And again, in the case of Doe, Lessee of Sir William Gibbons, v. Pott, (l) where a mortgagor devised the mortgaged lands, and afterwards payed off the mortgage, and caused a conveyance to be made by the mortgagee of the legal estate to a trustee, in trust for himself and his heirs, such a transfer of the legal estate was held not to operate as a revocation of the will. But between the two last-mentioned cases there is this observable difference, that in Bark v. Zouch, the owner of the equitable estate, after devising it, joined in the conveyance from the old to the new trustee ; whereas in Doe v. Pott it does not appear from the report of the case that the mortgagor was a conveying party in the instrument, whereby the legal estate was transferred to the new trustee. It is probable he was not, having already, and before his will, conveyed his equity of redemption to the trustees of his marriage settlement. It seems, however, that the decision of Bark v. Zouch is agreeable to sound equitable principles; since the reason for a will's not being revoked by a mere change of trustees, viz. because no estate in equity passes out of, or is acted upon by, the testator, seems equally to hold where the owner of the equitable estate joins with the old trustee in conveying to the new, since such act is as inoperative in equity as at law, except for the purpose of being directory of the intended transfer.

In a case where the first of two wills devised land to trustees upon certain trusts, and the second devised the same lands, together with another piece of land, to the old trustees, with others, but upon the same trusts, the second will was held to be no revocation of the first; (m) and, as it should seem, upon the clearest equitable grounds, as there was no substantial inconsistency in the devises by the two wills.

The peculiar facts of that case made it important to decide whether the first will was revoked; for though

(1)Doug. 710.; and vid. per Lord Eldon, 11 Ves. J. 554.

(m) 1 Ves. 178. 186. Willett v. Sandford.

the second will included all the purposes of the first, yet the statute of mortmain having passed between the making of the two wills, unless the estate could pass by the first it could not pass at all, as being for a charitable object. It is true, the second will devised the legal estate to three new trustees, in addition to the old: but still in respect to the two former trustees, and in respect to the trusts themselves, there was no disagreement. And we may remember that the rule properly understood is this-that a subsequent devise, to revoke a subsisting devise of land, must be inconsistent with such former devise; that the apparent inconsistency must be irreconcileable; and that the first of two wills is, upon the ground of inconsistency, revoked only to the extent of the inconsistency.

Equity holds a very steady course in respect to these revocations of wills by subsequent alienations, applying the rule of law to those interests which are looked upon as the estate itself in equitable consideration, and to equitable purposes, in such manner as to keep the decisions of law and equity, in this respect, the same in principle. Thus, it being the maxim of equity to treat an estate which has been articled to be conveyed by the owner to a purchaser for valuable consideration, from the moment the articles are executed, as vested in the purchaser, and therefore as capable of passing by his will, if properly executed, (n) and the subsequent conveyance of the legal interest as having no effect upon the will, being only the medium of carrying the estate home; in accordance with these views, that Court considers a devise of land to be revoked by subsequent articles to convey or settle the devised premises for valuable consideration for if the estate, after the articles are executed, is to be regarded, as vested in the purchaser, it ought to be regarded as passing by the same act out of the vendor or settlor ;

(n) See the case of Broome v. Monck, 10 Ves. J. 604. that an equitable title acquired after a general devise passes by republication.

and therefore, by a plain consequence of this rule of equity, a testator by a subsequent covenant for valuable consideration to sell or settle the devised estate, must be held to have revoked a prior testamentary disposition.

Thus, where (o) a testator devised to his wife six houses in bar of dower, and the rest of his real estate to his two daughters and their heirs, in moieties; and afterwards, in consideration of the marriage of his eldest daughter, by marriage articles covenanted to settle one moiety of his real estate to the use of himself for life, remainder to the husband and wife for their lives, remainder to the younger children of the marriage in tail general, remainder to the husband in fee; Lord Chancellor King held that although it was but a covenant, and therefore at law no revocation of the will; yet that the same, being for valuable consideration, was in equity tantamount to a conveyance, and consequently a revocation of the will, as to the six houses devised to the wife; so that the husband was entitled to one clear moiety of the rents of the estate from the death of the testator. The same doctrine was again laid down by the same Chancellor in a subsequent case; (p) and has since been confirmed by the learned Lord, who now presides in the same Court, (q) and by Sir William Grant. (r)

(0) Sir Barnham Rider v. Sir Charles Wager et al. 2 P. Wms,

328.

(p) Cotter v. Layer, 2 P. Wms. 624. (g) 6 Ves. J. 654.

(r) Vawser v. Jeffrey, 16 Ves. J. 519,

68

SECT. III.

Mortgages, and Conveyances for payment of Debts.

MORTGAGES in fee are differently regarded in the Courts of common law and those of equity. At law they are total revocations, but in equitable consideration they are only revocations pro tanto. (1) It is not on the ground of the particularity of purpose that a mortgage in fee is in equity held to be only a revocation pro tanto, though the distinction between the practice of Courts of equity and law have been often incautiously put upon that ground but the true reason arises out of the distinct considerations under which mortgages pass in Courts of law and Courts of equity.

A Court of law can only look to the legal operation of the deed, whereby the testator, by conveying out of himself his legal estate, of necessity must be held to revoke a previous disposition by will of the same estate; but in equity the transaction has another aspect, and is only regarded as a security for the debt; the devisor remains complete owner, as before, of the estate, subject only to the security, which in the contemplation of equity is nothing but a chattel. And, upon the same principle, if after a devise, the testator makes a conrally, are only veyance of the whole fee, upon trust to sell and pay

In equity, conway of mort

veyances by

gage, or for payment of

debts gene

revocations to

the extent of the charge.

(1) And if the mortgage be by deed and fine, it is nevertheless said to be a revocation only pro tanto in equity, 2 P. Wms. 334. per Lord Chancellor King. But according to Viner, tit. Devise (P) pl. 10. it was held by Lord Cowper, 6 Ann. that if a man devises lands, and afterwards mortgages the same for years, and then levies a fine sur cognizance de droit come ceo, and not a fine sur concessit, this will be a revocation; but that a fine sur concessit would have revoked only pro tanto. It is a critical question whether the principle upon which Courts of equity consider mortgages as only revocations pro tanto does not reject this distinction.

debts, the interest of the testator (2) is only affected to the extent of that incumbrance. To that extent the will is revoked: but the equitable estate in the subject of the devise remains unaltered, except in so far as it is become charged with such debts; and therefore if, after such deed of conveyance, the legal estate in the remaining part of the property, when the object of payment of debts has been satisfied by the disposition of part, is taken back by the testator, by a reconveyance to himself and his heirs, his will is unrevoked in equity. (a)

The late Lord Alvanley (3), when sitting as the Master of the Rolls in the case of Harmood v. Oglander, states the criterion for ascertaining when equity will interfere with the law in respect to the revocation of wills by subsequent conveyances, and to what ex

(a) Vid. Harmood v. Oglander, 6 Ves. J. 221.

(2) It is to be observed, however, that if A. devises lands to his executors to be sold for the payment of his debts, and then conveys it to trustees for the payment of debts, the devise is revoked. 2 Ch. Ca. 116.

(3) It would be a sort of injustice to that learned Judge to omit this opportunity of introducing to the Reader the ingenious vindication which, in the course of his judgment in this case, he makes of his decision and doctrine in the case of Williams v. Owen. "If,” says he," instead of articles, the testator had, before the marriage, conveyed to a trustee, in trust for himself till the marriage, then for himself for life, remainder to the issue in tail, remainder to himself in fee, and then made the will, and then had called upon the trustee to convey, and he had conveyed, it is admitted that that would have been a complete revocation in law; but as clearly it would not have been a revocation in equity, and the heir must have conveyed to the uses of the will. In principle that does not differ from the case of Williams v. Owen. There the devisor was bound by the articles, and he might have been compelled to convey accordingly. Then it is strange to say, that if a conveyance were taken from a trustee, it would be no revocation: but if, according to his obligation, he himself con veyed to the same uses, it would be a revocation. No one can deny that articles are in equity equal to a conveyance. No one can deny that he remained a trustee to the use of the articles, and must have conveyed accordingly." But see supra, page 274.

Lord Alvan ley's defence of

Williams v

Owen.