case sir thomas abney versus miller June SC Amb cite SC Ves b after make his  will surrender the college lease he have devise by the will and accept two new  lease and pay a large fine the last be not seal with the college seal till  after the death of the testator Lord Hardwicke decree that the lease actual  renew after the devise of it be a revocation of that devise otherwise as to  the lease not perfect for want of the college seal Mr Littleton Burton clerk  sometime in the year make his will and thereby give and devise all his college  lease which he then hold Magdalen college to mrs Elizabeth Burton his mother  to be sell by her immediate after his decease and order and direct that the  money arise by such sale shall be distribute share and share alike to his say  mother and the defendant Edmund Burton his brother and miller his sister wife  of John miller of Banbury exclusive of her husband and after her decease to  and miller her daughter and to mary Busfield now Fletcher another of his  sister and after several small bequest and legacy appoint his mother sole  executrix and residuary legatee the testator diverse year after make the will  surrender the college lease devise by it and accept two new lease of the say  premise one in December and the other in August and pay large sum of money by  way of fine but the last be not seal with the college seal till after the  death of the testator this last circumstance do not clear appear by the  register book the defendant allege that they can only and one renew lease the  devise as to one lease however be decree to be revoke but by as to the other  atkins on the that of Feb the testator die without have revoke republish or in  any wise alter his will Elizabeth the mother die after make the will but  before the testator so that the bequest of the residue of the testator  personal estate become lapse and undisposed of and subject to the statute of  distribution the plaintiff have bring his bill in the right of his wife who be  one of the testator five sister and insist upon her share in the residue under  the statute of distribution which depend principal upon this question whether  the renewal of the lease by the testator after make his will be a revocation  of the will Mr attorney general counsel for the plaintiff cite the case of  Marwood versus turner April before Lord chancellor king p W S c he insist that  if it have be in the case of a freehold there can not have be any doubt and  therefore it be incumbent on the gentleman of the other side to show that  there be any substantial difference between a revocation of a will of  leasehold and of freehold Mr Chute of the same side argue that it be not the  identical thing the term devise but a different interest from what be in be at  the time the will be perfect and therefore as to one of the lease at least a  clear revocation of that specific thing he cite bunter versus cook salk and  mason versus day Prec in Chanc Mr Noel of the same side insist that a renewal  be in the nature of a purchase and that the fine have be pay for both lease  though the college seal be not put to one it be a revocation notwithstanding  for that a revocation need not be quite perfect but where a inclination to  revoke appear from circumstance as a feoff without livery a bargain and sale  without enrolment it will be construe a revocation though the act be not  complete sparrow v Hardcastle atk and as the money the material thing be pay  the put the seal of the college be rather a matter of ceremony he cite the  case of Alford versus earl for this purpose vern Mr solicitor general counsel  for the defendant insist that the executrix be certain entitle to the new  lease under a bequest of the residue and that notwith atkins er p stand she  die before the testator yet in equity so far as she be bare a trustee the  right of the beneficiary and trust be not at all hurt but be equal the same as  if the trustee be live the testator in this instance of renewal have do no  more than what he have do several time before for he always atkins renew with  the college at the end of seven year because if he have not a severe fine will  have be put upon he that common case of leasehold estate be extreme different  from bishop and college lease nor have they cite one case to show that bare  renew a college lease have be hold to be a revocation but only where it have  be a common leasehold estate vide Lord Lincoln case Eq ab S c show p c S c and  Swinbourne part sec say ademption of legacy be twofold express and secret  express when the testator do by word take away the legacy before give secret  when the testator do by deed without word take away t legacy as when he do  give away the thing bequeathe or do voluntary alienate the same before his  death now in the present case there be no express ademption because the  testator have never say the defendant shall not have their legacy neither be  there a imply ademption for here be no translation as the civilian call it or  bestow of the legacy bequeathe upon some other person and therefore there be  no implication in this respect then from whence can the implication arise why  it must necessary arise from the renewal only and it must be submit whether  this will amount to a imply revocation now in all these kind of estate the  tenant by custom have a sort of tenantright of renewal a year lease be always  keep on foot and sometime the tenant renew within seven year and sometime  after therefore this be not proper a new lease but only a continuation of it  for it be never suffer to run out entire as this be the nature of these  interest and it be well know there be a great deal of property of this kind in  the kingdom and the testator have do no more than what be usual there be no  pretence to say that his increase the value of the thing give be revoke the  legacy but it be more natural to suppose it be do for the benefit of the  devisees Swinbourne part edit see say if the testator do bequeathe a ship and  afterward do by piecemeal repair and renew the same so that there remain  nothing of the old ship but only the bottom tree here be no ademption of the  legacy to apply this to the present case will any body say that in this court  there be no part of the old bequest remain so that all which be substantial do  be only a increase of the thing devise and a continuation of the old interest  the statute of Geo consider college lease in this light with regard to the  tenant right of renewal atkins he cite Arne versus smith vern and Brunsdale  versus winter before Mr Verney where the question be upon two navy bill devise  by the testator which be afterward pay off and yet hold to be no ademption  vide ford versus Fleming abridgement of Cas in Eq and Elliot versus davenport  vern the general doctrine to be gather from these case be that unless the  testator intention appear to revoke the court will not presume a ademption in  partridge versus partridge Cas in Eq in the time of Lord Talbot a devise pound  Southsea stock to b at the make of his will he have pound and by sale reduce  it to pound which he after increase to pound and die between the make his will  and his death the act tool place which change threefourths of the stock into  annuity and hold that the legacy be not take away or impair by the sale nor by  the act Swinbourne old edit that part sect if the testator do bequeathe all  the corn in his barn and after the make of his will the testator survive until  all the corn be spend and other corn be put in the place thereof this spend of  the corn be no ademption of the legacy why may not this renewal be as well  mean for the benefit of the devisee and a continuation of the interest for his  advantage I Mr brown counsel of the same side compare it to a testator give a  bind debt and afterward charge it into a mortgage and so alter the nature of  the security yet this be only newmodifying it and be not a ademption of the  legacy that though in poinC of law the surrender make it a new independent and  original atkins er p lease yet in equity it be consider only as a engraft upon  the old and to be regard as one consolidate interest Lord chancellor there be  two question in this cause first whether a college lease actual renew after a  devise of it in a will be a revocation of that devise second whether a attempt  in the testator only to renew be a revocation atkins as to the first I be of  opinion for the plaintiff and as to the second for the defendant I will  consider it in the first place as if it have be a express legacy or gift of  the term to the three beneficiary and trust for suppose he have say I give and  bequeathe both the lease to my mother c equal share and share alike and  afterward the testator renew the lease what will have be the effect in point  of law there be no doubt but in this case it will have be a ademption or  revocation and even if the executrix bad assent the legatee can never have  recover the term upon the renewal by a ejectment for the thing itself be  annihilate and go it be not in this case a devise of the land but a devise of  the lease which I hold vide post atk c of Magdalen college c just as if he  have say I devise the term and that term be surrender and go where a testator  express himself in the present tense vide atk it must relate to what be in be  at the time of make the will and can mean only the first lease and the term to  come in it the defendant counsel have compare it to a gift of a ship or a  house which be rebuild after the make of the will but they be different for  this reason because a ship or house be the same corpus and in the present case  it be a absolute new term and the old one be go but then some stress have be  lie on its be the common course and method of renewal in bishop and college  lease this court do regard the custom of renewal in some case because if such  a estate be give upon trust and the estate so give be renew after the death of  the donor yet the court consider it as govern by the old trust Pierson v shore  atk cart v cart atk note with respect to person claim under the testator and  the executor renew will have be bind by the trust but this will not extend so  far as to bind the testator himself in his lifetime under any trust that lie  may have create the same as to freehold for if there be a estate for three  life in the testator and he have devise it yet if he surrender these three  life and take a new lease this be admit on all hand to be a revocation Marwood  v turner p W atkins therefore I be of opinion if it have be a express bequest  it will have be a revocation in law rudstone v anderston Ves how v Medcraft  bro Charles Rep Coppin v Fernyhough bro Charles Rep attorney general v Downing  Amb at the same time I agree if a man have devise a lease together with a  right of renewal and have do nothing in it himself that then the expiration of  the old term will not have bar the legatee because the devise carry the right  of renewal as well as the lease itself consider the case as it be pen under  the will that it shall be distribute share and share alike to his mother and  defendant c it be say that the executrix will have have the legal interest if  she have be live this make no difference because one way or the other it will  still have be a bequest of the term to the legatee in all case of devise of  personal estate the whole vest in the executor and therefore no legacy can  come out of the executor without his consent Northey v Northey atk and accord  to the definition of the civil law it be a command or direction to the  executor what he shall do with such part of his estate but whether it vest in  the executor or be directory if the thing be annihilate it make no difference  as I be clear of opinion this will have be a ademption in law so must it be  here for the rule as to revocation be the same in equity earl of Lincoln case  Eq ab show p c S c burr atk say vide dougl S c cite Cotter v Layer p W rider v  wager ibidem atkins er p it be say that court of law or equity will not allow  of revocation unless there be animus to call again vide Cowp burr this will be  lie down the rule of revocationmuch too narrow and contrary to the know case  of a feoff to the same use with those in a precedent will and yet hold to be a  revocation brudenell v Boughton atk d in Lord Lincoln case Eq Cas Abr the  present case be much strong because here be a utter annihilation of the old  term and a purchase of a new one the argument of the act of parliament turn  the other way because the lessee have no remedy before to compel a renewal and  want the aid of the legislature atkins another argument have be raise from the  inconvenience of these estate go contrary to the intention of the testator and  it certain will be a inconvenience if upon every renewal I must make a new  will but person who be acquaint with the proper method of convey these estate  by will give in this manner all my estate right and interest I shall have to  come in this lease at the time of my death vide post atk or by a general  devise of the residue sterling v Lydiard atk a devise of corn in a barn be not  a specific legacy of particular corn but a legacy of quantity and must be make  up by the executor jeffrys v jeffrys atk Id as to the case cite of the devise  of Southsea stock vide purse v Snaplin atk Stirling v Lydiard atk these person  be not to be consider in the same light with the executor for they do not  claim under her but on a supposition that the thing be not at all give they  claim under the statute of distribution as a heir at law claim in real estate  and if I be of opinion there be no revocation a much great inconvenience will  arise as it will overturn and shake the etablished rule of law as to the point  of republication it be very faint insist on by the defendant counsel for the  fact be no more than this the testator be look for another paper after renew  his lease and the person who be assist he have take p the testator will by  mistake he say that be my will not meaning to republish but only to show it be  not the paper he want to make it a republication there must be animus  republicandi in the testator but even if there have be a republication I be of  opinion it will not have alter the case because the very thing itself be  entire annihilate and go say vide coppin v Fernyhough bro Charles Rep his  lordship decree for the plaintiff as to the lease renew and perfect by the  college seal and for the defendant as to the other lease Reg lib a fol