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cident have increased the amount or number of the particulars comprised within the compass of its expressions (2).

After the statutes 32 and 34 Hen. S. the courts of justice were frequently divided on the validity of parol republications of wills of lands, and it appears that in opposition to the clear sense of those statutes, the favour with which all testamentary dispositions were regarded, sometimes gave the effect of a republication to slight and unconsidered expressions. Thus, in the case of Beckford v. Parnecott', which was determined in the 37th year of Elizabeth, where a man seised of lands in A. devised the same to Be and C. and appointed them his executrixes, and then purchased other lands in A. and being requested to sell the lands which he had lately purchased, refused so to do, saying, "No, they shall go with my other lands in A. to my executrixes;" and afterwards being sick, the will was read to him, without his making any observation; but in a codicil, which he annexed, he gave legacies of goods to other persons on his

a Cro. El. 493.

heirs, and J. S. die, and then the will is republished; the republication will not carry it to the heir. of Stead v. Bouvrier, 1 Vent. 341.

Plowd. 342. and see the case
Pollexfen, 546. 2 Jo. 135.

(2) It is obvious upcn equitable principles, that if a will is republished, containing a general devise of testator's estates, an estate only contracted for after such general devise, will pass. 10 Vez. un. 605. Broome v. Monck.

death; upon a question being made, whether by these words spoken to a stranger, the will was republished, so as to make the new purchased lands pass; Fenner, Clench, and Popham held them to amount to a new publication (3). In Fuller v. Fuller (4), which took place much about the same time with that of Beckford v. Parnecott, where the devise was to the testator's son Richard, and the heirs of his body; which Richard afterwards died in the lifetime of the testator, and the testator said, "my will is, that the sons of Richard, my deceased son, shall have the land devised to their father, as they should have had if their father had lived, and died after me.” Popham and Fenner held, that this was a new publication to carry the land to Richard's son, but Gawdy and Clinch were of a contrary opinion.

The point of republication was also frequently in agitation after the statute of 29 Car. 2, ch. 3. and there are early decisions of great laxity on the subject,

(3) According to the report in Mod. 404. Gaudy J. doubted. Dyer, 143 a. marg. pl. 55. cites S. C. as adjudged, and says the main reason given by Fenner was, that the annexing of the codicil amounted to a new publication.

(4) Cro. El. 423. In Mod. 353. where the same case is reported, the reporter adds a quære, and says the reason given for the difference in opinion was, because the last publication was not in writing; but the others thought there was enough before in writing, to pass the land to the issues; though there they were to take by descent, but, under the republication, by purchase. The better opinion appears clearly to have been that of Gawdy and Clinch, according to the analogy of all the best cases.

Whether there can be any

im

plied republica

notwithstanding the provisions of that statute. Thus, in Cotton v. Cotton", which was before the Court of Chancery in the year after the passing of the statute of frauds, A. being seised of several lands in D. made his will, devised his lands in D. and all other his lands and tenements whatsoever, unto his wife, and afterwards purchased other lands, and then discoursing with B., B. desired him to let him have those newly purchased lands at the rate at which he bought them; and the testator answered "No," for that he had made his will and settled his estate, and he intended that his wife should have his whole estate; the court inclined strongly to hold this a new publication, and particularly with respect to the lands, and that it was not material that the words should have been expressed animo testandi, for that must necessarily be intended when the discourse had particular reference to the will. By the report of the same case in Chancery Reports, it appears that the point of republication was referred by the Court of Chancery to a trial at law, at which a special verdict, by the direction of Lord Chief Justice North, was found, and on a solemn argument before all the Judges of C. B. they unanimously gave judgment for the devisee against the heir at law.

About forty years afterwards it was held by Lord Macclesfield, when he sat as Chief in the King's since the statute Bench, that since the statute of Charles, there could not be an implied republication of a will of lands,

tion of a will,

of frauds.

b Freem. 264. 2 Ch. Rep. 138.

even by the execution of a codicil referring thereto, but that the will must be re-executed (5). At a trial at bar before his Lordship and the other Judges of the King's Bench, the facts of the case appeared to be these. The Earl of Bath, by his will dated October the 11th, 1684, duly executed, took notice that his lands were settled upon his sons Charles and John, in tail male, and then devised in these words: In case my sons shall have no issue male, then, for the preservation of my name and family, I devise my said lands unto my brother B. G. and the heirs male of his body issuing. B. G. died in the lifetime of the testator, having issue George then Lord Lansdown, by which the devise to B. G. in tail male lapsed. On the 15th of August, 1701, the testator sent for seven persons and said, I sent for you to be witnesses to my will, and sometimes to be witnesses to the republication of my will; and then took a codicil, dated 15th August, 1701, in one hand and the will in the other, and said, this is my will whereby I have settled my estate, and I publish this codicil as part thereof; and then signed the codicil, (which lay upon the table with the will) in the presence of the witnesses, who subscribed it in his presence.

с

Panphrase v. Lord Lansdown, Vin. Abr. tit. Dev. (Z) 22.

(5) That a will may be republished by the testator's repeating upon it the ceremonies required by the statute, vid. Herbert v. Turbal, 1 Sid. 162, 1 Keb. 589.

By the codicil, 'he devised in these words: "Whereas, I heretofore made my will, dated 11th October, 1684, which I do not intend wholly to revoke, but in regard to the many accidents and alterations in my family and estate, I, by this codicil, which I appoint to be taken as part of my will, devise as follows;" and then devised divers manors, &c. to his son Charles and his heirs, and 1001. per annum to his nephew, then Lord Lansdown, for life. He then put the will and codicil together in a sheet of paper, and sealed them up in the presence of the same witnesses, but the will was not unfolded in their presence, nor did any of them write their names as witnesses on or under the will, or on the same paper, but to the codicil only. And by Parker, Ch. J. and by the whole court, this was held no republication; for, since the statute 29 Car. 2. there shall be no republication by implication, but the will must be re-executed, otherwise a devise of lands shall not be good.

Sir William Lytton, by his will 23d March, 1700, devised all his lands to his nephew Lytton Strode and his heirs, and directed that he should take the surname of Lytton; and his personal estate he devised to Dame Russell, his sister, and Lytton Strode, and made them executors. After his will made, Sir William Lytton purchased the equity of redemption from the mortgagors in fee, of premises which

d Lytton v. Lady Falkland, Vin. Abr. tit. Dev. (Z.)

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