attorneygeneral v lloyd Aug not follow Thomas v Howell l r Eq question as to  the revocation of a will mere on the word send to law Ves sen will make before  the mortmain Geo c act good although the testator die after it vide Ves sen  Ambl S c atk John Millington seize of a considerable real and personal estate  make a will in and give his real and personal estate to be lie out in purchase  of real estate to his executor and other trustee and their heir to apply the  rend and profit to payment of some legacy then to reimburse themselves and  then to a charity he afterward make a codicil in take notice that he have give  his real and personal estate to certain use and that be doubtful whether by  the late mortmain act his devise of his real estate to the charity or part  thereof will be good and be desirous to confirm it in that case and not  otherwise he give so much of his real and personal estate as can not pass by  his will to the use of his nephew Millington Buckley at his age of twentyone  with limitation over on his die without issue with proper maintenance till  that age he afterward make another codicil recite the former and the will and  that be advice that his devise to the charity be void as to the real estate  though not as to the personal and be desirous to continue it and to make far  provision for better support thereof he give his personal estate to his  executor upon trust that if it can be pay out in land it may in security for  the same charity and his real estate he give unto and for the use of  Millington Buckley at twentyone and declare that it be his opinion that his  estate at l be sufficient to maintain he during his minority upon a  information to have the will and codicil so establish as that the charity may  be carry into execution it be decree at the roll that the will be well prove  and that the trust shall be perform vesey senior er p and that a scheme shall  be propose for carry the charity into execution from which decree the  defendant Millington Buckley bring the present appeal vesey senior for the  relator the testator die after the late mortmain act make in the first  question whether the devise of the real estate to the charity by his will make  before that act be good can now be dispute for it be determine before the  twelve judge in Ashburnham v Kirkhal atk and barn Ch Rep while the present  suit be depend at the bolls that the devise in such case be good the second  question be whether the devise be revoke by the codicil which be the point  determine at the roll as it be decree that the trust of the will shall be  perform the first codicil have express only the testator doubt and he have  there give nothing but in case the real estate be not well devise and in that  case only and therefore as the law will permit it the devise will be good in  the second codicil the testator do not as in the former give upon a  contingency of the law not suffer it but on a supposition that he can not do  it and so on a mistake in law under which if he have not be he will have give  it otherwise where one proceed on a mistake revoke thereon it be a contingent  revocation it be the same as if he have say because I be advice that the  devise be void and that error be the foundation of the gift to the defendant a  condition annex thereto and to the revocation on which only this gift can  operate and the consequence be that this prevent a revocation like the case of  onion v tyrer wm for Prec Chanc in the case of Clifton v lady lombe Amb the  testator in consideration that his wife promise to continue his widow and to  leave to the child at her death devise to her the testator there be under a  mistake there be no such raise by her for she deny it and there be no proof of  it yet the court think that because he have thus take notice of such promise  by her it shall be the condition of the gift so whatever appear to be thecause  of the gift if there be a mistake in that cause it be natural annex to it so  in Chan can Winkfield v comb suppose the testator have devise to a who be his  wife and it appear that she have marry before it can not be good note this  position seem wrong and the editor be concern in a case in which the point be  concede contra Gilbert v Gilbert Lincoln inn hall suppose a devise to a and  afterward a codicil recite the will and that testator be advice a be dead and  give it to b if a be alive b will have nothing the construction of the  personal estate may serve for the real and Swinburn under the general head of  what be revocation of a will mention error and put this case that because my  son be dead b shall be executor if that fact be false b shall not be executor  so that from the general intent and expression of the testator there be no  revocation for defendant the last testamentary act must operate strong  whatever have the testator motive he mean a absolute not a conditional act the  first codicil be make after the act of parliament create his doubt he there  make a disposition with a view to his doubt the doubt as to the real and  personal estate be the same it vesey senior be to be lie out in land and  therefore he dispose of both if the devise be not good but afterward find he  can make as great a provision for the charity by his personal estate he do not  leave it to the conditional disposition as on the first codicil but decide it  himself and not in the way of the first codicil for then he will have use the  same word as to the personal he have leave it open to the question not so of  the real estate which he will not have tear from his nephew he have leave  sufficient personal estate to the charity and can be say to mean to leave his  real estate to it then he have give direction which by a side wind will  increase the charity by ease the personal estate in part apply part of the  real for maintenance till twentyone and if he have intend more why do he not  ease it entire it be impossible to say what he will do but he think there be  enough for the charity by ease the personal estate in part it must be admit  that in express word there be a absolute devise but it be say his motive must  be consider there be a difference between the motive to do a thing absolute  and on condition for in the last case it will depend upon the condition but in  the other can be inquire into suppose on the knowledge of this doubt they come  to a agreement the court can not set it aside his motive be reasonable and the  court can say your absolute devise shall be conditional the case cite be  different in all of they the testator be mistake which it be beg the question  to say here in lady lombes case it be a imperative bequest in onion v tyrer  the whole go vesey senior er p on the evidence of what amount to cancel the  court be not to strain in favour of revoke will against a heir at law and if  the court can go into it on show what be the motive there be no know where it  will end Lord chancellor I be very doubtful about this case and will put it in  a proper way of be determine this be very different from all the case cite the  question of revocation do not turn upon collateral circumstance but mere on  the word in the instrument themselves which make it differ from onion v tyrer  indeed Lord Cowper there say it may be relieve on the head of accident but I  do not know how he can come at it in a question between devisee and heir at  law it be proper therefore for a court of law and the same construction must  be make as there the first reason why I doubt be that if the testator have  intend as the relator contend that this be a revocation and a new devise only  in case the will be not good he will have leave it on the first codicil and no  occasion for make a new one for it will be just the same with respect to the  charity as on the first another reason which make I doubt be that it be very  nice to say that because the reason a person S fail therefore his devise shall  fail I do vesey senior not know how far that will extend give a the testator  have put it on the advice he receive which be a fact of his own knowledge and  he have ground it on that advice and not on the reality of the law he may do  it in order to quiet the doubtful question but I do not say he do so the three  and principal reason be I doubt whether this disposition be put single on the  point of law for consider the material word be advice and the subsequent word  who can tell what he mean there the codicil be make two year after and his  personal estate may be so increase as to be a sufficient fund for the charity  for all this together may be his reason and it be impossible to say he depend  on one more than another I give no opinion for it be a mere point of law and a  new case and will send it into b r to be there solemnly argue and reserve  further consideration till after the judge certificate Reg lib a fol note the  question be whether the testator real estate in S and S be well devise by the  cc second codicil date the that of march to the defendant m b for life with  remainder over to his first and other son in tailmale the say m b have attain  his age of year c the court certify in the affirmative whereupon Lord  Hardwicke declare and decree accord see supplement p