atkins case parson versus freeman November see Plowden v hide de g m g SC will  SC Amb on a husband promise to do act for a wife benefit she in article before  marriage covenant to join in suffer a recovery of her estate and settle it to  he and his heir the husband make his will and devise this estate to the  defendant but not have do what he oblige himself to do come to a new agreement  with his wife that he shall not take her estate instanter in fee but subject  to a appointment of the husband and wife and in default thereof to the use of  the husband and his heir the recovery suffer the use declare to the purpose of  this deed he die in the wife lifetime without make any appointment or revoke  his will the recovery suffer by Mr freeman and his wife and the declaration of  it to the use of the deed be a revocation of Mr freeman will on article before  the marriage of Richard freeman and his wife upon his undertake to do some act  for her benefit she covenant that she will join with he in suffer a recovery  of a estate that belong to her and settle it to he and his heir Mr freeman  make his will in and take upon he to devise this estate to the defendant but  not have perform the contract or the act he have oblige himself to do by the  article freeman afterward come to a new agreement with his wife that he shall  not take her estate instanter in fee but subject to a appointment of the  husband and wife and in default of such appointment to the use of Richard  freeman and his heir a recovery be suffer by Mr freeman and his wife and the  use of that recovery declare to be to the purpose of the deed he die afterward  in the lifetime of his wife without ever make any appointment with her or  revoke his will the question be whether the recovery suffer by Richard freeman  and his wife and the use of that recovery as declare by they be a revocation  of his will Mr Noel for the plaintiff insist that the recovery be clear a  revocation as to this estate there be two general rule first where a man have  a estate in fee at the time of make his will and make a feoff afterward though  be take a estate to himself in fee again it be a revocation second where what  be do relate and extend to the whole estate it will be consider the same in  equity as at law and for these purpose he cite Marwood versus turner S wms  there tenant in tailmale remainder to himself in fee devise his land to I S  and then suffer a recovery atkins to the use of himself in fee and die without  issue male this be a revocation of the will atk this determination show that  the principle I have lie down be full establish with regard to subsequent act  after make a will though a will I must allow take in all personal estate  acquire afterward yet it can possible take in a real estate acquire afterward  it be lie down in roll Abr that a feoff after a will though declare to the use  of a will be a revocation the deed to lead the use of the recovery amount to a  new agreement for instead of let it rest as it do on the article the husband  and wife convey the estate in fee upon a different consideration in the case  of pollen versus husband Eq Cas Abr sir I h by will of the that of February  give all the residue of his real and personal estate to I p and the heir male  of his body with remainder over afterward by lease and release the that of  August sir I h together with I S his trustee convey several land in  Warwickshire to trustee and their heir to the use of himself for life and that  the trustee shall execute such conveyance thereof as sir I S by write under  his hand and seal or by his last will and testament shall appoint sir I S die  in without alter or revoke the say will or make any other appointment touch  the real estate the question be whether this lease and atkins er p release be  a revocation of the will or not and it be decree that the lease and release be  a revocation of the will there be a case of Tickner versus Tickner before Lord  chief justice lee about a year ago which be as follow Robert Tickner seize in  fee of the estate in question of gavelkind die intestate and leave two son  Henry and Robert who enter on his death and become seize in gavelkind Robert  be possess of a undivided moiety make his will and devise it to his wife  Elizabeth Tickner and her heir after make his will by a deed of partition  between Robert and Henry Tickner and by a fine all the gavelkind estate which  Robert have devise be allot entire to Robert to such use as he shall appoint  by deed or write and in default of such appointment to he in fee atkins a  verdict be find in ejectment subject to the opinion of Lord chief justice lee  who after mature deliberation hold this transaction to be a revocation of the  will swift v Robert Amb but see Luther v Kirby vin pl Mr Wilbraham counsel of  the same side though there have be no express agreement yet the act do amount  to a new agreement the consequence of the recovery be they have connect their  legal and equitable estate together and convey they by the deed to make a  tenant to the prcipe it be lie down in more that if a use be declare by a  indenture yet the party may alter the indenture at any time till the estate be  execute by the fine and the second deed shall control the first in Jones  versus Morley salk it be resolve that if a fine have be levy pursuant to a  covenant in a marriageagreement no parole averment can have be allow to  declare other use or that the fine be not to the use of that deed and all  party have be estopped to aver the contrary by parole but by deed subsequent  and before the fine other use may be aver though they be declare by write and  not by deed for by the variance there be room to inquire and receive  information that the old agreement be relinquish that this be a good  revocation of the use of the first deed though it be but a write for where the  conveyance enures by way of transmutation the use be accord to the intent of  the party and it be no matter how that intent be manifest so as it may be know  he cite likewise the case of Stapleton versus Stapleton Tr atk till use be  declare and while it lie in suspense whether Mr and mrs freeman will joint  declare use or not it vest in mrs freeman as be her estate suppose the estate  have be limit to the husband in tail with such a power of appointment till  appointment the fee can be in abeyance and therefore must revert back to the  person who have the original dominion over this estate therefore if it be a  result use it will come to mrs freeman and must be a declare new use to come  to he and atkins if so it be a acquire estate and consequent a revocation of  the will as he gain a better estate than he have before Mr Evans also counsel  of the same side either by have gain a new estate upon a new use execute to  the husband or on a solemn act by the husband and wife it be a revocation the  reason why in the rule already lie down a second deed will revoke the first be  because it rest in agreement only till the fine levy or recovery suffer the  wife who be tenant in tail with remainder to her nephew covenant by  marriagearticle to limit a part of her estate to the husband in fee on his do  what he agree on his part to complete the article he not have perform his  contract they come to a new agreement that he shall not take the estate  instanter in fee but subject to the appointment both of husband and wife  therefore the recovery suffer be not intend to complete the article but upon a  different consideration the fee vest in Mr freeman under the deed be upon a  new use execute and not a use contract for by the article but variant from  what be devise by he but if the court shall not be of opinion it be a new use  yet still the very act of suffer a recovery shall be consider as a intention  in Mr freeman to revoke his will atkins er p it be material this be not such a  use only as he shall appoint but such use as the husband with his wife shall  appoint upon the whole it be manifest do with a intention to depart from the  article and not in conformity to they the attorney general for the devisee  under the will say the true question be whether the recovery suffer by Mr and  mrs freeman after the marriagearticle be a total or a partial revocation of  the devise make by Mr freeman will mrs freeman at the time of the marriage be  seize in tail of one part of the estate in question in fee of another it be  necessary to consider what estate it be Mr freeman have before the will and  what he intend to pass by the will atkins he have only the trust of a estate  in fee and under the will have devise nothing more but that trust in fee the  operation of the recovery be that it convey the legal estate and bar the  estatetail mrs freeman have the use be dispose of and the inheritance dispose  of by the limitation to the husband and wife and their appointment therefore  the fee can be say to be in abeyance the second question will be what  operation the recovery have in equity and what be the consequence with respect  to the equitable interest though the legal use fill appointment may be say to  vest in the wife yet the equitable use vest in the husband then the recovery  will operate only so as to leave the husband such estate as he have before  where a person make a will and afterward a subsequent conveyance so far as it  be consistent with the will it be no revocation so far as it be inconsistent  it be he cite coward and marshal cro Elizabeth where a man devise land to his  young son and his heir and afterward take a wife and by another will in write  he devise the land to his wife for life pay yearly to his son and his heir  such a rend hold to be no revocation but in this case both will may stand  together unless the latter be contrary to the first will or that there be a  express revocation and here his intention appear to be only to provide for his  wife who he afterward espouse and not to alter the will as to his son Lord  chancellor say the subsequent act appear to be only a codicil and do not come  up to the present case the codicil be part of the will all the case cite be  mere legal question as the estate in every one of they be legal estate the  case of Tickner versus Tickner be a new conveyance and do not rest upon the  partition only Mr solicitor general of the same side a general rule be to be  draw from the case that there be a sort of revocation which do not depend on  the intention of the testator atkins as where a man only take back the very  estate he devise by a new conveyance and yet be hold to be a revocation the  convert a equitable into a legal fee be not within this rule but depend upon  other consideration and the present be a case of this sort the reason why a  person who first make a will and then suffer a recovery to the same use be a  revocation depend on artificial reason be consider as a new conveyance that  the conversion of a legal into a equitable estate or trust will not be a  revocation in the case of lady mary Vernon versus Jones vern a devise land to  trustee to pay his debt and then to pay his wife pound per and for her life  the testator live several year and his debt be increase from pound to pound a  by deed and fine convey his land to the same trustee to sell to pay his debt  and the surplus to he and his heir and his wife join in the fine and  conveyance this be determine to be no revocation of the wife pound per and in  the case of Ogle versus cook bro Charles Rep SC bro Charles Rep S c the that  of February before your lordship a real estate be devise and after the devise  it be convey to be sell in order to pay a debt due to Mr coke and convey to he  in fee for that express purpose and in trust for himself as to the residue  hold to be no revocation this be determine I apprehend on the common principle  of a person who be atkins er p seize in fee make a will and then mortgage the  be eat there in law the whole fee be go and yet in equity a revocation of the  mill pro tanto only the case of all other evocation depend upon the imply  intention of the testator and after make a will no act shall revoke it but  where the act do be inconsistent with his will and even then where it be only  a partial inconsistency it be but a revocation pro tanto when a man after make  a will demise to the same person for year this be a revocation pro tanto only  in the cage of lamb versus packer a by will devise to his son a message of  year if three life live so long pay his sister per and for her life and  afterward make a lease to b of the same message for year if three life live so  long pay pound per and to the lessor and his heir it be atkins decree at the  roll that the lease be a revocation of the devise but upon appeal to the Lord  keeper decree to be no revocation and that the daughter shall be pay her  annuity vern at the time of make the will the testator have no legal estate  but in the notion of this court a bare equitable fee what be do between the  husband and the wife nothing but a conveyance of the legal estate the bare  conveyance of the legal estate will make no alteration as to the will it be  limit upon the recovery to such use as the husband and wife shall appoint and  for default of such appointment the husband have it in fee the alteration by  the recovery be only the contingent appointment of use and not inconsistent  with the will in a respect if Mr freeman have have a legal estate it can not  have be distinguish from the rule of a recovery be a new conveyance but clear  he have only a equitable fee it have be say here be a new agreement but the  consequence do not follow if it be a partial agreement it be no revocation if  there have be en such a agreement to subject it to this contingent partial  revocation by let in the appointment as to some of his interest it will have  be only a partial revocation and the equitable fee he have in he be not  disturb by any act the husband have do by the recovery but as the appointment  be never make by the husband and wife the recovery be no alteration of the old  equitable fee Mr free man have in he at the time of make the will Lord  chancellor the case have be determine onvery nice and artificial reason upon a  inclination the law always show to favour a heir and to prevent he from be  disinherit where the intention of the testator be doubtful if the husband have  be seize of the absolute legal estate at the time of make the will and  afterward have suffer a recovery and declare the use to be such as he and his  wife shall appoint this will have be a revocation atkins if a person seize in  fee devise a estate in fee to I S and by a conveyance take back a estate from  I S in fee that be a revocation vide brudenell v Boughton ante atk and the  case there cite so a incomplete conveyance as a feoff without livery have be  hold to be a revocation of a will beard v beard atk sparrow v Hardcastle atk  by as to a deed obtain by fraud haw v Wyatt bro Charles Rep the case of the  feoff where the testator take back the old use be a prodigious strong case  that construction must arise from a presume intention that the testator will  not have make a new conveyance without a intention to revoke his will but this  must be understand with some restriction and limitation if the conveyance or  recovery be for a particular purpose then it shall revoke no further than to  answer that purpose as where a testator create a estate for year or for life  in the land devise it shall operate no further vide coke v bullock cro James  Montague v Jeffries roll ab Wilcox and ken ibidem lamb v Parker vern villiers  v villiers atk stone v Evans ibidem this be the rule of law but it have be  throw out as a doubt whether there may not be some difference in equitable  estate I be of opinion that the same conveyance which will be a revocation of  a devise atkins er p of a legal will be equal a revocation of a devise of a  equitable estate and it will be very dangerous to property if it be otherwise  but still the same rule hold as at law if for a particular purpose only it  shall be understand to be a revocation pro tanto only so York v stone salk  Perkins v walker vern hall v Dunch ibidem bider v wager p W Casborn v scarf  atk cart v cart atk Jackson v Parker Amb contra Thomas v north Charles Rep in  all the case where it be a conveyance of the whole estate in law and be only  mean for a security the revocation shall only be for that particular purpose  to let in the encumbrance for the testator himself have draw the line how far  the revocation shall go and his intention be plain show by marriage article  the wife contract that on the husband do some certain act she will convey her  estate to he and his heir it have be say Mr freeman have not do the act on his  part and therefore be not entitle to a equitable estate in the land but though  this may admit of some nicety I will take it he have a equitable estate be so  seize he make his will and devise his equitable interest to a person and his  heir atkins afterward he and his wife suffer a recovery and do not declare the  use to the husband in fee absolute but to such use as he and his wife shall  appoint No appointment be ever make by he and the wife she survive he and at  his death the fee vest in he and his heir it have be insist on the part of the  plaintiff that the recovery and the deed to lead the use have make a  alteration in the estate the question be as to that part of the article where  the husband be to have the fee in the wife estate so far I be of opinion with  the defendant that where a man have a equitable interest in fee in a estate  and devise it and afterward make a conveyance of the legal estate to the same  use this be no revocation vide Barker v zouch Charles Rep atk whether the  conveyance be make by feoff by lease and release or by fine and recovery it  make no alteration for that be instrumental provide he take it on the same  limitation he do before if a man seize of a legal estate devise it and  afterward convey it in trust for a particular purpose this be no revocation  but that do not prove it to be no revocation in all case sparrow v Hardcastle  post Arnald v Arnald bro Charles Rep I be of opinion it be in this case plain  the husband and wife come to a new agreement for therefore he be to have a  absolute inheritance but by the recovery take the estate subject to the joint  appointment of the husband and wife and be execute by the declaration of the  use under the common recovery it have be say the estate vest in he till  appointment make and will open when make to let in the use of the appointment  and therefore still he have the same estate as at the time of make the will I  be of opinion this can be maintain I will put this case suppose a man seize in  fee of a estate devise this and afterward on a settlement by lease and release  take a estate to himself for life with a limitation to a son when bear and the  heir of his body without any trustee to atkins preserve contingent remainder  it may be say this be for a particular purpose to let in a son when bear and  do not in the mean time make any alteration of the former estate but this have  be clear hold to be a revocation of the will Mr freeman take a fee different  qualify convey different disposable different and can be say to be only for a  particular purpose and therefore I be of opinion the recovery be a revocation  of the will the case of Tickner versus Tickner come very near the present it  be not mere to effectuate a partition but for another purpose and therefore  Lord chief justice lee hold it amount to a revocation and I be for the same  reason of opinion the recovery here be also a revocation atkins er p