case sir Samuel Marwood Bart v Cholmley turner Esq Lord chancellor king Eq can  ab pl pl tenant in tail male remainder to himself in fee devise his land to  J S and then suffer a recovery to the use of himself in fee and die without  issue male this be a revocation of the will sir Henry Marwood baronet seize in  tail male with remainder to himself in fee of a considerable real estate in  Yorkshire and also seize of a estate for three life of the manor of Stanton in  Yorkshire hold of the archbishop of York and grant by the peer William er p  archbishop to sir Henry and his heir for three life make his will date the  that of June whereby take notice that his nephew the plaintiff now sir Samuel  Marwood will be entitle to the baronetship in case he survive his father and  the testator his uncle the testator do by his say will devise a considerable  part of his freehold estate to his nephew the plaintiff for his life remainder  to trustee to support contingent remainder with remainder to the first c son  of the plaintiff in tail male successive remainder over and devise his say  leasehold estate to two trustee and their heir during the three life peer  William express a ardent desire that the trustee will take care from time to  time to renew the lease and use their utmost endeavour to preserve the estate  to the heir male of the family as long as the honour of baronetship shall  continue therein and make the defendant Cholmley turner executor sir Henry  have no issue male but the plaintiff be his nephew videlicet his next brother  old son and the heir at law of sir Henry be his granddaughter jane be the  daughter of his only decease son and marry to the defendant Cholmley turner  after the make of the will sir Henry Marwood do by lease and release convey  the estate of which he be seize in tail male c to the trustee and their heir  to the use of they and their heir in order to make they tenant to the prcipe  for suffer a common recovery which common recovery be in the beginning of the  deed say to be for the docking and bar of all estate tail and remainder and f  or vest the feesimple of the premise in sir Henry and his heir and the  recovery be by this deed declare to be to the use of he and his heir after  which a recovery be accord suffer in which sir Henry be vouch the testator  also after the make of the will surrender his lease for life and take a new  lease of the archbishop of York to he and his heir for three life and put in  his grandson Cholmley turner as one of the life the deed and recovery be  execute and suffer in sir Henry Marwood die the that of October upon the back  of the will these word be write and as suppose by the testator own hand this  be my will afterward these word be write but not now so intend to be peer  William in the spiritual court by reason of these word but not now so intend  to be the will be set aside and administration grant general to Henry pierce a  daughter son of sir Henry Marwood though this it be say be do without much  opposition from the defendant Cholmley turner the executor thereof but who  interest it be to contest the will as to the real estate with respect to the  freehold estate the common recovery and the deed by which the premise be  convey to trustee and their heir declare the use of the recovery to sir Henry  Marwood and his heir these be all subsequent to the will and inconsistent  therewith as declare the premise shall go to his heir at law and not to his  devisee it seem to be not much oppose but that the same be a revocation beside  a common recovery as it be a solemn conveyance upon record and strong than a  feoff must needs be a revocation the recovery be suffer by the tenant in tail  plain gain a absolute fee derive out of that estatetail and which fee be never  devise consequent it must be even strong than the case where a man have land  devise they and afterward make a feoff of they though to the use of himself  and his heir and though this use be the old use and the old estate yet accord  to the several case in roll Abr a title devise revoke this be a revocation and  the case in levinz dister v dister be cite as in the very point of which  opinion be also the Lord chancellor peer William with regard to the other  point it be write on the back of the will this be my will but not now so  intend to be and the spiritual court have construe this to be a revocation of  the will and thereupon grant administration as if sir Henry Marwood have die  intestate the Lord chancellor prima fancy incline to think that this estate  pur autre vie be since the statute of fraud to be take as personal estate from  whence it will follow that the will be set aside in doctor Commons the whole  disposition of the personal estate thereby be void and consequent that the  will as to this leasehold estate fall to the ground especial as a lease pur  autre vie be now make liable to pay debt to which it be answer and the court  at length allow of the answer that the lease be grant to sir Henry and his  heir for three life this be a freehold descendible and a real estate and  though by the statute of fraud it be make liable to debt yet it be only to  debt by special wherein the heir be bind and consequent to such debt peer  William er p only as a feesimple estate be make liable to vide duke of Devon v  Atkins ante vol then this be a real estate what will be a revocation of a will  as to a personal estate be no revocation thereof in regard to this and such a  endorsement only especial since it do not appear who handwriting these latter  word be but not now so intend to be can be no revocation the only remain  question of difficulty be whether sir Henry Marwood surrender the old lease  and take a new one to he and his heir for three life subsequent to the will be  a revocation of the will peer William and it be insist for the plaintiff that  this be no revocation for that it will weigh with the court what ardent desire  the testator have express in his will that his trustee to who this lease be  devise shall use their utmost endeavour to continue the lease in the male line  as long as there be any to inherit the honour that as to the surrender of the  old lease this be only to take a better and more beneficial estate be all  intend for the advantage of the devisee to give he a large a more extensive  interest than he have before and to increase the bounty that be before design  he now to make such a intend act of kindness a destruction of the will will be  to invert in the high degree the meaning of the testator that the renewal of a  lease be only a graft upon the old stock which must be of the same nature with  that stock a continuation of the same estate with some little addition to it  that this be demonstrate by the common case where a trustee of a lease for  life when all the life but one be expire renew for the old life and two new  one and the old life die here though the trustee renew the lease out of his  own pocket and though the lease have be quite at a end if he have not renew  yet this renew lease shall be take to be subject to the same trust as the old  lease be and a continuation of the same estate that a considerable part of the  revenue of the kingdom consist of lease either from the church or college or  lord of manor especial in the west and that it be very usual to make provision  for young child out of these lease which common require a renewal every seven  year or upon the drop of a life and if one so seize or possess have make his  will and thereby provide for a young child or child shall soon afterward renew  the peer William lease but forget to republish his will which may often happen  if the child shall be thereby leave unprovide for such a construction may  create the great inconvenience that no judgement at law nor one decree in  equity have be cite whereby it have be determine that the bare renewal of a  lease be a revocation of a will in vern Alford v Alford hill one devise a  lease to his daughter and afterward renew the lease by change the life  subsequent to which he annex a codicil to his will though without take notice  of the lease in such codicil in this case accord to the book it be leave a  question whether the renewal of the lease be a revocation or not of the will  and the point be not there determine but upon look further into the case and  search the register book it appear to have be rule by the court that the  codicil be annex to the will be a republication of the will if the renewal of  the lease have be a revocation also in the case of adean v templar hear at the  roll the that of June a man have five son and by his will give a college lease  to his second son and have make a suitable provision by his will for all his  other son bequeathe the surplus of his estate among all his five child after  which the testator renew the college lease and the old son bring his bill as  one of the residuary legatee for his share of this college lease suppose the  devise of it to the second son to be revoke by the subsequent renew thereof  and this be at that time solemnly debate the master of the roll hold it a case  of very great consequence and that it may prove very inconvenient and a  hardship peer William to construe that to be a revocation of the bequest which  in all probability be intend for the benefit of the legatee his honour  therefore order the master to state the matter special and reserve cost  whereupon the old son be well advice and proceed no further in this cause but  permit the second son to enjoy the lease devise to he notwithstanding the  pretend revocation by the renewal so that the authority be rather for the  plaintiff than against he but it be further urge that if this renewal of the  lease be a revocation in law yet it will not be so in equity but the renew  lease will be subject to a trust for the devisee that accord if a man devise  land in fee to a and afterward make a mortgage thereof in fee this mortgage in  fee though a revocation of the will in peer William er p law yet be none in  equity but the right of redemption shall still pass by the will for that the  conveyance by way of mortgage be only for a particular end videlicet to borrow  money upon the estate and to make a pledge for that purpose so in the present  case the surrender of the old lease be in order only to procure a new one  though such new lease be take to the lessee peer William and his heir for the  three life so if one that have article to buy land shall afterward devise  these land and then the person that have contract to sell the land to he shall  convey the same pursuant to the article vern Greenhill v Greenhill this be no  revocation in equity but the equitable right which the testator have to the  land article to be purchase shall pass by the will and the testator heir at  law be a trustee for the devisee by all which case it be say sufficient to  appear that a will may be revoke at law and yet be subsist in equity so that  take it in the present case that the renewal oh the lease be a revocation at  law the same will not however operate as such in equity and that this be still  the strong in that the testator by his will have direct that the trustee  renewal of the lease shall be a mean make use of to continue and preserve the  estate in the family but it be insist on the other side and so hold and decree  by the Lord chancellor that this renewal of the lease peer William for three  life be a revocation of the will as to this particular for by the surrender of  the old lease the testator have put all out of he have divest himself of the  whole interest so that there be nothing leave for the devise to work upon the  will must fall and the new purchase be of a freehold descendable can not pass  by a will make before such purchase but his lordship wonder that this case  which must have often happen have not be before determine there be leave one  other point in the case which be this sir Henry Marwood in upon his marriage  with Dorothy the daughter of Allan Bellingham be to have pound portion with  his wife and to lie out that sum in the purchase of land to be settle on sir  Henry and his wife and the heir male of his body by her remainder in tail male  to the plaintiff father it appear that sir Henry do lie out the pound in the  purchase of a estate call ascomb in Yorkshire and afterward suffer a common  recovery thereof have never make a settlement of it on the plaintiff father in  tail male expectant on his own death without issue male by Dorothy and the  court hold without difficulty that when the ascomb estate be purchase and  declare to be the land which be to be appropriate and settle for the pound  portion then and from that time there be a lie upon the land and the plaintiff  father become entitle in equity to a remainder in tail male therein expectant  on the death of sir Henry without issue male by his lady and that when sir  Henry afterward suffer a recovery of the premise such recovery bar the trust  and that it have late be solemnly determine by this court that a recovery will  bar peer William a trust Philips v bridge Ves whereupon the plaintiff bill be  dismiss in toto but without cost the Lord chancellor think it a very hard case  parson v freeman atk and see Lord Loughboroughs statement of this case in  bridge v duchess of chandos Ves Jun and will S c Darley v Darley will and bro  p c sparrow v Hardcastle atk S c Amb dick et vide Martin v Strachan will stram  and bro p c S c roe v Griffith burr Arnald v Arnald bro c c do v Delnot n r do  v Llandaff ib shove v pink t r bridge v duchess of chandos ub sup temple v  duchess of chandos Ves William v Owen Ves Jun cave v Holford Ves Jun n S c Ves  sub nom Goodtitle v Otway Bos pull and t r dingwell v askew Cox haw v Wyatt  Cox S c bro c c Darley v Darley dick S c Amb knoll v Alcock Ves Ves Harmood v  Oglander Ves Ves attorneygeneral v vigour Ves Reid v shergold Ves charman v  charman Ves Vawser v Jeffere Ves swan b a Elton v Harrison swan n Jackson v  hurlock Eden Bennett v the earl of Tankerville Ves Rawlins v burgis V b ware v  more mad as to the effect of a subsequent mortgage see rider v wager ante vol  this appear to have be the case of a lease for year which notwithstanding the  doubt the court of b r seem to have be in in the case of bunter v cook salk  peer William er p whether it will pass by a will make before the purchase  thereof have be since clear hold to pass by such will see the opinion of the  Lord Macclesfield in the case of wind v Jekyll et Albone vol where his  lordship also hold that no freehold estate can pass by such will and why a and  b tenant in common of land in fee a by will date that of January devise his  moiety in fee afterward a and b make partition by deed date that of may and  fine declare the use as to one moiety in several to a in fee and as to the  other moiety in several to b in fee on its be send by the Lord chancellor king  to the judge of the king bench to give their opinion whether this be a  revocation of the will it appear by the register book that the court videlicet  Lord Raymond chief justice page probin and lee justice certify that they be  all of opinion that the will of the say a be not revoke by the deed and the  fine levy in pursuance thereof and that the say a s share of the land contain  in the deed and the fine levy thereon do pass by the will of the say a with  which the Lord chancellor concur and order that the several trust in the say  will of a shall be establish Luther v kidby April see the comment on Luther v  kidby in Goodtitle v Otway Bos et pull in Harmood v Oglander Ves and in  maundrell v maundrell Ves and so swift v Robert burr but if a devise land and  levy a fine and the caption and deed of use be before the will but the writ of  covenant be returnable after the will this seem a revocation because a fine  operate as such from the return of the writ of covenant and not from the  caption see salk Lloyd v the Lord say and seal and yet this be a hard case  since by the caption the party conusor do all his part and the rest be only  the act of the clerk or his attorney without any particular instruction from  the party Abney v miller atk and so in chattel lease if specifical bequeathe  Abney v miller ub sup cart v cart atk Stirling v Lydiard atk rudstone v  Anderson ves hone v Medcraft bro c c coppin v Fernyhough bro c c James v dean  Ves and Ves flatter v noton Ves Colegrave v Mumby mad