it is nothing: it cannot receive notice. The intention cannot be represented; for it cannot be presumed, and there is no evidence; the will not being executed with the solemnity prescribed by the law as to real estate cannot be read: the court cannot see any devise of real estate: and therefore, as the estate does not appear to be devised away from the heir, no act appearing to be done, as in this case the act does appear to be done by Mr. Thellusson, the heir cannot in that case be put to election.

"The case of Hearle v. Greenbank " stands upon the same ground: an infant under the statute' not having a right to dispose of real estate. The court cannot look at the will. It is, from the incapacity of the person who frames it, considered as no instrument.

"These are the only instances in which the principle has been limited. It cannot be argued that it does not reach an heir at law. Lord Hardwicke would not put the case of an heir at law by way of illustration, if the heir could not, under any circumstances, be put to election (1). The principle of election is plain and intelligible; that, if a person being about to dispose of his own property, includes in his disposition, either from mistake or not, property of another, an implication arises, that the benefit under that will shall be

1 Vez. 298. 3 Atk. 695.

'Stat. 32 Hen. 8. c. 1. 34 Hen. 8. c. 5.

(1) "The case of a devise to the heir of an estate, which he would have by descent, if no will was made, and to another person, of an estate, of which the heir is seised in his own right, is put by Sir Samuel Romilly, (ante, Vol. IX. 374. Rich v. Cockell,) as said to be a case of election. Mr. Sugden (Law of Vendors and Purchasers of Estates, edit. 2. 128, 9. note 3.) has found a precise decision of the point accordingly, against the heir: Anon. Gilb. Eq. Rep. 15. In that instance it may be observed, the heir took, not under the devise, but by his better title, descent. The devisor, however, devising the estate to him, must be conceived to be aware of his power to devise it away; and the condition was accordingly implied." Note by the Reporter.

taken upon the terms of giving effect to the whole disposition. Mr. Thellusson's heir takes these estates, as if his father had not made a will: but my opinion is, that he cannot also take what is given to him by the will. He must therefore elect."

While we are upon this subject the Reader may be reminded, that the mere recital of an erroneous conception of right, is no devise by implication, so as to raise a case of election, as against the person having the right, and also taking a benefit by the will; but it seems the testator must, by positive attempt to dispose, make his intention clear.

SLATTER v. NORTON.

16 Vezey Jun. 197.

What Words are necessary to pass Leases renewed after the making of a Will.

my

Vol. I. p. 211. THE Reader will find that in the abovementioned case, the present Master of the Rolls, Sir William Grant, holds with Sir John Strange in Rudstone v. Anderson, that the words, "all my lease, &c." and " "all estate or interest in my lease, &c." are only commensurate phrases, and that the future words adverted to by Lord Hardwicke, in Abney v. Milner, as "all my interest to come, &c." are necessary to pass the interest acquired by the renewal of a lease after a will made.

'Testator, a widower, having a

daughters,

by will gave all his real and

SHEATH . YORK.

1 Vezey and Beames, 390.

Revocation by Marriage and the birth of Children.

Vol. I. p. 347. IN the above case a restriction was adopted, in regard to devises of real estate, as to the ques tion of revocation by a second marriage, and the birth of a child or children, where, at the death of the testator, children by the first marriage are in existence, which introduces a new and important feature into the doctrine treated of in the 17th section of the 1st chapter of Vol. I, of this treatise. The case is as follows:

"Henry Clarke by his will gave to trustees all his real and personal estate upon trust to sell; and after payment sonandtwo of all his debts, &c. to place out the residue of the monies, arising from such sale on government or other security, and pay the interest, &c. towards the maintenance and education personal estates in of his son John, and daughters Mary and Elizabeth, until trust, sub- they should attain twenty-one, and then to pay the principal debts, for equally unto and amongst his said children: but în case all

ject to

those child

case of

ren, and in his said children should die under age and without leaving theirdeaths issue, then upon trust to pay the residue unto his cousins, over. Mar- Peregrine Clarke, Henry Clarke, and Mary, the wife of riage and the birth of Joseph Fowdrell: and he appointed his trustees executors a daughter, and guardians of his children.

held a re

vocation of

the will in

"At the time of making his will the testator was a widow

the Eccle- er, having the three children only, named in his will. He af

siastical

Court, (a- terwards married a second wife, by whom he had issue one

gainst a

former de. daughter. He died in November, 1810; and his son John cision) not Clarke died an infant, in September, 1811.

a revoca

tion of the

devise of

tate.

"A suit having been instituted in the Prerogative Court the real es. of Canterbury, that Court decreed, that the will was revoked by the subsequent marriage and birth of the child. A bill was then filed by some of the simple-contract creditors of the testator, against the executors and trustees of the testa

tor, his two daughters by the first marriage, and those in remainder, &c. praying an account, payment, and sale.

THE MASTER OF THE ROLLS.

and birth

of a will of

personal

Even a devise of land may be re

voked by implica

tion from

where the

devisor has

"Long after it had been settled by decisions of the Eccle- Marriage siastical Court, with the concurrence of Common Law of a child - an implied Judges, sitting in the Court of Delegates, that marriage revocation and the birth of a child would amount to a revocation of a will of personal property, it remained a doubt, whether property. 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 Lanca- a totai change in shire v. Lancashire", calls 'a total change in the situation the situaof testator's family.' What shall be deemed such a total family, as, change, may be matter of controversy in each new case: but all the cases, in which, hitherto, wills of land have been set aside upon this doctrine, have been very simple in their circumstances; and such as, when the doctrine was once received, could admit of no doubt with respect to its application. In all of them the will has been that of a person, who, having children at the time of making it, has afterwards married, and had an heir born to him. The effect has been to let in such that the will should 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 more remote relation, intended, that it should not operate, if he should have an heir of his own body.

no

"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 testator 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.

5 Term Rev. 58.

no children

at the date

of the will, by his mar riage and the birth of

an heir;

upon an implied condition,

not operate

in that event,

only to let in the eldest son to the whole of that estate which he had by the will divided between 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."

Devise of

all his real

and perso nal estate wheresoever and whatso

DOE, ex. dem. CALKIN, v. TOMKINSON AND
OTHERS.

2 Maule and Selwyn, 165.

What contingent Estates are devisable, and of the effect of the word 'survivor,' added to words creating a tenancy in common.

"EJECTMENT brought on the joint demise of S. Calkin and Jane his wife, J. M'Cormac and Anne his wife, and J. Cartlich and Sarah his wife, for a messuage and land in the parish of Dilhorn, in the county of Stafford. Plea, ever, equal not guilty. At the trial at the Stafford Lent assizes, 1813, a verdict was found for the plaintiff, subject to the opinion of the court, on the following case:

ly to his

sisters M.

and E., or