atkins case brudenell versus Boughton march the question be whether the legacy  give under a first will be a charge upon the real estate and whether revoke by  a second Lord Hardwicke decree only the lesser sum to be raise out of the real  estate of the testator the question in this cause arise on the will of Mr  Richard Boughton the brother of the defendant the first will be date October  the that in the name c I Richard Boughton of c do give and dispose my worldly  estate as follow imprimis I give and devise to my sister Elizabeth brudenell  the sum of to be lie out for the advantage of herself during life and  afterward to her child and likewise I beg she will take the advice of my  executor item I give to my sister Meliza long the sum of pound to be lie out  in the same manner and to the same purpose as mrs Brudenells the testator give  some small pecuniary legacy and then follow these word last I give the  remainder of my estate at Neasham and Dunsdale in the bishopric of Durham and  all my freehold and personal estate whatsoever not herein otherwise dispose of  after payment make of my just debt and legacy to that brother Shuck borough  Boughton who I also appoint my executor to this my last will thereby revoke  all other witness my hand richard Boughton sign and publish in the presence of  m S h b I c the second will be make at lion date the d of may n S in the name  of God c Richard Boughton fellow of all soul college Oxford make and appoint  this my last will and testament hereby revoke all other will imprimis I give  and bequeathe to my dear sister long the sum of pound second I give and  bequeathe to my dear sister brudenell the sum of pound atkins last I give and  bequeathe to my dear brother Shuckborough Boughton all the rest of my estate  real and personal and appoint he my executor sign richard Boughton there be no  witness but the whole be write with his own hand atkins er p to Shuckborough  Boughton Esq I beg to recommend my sister brudenell to your kindness and  beside the legacy leave her I beg you will give to my godchild pound and in  case that child shall be dead I desire you may give that sum to her old son I  desire this only in case you make use of the last will richard Boughton lion  June this bill be bring by mrs brudenell and her husband to have the legacy  leave to her raise and pay by the defendant out of the testator real estate  the first will be execute by the testator in the presence of three witness and  in every respect accord to the statute of fraud and perjury the second be make  at lion in his last illness but be not execute accord to the statute  alteration be here make in the legacy to mrs brudenell his sister and likewise  to mrs long another sister and by the last clause the residue of his real and  personal estate be give to the defendant the principal question be whether the  legacy give under the first will be a charge upon the real estate and whether  they be revoke by the second will it be insist by Mr smith now one of the  baron of the exchequer counsel for the plaintiff that the legacy be a charge  upon the land and be exact the same as if the testator have give a part of the  land to the legatee and fall within the intention of the statute that the  legacy must take place out of the real estate or be void because there be not  sufficient personal asset to satisfy they and that give they out of land and  money a mix fund will have the same consideration as if single give out of  land and for this purpose he cite the case of onion and triers Eq can ab and p  W and Prec in Chan atkins Mr Joddrell counsel of the same side say that the  statute of fraud and perjury be make upon the plan of the civil law and that  it be draw by Lord chief justice hale assist by civilian and therefore the  civil law be of use in determine this question for which purpose he cite  several passage out of the digest to show the same solemnity necessary in  cancel as in make will Mr Murray counsel for the defendant say he never hear  that the civilian have any thing to do with the statute of fraud but only with  the statute of distribution he insist that the disposition of a testator be  revocable to the time of his death and that Mr Richard Boughton have whole  revoke the first will that his intention as to the real estate be the same in  the second will as in the first and his intention as clear by the second to  revoke the personal legacy give by the first that in the Commons no other will  but the last have be admit to be prove that the trust in the former will do  never arise and therefore it be sufficient for the defendant to show that  those be not legacy because they be clear revoke he put this case as something  similar with regard to the court dispense with formality in revocation suppose  a estate be mortgage in fee or for a term of year now the interest be vest in  the mortgagee and at law can be take from he but by reconveyance to the  mortgagor or surrender of the term which be a necessary ceremony and yet in  this court if the mortgagor show that he have discharge the debt the mortgagee  shall be oblige to reconvey or surrender he cite the case of Richard and Syms  before Lord Hardwicke July the that Barnard Rep what have be insist on by the  plaintiff counsel that the legacy be discharge as to the personal estate and  yet affect the real will introduce a absurdity because the testator intend the  real estate to the defendant in both will he say this be not a case to be moot  now at the bar for he apprehend the point have be determine in heyde v heyde  the word of the decree as mention in the report of that case in Eq Cas Abr be  that such legatee of the personalty in the first will as be leave out in the  second will must lose they atkins but in the register the word be that the  legacy devise by the first and not revoke by the second be to continue charge  upon the real estate the case of onion and triers be not applicable for as the  prerogative court have admit the second will to be prove it be reject the  first and be conclusive as to the personal estate atkins er p that there have  be no case cite to show that the word all the rest of my estate real and  personal will extend to affect the real with legacy Mr smith in reply for the  plaintiff draw a argument from the outset of the first will that by the word  worldly effect the land be original and primary charge at one and the same  time with the personal and the latter do not come in aid only of the real and  therefore the counsel for the defendant beg the question when they call the  personal the original fund and the land only auxiliary for they be both  primary charge that in the latter clause of the first will the word legacy for  the word be after payment make of my just debt and legacy be applicable to  land as well as personal estate and for this purpose cite the writ of ex heavy  complaint where though it be a devise of land yet the word bequest be make use  of Vid the new Edward of Fitzherb nat short catalog where there be the form of  the writ to the mayor and bailiff S of Oxford Lord chancellor this be a case  of some nicety and admit of some distinction from all the case that have be  cite on either side the first question be whether the legacy give by the first  will be revoke by the second the second question be whether the lesser legacy  under the second will be a charge upon the testator real estate the testator  have a small personal estate and a real estate by the first will which be duly  execute he give to his sister brudenell pound c and to his sister long pound  and the residue of his real and personal not before dispose of after payment  of debt and legacy to the defendant by the second will he express revoke all  former will vide onion v tyrer Cox p W Finchs Prec Charles SC and reference  and give to his sister long only pound pound and to his sister brudenell only  pound the residue of the estate as before to the defendant atkins this be not  execute accord to the statute but be sufficient as to personal estate be admit  to be prove in the ecclesiastical court there be likewise a codicil accompany  it or as it be call in the Commons a testamentary schedule the bill be bring  by mrs brudenell and her husband to have the legacy give to her under the  first will raise out of the testator real estate this must depend upon the  construction of the statute of fraud and perjury and the consequence of law  arise upon it it be very certain no devise of land can be make but with such  solemnity accompany the execution of it as be direct by this act and it be  equal clear where a sum of money be give original and primary out of land a  will with that charge must be equal execute with the same solemnity because it  be consider in this court as part of the land since it can only be raise by  sale or disposition of part of the land and this be analogous to the rule of  law that a devise of rend and profit be a devise of the land itself the rule  be likewise the same as to revocation of a devisee of land and with respect to  a revocation of a sum of money charge by a will upon land they must both be  revoke in the same manner but then it must be consider that there be different  sort of revocation or ademptions call it which you will there be express  revocation of the testament or instrument itself which must pursue the  direction of the statute in the six section by cancel or obliterate c but  beside these express revocation there be virtual one even since the make of  the statute as by extinguish or destroy the thing devise and where that be do  by the testator in his lifetime it must prevail and this be find upon maxim of  law to be remiss causan be remiss execution to take up farm to lift id quod  fundi protest therefore these be out of the statute and remain as they do  before suppose a man make a will accord to form and afterward sell or convey  away the land he have devise to other person notwithstanding the form of  revocation prescribe by the statute be not pursue yet it be a virtual  revocation for it be not absolute necessary a deed shall have witness it be  good without it atkins suppose after make a will a man make a feoff to the use  of himself and his heir it be a revocation roll ab Q l dyer b Burgoyne v fox  ante vol Bennet v vade post Abney v miller post Martin v savage atkins er p  barn Charles Rep Darley v Darley will Amb S c see parson v freeman post vol  and note suppose a man charge his land with a debt and afterward pay that debt  it be extinct and yet here be no formal revocation or suppose he charge his  land with a portion for his daughter of pound and give her the same in his  lifetime this be a revocation of the charge though there be no actual one  Bellasis v Uthwatt ante vol note so in the present case this gentleman make  his will and give general legacy which must be take original for personal the  latter word indeed create a charge upon the land but in their primary  intention personal and without controversy if there have be personal asset  they will have be first apply and the land only a collateral security vide  Phipps v Annesley ante Galton v Hancock post note walker v Jackson post but if  the thing secure be take away how can the security itself subsist it have be  say that the real estate under the first will be to be consider as original  charge but I be of opinion that the real estate be not original charge but  give only by way of security the case of hide and hide be a case in point and  in all those case where a man give a personal legacy charge upon real estate  and the will be revoke the legacy be go there be more difficulty in the second  general question whether the lesser legacy under the latter will be a charge  upon the land and I be of opinion that they be consider it in two light first  as if now legacy be give original and de to make new and second whether they  be not part of the same legacy deduce and new modify it will be a very  unfortunate circumstance if the fund shall be go and take away the word of the  second will I give the rest of my estate real and personal to my dear brother  Shuckborough Boughton and appoint he my executor Videathe second will so that  the land as well as the personal estate be give to the same person that he  make executor all the legacy consider as de to make new be charge upon the  land atkins a man may by way of power by any write sign by he be enable to  charge the land vide sir Joseph jekyll opinion as to suck power in the case of  master v master in p W I see no great inconvenience in this than where a man  charge his land by will with the payment of his debt for then all the debt he  contract during his whole life will be a charge suppose a man make two will as  be often do the first charge the real estate with his legacy by the second  will there be general pecuniary legacy but be not execute in form yet I make  no doubt but the latter legacy in the second will will be equal a charge upon  the land vide hannis v packer Amb but in the present case there be no occasion  to go so far because the legacy give by the second will may be consider as  part of the money give by the first only new model or qualify these be lesser  sum pound instead of pound and pound instead of pound if give exact in the  same manner and to the same person there can have be no doubt but there be  lesser sum will have be a revocation pro tanto and undoubted a charge upon the  land but the be give different and to different person make the nicety however  I be of opinion this be no more than a lessen of the quantum of the money give  by the former will and only different modify by the testator doubt indeed  videlicet I desire this only in case you shall make use of the last will it  look as if he have a intention to leave it in the discretion of the defendant  whether he will make use of the last will or not though it be a little odd  this shall be his intention because the one be for and the other against the  interest of his brother therefore upon the whole I must decree the raise the  lesser sum out of the real estate of the testator atkins er p