cation of his will, and both together made but one will; and by the said will and codicil, his fee-farm rents, assart rents, and lands, contracted to be purchased, and all his real and personal estate, (except the copyhold purchased before his will) did well On appeal to the Lords, the decree was

pass. affirmed.

Notwithstanding the codicil in the case last produced expressly confirmed the will, yet the decree of the Court and judgment of the Lords, have been considered as standing on the general ground, that every codicil refers to and acts upon the will, and must in its nature not only suppose the existence thereof, but must attract it into an union with itself, bringing it down to its own date. And And upon the authority of this case it stands, that whatever be the apparent purpose of making the subsequent instrument, and whether the subject of its express disposition be real or personal estate, if it import to be a codicil, and have the signature of the testator, and the attestation of three witnesses, agreeably to the directions of the statute in respect to wills of real property, it will have the effect of republishing the will.

This interpretation of the ground of the decree in Acherley v. Vernon, seems to be built upon the general expressions of Lord Macclesfield, in that case, "that the codicil being executed and attested by three witnesses, was a republication of the will;

and that they became one will;" and this seems the safest ground for the doctrine to rest upon, for the words of confirmation in the codicil, in Acherley v. Vernon, and those declaring the codicil to be part of the will, were only the expression of the tacit meaning of every codicil, which in its very nature supposes and recognises the existence and operation of the will.

That this was Lord Hardwicke's understanding of the case of Acherley v. Vernon, clearly appears from the expressions used by him in Gibson v. Lord Mountfort, where his lordship says, that in Acherley v. Vernon, it was the opinion of the judges, that the codicil was incorporated with the will, which made it a republication: thence deducing this general proposition, that every codicil executed according to the statute of frauds, to whatsoever part of the property it may relate, would be a republication of the will. It was admitted for the heir, said his lordship, that though it is a codicil only to a personal estate, yet if there is a general clause of confirmation of the will, that that will make the codicil, duly executed, a republication of the will. But, said the same Chancellor, this will make every codicil a republication, if it is executed by three witnesses, though it relates only to personal estate; for a codicil is, undoubtedly, a farther part of the last will, whether it be said so or not.

Vez. 492, 3.

The present doc

codicil, unless it

But in the Attorney-General v. Downing', the Court seemed to be inclined to a middle course between the case of Acherley v. Vernon, wherein the mere act of making a codicil, executed according to the statute, was a republication, and those of Panphrase v. Lord Lansdown, and Lytton v. Lady Falkland, in which all implied republication was excluded; by requiring an intention to republish to be declared or expressed, or otherwise distinctly manifested, by the testator, in order to give to his codicil that effect. And Lord Chancellor Camden held that the annexation of the codicil to the will was one of the modes by which such intention might be declared, and was therefore a republication. And his Lordship seemed to think, that the expressions used in the codicil, in Acherley v. Vernon, were the foundation of the decree, for the words, he said, were so blended with, and incorporated into the will, that the one could not stand without the other.

By the settling case of Barnes v. Crowe*, the case trine holds every of Acherley v. Vernon has been set up as the great be confined in authority on this subject, to the full extent of the publication of a doctrine ascribed to it by Lord Hardwicke, in Gibson previous will, if

expression, a re

such codicil be

to the statute.

v.

executed and at- V. Mountfort, as above laid before the reader; and tested according the effect of annexation was there denied, as being only parol evidence of a republication, which Lord Commissioner Eyre said, could not be received since

the statute of frauds. "If we disentangle ourselves from the rule, said the Lord Commissioner, that there shall be no republication without re-execution, the principle that a codicil, attested by three witnesses, shall be a republication, seems intelligible and clear. The testator's acknowledgment of his former will, considered as his will, at the execution of the codicil, if not directly expressed in that instrument, must be implied from the nature of the instrument itself; because by the nature of it, it supposes a former will, refers to it, and becomes part of it; and being attested by three witnesses, his implied declaration and acknowledgment seems also to be attested by three witnesses. Before the statute of Charles 2, it was no part of the essence of the republication that the will should be re-executed; any thing that expressed the testator's intention, that the will should be considered as of a subsequent date, was sufficient. Since the statute, continued the Lord Commissioner, re-execution of the will is not necessary; nothing more is required than a writing according to the provisions of the statute, expressing that intent.'

In the late case of Pigott v. Waller', before the present Master of the Rolls, his honour submitted to the authority of Acherley v. Vernon, as that case was understood by Lord Hardwicke, in Gibson v. Mount

17 Vez. jun. 98.

fort, and by Lord Commissioner Eyre, in Barnes v. Crowe, but not without expressing some disappro→ bation of the reasonings on which that authority was supported, and a predilection for the old rule, as it stood upon the cases of Lytton v. Lady Falkland, and Panphrase v. Lord Lansdown; for, said his honour, a direct republication or re-execution is an unequivocal act, making the will operate precisely as if it were executed upon the day of the republication; but a reference to the will proves only, that the devisor recognises the existence of the will, which the act of making a codicil necessarily implies; not that he means to give it any new operation, or to do more by speaking of it, than he had already done by executing it. Why his speaking of it should make the will speak, as it is said, is not very easily discernible, as a question of intention. If he speak of it at all, he must speak of it as existing upon the last day as well as the first; but can that shew that he means it to exist in any other form, or with any other effect than he originally gave it.

But his honour concluded by saying, that Barnes v. Crowe, afforded a certain rule; and if he departed from that, it would only be to set every thing loose again; not to get back to, what he thought better, the old rule, for then Acherley v. Vernon would be in the way. He was therefore disposed, for the convenience of adhering to settled rules, and former decisions, to hold the codicil a republication (6).