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or possessed, or which I am any ways entitled to, sic evidence of
a contrary inI give and bequeath the same, and every part thereof, tention in the and all my right, title, and interest therein and be received. thereto, unto such my executor or executors hereinafter named, as shall duly take on him or them the execution of this my will, his or their heirs, executors, administrators, and assigns, as tenants in common, and not as joint tenants." And the testator afterwards appointed the plaintiff and defendant his executors, and died, and the plaintiff and defendant both proved the will. The defendant was, at the time of the testator's death, indebted to him in 30001. and for securing thereof, had given a bond to the testator (12). The
The prayer of the bill was, that the defendant might account with the plaintiff for the testator's residuary property, and pay to him a moiety of the said sum of 30001. with interest, and the crossbill was brought to have the bond delivered
up cancelled. It appeared by the answer of the defendant in the original cause, and by the proofs (13),
(12) In equity, a debt is not released by a creditor's making his debtor his executor ; but at law it is otherwise ; and if a creditor makes his debtor and another his executors, the consequence at law is still the same ; nor is this consequence varied by the fact of the debtor's administering, or not administering ; the reason whereof is this, that the other cannot bring an action without joining him who refuses, and they cannot sue one of themselves for a personal thing. See this doctrine well treated of, in Plowd. Comm. 184. Woodward v. Lord Darcey.
(13) In courts of equity, these parol proofs are generally pernitted to be read without prejudice. But at law, where the jury
that the testator really designed to give this money to the defendant, and that he had actually instructed one Viner, the attorney who drew the will, to make this disposition accordingly: that Viner neglected to make mention of it in the will, insisting that the bond would be extinguished and released, of course, by Selwyn's being appointed executor; but that the testator appearing dissatisfied with Viner's opinion, a case was laid before counsel, who confirmed what Viner had said, relying upon which, the testator signed and published his will, with a full persuasion that the bond would be extinguished ; and this appeared clearly to have been the intention of the testator.
It was impossible for parol evidence to be more decisive than that which was offered in this case, if it could have been received; but it is equally plain, that is the will were considered without the parol evidence, and the general devising words giving all the real and personal property, not before disposed of, to the residuary legatees, were only attended to, that this debt was included in the bequest, as falling under the description of personal estate. The Chancellor, although he declared it to be his private opinion that the debt was intended to be released to the
might, and probably would be, influenced, by the admission of such improper testimony, the production of it will not be allowed. See this distinction adverted to by Mr. Justice Powell, in Newton t'a Preston. Prec. in Ch. 104.
executor, by whom it was owing, thought himself not at liberty to yield to the parol evidence, and to make a construction against the plain words of the will.
Although the case of Brown v. Selwyn, is not easily reconcileable with that of Harris v. the Bishop of London, yet it is not opposed to the doctrine of the admissibility of parol and extrinsic evidence, to decide the judgment already strongly inclined by the context and external evidence of the instrument,
REPUBLICATION OF WILLS.
THERE is a difference between the relation which a codicil bears to a will, once completed according to the then existing intention, and that which subsists between the interrupted stages of one entire testamentary act; and upon this distinction, will, it seems, depend the question, whether or not the first act of the testamentary disposition will require to be executed and attested according to the statute. But whether the subsequent writing be considered as a republication by way of codicil, or as the conclusion of something already begun, it seems settled that such subscquent writing to be effectual to pass land, ought to be executed as the statute directs in the case of a devise of lands.
in what sense
When a will properly executed to pass freehold
estates, refers to an unexecuted paper already in erinto
, and mak istence, by an unambiguous description, and expressly ing a part of the
adopts its contents among its own dispositions, such paper is, with exact propriety, said to be incorporated into, and to be executed by the execution of the will, for its relation to it is that of the part to the whole ; but where a codicil is said to be part of, or incorporated into a will, this union must be understood to be the effect of its first acting upon the will by its own force, and attracting it to itself.
Hence we see the necessity of its being executed according to the statute. In the case put of the reference by the will to an existing paper,
paper is mute till it is acted upon by the will, and has no testamentary operation before the execution of the will; whereas in the instance of the codicil, the will is first acted upon thereby, and being brought down to the date thereof, speaks again with reference to the state of the property, by virtue, not of its own original execution, but of the execution of the codicil, with which it becomes incorporated, and thus, by consequence of reasoning, becomes re-executed and re-published with the solemnities prescribed by the statute. And this is properly the republication by codicil, the effect and meaning of which is, that the Of the meaning
and effects of reterms and words of the will shall be construed publication to speak with regard to the property of the testator, and the objects of his dispositions, just as they stand circumstanced at the date of the codicil. In construing such will so republished, it must be considered therefore what the words of the will at the time of the republication import; their sense cannot be enlarged (1), but their operation may, if time or ac
(1) Neither, as has been before observed, can the original effect of the limitations be altered ; as, if there be a devise to J, S. and his