
    [Philadelphia,
    February, 6th, 1836.]
    SKERRETT against BURD.
    CASE STATED.
    A conveyance in fee simple of a lot of ground, is a revocation of a will previously made by the grantor, so far as respects such lot; although upon such conveyance the grantor reserves to himself a ground-rent in fee; and such ground-rent does not pass to the devisee of the lot.
    This was an action of covenant brought by David C. Skerrett against Edward S. Burd, to recover the arrears of a ground rent; in which a case was stated for the opinion of the Court, as follows:
    “ John Shields of the City of Philadelphia, being seised in fee of certain messuages, tenements and lots of ground, situate in the half square between Broad street and Juniper street, and Spruce street and Locust street, in the said city, made and executed his last will and testament, dated the twenty-fourth day of December, 1829, which was duly proved in the Register’s Office for the City and County of Philadelphia, on the twenty-third day of June, one thousand eight hundred and thirty-one.
    ' By this will he recognized his three illegitimate children in the following words: “ Item, Whereas, I have three children, called and known by the names of James Shields, Mary Shields and Edwin Shields, which said three children are illegitimate, but have been and are hereby owned and recognized by me.” And after other devises and bequests he then proceeded: “ Item, I do give and devise unto my daughter, the said Mary Shields, when and as soon as she shall attain the full age of twenty-one years, her heirs and assigns,” (inter alia,) “ also, all and singular my messuages, tenements and lots of ground, situate in the half square between Broad street and Juniper street, and Spruce street and Locust street, in the City of Philadelphia,” “ to hold and take the same to her, the said Mary Shields, her heirs and assigns, to and for her and their own proper use, benefit and behoof forever.” And after other devises and bequests the testator disposed of the residue of his estate as follows:
    
      “Item, and as to all the,rest, residue and remainder of my estate whatsoever and wheresoever in the world, real, personal and mixed, I do give, devise, and bequeath the same to my said three children, James Shields, Mary Shields, and Edwin Shields, when and as soon as they shall severally attain the age aforesaid, their respective heirs, executors, administrators and assigns forever, in equal third parts as tenants in common and not as joint tenants. Item, in case of the decease of either or any of my said three children, before he, she or they shall attain the full age of twenty-one years,'as aforesaid, and' without issue, then I do give, devise and bequeath the part and share of such decedent or decedents to the survivor or survivors of them my said three children, their heirs, executors, administrators and assigns, if more than one, share and share alike as tenants in common. But if all my said three children should depart this life beforé attaining the age aforesaid, and without issue, then I do give, devise, and bequeath all my estate, real, personal and mixed, unto the Pennsylvania Institution for the Deaf and Dumb, their successors and assigns forever.”
    After the execution and publication of his said last will, the said John Shields, on the fifteenth day of April, 1830, did, by deed bearing date the same day, grant and convey unto Edward S. Burd, (the above defendant) in fee simple, a certain lot or piece of ground situate at the north-east corner of Spruce and Broad streets, in the said city, containing in front on Broad street ninety-seven feet, and in length or depth one hundred and thirty feet, to a twenty feet wide alley; yielding and paying therefor and thereout unto the said John Shields, his heirs and assigns, the yearly rent or sum of four hundred and twelve dollars and twenty-five cents, in equal half yearly payments on the fifteenth day of the months of April and October in every year thereafter forever, clear of taxes, &c. In which same deed a power of re-entry is contained in the following words, viz. “ But if sufficient distress cannot be found upon the said hereby granted .premises to satisfy the said yearly rent in arrear and the charges of levying the same, then and in such case it shall and may be lawful for the said John Shields, his heirs and assigns, into and upon the said hereby granted lot and all improvements wholly to re-enter, and the same to have again, re-possess and enjoy, as in his, their first and former estate and title in the same, and as though this indenture had never been made.” Said lot being' a part of the said messuages, tenements and lots of ground situate in the said half square first above-mentioned and devised as aforesaid to the said Mary Shields.
    And the said John Shields did also after the aforesaid execution and publication of his said will, on the fourteenth day of March, 1831, by deed bearing date the same day, grant and convey unto Adam Cornman, in fee simple, a certain lot or piece of ground, situate on the east side of Broad street, at the distance of ninety-seven feet north from the north side of Spruce street, in the said city, containing in front, on Broad street, ninety-feet nine inches, and in length _ or depth, eastward, one hundred and thirty feet, to a twenty feet wide alley, yielding and paying therefor and thereout, unto the said John Shields, his'heirs and assigns, the yearly rent or sum of ninety-eight dollars, in equal half yearly payments, on the sixteenth day of the months of August and February, in every year, forever, clear of taxes, &c. with a power of re-entry, similar in all respects to that contained in the deed first above described, and in the same words. — Said lot being also a part of the said messuages, tenements and lots of ground, situate in the said half square first above mentioned, and’ devised as aforesaid to the said Mary Shields.
    On the fourteenth day of June, 1831, John Shields intermarried with Eliza Rernstedt; and afterwards, to wit, on the same day, .died, having never republished his said last will and testament, leaving neither father, nor mother, nor lawful issue, but a widow, the said Eliza Shields, and three brothers of the whole blood, to wit; Thomas Shields, Robert Shields, and David Shields. —His three illegitimate children above named, survived the testator, and are still living, under age, and unmarried.
    fn 1831, David C. Skerrett, the above plaintiff, was appointed by the Orphans’ Court of the County of Philadelphia, guardian of the persons and estates of the said minors, Jamies Shields, Mary Shields, and Edwin Shields.
    On the twenty-first of March, 1832, the said Eliza Shields conveyed all her interest in the one-third part of the said yearly rent charges, (inter alia) to David Shields, by deed bearing date same day an d year.
    On the thirty-first day of March, 1832, the said David Shields and wife, by deed bearing date the day and year last aforesaid, conveyed all his one-third part ofthe said yearly rent charges, (inter alia) including the interest of the said Eliza Shields, so conveyed as aforesaid, together with all arrears of rents, to the said David C. Skerrett, (the plaintiff) in fee simple, upon certain trusts.
    On the fifth day of July, 1832, the said Thomas Shields, by deed bearing date the same day conveyed all his one-third part of the said yearly rent charges, (inter alia) together with all arrears of rent, to the said David C. Skerrett, (the plaintiff) in fee simple, upon certain trusts.
    On the twentieth day of August, 1832, the said Eliza Shields, conveyed by deed bearing date the same day, all her interest, (inter alia) of, in, and to the two-third parts of the said Thomas Shields and Robert Shields, in the said yearly rent charges, to the said David C. Skerrett, upon certain trusts.
    By these conveyances, the whole of the interest of the said Eliza Shields, David Shields and wife, and Thomas Shields, of, in, and to the said yearly rent charges, became vested in the said David C. Skerrett, the above plaintiff.
    On the ninth day of May, 1832, the said Adam Cornman, by deed bearing date the same day, conveyed the said lots, as above conveyed to him by John Shields, to the said Edward S. Burd, in fee simple, under and subject to the payment of the yearly rent charge so reserved as aforesaid. — There are arrears of rent arising from the non-payment of these yearly rent charges.
    
      Upon these facts, the following questions are submitted to the Court for their opinion.
    1. Did not Eliza Shields, by her intermarriage with John Shields after the publication of his last will, upon his death become entitled to a moiety of the rent charges during her life ?
    2. Did not John Shields die intestate as to those two yearly rent charges, and did they not descend to his three brothers, Thomas Shields, Robert Shields, and David Shields, in fee simple, as tenants in common, subject to the life-estate of the widow in a moiety?
    3. Did not the conveyance above stated, vest in the plaintiff two-third parts of the said two yearly rent charges in fee simple, and an estate for the life of Eliza Shields, in a moiety of the other third part ?
    4. Did John Shields, the testator, in and by the two several ground-rent deeds above specified, divest himself thereby of all estate whatever in so much of the said messuages, tenements and lots of ground, situate in the half square between Broad and Juniper streets and Spruce and Locust streets, with the appurtenances thereunto respectively belonging, devised (inter alia) to Mary Shields, in and by the said will, as were conveyed by the said two ground-rent deeds ? and did he die intestate of the two several rent charges, reserved in and by the said two ground-rent deeds respectively ?— Or, did such an interest and estate in the said premises, continue and remain in him, notwithstanding the execution of the said ground-rent deeds, as to be the subject of said devise, and upon which the same can in any manner operate ?
    If, these questions should be determined in the affirmative by the Court, then judgment to be entered in favour of the plaintiff, for such sum as may be agreed upon by the parties or their counsel; and, in case of any difference of opinion between them, the said sum shall be settled by the Court.
    If the Court should determine these questions in the negative, then judgment to be entered in favour of the defendant.”
    Mr. J. M. Read, for the plaintiff.
    This is an amicable proceeding ; the object of which is the determination of a question of law. Mr. Burd is only'a stakeholder. By a family arrangement between the widow and two of the brothers of the testator, conveyances have been executed to carry the will into effect. The interest of one of the brothers is outstanding.
    1. The will was revoked by the marriage of the testator. (Act of 19th April, 1794, § 23.)
    2. The conveyance of the lot on ground-rent, after the date of the will, was a revocation fro tanto. An alteration of the estate produces this effect. 4 Kent’s Com. 513, &c. Even when a contract for the sale of land was rescinded, it was held to be a revocation, Walton v. Walton, (7 Johns. Ch. Rep. 258). That after-acquired real estate does not pass, is recognized in the recent case of Girard v. The Mayor, <fc. of Philadelphia, (4 Rawle, 323). There is an exception of the case of partition, but this is believed to be the only exception, 1 Hovenden’s notes to Vesey, 208, &c.; Attorney General v. Vigor, (8 Ves. 281.) Here there was a sale of land in fee, and the creation of a rent charge, which was a new estate, 4 Black. Com. 42; Wood]all’s Land. <f Ten. 29, note; Co. Litt. 47 (a), 142(6), 143(6), 144; Mr. Hargrave’s note. .19 Vin. Abr. 105, 107, title, Reservation; 6 Bac. Abr. 22.
    Mr. Binney, for the defendant,
    stated that the counsel on both sides were of opinion that the will was revoked. He referred in addition to the cases cited by Mr. Read, to Livingston v. Livingston, (3 Johns. Ch. Rep. 148).
   The opinion of the Court was delivered by

Sergeant, J.

The general rule in relation to a will is, that the estate disposed of must remain in the same condition till the death of the devisor; if the estate be afterwards altered" by the testator, so that it no longer exists as he devised it, the will is inoperative, and the act of alteration is construed a revocation. Parting with a portion of the estate, as by making a lease for life or years, or creating an incumbrance on it, as by mortgage, or conveyance for payment of debts, are only revocations pro tanto. 2 Christ. Black. 373. So a conveyance for partition, is no revocation, lb. But, says Lord Hard-wicks, in Sparrow v. Hardcastle, reported in the note to 7 T. R. 416, when there is a complete disposition of the land without leaving any part of it in the devisor, it is a revocation. If a man make a will devising land, and after execute a feoifment to his own use, it is a revocation of the will, notwithstanding it is in point of law the old use, and will descend ex parte paterna or materna as before. So a feoffment without livery, a bargain and sale not enrolled, or any other imperfect conveyance will be a revocation, because it imports an intention of altering the condition of the estate. So, where after the will, the testator executes any legal conveyance, it is a revocation, because the estate is gone, and the will has lost the subject of its operation. If a man seised of real estate devise it, and after convey the legal estate, though there be only a partial declaration of trust, yet as he has granted the whole estate, it is a revocation of the will. So if a man seised of a legal estate makes his will, and then conveys the legal estate to another in trust for himself, it is a revocation. Parsons v. Freeman, (7 Bac. Ab. 370). These are the legal principles, which have been determined, and they have been inflexibly maintained in analogous cases. 4 Kent’s Com. 513.

A conveyance by the testator in fee simple, of a lot of ground which he had' devised, reserving a ground-rent in lieu of the lot itself, is a complete disposition of his estate in the lot. It is a substitution of an incorporeal hereditament issuing out of the ground, usually, as in this case, with clauses of distress and condition of re-entry to enforce the payment of the rent. On the other hand there is a stipulation for redemption within a certain time, which when it happens, turns it into a sale, and renders the consideration money personal property to those who receive it. These reservations and clauses preserve to the grantor no residuary estate in the land; they create new services and rights instead of it. It somewhat resembles the case of an exchange of lands, which has been held to operate as a revocation, so as to exclude the land taken in exchange, from the operation of a prior devise. Being then an entire transfer and disposal of the estate in the land, there is nothing left for the devise of the lots of ground to operate on, and the will is so far revoked by the subsequent acts of the testator. That the ground rents thus created could not pass by the residuary bequest, as after-acquired property, under our act of Assembly, in force when the will was made, results from the decision in The City of Philadelphia v. Girard, (4 Rawle, 323.)

It is, therefore, the opinion of the Court, that John Shields died intestate as to the two ground rents in question. That they descended to his three brothers, Thomas, Robert, and David, in fee simple, as tenants in common, subject to the widow’s life estate in a moiety. That the conveyances of the widow and two of the brothers, Thomas and David, vested in the plaintiff two-third parts of the said ground rents in fee simple, and an estate for the widow’s life in a moiety of the other third part.

Judgment for the plaintiff according to case stated.  