J f a devise of copyholds, which he says in effect uestion in that point of view, I have y of appointments, and I can find no ject. But upon principle, if there were ppoint by will, and if an appointment were y a will which was a good appointment, referring the power and giving the property and containing other devises, and if subsequently there were another will declared to be the party's last will, giving all his real estate and not revoking any previous instrument, I think it would be extremely difficult to hold, that the actual appointment made by the first will was in effect revoked. The argument upon it would be, that the testator calls the latter will his "last will," and affects by that to dispose of the whole of his property; and that therefore he may be assumed to be giving a testamentary direction for all that he wished to be done after his death; but not having mentioned again that which he had mentioned in a former instrument, and not having again made an appointment, it would be urged, that he purposely omitted that for which he had given precise directions in a former instrument, and meant to die without exercising the power. Still I think it would be very strong to hold that, with reference to an instrument which is affecting only to dispose of all that is his own. I cannot decide, because he had disposed of all that was his own and omitted to do that which he had done in a former instrument, namely, to dispose of that which was not his own, that he had in effect, though not in words, revoked his previous disposition of that which was not his own. Therefore, when the testator here made a devise by the first in (a) 2 B. C. C. 58. 1854. FREEMAN v. FREEMAN. Judgment. 1854. FREEMAN V. FREEMAN. Argument. estate to which the words were strictly applicable. Therefore it is not a complete will, and it may stand together with the first will, but cannot revoke it. VICE-CHANCELLOR SIR W. PAGE WOOD: I think it is quite impossible to make any final decision until the parties are properly divided; but I am prepared to state my view of this case, assuming the second will to be inoperative as to the copyholds. On the assumption that the copyholds did not pass by the second document, I should be of opinion that the second document had not revoked the first. But there is this remaining behind. The decree must be positive: it cannot be a simple decree for supplying a surrender, as it is called, because a decree to supply a surrender would clearly make the second will immediately operative; for, if the surrender were supplied ab initio, the second will would pass the copyholds by force of the general words; and therefore, if I hold that the copyholds did not pass by the second will-which I do not determine at this moment -I must direct distinctly a surrender to be made to the parties named in the first instrument. After considering this matter a good deal, it not being by any means a clear question or easy of solution, and there being no precise authorities upon it, it strikes me in this way: all the authorities lay down this-that a will, as it is called, of copyholds, is in truth no will at all-it is a mere appointment or direction how the copyhold property should go which has been surrendered to the uses of the will. That is laid down in several authorities, but most particularly in the case of Brodie v. Barry (a). The learned Judge there, in speaking of Scotch estates, compares it to (a) 2 V. & B. 127. the case of a devise of copyholds, which he says in effect is merely an appointment of the use of the copyholds; and in Carew v. Askew (a) it was held, that a will wholly unattested was good to declare such uses. Looking at the question in that point of view, I have considered the analogy of appointments, and I can find no case upon the subject. But upon principle, if there were a power to appoint by will, and if an appointment were made by a will which was a good appointment, referring to the power and giving the property and containing other devises, and if subsequently there were another will declared to be the party's last will, giving all his real estate and not revoking any previous instrument, I think it would be extremely difficult to hold, that the actual appointment made by the first will was in effect revoked. The argument upon it would be, that the testator calls the latter will his "last will," and affects by that to dispose of the whole of his property; and that therefore he may be assumed to be giving a testamentary direction for all that he wished to be done after his death; but not having mentioned again that which he had mentioned in a former instrument, and not having again made an appointment, it would be urged, that he purposely omitted that for which he had given precise directions in a former instrument, and meant to die without exercising the power. Still I think it would be very strong to hold that, with reference to an instrument which is affecting only to dispose of all that is his own. I cannot decide, because he had disposed of all that was his own and omitted to do that which he had done in a former instrument, namely, to dispose of that which was not his own, that he had in effect, though not in words, revoked his previous disposition of that which was not his own. Therefore, when the testator here made a devise by the first in (a) 2 B. C. C. 58. 1854. FREEMAN v. FREEMAN. Judgment. 1854. FREEMAN บ. FREEMAN. Judgment. strument, giving the copyholds in plain terms, he was in truth doing that which the Court says, in favour of younger children, the heir shall be bound to complete; and if the second will did not pass these copyholds, upon which at this moment I say nothing, as I am only testing it for the purpose of the argument, the heir would be bound to complete the disposition by the first will in favour of those to whom the copyholds were thereby expressly devised. There is another thing to be considered. The case of Church v. Mundy (a) shews that there was a good deal of discussion upon the question of what the effect is where a reversion in copyhold property is disposed of. That case was argued by Sir Samuel Romilly without effect before Sir W. Grant at the Rolls (b), where the bill was dismissed altogether; but this decree was reversed by Lord Eldon (c). Before Sir William Grant two points were raised: First, that, this being a reversion of the copyholds, there could not be a surrender to the use of the will, and therefore, no surrender being required, there was no necessity for the distinct indication of an intention to pass the copyholds, which is made by a surrender. Sir W. Grant's answer to that was: Supposing a surrender not to be requisite, it cannot be said that not doing anything one way or the other can be expressive of any intention, and, therefore, that argument could not be of any assistance; and further, he held upon the authority of Roe v. Avis (d), that the reversion did not pass under any circumstances; and he dismissed the bill. Lord Eldon was dissatisfied with that decision, and directed an inquiry whether there was any freehold which did pass, because, he said, if there were no freeholds he should not follow Roe v. Avis (d), but should hold that the copyholds passed by the will; and he gave attention to the point of the interest being a reversion, because he directed an inquiry whether the reversion was devisable by custom without a surrender; and it is worth considering by those who argue that the second will passes this property, whether it may not be held upon the same principle, that where there is a trust estate in copyholds, inasmuch as no surrender at all is wanted, the Court always holds that it passes without any concurrence of the heir, because there is no extraneous operation by way of surrender required, and therefore the heir is not called upon to do anything to complete the gift. Whether the simple devise of such an interest would not pass it, Lord Eldon seems to have thought worth inquiry, and he directed an inquiry upon that head. At present, there is no evidence here as to the custom of this manor. I do not know whether any inquiry was wished for. There are infants and married women interested, who are not able to waive their rights, and I must hear the parties who are interested to contend that the second will passed the whole of this property. I think, therefore, that the bill had better be amended by keeping the parties who are interested under both instruments as Plaintiffs, and making the other parties Defendants, and they should have an opportunity of being heard upon second instrument. the 1854. FREEMAN v. FREEMAN. Judgment. The bill was accordingly amended by retaining Thomas Dew Freeman and the real representatives of John Freeman and Eliza Freeman, who were the three devisees named in the first will, as the only Plaintiffs, and making the other younger children of the testator Defendants, together with the real representatives of the testator's eldest son, who were the original Defendants. Statement. |