SECT. 22. Fourth Report, p. 34. There are the circumstances Glazier. the present act, and now no will can be revived except by re-execution, or by a codicil showing an intention to revive or confirm the will. There is a particular provision that if a will shall have been partly revoked before the revocation of the entire will, any subsequent revival shall not extend to the part previously revoked, unless such intention shall be manifest. The Real Property Commissioners suggested an exception to this clause, in the case of a will which has been wholly or partially revoked by a of Goodright v. subsequent will or codicil, and is left perfect, while the subsequent will is cancelled, or otherwise destroyed. If this exception were not allowed, they thought that wills might be defeated by parol evidence that subsequent wills had been made and destroyed. Forse and Hembling's case, 4 Co. 60. Alteration of the Fourth Report of Real Property Commissioners. This section settles the doubt which has been current so long, whether the will of a woman, which has been revoked by her marriage, is revived by the death of her husband in her lifetime. SECT. 23. It was an established rule of law, that any alteration of the estate in lands, devised by the act of the devisor after the publication of his will, operated as an implied revocation of such will: and this doctrine was founded on the following reasons:-1st. On the favour which the common law shows in every instance to the heir; 2d. On the principle that a devisor must not only be actually seised, but must also continue to be so seised till the time of his death; 3d. Because any alteration of the estate devised was considered evidence of an alteration in the intention of the devisor. such as SECT. 23. Hardcastle, Amb. 224; 3 Atk. 799; Arnold v. Arnold, 1 Bro. 401; Rider v. Wager, 2 P. W. 328; whom Cotter v. Lager, ib. 622; Hawser v. These 519; & B. 382. Some of the revocations dependent upon this Sparrow v. rule are essential to the nature of a will; an entire or partial disposition of the property by sale or mortgage; or an agreement for valuable consideration to sell or to settle, which would be sustained in equity against a devisee, to the legal estate had passed by the will. must necessarily be revocations, either entire or Jeffrey, 16 Ves. pro tanto, of a will comprising the same property; Rawlins v. because, at the death of the testator, when the Burgis, 2 Ves. will begins to take effect, the subject of it is no longer the property of the testator, and therefore he can then have no disposing power over it. But in consequence of the same rule, a feoffment, or any other conveyance to the use of the testator himself, or where the use resulted to Show. Pa. Ca. him, or a fine or recovery to strengthen his title, Pollen v. or even made expressly to give effect to his will, Huband, 1 Ab. Eq. 412; 7 Bro. or a conveyance of the legal estate, not limited P. C. 433; to the devisor precisely as the equitable estate was held by him at the time of the devise, would Parsons v. Freeman, 3 Atk. 741; Dyer, 143, b; 1 154; Hicks v. Mors, operate as a revocation of it. So in case of an Bullin v. exchange, the estate received in exchange would Fletcher, 1 Keen. 369, and neral v. Vigor, not pass by the will; nor would an allotment cases cited'; under an enclosure act, unless the act contained Attorney-Gethe clause usually introduced for making allot- 8 Ves. 256, ments pass under existing wills. SECT. 23. And there is another class of cases, in which the Courts, contrary to the provision of the Statute of Frauds, held wills to be revoked, on the evidence of intention to alter the estate, although such intention was never completely carried into 1 Roll. Ab. 615; effect. Thus a feoffment without any livery, or 3 Atk. 73; a bargain and sale without enrolment, a defective Shore v. Pincke, recovery, or any other instrument which has no Ib. 803; 5 T. R. 124. Fourth Report of Real Pro perty Commissioners, p. 28. Note (c). effect as a conveyance until some other act was done to complete it, and a contract for sale which had been rescinded, were held to operate as revocations; though not deeds or contracts of themselves imperfect or void. These revocations, implied from the alteration or intended alteration of the estate, manifestly defeated the intention of the testator in most instances where they occurred; and met with the frequent disapprobation of the judges, but the rule was too firmly established to warrant a judge in applying his authority to remedy the evil, however universally acknowledged. (1 Keen, 375.) The rule did not hold with respect to wills of personalty. Ib. p. 32. Thus the laws relating to the revocation of wills, which were, as we have seen, so complicated and incongruous, are by this act reduced to a few very simple rules applicable to wills of every description. There are now only four modes in which any will can be revoked :—1st. By another inconsistent will or writing, executed There are now in the same manner as the original will; 2d. By of revoking a only four modes cancellation, or any other act of the same nature; will. 3d. By the disposition of the property by the testator in his lifetime; and 4th. By marriage. By the first and third of these modes, the will may be revoked either entirely or in part; by the second and fourth the revocation will be complete. CHAPTER VI. RULES OF CONSTRUCTION. Time of Wills' S. 3. SECT. 24. Ir is here provided that the will shall be construed to speak and take effect as if it had been executed immediately before the death of the testator. A power was given above of devising subsequently acquired lands, by a specific description. By the present clause, subsequently acquired lands will pass under a general devise of all real estate, which overrules the principle established by Butler and Baker's case, 3 Rep. 30; and Bunker v. Cook, 11 Mod. 121; 3 Bro. P. C. 19. Lapsed and void Lord Langdale's SECT. 25. Provides that a residuary devise shall include lapsed and void devises. This follows almost necessarily from the last provision, which makes the will speak from the death of the testator; but the legislature has thought fit to remove all doubt, by making the declaration. |