debate that point; as I agree with the other Judges, that the articles are to be laid out of the case here.

Two other old cases were referred to in the argument: 1 Roll. Ab. tit. Devise, Q. Countermand, 615, pl. 1, 616, pl. 2. The first appears not to have been decided with the approbation of Popham, a very able Judge. It is this: a man devises land to J. S. and afterwards makes a feoffment to the use of himself in fee: though he has the same estate, yet it seems, this is a revocation. Two reasons are given for the judgment; that the intent was to have the estate by the new limitation; and that the feoffment passed the estate, and the Statute revests it in him; and so it is as a new purchase. I agree with Popham, that neither of these reasons is perfectly satis factory. What is meant by the intention to have the old estate by the new limitation: or what consequence would it be of, if he had it not by the new limitation, but it was his old estate? Most clearly it is not as a new purchase. That point was decided over and over again, and so lately as in Martin v. Strachan was considered as settled by Lord Chief Justice Lee in that solemn judgment upon a special verdict. In the other case from Rolle, I confess, there was a new limitation; namely, the interposed estate to the wife for life. If any thing turns upon it, I am not called upon to debate it; for in our case there is no such limitation interposed. The same point is said to be adjudged in Cro. Car. 24: but another reason is given there namely, because he parted with the whole estate. The ground of argument was shifted; I suppose, because the former ground was not satisfactory. But this latter reason is not more satisfactory for I take it, he had not parted with the whole. In the first case the old use was not parted with; and in the second, part of the old use was not parted with. Mountague v. Jefferies, which is cited in those two cases, does not lay down an arbitrary rule, but refers it to the principle of the law of revocation, the intent. The principle is therefore right; though the application of the principle in those two particular instances may be deemed very erroneous.

Dister v. Dister, 3 Lev. 108, was also cited. In that case the

tenant in tail had, I take it for granted, the reversion in fee; and this was the estate, upon which the will was intended to operate otherwise I do not see, what he could devise. If so it was the same as the subsequent case of Marwood v. Turner, 3 P. Will. 163. Then the effect of the recovery was absolutely to destroy that reversion in fee. This is proved by the well established difference between tenant in tail with reversion to himself in fee levying a fine and suffering a recovery. In the former instance he lets in the reversion and all the incumbrances of his ancestors: whereas by suffering a recovery he destroys the reversion and all the incumbrances upon it, and gains a new fee-simple to himself. It was therefore altered indeed. What the will was intended to operate upon was totally gone. The case of tenant in tail levying a fine only has not occurred: but here the reversion was totally destroyed; and a new fee-simple placed in the room of the estate-tail. Where all the estate is altered, I agree it is a revocation : but that the word "altered" has any force to revoke a will by its own necessary signification, going to every alteration, is a proposition, which, though generally stated, and, I admit, by many great men, certainly when brought to the test cannot upon their own principles stand. It must be an alteration, that of necessity is a revocation; ex rei necessitate revoking the will; as in Galton v. Hancock, 2 Atk. 425, where after a devise of an estate for lives the testator purchased the reversion in fee.

There are some older and some more modern cases upon the same principle: Roll. Ab. 616, tit. Devise: Cestuy que use before the statute of Hen. VIII. devises the use: then the statute unites the seisin to the use: the will is revoked: that is because the thing devised is gone: but the principle does not appear upon the book.

Then came the case of renewal of a lease; which is one of the points in Marwood v. Turner. The reason is obvious: the thing is destroyed; and he takes back a new interest. I cannot conceive, that this case has the most remote application to the present. The surrenderor means to part with what he has, and accepts an equivalent for it. This testator did not do that.

[*676]

Then came Lord Lincoln's Case, 1 Eq. Ca. Ab. 411, Show. P. C. 154. That was determined by the greatest men in Westminster Hall against the wishes of every one; and the decision extorted by the stubborn and inexorable rules of law. There is a good deal of perplexity in Shower's statement of part of the devise; and I think, it is not to be found in Eq. Ca. Ab.; therefore I suppose, it was not considered to be of much effect. The prayer of the bill is probably more correctly stated in Eq. Ca. Ab. It seems to be admitted on all sides, that it was a revocation at Law: the struggle was, whether it could be supported in Equity. The ground is stated very shortly, and indeed rather alluded to than stated: "For the reason the law goes upon in judging it a revocation, is, because the lease and release is a conveyance of the estate; and so ex necessitate rei a revocation." It did well enough for the

occasion; and though the statement is loose, it is not far from being very precise and accurate. The words probably were meant to import, that in that particular case the deeds were such a conveyance, as ex necessitate would be a revocation. That proposition is true; and stands upon very solid grounds. There is no maxim better established, than that applications are necessary: if they were not, they would be capricious and arbitrary (1). Lord Lincoln converted his absolute fee-simple into a base fee. If that had determined by the marriage taking effect, the whole fee-simple would have been out of him forever; and he never could have got it back again. If he died unmarried, he died only seised of a base fee. It was impossible therefore that he could die seised of his old estate; therefore it is most true, that the deeds were a revocation. I am not inclined to dispute my Brother Buller's argument, that it depended upon the first limitation creating a base fee. With this explanation I agree, that will was revoked; and upon the authority of that case I argue, that this will was not revoked. There is no such necessity here. Lord Lincoln did not die seised of his old estate this testator did die so seised. There is nothing in the necessity of the case to prevent this will from operating. The difference between the two cases as to the base fee is, that in this case the base fee determined in the life-time of the testator; and he was in effect according to the strict letter of the law remitted to his old estate. The substantial difference between the cases is, that here the whole effect of the lease and release respected the jointure only: whereas in the other it was intended to make a disposition of the whole fee. My opinion therefore does not interfere with that case: on the contrary, in my opinion, that case governs this.

In Marwood v. Turner, the argument for the revoca[* 677] tion * is thus summed up: "With respect to the freehold estate, the common recovery and the deed, by which the premises were conveyed to trustees and their heirs, declaring the use of the recovery to Sir Henry Marwood and his heirs, these being all subsequent to the will, and inconsistent therewith, as declaring, the premises should go to his heir at law, and not to his devisee, it seemed to be not much opposed, but that the same were a revocation. Besides a common recovery, as it is a solemn conveyance upon record, and stronger than a feoffment, must needs be a revocation; the recovery being suffered by the tenant in tail plainly gains an absolute fee derived out of that estate-tail; and which fee was never devised: consequently, it must be even stronger than the case, where a man having lands devises them, and afterwards makes a feofliment of them, though to the use of himself and his heirs, and though this be the old use and the old estate, yet according to the several cases in 1 Rolle's Abr. 614, tit. Devises Revoked, this is a revocation; and the case in 3 Levinz. 108, Dister v. Dister, was cited as in the very point; of which opinion was also the Lord

(1) Wainewright v. Wainewright, ante, 558, and the notes, 559, post, vol. iv. 39, V. 534.