Parker, C. J.
The instrument offered for probate in this case, is in the form of a deed, executed and acknowledged as such. But although it is in form a present grant, it purports to convey nothing into the possession of the grantee immediately, nor necessarily to convey any thing in existence at the time it was executed ; and the appellant, who claims the benefit of it, concedes that it cannot avail him as a deed. Purporting to be a conveyance of all the personal property of which the grantor should die seized, with certain exceptions, the appellant asks that it may operate, and be allowed as a will of personalty; and this may be done, if that will effectuate the intention of the grantor.
When this deed was executed, the grantor evidently intended it as a disposition of such personal estate as he should have at his death ; and although he adopted an instrument purporting to grant a present interest in that estate, and one which was nugatory in that form, conveying no such present interest, the law will overlook the form, and carry into effect the substance, in another mode, if the contemplated disposition ought to take effect at the death of the grantor. But if transmuting this deed into a will, or allowing it to operate as such, instead of carrying into effect the intention of the grantor, will defeat that intention, then to allow it as such would be a perversion of the principle.
The enquiry is, therefore, whether this instrument ought [378] to operate as a will — whether it should be allowed as a valid disposition of his personal estate, operative on his decease ?
Regarded as a deed, it was not delivered to the grantees ; but if it might have operated in that way, the delivery to a third person, for the use of the grantees, under the circumstances of the case, put it perhaps beyond the revocation of the grantor, unless by the consent of the grantees. But regarded as a will, it must be taken with the incidents of one ; and notwithstanding the grantees gave certain notes to the daughters of the grantor, in consideration of the execution of this instrument and the deeds of the real estate, the power of revocation, even without the assent of the grantees, must, it would seem, attach to it. It is perhaps not very important how this may be, as the evidence, if it was rightly admitted, tends to show a full assent.
In ascertaining whether this instrument ought to operate as a will, we may look, not only to the instrument itself, but may inquire into the circumstances under which it was made, and any subsequent transactions tending to show a revocation of it. The issue framed by the parties is, whether there was a revocation, and the evidence offered tends to show that there was, subsequently to its execution, a new arrangement in relation to the property of Asa Gage, the grantor, by the agreement of all the parties to it, by which a different disposition was made of his real estate, with the intention and purpose of annulling this instrument, with the others, although it was not actually cancelled.
The seventh section of the statute of July 2, 1822, relating to wills, after a provision respecting the revocation of wills of real, or real and personal estate, enacts that “no will in writing concerning personal estate shall be revoked or altered by any words, or will by word of mouth only, except the same be in the life time of the testator committed to writing, and be read to him, and be proved so to be done, by three witnesses at least: Provided, that nothing in this section contained shall be construed to control or affect any revoca[379] tion of a will to be implied according to law from any change in the circumstances of the testator, his family, devisees, legatees, or estate, occurring between the time of making the will and the death of the testator.” 1 N. H. Laws 357.
If this instrument was in form a will, and thus carried on its face evidence that the deceased intended to make a will, and it was to be considered separate and distinct from any other conveyances, it might be said, perhaps, that there was no implied revocation here, from any change in the circumstances of the legatees, or of the estate, there being no subsequent disposition of the personal estate of which Asa Gage died possessed, inconsistent with it.
But the court cannot be required to construe this deed .in form, into a will in fact, without inquiring into the circurm-stances under which it was executed and existed up to the death of the grantor : and the evidence shows that it was originally part only of an arrangement, made by the agreement of the parties, embracing the entire estate of Asa Gage. This is not controverted. It was not delivered to the grantees, however; and if it had been, it would have been void as a deed.
The subsequent arrangement by the agreement of the parties is inconsistent with the first in several particulars, revoking the first, it is admitted, so far as the real estate was concerned; and the appellant, by that arrangement, received a certain share of his father’s estate. This seems to be undisputed.
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Parker, C. J.
The instrument offered for probate in this case, is in the form of a deed, executed and acknowledged as such. But although it is in form a present grant, it purports to convey nothing into the possession of the grantee immediately, nor necessarily to convey any thing in existence at the time it was executed ; and the appellant, who claims the benefit of it, concedes that it cannot avail him as a deed. Purporting to be a conveyance of all the personal property of which the grantor should die seized, with certain exceptions, the appellant asks that it may operate, and be allowed as a will of personalty; and this may be done, if that will effectuate the intention of the grantor.
When this deed was executed, the grantor evidently intended it as a disposition of such personal estate as he should have at his death ; and although he adopted an instrument purporting to grant a present interest in that estate, and one which was nugatory in that form, conveying no such present interest, the law will overlook the form, and carry into effect the substance, in another mode, if the contemplated disposition ought to take effect at the death of the grantor. But if transmuting this deed into a will, or allowing it to operate as such, instead of carrying into effect the intention of the grantor, will defeat that intention, then to allow it as such would be a perversion of the principle.
The enquiry is, therefore, whether this instrument ought [378] to operate as a will — whether it should be allowed as a valid disposition of his personal estate, operative on his decease ?
Regarded as a deed, it was not delivered to the grantees ; but if it might have operated in that way, the delivery to a third person, for the use of the grantees, under the circumstances of the case, put it perhaps beyond the revocation of the grantor, unless by the consent of the grantees. But regarded as a will, it must be taken with the incidents of one ; and notwithstanding the grantees gave certain notes to the daughters of the grantor, in consideration of the execution of this instrument and the deeds of the real estate, the power of revocation, even without the assent of the grantees, must, it would seem, attach to it. It is perhaps not very important how this may be, as the evidence, if it was rightly admitted, tends to show a full assent.
In ascertaining whether this instrument ought to operate as a will, we may look, not only to the instrument itself, but may inquire into the circumstances under which it was made, and any subsequent transactions tending to show a revocation of it. The issue framed by the parties is, whether there was a revocation, and the evidence offered tends to show that there was, subsequently to its execution, a new arrangement in relation to the property of Asa Gage, the grantor, by the agreement of all the parties to it, by which a different disposition was made of his real estate, with the intention and purpose of annulling this instrument, with the others, although it was not actually cancelled.
The seventh section of the statute of July 2, 1822, relating to wills, after a provision respecting the revocation of wills of real, or real and personal estate, enacts that “no will in writing concerning personal estate shall be revoked or altered by any words, or will by word of mouth only, except the same be in the life time of the testator committed to writing, and be read to him, and be proved so to be done, by three witnesses at least: Provided, that nothing in this section contained shall be construed to control or affect any revoca[379] tion of a will to be implied according to law from any change in the circumstances of the testator, his family, devisees, legatees, or estate, occurring between the time of making the will and the death of the testator.” 1 N. H. Laws 357.
If this instrument was in form a will, and thus carried on its face evidence that the deceased intended to make a will, and it was to be considered separate and distinct from any other conveyances, it might be said, perhaps, that there was no implied revocation here, from any change in the circumstances of the legatees, or of the estate, there being no subsequent disposition of the personal estate of which Asa Gage died possessed, inconsistent with it.
But the court cannot be required to construe this deed .in form, into a will in fact, without inquiring into the circurm-stances under which it was executed and existed up to the death of the grantor : and the evidence shows that it was originally part only of an arrangement, made by the agreement of the parties, embracing the entire estate of Asa Gage. This is not controverted. It was not delivered to the grantees, however; and if it had been, it would have been void as a deed.
The subsequent arrangement by the agreement of the parties is inconsistent with the first in several particulars, revoking the first, it is admitted, so far as the real estate was concerned; and the appellant, by that arrangement, received a certain share of his father’s estate. This seems to be undisputed.
The evidence tends to show farther, that what was then done was intended as a substitute for the entire original disposition — that the appellant received the avails of real estate sold, and a part of the personal estate then existing, and agreed that what he received should be in full of his share. If such were the fact, the court are not authorized to separate this last transaction into parts, leaving part of the former operative against the design of the parties, and defeating the intentions of the deceased by construing his void deed into a will, when [380] he designed to revoke and annul it, and supposed he had done so. The first transaction should be taken together, as a whole, and the last also, as all the parties treated them. Viewed in that light, there was a revocation of any operation that this instrument might have as a will, along with the others, by a disposition of the real estate, and of the personal, also, inconsistent with the first disposition, and designed to annul and defeat this, as well as the other deeds. “ Sir John Hub- and, by will in writing dated the 12th of February, 1708, devised several pecuniary and specific legacies, and then gave all the rest of his real and personal estate, after all his debts and legacies paid, to John Pollen, on condition he took the name of Huband upon him, and the heirs male of his body, with divers remainders over ; afterwards, by lease and release, the 30lh of August, 1709, Sir John Huband, together with J. P., his trustee, conveyed several manors and lands in the county of Warwick to trustees and their heirs, to the use of himself for life without impeachment of waste, and that the trustees and their heirs should execute such conveyance and conveyances thereof as the said Sir John, by writing, under his hand and seal, or by his last will and testament, should direct or appoint; and in 1710, Sir John died, without altering or revoking the said will, or making any other appointment touching the said real estate; and the question was, whether this lease and release were a revocation of the will, or not: The original bill of Pollen being to establish the will, and the cross-bill to set aside the will, and have an account of the profits; and it was decreed, that the lease and release were a revocation of the will. Mich. 1712, Pollen and Huband;’ 1 Eq. Cas. Abr. 412; 3 Atk. 73, Beard vs. Beard; 2 Dyer 143, b, Putbury vs. Trevillian; 12 Mass. R. 534, Osgood vs. Breed; 15 Pick. 403, Brown vs. Thorndike, “ A codicil is, prima facie, dependant on the will; and the cancellation of the will is an implied revocation of the codicil. But there have been cases where the codicil has appeared so independent of, and unconnected with, the will, [381] that, under circumstances, the codicil has been established, though the will has been held invalid. It is a question altogether of intention.” 2 Addams‘ Eccl. Rep. 229, Medlycott vs. Assheton.
As this does not purport to be a will, and is only to be admitted as such to effectuate the intention of the grantor, his declarations accompanying the last transaction were admissible, as part of the res gestee, and to show the intention of the deceased to substitute the new arrangement for the first, not only in relation to the land, but as to his personal estate also. They would have been so, had the instrument taken the form of a will, if the whole of the first transaction is taken together, as forming one entire disposition of his estate, according to the truth of the fact; and the latter also as an entire transaction, involving a question whether there was a revocation of the whole, or only of a part, of the first. 3 Stark. Ev. 1715; 1 Gall. R. 170, Smith vs. Fenner.
Whether his subsequent declarations were rightly admitted, if this had been a will in form, and intended as such, might admit of more doubt. The declarations of a testator, that he had executed a written revocation of his will, might perhaps be competent, along with other evidence showing the loss of the paper, to show an express revocation. And if so, perhaps the declarations in this case might be competent, in connection with the other evidence, to show an implied revocation, by a new disposition inconsistent with the first, even if the instrument had been regarded by the testator as a will, and been in the ordinary form of one.
However that may be, we are of opinion that in the inquiry whether this instrument had been so revoked or annulled that it ought not to have life and efficacy as a will, the evidence was well received, to the extent to which the court admitted it; that is, to show the understanding and intention of the grantor in what had been already done, those declarations being of the same character as those, which previously accompanied the acts.
[382] As this instrument is not, strictly speaking, a will, perhaps these subsequent declarations might be held sufficient of themselves to show that it should not so operate, the case not being within the statute relating to the revocation of wills ; (3 Stark. Ev. 1715, note 2; 1 Addams 448,) but it is not necessary to settle that question.
Decree affirmed.