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Pending this suit, the plaintiff's husband died; but the cause being duly revived, came on to be heard at the Rolls, on the 5th of March 1703; when his Honour directed a case to be stated as to the £40 annuity, saying, he would consult some of the common-law Judges thereon; but in the mean time, decreed the securities to be delivered up to the plaintiff.

On the 2d of February 1704, the cause came on again to be heard, as to the matter of the annuity; when his Honour declared, that [14] the making the lease to Levett, was a revocation of the said testator's devise; and therefore dismissed the bill as to that matter.

The plaintiff apprehending herself aggrieved by this decree, appealed to the Lord Keeper Wright and the cause being heard on the 16th of June 1705, his Lordship was pleased to declare his opinion, that the said devise, as to the annuity, was not revoked; but said, he would permit the defendant, if he desired it, to attend the Judges of the Queen's Bench, for their opinion therein; which being desired accordingly, those Judges were attended on both sides with a case, and gave a certificate thereon, in the words following:

The cause being set down upon this certificate, came on for judgment on the 20th of July 1705; when his Lordship reversed the decree of dismission pronounced by the Master of the Rolls, and decreed the defendant to pay the plaintiff the arrears of the said annuity, to be computed by the Master; and in default of such payment, the defendant was ordered to pay the plaintiff her costs of suit.

From this decree the defendant appealed; alledging (J. Cheshyre, W. Norris), that the only grounds advanced on the part of the respondent were, 1st, That if the lease was a revocation of the annuity, then the respondent would have no maintenance from the death of the testator, to the time of her marriage. 2d, That it was not the testator's intention to revoke that part of the will concerning the annuity; because in Levett's lease he reserved a yearly rent of £50, out of which, the annuity of £40 might be paid. But to this it was answered, that although the annuity was revoked absolutely by the testator's granting the lease to Levett, two years and more after the making of his will; yet he had provided a better maintenance for the respondent than the annuity could be, namely, the interest of the £700 lent on the securities taken in her name a short time before his death, at £6 per cent. and about six years after the lease to Lovett was granted. That it appeared from the proofs in the cause, that when the testator granted this lease, he thereby intended to revoke the annuity mentioned in his [15] will; because there was an agreement between him and Levett, that whenever Levett was able to purchase any part of the reserved rent of £50 per ann. he should have the same for fifteen years value: and the reason why the £50 was reserved yearly by the lease, was only because of Lovett's inability to purchase more at that time. That the tenement out of which this annuity was to issue, was, by the will, devised to Wyke Parker for ninety-nine years, if three lives so long lived, he paying his sister the annuity for the same; and two years afterwards, the same premises were granted by lease to Levett for ninety-nine years, if three other lives so long lived, under a reserved rent of £50 per ann. payable to the testator, his heirs and assigns; and this lease was in force at the time of the respondent's marriage, and long afterwards. Now Wyke Parker was neither heir or assignee of his father, and consequently, not entitled to the rent, out of which the respondent's annuity was to be paid; nor did he, in fact, ever claim any title to the demised premises, being satisfied, that the devise thereof was revoked by the subsequent lease; and therefore, the respondent's annuity which was to issue out of that devise, was of necessary consequence revoked also.

On the other side it was said (J. Howe), that the whole matter in question was only