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by a codicil will

CHAP. IV.
Republication.

493 From what has been said it may be collected, that though a codicil properly executed makes the will speak, (as it is expressed) at the date of the codicil, yet it must have words clearly applicable to the intermediate acquisitions, or it cannot have the effect of passing them. And if it had a specific re- If a will has a

specific reference ference to a thing existing when it was first pub- to a thing lished, but subsequently withdrawn, the republication was first publishof it by a codicil will not make it operate upon quently withanother subject, which has come by substitution into drawn, the reo

of it the place of the thing so withdrawn, though pre- not make it opecisely similar in its amount and quality. Thus, ther thing, which where a man, by his marriage settlement, having stitution into the a power to charge a sum of 20001. certain

upon

place of the pre- Thise

thing so withmises, made his will accordingly, disposing of this drawn, though sisum, and afterwards by a subsequent settlement ex- and quality. tinguished his former power, and created to himself a new power of charging the same sum on other property, and afterwards made a codicil with three witnesses, making no mention of the power; the Master of the Rolls, Sir William Grant, held clearly that the power itself being gone before the death of the testator, the will had nothing to operate upon, and could not be applied to the new power. It is true, he observed, a codicil has the effect of republishing a will, and makes it speak at the time of the

.

(6) The codicil related only to personalty, and expressed no itu.

it. tention to republish the will.

republication. But here the will speaks only of the power given by the marriage settlement, which was as much gone as if it had never existed. It was a new power, for a new consideration, affecting different estates".

This then appears to be the proper understanding of the doctrine, viz. that the codicil, if executed so as to act upon the subject, brings down the will to its own date, and makes it speak as if it were made at that time; but that still it is made to speak only its own sense, and if it had any particular view to any particular object or purpose, which ceased to exist during the interval between the will and codicil, the codicil will not, from the accidental aptitude of the words to another subject created or acquired since the will, have any operation upon that which was so entirely out of the original view of the testator.

In a very recent case (?), circumstanced in some respects like the one last above cited, where a will

* 7 V'ez. jun. 499, Holmes o. Coghill,

(7) 10 East. 242, Lane v. Wilkins. It must be admitted how. ever, that the more prevailing and ostensible reason seemed to be, that as the will declared only the testator's intention not to disturb the existing limitation in tail by suffering a recovery, but to leave the estate to go as it stood limited, this declaration amounted to no devise at all; and when, after having altered his intention, and takep had been made, and a recovery subsequently suffered, upon which was reserved a power to the testator to declare the uses of the land by his will or codicil, and then the testator made a codicil confirming his will, except where altered by that codicil, but taking no notice of his power. The Court of King's Bench; upon a case for their opinion out of Chancery, held that the power was not executed by the codicil: one of their reasons for which opinion seemed to be, that they could not infer an intention to execute the power from the mere general confirmation of the will by the codicil; though they readily admitted that it was not necessary, that any express reference should be contained in a will to make it a valid execution of a power.

It has also been solemnly decided, that this effect of a codicil upon a will, of making it speak as to the existing property of the testator, as far as the fair and legal comprehension of the terms of it will go, may be restrained by the manner in which the codicil is expressed. Thus, where the codicil, reciting the devise of the will, revoked the same as to two of the trustees, and then devised the said lands, &c.

a new estate in the premises by suffering a recovery, reserving to himself a power of appointment by deed, will, or codicil, he exe. cuted a codicil expressly confirming his will, such codicil could not be considered as carrying the will further than its natural and proper effect, which was not a positive devise or disposition, but the decla. ration of a purposed omission.

lands purchased between the will and codicil have been adjudged not to pass“.

Of the doctrine As it is hoped that by this view of the cases the of the republication of wills of progress of the doctrine of republication, as to real personal estate.

estate, is made clear to the reader; I shall now say a few words upon the question of the republication of wills of personal estate. In respect to this description of property, the doctrine is said not to have been changed by the statute of frauds; and this appears to have been the opinion of Lord Hardwicke, from the words used by his Lordship in the case of Abney 0. Miller', wherein the act of republication insisted upon was, that the testator, after renewing his leases, being in search for another paper, and the person who was assisting him, having taken up the will by mistake, he said, “ this is my will,” not meaning thereby to republish, but to shew that it was not the paper he wanted. His Lordship observed, that to make it a republication, there must be the animus republicandi in the testator, which observation warrants the inference, that he was then of opinion, that if the words used had been declarative of an intention to republish, they would have been effectual to produce such a consequence. What will be the weight of this doctrine of Lord Hardwicke, when the point comes directly under adjudication, remains to be seen; but in the mean time, one may be

* 2 Bos. et Pull, 500, Bowes v. Bowes, (House of Lords.)

• 2 Atk. 599.

permitted to suggest, that there is a difficulty in conceiving why the clauses of the statute, which affect the publishing of wills, should not also reach to the republication of them.

A republication is a new publication, and if á will can be republished by parol so as to make it pass property not affected by its original disposition, what is this but making partially at least á nuncupative testament, unaccompanied by the forms prescribed by the statute? We have seen that

many

of the judges struggled hard against admitting a parol republication of wills of lands, even before the statute of frauds, as being in contravention of the statute of wills; and where the requisites are not observed so as to make good a nuncupative testament, the statute of frauds has imposed the same necessity for a written declaration of the will in respect to personalty. No subsequent writing can republish a will of land, since the statute of frauds, unless it be executed so as to be itself capable of passing land according to that statute; why then should a will of personal estate be capable of being republished without the observance of the mode whereby alone a personal will can be rendered effectual ?

This last branch of my subject may be concluded the destruction by observing, that although words are never allowed instrument may to have the effect of republishing a will of lands, implied republic

cation by setting (whatever may be the doctrine in respect to personal up the original testaments) yet where an express or implied revo

will,

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