8. Of the Revocation and Revival of Wills and Co- If, before the recent statute respecting wills, a feme copyholder had devised the copyhold, and afterwards married, the will was revoked. (1) So marriage and the birth of a child amounted to an implied revocation of the will of a copyholder made before marriage. (2) that every ་ Prior law as to will by marriage. revocation of Enactment in recent statute as to revocation The 18th section of the recent statute enacts, will of a man or woman shall be revoked by marriage, (except a will made in exercise of a power of appointment, by marriage. when the real or personal estate thereby appointed would not, in default of such appointment, pass to his or her heir, customary heir, executor, or administrator, or the person entitled as his or her next of kin under the Statute of Distributions). The 19th section enacts, that no will shall be revoked by any presumption of intention on the ground of an alteration in circumstances. The 20th section enacts, that no will or codicil shall be revoked, otherwise than as therein aforesaid, or by ano'ther will or codicil executed as thereinbefore required, or by some writing declaring an intention to revoke, and ex (1) 4 Co. Rep. 61 b. Ambl. 627. No revocation by alteration of circumstances. Revocation by another will or codicil, or by destruction. Alteration when valid. Revival of will or codicil. Operation of revived will. Where surrender would not revoke will. ecuted as a will, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence, and by his direction, with the intention of revoking the same. The 21st section enacts, that no obliteration, interlineation, or other alteration in any will after the execution thereof shall be valid, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed as required for the execution of the will; but that the will, with such alteration as part thereof, shall be deemed duly executed, if the signature of the testator, and the subscription of the witnesses be made in the margin, or some other part of the will, opposite or near to such alteration, or at the foot, or end of, or opposite to a memorandum referring to such alteration, and written at the end, or some other part of the will. The 22nd section enacts, that no will or codicil in any manner revoked shall be revived, but by the re-execution thereof, or by a codicil executed as before required, and shewing an intention to revive; and that, when any will or codicil which shall be partly revoked, and afterwards wholly revoked, shall be revived, such revival shall not extend to so much thereof as was revoked before the revocation of the whole, unless a contrary intention be shewn. And the 34th section enacts, that every will re-executed or re-published, or revived by any codicil, shall be deemed to have been made at the time at which it was so re-executed, re-published, or revived. When a copyholder surrendered an interest which would otherwise return to himself, he took such interest, not as under the surrender, but as part of his old estate: (1) so that if, before the recent statute of wills, he had devised his copyholds, and afterwards covenanted to surrender, or made an actual surrender of the same, in order to create some partial interest, limiting the remainder to him. (1) But now see 3 & 4 W. 4, s. 3, and supra, p. 40. self, the operation of the devise on the copyholds, subject to the interest created, would not have been revoked; in which respect copyhold stood on a different footing to freehold property. (1) So a covenant to surrender copyholds by way of mortgage revoked a prior will pro tanto only, though the surrender was followed by admittance, unless there was some settlement of the property ultrà the mortgage; (2) the rule being, that a covenant to surrender copyholds previously devised was in equity a revocation of a prior will, if the surrender would have been a revocation at law. (3) Mortgage a revocation pro tanto only. Neither was a devise of the equitable interest in copy- Devise not reholds revoked by the subsequent acquisition of the legal voked by acestate: (4) and the will of a copyholder was revoked by gal interest. his subsequent bankruptcy, so far only as might be requi- Bankruptcy a site for the due execution of the commission. (5) According to the state of the law before the alterations effected by the recent statute, a will disposing of the equittable interest in freehold property was liable to be revoked by the subsequent acquisition of the legal estate, under a modification of uses differing from a simple conveyance of the fee: as where a purchaser, having contracted for an estate, devises the equitable interest, and the legal estate is afterwards conveyed to him under the usual form of limitation to uses to bar dower; such a mode of conveyance will revoke the will. (6) A similar dealing with an estate, after the new statute has begun to operate, will not amount to a revocation of the will. partial revoca- revocation of acts. The 23rd section of the recent statute has enacted, that Enactment in (1) Thrustout v. Cunningham, Fearne C. R. 68. 16 Ves. 527. 3 Bar. & Aĺd. 462. 3 Russ. 479. (2) 1 Watk. Cop. 130, n. (1) [4th ed.] (3) Vawser v. Jeffery, 2 Swanst. 268. (4) 2 Ves. & Bea. 385. Ward v. Moore, 4 Mad. 368. (5) Charman v. Charman, 14 Ves. 580. Vawser v. Jeffery, (6) Rawlins v. Burgis, 2 Ves. & Bea. 382. Bullin v. Fletcher, 1 Keen, 369. recent statute respecting acts subsequent to will. Will to take no conveyance or other act subsequent to the execution of a will relating to real or personal estate therein comprised, except an act by which such will shall be revoked, shall prevent the operation of the will with respect to such estate or interest therein as the testator shall have power to dispose of by will at the time of his death; and the effect as if exe24th section has enacted, that every will, with reference to the real and personal estate comprised therein, shall be construed to speak and take effect as if executed imme. diately before the testator's death, unless a contary intention appear by the will. cuted immediately before testator's death. Principle of doctrine of election. Election before 9. Of the Equitable Doctrine of Election: herein of the Effect of General Words of Devise before the 55 Geo. 3, c. 192, as connected with such Doctrine, and the Non-admission of extrinsic Evidence to raise a case of Election. The equitable doctrine of election applies as well to copyhold as to freehold and personal property, and the principle of it is, that where a testator gives an interest not belonging to himself but to some other person, and gives that person some interest belonging to him, the testator, a condition is implied that the person shall either part with his own interest, or not take the interest given him by the testator. Several of the cases to be met with on the doctrine of 55 G. 3, c. 192. election, as applicable to copyhold property, arose before the 55 Geo. 3, c. 192, dispensing with a surrender to will; and the contest lay between the customary heir of the copyholder, and a particular devisee of a copyhold not previously surrendered, the heir being a devisee or legatee under the will; in which case, he was compelled to elect whether he would take under or against the will: if the former, he was obliged to give up the copyhold estate to the devisee, and not suffered to take advantage of the want of a surrender; if the latter, he was obliged to compensate the devisee out of the interest he, the heir, took under the will; so that cases of election for want of a surrender to will, analogous to those which occurred before the act, did not arise after the act, the same having supplied the want of a surrender, at least when matter of form only. Cases of election might however arise, notwithstanding the act, and may still continue to do so. To raise an election, intention must be plain. General devise To raise a case of election, the testator's intention must appear by demonstration plain, or necessary implication. (1) So that where before the statute dispensing with a surrender, a testator, having both freehold and copyhold before 55 G. 3. property, devised the same from the heir under general words, without a particular allusion to the copyhold, and gave other benefits to the heir, having made no surrender to the use of the will, the intention of the testator was not considered sufficiently strong to put the heir to an election. The circumstances, under which words of general devise would not, before the statute dispensing with a surrender, have passed copyholds, have been already adverted to. (2) It has also been stated (3) that, in the case of a devise of freehold and copyhold property after the statute, under general words which would have been satisfied by confining them to the freehold part, the copyhold would nevertheless have passed, as it would have done before the statute, had there been a surrender to the use of the will. General words of devise, in the absence of a surrender to will, and before the statute dispensing with such surrender, did not disinherit the copyhold heir, neither were they considered sufficiently indicative of an intention to put the heir to his election. The statute having supplied the want of a surrender, general words of devise, after the statute, disinherited the heir, and he took nothing (1) Judd v. Pratt, 13 Ves. 168. 15 Ves. 390. Dummer v. Pitcher, 2 Myl. & Keen, 262. (2) Supra, p. 91. (3) Supra. p. 92. c. 192, would not have put heir to election. |