LAW REFORM.
455
a view of confirming his testament and establishing his purpose. A recovery suffered, unless the will be republished, destroys it entirely, upon the nicety, quite consistent, I admit, with strict legal principle, that a new estate is taken back, different from that which was in the testator when he devised.* This happens frequently to frustrate the plain intent of parties. Lately in the Court of King’s Bench, we had an instance of large property in this immediate neighbourhood, going any where rather than according to its owner’s intention, because a recovery had been suffered; and a recovery, suffered for the express purpose of confirming the will, deprived Lord Erskine of a considerable estate in Derbyshire. So a conveyance, which divests an estate though but for an instant, to serve a use, with the intention of immediately taking back the former uses, which are accordingly taken back, totally revokes the will made before, † Nay, no less a judge than Lord Hardwicke has expressly laid it down, that where a man, supposing he had only an estate tail on which a devise could not operate, suffers a recovery for the express purpose of taking back a fee in order that his will may be good, it is thereby revoked, ‡ The most notable part of these excessive refinements is, that they all proceed upon the act being evidence of a presumed intention, when no man can doubt that either there was no such intention, or one of the * These things are now altered by the Wills Act.
†Goodtitle v. Otway, 7 T. R. 399. ‡ Sparrow v. Hardcastle, ib. in note. Nor is it necessary to change the estate, in order to operate a revocation, e. g. a feoffment by tenant in fee to another to his use and that of his heirs, 3 Ves. 6, and an ineffectual recovery by tenant for life (reversion in fee, disposed of by will), 2 Ves. jun. 430.