case cart versus cart march SC Amb Ves SC cite Lord Hardwicke of opinion the  will in this case be sufficient to pass not only the trust of the lease then  in be but also the benefit of the subsequent renewal to the plaintiff Samuel  cart the plaintiff father be a prebendary of Tachbrooke to which there be a  corpse belong that fall to he in from that time he by indenture demise it to  one of his child for year and such child that be name lessee always execute a  declaration of trust declare that his or her name be make use of in such lease  in trust for the father for so many year as he shall live of the term and then  for such person or person as he shall by deed or will appoint and in default  thereof to and among all his child equal such lessee general surrender the  lease yearly and Samuel cart grant a new one in August Samuel cart lease the  prebendal estate to his daughter Sarah the defendant who execute a declaration  of trust on the that of January Samuel cart make his will and after give some  legacy bequeathe to his old son Thomas the plaintiff all the rest of his good  chattel and estate whether real or personal in possession and reversion and  make he executor atkins then by a supplemental clause item it be my mind and  will that my old son Thomas shall have the disposal of the lease of my prebend  of Tachbrooke make to my daughter Sarah and that he shall receive to himself  all the profit and advantage arise and accrueing from it by another clause  subsequent to this and which be contend by the plaintiff to be make after the  that of September he therein take notice that he have make his son Thomas  executor and residuary legatee and that if he shall be molest and prosecute by  the government by which he may incur a forfeiture or can not be his executor  then he make the defendant Samuel another so and Sarah his daughter executor  and give they what he give to his son Thomas the lease in the year devise  under the will be surrender in and several new lease be make yearly until the  subsist lease the lease in question which be date the that of September and  make to the defendant Sarah who on the same day execute a declaration of trust  in trust for the father for so many year as he shall live of the term then for  such person or person as he shall by deed or will appoint and in default  thereof to and for the benefit of the defendant Sarah and every other child of  the testator share and share alike the that of April Samuel cart the testator  die the bill be bring by Thomas the old son claim the whole benefit of the  lease in and pray that the defendant Sarah may assign it to he and that if the  court shall be of opinion that he be not entitle to the whole benefit that  then he may have a three the defendant Samuel and Sarah say that the plaintiff  be only entitle to a three for that the lease in be a revocation of the will  and do not pass by it Lord chancellor the general question be whether the  benefit of the renew lease in pass to the plaintiff by the will of his father  in either by the original will or subsequent addition to the will and this  general question depend upon these consideration first whether the will of the  that of January be sufficient to pass not atkins er p only the trust of the  lease then in be but also the benefit of the subsequent renewal in case there  have be no new declaration atkins second whether the new declaration of trust  that have be make on the subsequent lease will make any alteration in this  case by the different pen of they and whether they amount to a revocation  three suppose there be a revocation of the will either by the subsequent  renewal or by the new declaration that be make upon those new lease whether  here be sufficient evidence of the republication of the will after the lease  and declaration of trust of the that of September these three question take in  all the point that have be make in this cause as to the first I be clear of  opinion that the will be sufficient to pass it under the circumstance of this  case the case of revocation of will legacy and term of year by surrender and  take new lease have be all of legal interest and not upon a legacy of a trust  estate in a term of year Lord Hardwicke seem to lie particular stress upon the  circumstance of this be the case of a trust and in fol he observe that a  abundance of act be c sufficient to pass the trust or equitable interest which  will not pass it at law in Abney v miller atk the testator have the legal  estate in the lease but by his will have devise they in trust but in the above  case of cart v cart the testator himself be a cestuique trust this distinction  account for a observation of Lord Hardwicke in Abney v miller and reconcile it  with what his lordship be here report to say the passage I allude to run thus  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 see Pierson v  shore atk 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 life time under any trust that he may have  create however the general rule in respect to case where the legal interest of  a term for year be the subject of bequest be submit to be as follow saint if  the intention of the testator collect from the word of the will appear to be  that the bequest shall only extend to the specific lease then in be as where  the testator bequeathe the lease which he now hold or all his land c general  without give all his estate or interest in those land c then and in such case  the subsequent renewal must be consider as a revocation of the former devise  cold Abney v miller atk rudstone v Anderson Ves attorney general v Downing Amb  hone v Hedcrafte bro Charles Rep coppin v Fernybough bro Charles Rep dly but  where the word of the will be sufficient to pass not only the present exist  lease but also the interest in the renew lease as where the bequest be of all  the testator leasehold estate or of all the interest which he have in such a  lease then the court will not construe the subsequent renewal to be a  revocation cart v cart infra adean v templar p W atk Stirling v Lydiard atk  dly the renewal of a lease for life be always consider as a revocation because  it be a freehold the renew lease be as a new purchase of a freehold estate  which can pass by a will previous make Marwood v turner p W atk the case in  Goldsborough and of sir Thomas Abney versus miller June vide Tr atk be of a  legal estate then subsist the pen of the last be very strong to confine it to  the term then in be as it be a bequest of the lease which I now hold and the  testator have only the legal estate in he the question here arise altogether  on the pen of the will and not from the inability in point of law to give it  the case of bunter versus coke salk and the rest of those case depend upon the  particular pen there be no question but a man by will may bequeathe a term of  year which he have not in he at that time but come to he afterward therefore  all these case of revocation of legacy or bequest of term for year arise from  the short pen of the will and if in the case of Abney versus miller the  testator have say if give the interest I have in the lease there be no doubt  but it will have pass so that there be no question concern the inability to  devise but the want of a proper form of word if that be so and a form of word  may be use which will pass a subsequent renew interest after make the will  then the question be whether the word here be sufficient to pass this interest  and clear they be atkins I take the construction of this clause in as  extensive a manner as if he have particular recite and repeat the lease and  declaration of trust and give it to his son and the effect will have be to  have give he the whole trust what be that most certain not the trust of the  then exist term only but also all the renewal and extend to all future lease  as well as those in be a objection have be make that this declare the trust  upon the present term in Samuel cart it be not only a trust to preserve the  legal estate to Samuel cart the elder in the profit but to preserve the trust  in the whole interest by give he a power to surrender it to such use as he  shall appoint what be the whole of it take together why that Samuel cart the  elder shall receive the profit of the lease during his life and that it shall  be surrender as he shall direct what for why to take a now interest for the  benefit of the same trust if the testator have recite in his will as before  can there be any doubt but that will have give to the plaintiff the benefit of  this lease and all subsequent renewal it be the same as if a man possess of a  term have give that lease and all such lease as I shall take which amount  exact to the same thing this be only make a consistent construction suppose  instead of the declaration of trust for Samuel cart for such use c the  declaration of trust have be for particular person and the lease have be renew  from time to time No body will have doubt but the subsequent renewal will have  be for the benefit of the person name in the declaration of trust will it make  a difference if the person be not name No atkins er p suppose it have be for  such person as he shall by any deed not by will appoint and he have make a  declaration for particular person by a instrument distinct from this  declaration will not that have be for the benefit of such person atkins the  devise in this will extend to the whole trust and the word advantage be  undoubted sufficient to take in all the advantage and benefit belong to the  trust it comprise not only the profit but the renewal which be consequential  the word of the will be very sufficient to pass not only the trust and  beneficial interest then subsist but also the renew lease Mr Samuel cart make  new declaration of trust on ever surrender ex abundant caution create all the  difficulty for if he have rest it upon the first there can have be no doubt  second whether the new declaration of trust that have be make on the  subsequent lease will make any alteration in this case by the different pen of  they and whether they amount to a revocation it will be a very unfortunate  case if those act which the testator most undoubted mean shall carry on the  same intention and preserve the estate in the same manner shall have this  effect to revoke and alter the will but if they be revocation in point of law  they must prevail but the question be if they have so do and I have more doubt  of that than the former part of the case though he may have make it  irrevocable in his lifetime not by way of will but by way of disposition  whereby it will have be out of his power to revoke it and it will have be  subject to the trust yet he have not do it in that way but by his will which  be a revocable act in its own nature then the question be make by the counsel  whether these word by his last will and testament shall refer to the act of  make bis will or to the legal operation if to the first it be future if to the  latter why then it be the operation only be future I can find any case where  such construction have be put upon the operation of a will I do not know how  far this may affect copyhold case for u on surrender such estate to the use of  a will I do not remember that it have ever be ask whether the will be make  before or after the surrender heylin v heylin Cowp say vide ware v ware Amb  donc v day Cowp atkins therefore as this may be of very great consequence to  people I be unwilling to determine it the operative part of a will be upon the  point of the testator death there be great force upon that reason but no point  have be determine of that kind and I shall not determine this case upon that  question nor be it material because I be of opinion for the plaintiff upon the  last question as to the republication in a case of this sort where it will be  manifest contrary to the testator intention this court will not extend it  further than be absolute necessary this court upon revocation it be say must  go by the same rule as court of law and though this be right lie down yet a  court of equity do not favour revocation contrary to the plain intention of  the testator but that rule be not applicable in this case because it only hold  as to descent of estate or succession of property or to the effect and force  of limitation of estate and great mischief will arise from construe they  different here than at law but abundance of act be sufficient to pass the  trust or equitable interest which will not pass it at law vide atk one  instance be mention by counsel the case of mortgage that where the estate have  be devise before it be mortgage the devisee take the equitable interest  subject to the charge vide parson v freeman atk and the court there do not  follow the strict law as to the republication the strength of evidence be for  the plaintiff and though not quite clear yet I be satisfy there be a  republication and that the addition to the will be after the lease and the  declaration of trust as to the objection which I myself make with regard to  the propriety of this court be take notice of it as a codicil if f be to send  it to the ecclesiastical court what can they do it will stand as a will with a  date to it and a codicil annex without any date atkins er p and therefore  there be no occasion for a further inquiry in the ecclesiastical court because  this court may take cognizance of it for be the ecclesiastical to reconsider  it the question will still revert to the same thing here with regard to the  point of time when the codicil be execute atkins there be no doubt but the  addition of a codicil be the republication of a will so Alford v Alford p W  vern potter v potter Ves Gibson v Lord Mountford ibidem do v Davy Cowp coppin  v Fernybough bro Charles Rep attorneygeneral v Downing Amb in what case a  codicil do not amount to a republication vide Simpson v Hornsbey pre Charles  stride v Falkland vern Drinkwater v falconer Ves and it be not dispute at the  bar as to the provision in the will in case Thomas cart shall be molest and  prosecute by the government c the sense and meaning be that if any such  accident shall happen before the death of the testator then this clause shall  take effect for a man may name one person executor and upon a particular  contingency appoint another but I will not have it understand that construe  this a continue clause for suppose a man give a estate to a and his heir but  in case he commit treason within such a term of year it shall go over this be  a void clause and will be abrogate the law vide more the same as to a  estatetail such a thing happen before the testator death be before a interest  vest in the executor and be not a continue interest and a man may by his will  substitute another legatee or executor if the first shall by treason forfeit  during the life of the testator but if he mean to extend this beyond the term  of his own life it can not take effect for if it shall it will be a plain  evasion of the statute of Henry and other act make concern treason his  lordship decree in toto for the plaintiff Reg lib a fol atkins er p