Page:The English Reports v1 1900.pdf/1387

J. Madocks, J. Lloyd), that as to Bonds Walls, the question was, whether the implied revocation of the devise of Pattens, by the testator's recovery suffered after his will, should operate as a revocation of the bequest of Bonds Walls. The devise of Battens was to the wife for life, with several remainders over; and the testator directed, that Bonds Walls should be assigned, so that the same might be enjoyed by the owner and possessor of Battens for the time being, and not be separated therefrom as long as the term should last. The owner and possessor of Battens meant the person who should take Battens under the will, and could have no other reference; and the wife being the first devisee of Battens, the words of the will, as they stood, had the same effect, as if the testator had expressly bequeathed Bonds Walls to his wife for life, together with Battens; so that Battens and Bonds Walls were united in one devise to the same person. That express and implied revocations are both founded, or supposed to be founded, in the intent of the testator; the first in his declared intent, and the latter in his presumed intent, and either way a testator may revoke part of the thing devised, or part of the estate or interest devised, and where part only is revoked, the residue remains unrevoked. An entire farm may be devised; the devise as to a part may be revoked, and the rest remain. If an estate in fee in possession be devised, a lease for years made after the will is only a revocation pro tanto, at law. If an estate in fee be devised, and a mortgage in fee afterwards made, at law it is a revocation in toto, in equity a revocation pro tanto only. And these instances shew, that the effect of a revocation shall no farther break in upon the testator's original intention than is necessary to carry the second intent into execution. In the present case, the testator gave both Battens and Bonds Walls to his [363] wife for life, as an united entire gift; he revoked the devise of Battens, in order that it might descend to his heir at law, and by that means separated it from Bonds Walls; but not having, either by expression or implication, revoked the bequest of Bonds Walls, it remained as the testator left it; for there was no necessity that Bonds Walls should follow Battens, to fulfil the testator's intent that Battens should descend to his heir at law; his intent was fulfilled without affecting the bequest of Bonds Walls; Battens descending as perfectly to his heir, as if Bonds Walls had never existed.

It was however objected, that the intention of the testator was to annex Bonds Walls to, and unite it with Battens; that the one was to be considered as the principal, the other as the accessory; and that the revocation of the devise of the one, was consequentially a revocation of both but this objection supposed, that the testator's intent consisted of three particulars; namely, that Battens should go to his wife for life; that Bonds Walls should also go to her for life; and that they should be held together inseparably, by her and all the remainder-men. This was certainly the original intent, but he afterwards changed it, and revoked the devise of Battens, in order that it might descend to his heir at law; he also, of necessity, revoked that part of his intent, that Bonds Walls should be held inseparably with Battens, for by the revocation he disconnected them for ever. But it did not follow, that because he revoked the devise of Battens, and consequentially repealed his intention of its union with Bonds Walls, that a second consequence should arise; viz. that the bequest of Bonds Walls should be revoked. The testator had only qualified his intention as to Bonds Walls, but not changed it. The two branches of his intention were lopped away, but the third remained.

As to the rents and profits of his chattel estates, which were given to his wife for so many years as she should live, if she should choose to reside at Battens, the argument was stronger against a consequential revocation, they being expressly given to her for life; it was a bequest upon a condition, which the testator had dispensed with, by taking away the possibility of performing it; the condition was revoked consequentially, but not the bequest. The testator declared, that his wife should have and enjoy for her life, the use of all the household goods, plate, and furniture at Battens, and the stock on the said premises, both quick and dead; therefore the same question, and the same argument, applied to these as to the chattel estates, with this further observation, that the testator did not appear to prescribe, that she should enjoy them at Battens, as a condition annexed to the bequest, and that she should not enjoy them elsewhere; but the more probable sense of the words was, that she should have and enjoy the use of the furniture at Battens, and the stock on the premises during her life, using the words at and on, as words of description, and so applied to shew what furniture [364] and