case sparrow versus Hardcastle easter term may SC Amb the estate devise under  the will of c a must remain unaltered to the testator death for any alteration  or new model make it a different estate and occasion a different construction  at law on the that of July Cyril arthington make his will and thereby devise  unto sir Walter Hawksworth and other their heir and assign all his manor  message tithe tenement and hereditament whatsoever in the county of York or  elsewhere in England and all his estate right title and interest therein  either in law or equity upon trust to pay atkins all his just debt out of the  rend and profit by lease c and subject thereto in trust for his nephew Cyril  arthington the plaintiff father for life remainder to his first and other son  in tail male and for want of such issue in trust for his nephew Sandford  arthington in like manner and for want of such issue in trust for his nephew  the defendant Thomas Hardcastle in like manner and for want of such issue in  trust for his nephew Cyril Hardcastle in like manner and for want of such  issue in trust for his nephew Sandford Hardcastle in like manner remainder in  trust for his own right heir for ever on the that of October the testator make  a codicil to his will recite that he have make his will as aforesaid but have  just reason to be displease with his nephew Cyril arthington and with Thomas  Hardcastle and Cyril Hardcastle three devisees mention in his will do on  serious consideration think fit to alter the same as to they only and do  thereby revoke and make void all devise in the will make to they or any of  they or any of their heir as full as if the same have never be make atkins er  p on the saint of November he make another codicil recite or mention the say  will and the first codicil and do thereby declare that be then reconcile to  his nephew Cyril arthington he consider he be mrs next heir at law and that it  will be a great piece of hardship if not injustice to disinherit he he  therefore on further consideration think fit and do thereby revoke and make  void the say codicil so far as relate to his nephew Cyril arthington and his  heir but not with respect to Thomas Hardcastle and Cyril Hardcastle and their  respective heir and do thereby will that his say in part recite will and all  devise and bequest therein shall stand and remain in their original full force  and effect with respect to Cyril arthington and his heir by indenture date the  that of November make between Cyril arthington the testator of the one part  the say sir Walter Hawksworth and sir Walter Calverley of the other part for  diverse good consideration he the say Cyril arthington do grant to sir Walter  Hawksworth c and their heir all the advowson donation and right of patronage  of in and to the rectory and parish church of Addle and all the estate right  title interest property claim and demand whatsoever of he the say Cyril  arthington of in and to the say advowson to hold to they and their heir to the  only use and behoof of they and their heir and assign for ever and by another  indenture date the saint of November between the say party recite the first  mention indenture it be thereby witness that the true intent and meaning of  the say recite grant and of the party be and be that the advowson donation and  right of patronage be and be so grant atkins upon trust that the say sir  Walter c or the survivor of they and his heir shall present to the say church  when the same shall become void such son of Robert Jackson the then incumbent  as shall at any time after such vacancy or at any time within five month next  after such vacancy be by law qualify to be present to the say church and in  case there shall be two or more such son so qualify that then such of the say  son as the say Cyril arthington or his heir by write under his or their hand  and seal nominate shall be present and in default thereof the trustee shall  present such of the say son as he or they shall think meet and in case at the  time of the first or any future vacancy of the say church there shall be live  a son or son of Robert Jackson who shall then be by law incapable to take such  church the trustee shall present such clerk thereto as by the say Cyril  arthington or his heir shall be nominate and in default of such nomination  such clerk as they shall think meet so that every such clerk so to be present  during the incapacity of such son or son of Robert jack shall become bind to  the trustee in suchsum of money and with such security as the trustee shall  direct to resign such church so soon as any son of Robert Jackson shall be  qualify to be admit thereto and that such clerk give such security shall be by  the say trustee request to resign such church it be the true meaning thereof  that no clerk thereof shall at any vacancy of the church be present thereto  during the incapacity of any son of Robert Jackson to take such church or be  present thereto who shall refuse to enter into such security to resign the  same the church be intend to be a provision and preferment for such of the son  of Robert Jackson as shall be by law qualify to be present thereto provide  that in case at the time when the church shall first become vacant or at the  time of every future vacancy there shall be no son of Robert Jackson live or  in case any son of Robert Jackson be by law qualify to take such church shall  neglect or refuse to accept a presentation thereto that in any of the say case  the trustee shall stand seize of the advowson donation and right of patronage  of the church in trust for Cyril arthington and his heir and on request shall  convey over the same to his or their use and in the same case of there be no  son of Robert Jackson live at the time of such vacancy or of refusal to accept  such presentation as aforesaid the trustee shall present such clerk to such  church as Cyril arthington or his heir shall in write atkins nominate to be  present and in default of such nomination then such clerk shall be present as  the say trustee shall think meet Cyril arthington the grantor and testator die  soon after without issue and Cyril arthington his nephew be his heir at law  who be also since dead and leave Cyril arthington his son and heir at law who  be also dead under age and without issue leave the plaintiff his sister and  heir at law atkins er p Robert Jackson the father die soon after the death of  Cyril arthington the father whereby the church become vacant and the defendant  William Jackson his son be duly qualify have since be present to the say  church by the say trustee and be now the incumbent the two trustee be dead and  the defendant sir Walter blacket be the son and heir of sir Walter Calverley  the survive trustee and the legal estate in the advowson be in he the  plaintiff by their bill charge that the trust be determine on William jackson  be present and the advowson and right thereto ought to be assign to they the  heir at law of Cyril arthington and that in case the church shall become  vacant they will have a right to present thereto for that the second codicil  be execute before the conveyance and deed of trust the say deed and conveyance  as execute afterward be a revocation of the will pro tanto and revoke the  trust of the advowson which by construction may otherwise be in the issue male  of the devisee Cyril arthington the nephew or for want thereof go over accord  to the devise in the say will for as the bill charge by such express act and  deed the testator do limit and retain the say advowson to his own right heir  their bill therefore be bring for the heir of the survive trustee to convey  the legal right and title in and to the say advowson rectory and parish church  to the plaintiff and that the indenture of conveyance and deed of trust herein  respective date the that and saint of November may be deliver up to the  plaintiff the defendant Thomas Hardcastle otherwise arthington the son of  Sandford Hardcastle the last remainderman under the will of the testator be in  possession of the rest of the real estate devise thereby by his answer insist  notwithstanding the atkins conveyance of the advowson and the trust thereof he  be in equity entitle thereto under the will and codicil as devisee of the real  estate and that it ought to be convey to or to the use of the defendant and  the heir male of his body in regard the testator intend to give the benefit of  one presentation only to one of the son of Robert Jackson but when that  purpose be serve then the advowson shall go along with the residue of his real  estate and that admit the deed be execute after the second codicil they ought  only to revoke the say will pro tanto and not entire as to the whole  inheritance of the advowson and disunite and separate it from all the rest of  his real estate especial as it be of the yearly value of pound and that the  plaintiff as heir general of the testator have not any right or title to the  advowson other than the reversion in fee thereof after the estatetail therein  now vest in the defendant and therefore insist that he be entitle to the  benefit of the trust thereof and that sir Walter blacket shall be decree to  convey the legal estate of the advowson to they there be a single witness in  the cause who prove that both the deed be execute by Cyril arthington the  uncle and sir Walter Calverley at the same time and after the second codicil  Lord chancellor I shall make only one question whether the grant of the  advowson make by the testator to two person and their heir and the declaration  of trust at the same time be a revocation of the will or not it depend on a  short fact his lordship then state the case from the will the deed and the  codicil there be a material clause at the end of the declaration of trust of  the advowson if there be no son of Robert Jackson live at the time of such  vacancy or in case of a refusal to accept as aforesaid the trustee shall  present such clerk c and in default of such nomination then such clerk shall  be present as the say trustee shall think meet a case put under the deed  itself in which these very trustee may have a right of nomination and  presentation after the death of Cyril arthington the testator a vacancy happen  and one of the son of Robert Jackson be present and the trust serve atkins and  the bill be bring by the plaintiff as heir at law of the testator and Cyril  arthington his nephew for the purpose before mention the general principle on  which the question depend and enforce by case be that a man at the time of  make a will must have a dispose capacity and mind that lie must at the time be  seize of the estate he devise atkins er p and such estate must remain in the  same plight and unaltered to the time of the testator death for any alteration  or new model will make it a different estate and occasion a different  construction at law unless in some exception which I shall mention by and by  it have be determined  and must be agree to be law that if a man seize in fee  make a will yet if he afterward execute a feoff in fee this be a revocation  nay have be hold so if there be not livery on that feoff because it import a  intention in the testator to revoke beard v beard atk parson v freeman atk the  same as to a bargain and sale which though not enrol before the testator death  be a revocation Lord Lincoln case Eq Cas Abr which turn upon a conveyance by  Edward earl of Lincoln to trustee in consideration of a intend marriage with  mrs Calverle and though prove there never be any intention of such marriage  but a mere whim of the earl yet determine with great deliberation in this  court and afterward in the house of lord to be a revocation of his will the  court have go further still and hold that if a man be seize in fee and  afterward think he have only a estatetail suffer a recovery in order to  confirm his will yet this be a revocation of it Marwood v turner p v but in  the present case a distinction have be attempt to be take which be that the  testator be seize of the legal estate and have the same day execute a deed for  a particular purpose only must be consider as one entire transaction and not a  revocation and it be insist that the testator declare the trust to himself and  his heir be the same thing as if he have leave the trust to result to he and  his heir and will have pass by the devise of the land and must be consider as  part of the old estate atkins I find no authority for this and be of a  different opinion it have be say that if a man seize in fee make a will and  afterward a conveyance in fee in trust and then declare the trust only as to  part that the residue shall not be revoke but I think otherwise if a man seize  in fee of a trust and afterward devise it to another and then take the legal  feesimple I think this no revocation in the case of parson and freeman in  Michaelmas term vide ante but it be not the principal point and only say  obiter I find a case in the book opposite to the point now in question and  which give great countenance to my opinion bowl Abr pl dyer pl between  Montague and Jeffreys if a man have feoff to his use before the statute of h  have devise the land to another and afterward the feoff make feoff of the land  to the use of the devisor and after the statute the devisor die the land shall  pass by the devise for after the feoff the devisor have the same use as he  have before I look into dyer but do not find the point determine but there be  plain a reference in it to the case of Montague and Jeffreys m Elizabeth b b  Lord chief justice roll mention more point determine in that case than be  state by any of the reporter and therefore probable he have a much better note  of Montague versus Jeffreys than any other person beside the use at law be the  beneficial and profitable interest the same as a trust equity and which remain  in the same plight after the feoff as before and the feoff there grant the dry  legal estate to the devisor but the distinction rely upon be that this be a  conveyance make for a special particular purpose to serve the trust only  create for the benefit of Mr jackson son and when that be serve ought to  affect the estate no further and be compare to the case of mortgage and  security for money a mortgage for a term of year make subject to a will be in  point of law only a revocation pro tanto but mortgage in fee though otherwise  at law be consider as partial revocation in equity atkins the except case out  of the general rule of revocation have be confine to mortgage and security for  money and to conveyance for raise money to pay debt hall versus Dunch vern a  devise land and then make a mortgage thereof in fee this be a revocation in  law but otherwise in equity before sir John atkins er p Churchill master of  the roll a appeal to the Lord chancellor Jeffreys who confirm the decree  Vernon versus Jones vern be the case of a wife and child unprovide for but  notwithstanding that Mr Vernon have report it with a qure the case be certain  right because they be mortgage and security for money but that the deed of  grant here be a revocation of the will be as clear as the sun consider on what  the case of mortgage and security depend they depend on the general ground of  be conveyance for a particular purpose and on their be pledge for money only  and though the conveyance be of a real estate yet in the consideration of this  court the thing convey be consider mere as a personal interest for it have no  quality of a real estate and therefore be no revocation of the devise of real  estate at all the testator have only create a chattel interest and be the same  thing as if he have create a term for year for a particular purpose which be  in point of law a chattel interest but compare this with the present case here  the legal estate be actual convey by the grant so likewise be the trust by the  subsequent deed for the profit of the accruer of the advowson be convey the  latter part of the declaration of the trust be very material to show that not  only the whole legal estate but the whole trust be part with for the heir of  the grantor be to present and therefore make a total alteration have to the  last day of the six month to present and after this the trustee and the heir  at law of the survive trustee so that the beneficial interest be give to they  not that the case want the assistance of this circumstance but it be a  ingredient and devisees must take it bind general by this new declaration of  the testator atkins if the distinction contend for by the defendant counsel be  to prevail it will overturn a great number of authority it be not to be  controvert but that the favour of court to heir at law I mean judicial favour  have prevail in some instance and Lord Trevor take up this very consideration  in the case of Arthur versus Bockenham report in holt case which though I do  not allow to be a book of authority yet in this instance seem to be a copy  from his lordship manuscript upon the whole there have be a uniform series of  opinion in this point it ought not to be vary and therefore I be of opinion in  this ease that the will be revoke by the deed but as the priority between the  will and the grant depend upon the evidence of one witness only who swear to a  fact thirty year ago if Mr Hardcastle the defendant will try upon a issue the  priority of the v and grant I will direct such issue Lord chancellor allow the  defendant time to consider till the that of may N B the defendant upon that  lie decline try this fact upon a issue and acquiesce under the decree