case parson against freeman Nov common recovery by one entitle to a equitable  estate be a revocation of his will by which he have devise that estate see  William v Owen Ves jun see note to sparrow v Hardcastle Amb lib Reg b foe S c  will atk hill ms p mrs freeman be entitle to a estate tail in land after the  death of mrs sawyer and to the fee of two other estate by article of that  August in consideration of a settlement which her husband covenant to make she  covenant to join with he in fine or recovery or deed and convey the estate in  question to he and his heir and other estate to he for life on saint January  he make his will and devise to her for life remainder over with a remainder to  defendant June freeman and his wife convey all his estate to trustee to make a  tenant to the precipe in order to suffer a recovery and declare the use to be  to such person c as freeman and his wife shall by deed c limit and appoint and  for want of appointment to freeman and his heir ambler a common recovery be  suffer and freeman the husband be dead without have perform the article Q if  the recovery be a revocation of the will this question come on among other on  the hear the cause that October last and be order to stand over to be speak to  on this day Mr Noel for plaintiff cite Tickner v Tickner S c cite Ves jun  about a year ago before lee chief justice on a case make for his opinion and  verdict give subject thereto p l seize in fee of the estate in question and  ambler er p other estate in ken be gavelkind die and leave two son b and h  they enter as heir r be seize of a undivided moiety devise all his land c and  all his moieties c to his wife Elizabeth Tickner her heir and assign for ever  afterward by indenture of that February between the two son they divide the  estate and all the premise in question be allot to Robert and there be a  covenant that they and their wife will levy a fine as to the premise in  question to the use of b I to such person and for such estate c as b l shall  by any deed or write or will c nominate limit direct and appoint and in  default of appointment to b l in fee and hold it be a revocation of the will  vide raym contra wms Mr Wilbraham on the same side cite more and salk Carth  can in parliament if a deed declare the use of a fineand recovery agree to be  levy yet those use may be vary by a second deed provide it be make before the  use be execute and all the party concern in interest concur in it on the other  side be cite vern Ogle v cook that February S c bro c c vern Lord chancellor  there be great variety of determination on question of this sort some on very  nice and artificial reason calculate to favour the heir at law it be admit on  the part of the defendant that if the testator have be seize in fee and have  devise as here and afterward ambler have join in this recovery it will have be  a revocation of the will and yet notwithstanding the same reason may have be  allege in that case videlicet that it be do for a particular purpose there be  many case of different kind on this head and it be difficult to recollect they  all one be certain if one seize in fee make a will and afterward execute a  feoff and take back a conveyance to the same use that be plain a revocation  see sparrow v Hardcastle post and cart v cart Amb case have go further where  one seize in fee devise and afterward levy a fine or make a feoff or  conveyance to use to the use of himself and his heir that be a revocation  although he take back the old use without any alteration whatsoever the reason  arise from the presume intention that the wife shall not take effect but all  the case admit of limitation and distinction and notwithstanding after such a  devise the testator make a lease for year or life that revoke no more than to  answer the particular purpose he only take so much out of it which be a  certain proportion and his intention be declare express to be so far and no  further Prec in Ch with distinction if the lease be to the devisee then it be  a revocation this be the rule at law but it have be throw out as a doubt  whether it be so in equity no authority to support that doubt be of opinion it  will be so in equity in all case otherwise it will be very mischievous to say  the same kind of conveyance shall not be a revocation in both case if one  seize of a equitable estate make a will and then execute a conveyance and  dispose of it or declare the use to himself it will amount to a revocation if  the conveyance will be so of a legal estate at law but subject to the same  limitation for a particular purpose and so be the reason in vern and the same  determination will have be of a equity as be of the legal estate the court  consider it only as a security and whether it be by mortgage or to sell and  pay debt it be only a revocation pro tanto see brain v brain mad so Ogle v  cook see S c cite bro c c and from the register book by Lord Loughborough Ves  jun in the case of Collins v Wakeman S c hark ms capper and as it will be  subject to redemption by the heir so it be by the devisee this be so consider  the present case ambler saint Q what kind of estate p have at the time of his  will d what operation the recovery have on the legal or equitable estate he  have no legal estate at the time of make his will except in right of his wife  a objection be make that as he have not do all on his part he have not a  equitable estate but that be a nice distinction he have it in his power to  perform it whenever he will but without go into that question I shall consider  he as entitle to the equitable estate he make his will and devise it afterward  he and his wife join in a recovery and declare the use not to the husband in  fee but to such use as he and his wife shall appoint and for want of  appointment to he in fee there have be no appointment it have be insist that  by virtue of the recovery he gain a legal fee and it have alter his estate one  thing be clear that as to that ambler er p part of the estate in which by the  article f be to have a estate for life only by this recovery he have a fee in  it it be a new purchase much have be argue from the nature of the conveyance  but no weight be to be lie upon that if one have a equitable estate make his  will and afterward take the legal estate it be no revocation but the heir at  law become a trustee for the devisee see in sparrow v Hardcastle post in  bridge v duke of chandos Ves jun per Lord Mansfield in burgess v wheat Eden Ro  Abr ad idem this have be frequent determine if one article to purchase land  and every thing be do that reasonable can be and before conveyance make he  devise the land hold the devisee shall take the land and the personal  representative shall be oblige to pay the money for it see Amb h so it be if  one article and devise and afterward a conveyance of the legal estate be make  to he the devisee shall take it and it make no difference by what way the  conveyance be make for all that be but instrumental to convey the estate to he  see Prideaux v gibbin Ch can Ves Ves so if the conveyance be to a trustee for  he Jenkinson v Watts lofft S c cite nom Watts v Fullerton dougl rise v  Cunningham Ves see Sugd vend if one contract for sale of land he have devise  it be a revocation Bennet v Tankerville Ves knoll v Allcock Ves but I can go  so far to say it be a general rule that where a man convert a legal estate  into a equitable one that be so in all case in those cite it be but that be on  another principle if one devise and afterward convey to another ambler in  trust for he it be a revocation see Fitzgib and in cave v Holford Ves but in  those case cite it be for a particular purpose query what effect the recovery  have on the equitable or beneficial interest of Mr f under the article if he  have take mere the legal estate for that reason only the recovery have not be  a revocation of the will but the husband and wife come to a new agreement he  be to have a fee of the whole subject to the power of appointment she may say  if you will let I into a power of appointment as to those estate in which you  be to have the fee by the article I will give you the fee of those in which  you be by the article to have only a estate for life but it be argue nil  operator for the estate vest in the husband till the appointment make and that  the only reason of the recovery be to execute the trust estate but that be not  so in all those case nothing else but that be do and this differ it from the  case cite and from the case where it be do to answer a particular purpose for  this purpose may operate over the whole fee suppose one seize in fee devise  and afterward make a settlement on himself for life remainder without trustee  on his first son c remainder to himself in fee he have the fee and it may be  say in that case the settlement be only for a particular purpose to let in the  son and yet nobody will doubt it to be a revocation even though no son bear  Lord Lincoln case in the house of lord show p c the decree declare that as to  the land and premise in question the will of the testator be revoke by the  recovery suffer of those land after make of the say will and that the same be  descend and belong to the plaintiff as heir at law of the say testator lib Reg  be very strong to this purpose which be hear and determine with great regret  he conceive for it be in imagination only that he be in love and court a lady  and thereupon make a conveyance of his estate in trust to himself in fee till  the marriage c and though it be strong declare to be for a particular purpose  yet it be hold to be a revocation of his will because it may operate over the  whole fee here f take a estate by the recovery different qualify subject to  condition and conveyable different the case of Tickner v Tickner be very  strong and the same with the present and be determine by a very learned judge  therefore c ambler er p