will directed. And he gave to his wife Mary, in addition to what the will mentioned, 300l. per annum for life; and also appointed her an executrix jointly with the others named in his will. On the 30th September, 1823, by a second codicil, signed by the testator, and also attested by two witnesses only, the testator, after revoking a legacy given by the will, and stating that one-half of the estate in Jamaica was sold, and giving directions as to the sale of the other half, appointed Edward Lister and the Rev. James Furnival, his executors, in the place of Nicholas Salisbury and Abraham Garnett, with full power for the former to act. On the 13th February, 1824, by a third codicil, duly executed and attested for passing real estates, the testator appointed the Rev. Benjamin Guest to be his executor, in the room of Edward Lister. All the three codicils were written on the back sheet of the will. The testator died on the 17th February, 1824. One of the questions for the opinion of the Court was, whether the third codicil operated as a republication of the will and first and second codicils, or any and which of them? The Court certified, that the third codicil operated as a republication of the will and of the second codicil; but as to whether it operated as a republication of the first, they said there might be some doubt; but, as the republication of the will passed the Allerton estate on the same trusts as the first codicil, if properly executed, would have done, it was, perhaps, of little or no importance to consider that question further. The case was remitted by the Master of the Rolls for the opinion of the Court, whether the third codicil operated as a republication of the first? Mr. Serjeant Cross, for the plaintiffs, contended, that there could be no doubt as to the intention of the testa 1826. GUEST บ. WILLASEY. 1826. GUEST V. WILLASEY. tor; and that, as all the three codicils were written upon the same sheet of paper, at the back of the will, the last was a republication of the whole. The first codicil appointed the wife executrix, in addition to the executors named in the will; and therefore, as far as regards the subject matter, this was an express devise as to the Allerton estate; but, being attested by only two witnesses, it was not per se valid as to the devise of that estate, although, as to the appointment of the executrix, it was so. The second codicil, made four years afterwards, was also attested by only two witnesses, yet, nevertheless, it would operate as far as regarded the change of executors. In the next year, the third or last codicil was made, and which was duly executed and attested by three witnesses. The plaintiffs, Benjamin Guest, appointed by this last codicil, and James Furnival, appointed by the second, are now the executors, together with the testator's wife, appointed executrix by the first. The three codicils were all upon the same sheet of paper, and written on the back of the will, and they must, therefore, be taken as forming one entire instrument; and, as the third codicil has been held to be a republication of the will and of the second codicil, it must also be considered to be a republication of the first, as they are incapable of being divided; although the first was not attested by three witnesses, yet as the third was duly executed and attested, it had reference to, and incorporated the whole of the will, and the two preceding codicils. At the time of the last attestation, all the three codicils, together with the will, were before the parties; and when the testator published the last codicil, he, uno flatu, republished the whole will, and the codicils subjoined thereto. By the statute 32 Hen. 8, c. 1, persons were first empowered to devise their lands by will, but the act prescribes no particular form of attestation; therefore, by that statute, two witnesses would have been sufficient for such a purpose. But, the statute of frauds (a) enacts, that devises of lands must be in writing, and attested by three or four credible witnesses; and it has been held, that a republication of a will, devising lands, must be attended with the same solemnities as those required by the last-mentioned statute for the execution of the original will (b). It has been also decided, that any thing which shews an intent that the will should be of a subsequent date, amounts to a republication (c). Here, the intent of the testator is evident, that the Allerton estate should pass in the same manner as the other estates mentioned in the will; but it is said, that this intent cannot be carried into effect, owing to a defect in form in the first and second codicils; but this objection is not tenable, since the publication and attestation of the last codicil, as required by law, would operate as a republication and attestation of the whole will, and of the two previous codicils. The only question is, whether the after-purchased lands devised by the first codicil, can pass. There is a wide distinction between this case, and where a codicil is detached from the will; as then there can be no republication unless the codicil is expressly recognized by the testator as forming part of his will; here, the only difficulty is, whether the will and the two previous codicils were sufficiently recognized by the last; and there can be no ground for saying they were not. In Pigott v. Waller, Sir William Grant observed (d): "Each case must depend upon its own peculiarities. I much question, whether, by substituting uncertainty for certainty, the intention would be accomplished. It can hardly be stated as a general rule, that, by a codicil relating only to a trifling legacy, the devisor should be supposed to give his will any farther effect as to his real (a) 29 Car. 2, c. 3, s. 5. (b) 44 Edw. 3, 33; Dyer, 143b; Arthur v. Bokenham, 11 Mod. 158; Butler and Baker's case, 3 Rep. 30 b. (c) 1 Roll. Abr. 617 (Z), pl. 1; 618, pl. 7. (d) 7 Ves. 118. 1826. GUEST v. WILLASEY. 1826. GUEST V. WILLASEY. estate. If we are to have a rule, the old rule appears to be the better, for that is consistent with the statute;" and his Honour concluded by stating, that Barnes v. Crowe (a) afforded a certain rule, which if he departed from, it would only be to set every thing loose again, not to get back to what he thought better, the old rule; for that, in that case, Acherly v. Vernon (b) would be in the way; and therefore, he held the codicil to be a republication of the will. In the case of the Attorney-General v. Lady Downing (c), Lord Camden, on the fourth question submitted to him, viz. (whether the codicil was a republication of the will, and operated so as to pass after-purchased lands, which, his Lordship observed, was the only question that had given him any trouble) said: "I am of opinion the will was not republished by the codicil; because there is nothing in the codicil which shews any intent in the testator to republish the will. It depends on the penning and wording, not on the mode of executing the codicil. In Rolle's Abridgment (d), it is said 'There are two ways by which a codicil operates as a republication of a will: first, by being annexed to it; secondly, by the contents, shewing the intention.' Wentworth's Office of Executors (e), mentions several ways: as first, by codicil annexed; secondly, by adding any thing to the will, or making a new executor; thirdly, by express speech or word, that it shall stand or be his will. Acherly v. Vernon, in the House of Lords, to the same effect. There are two questions in this case:-First, whether a mere codicil, not annexed, is sufficient, from the nature of the instrument itself, to operate as a republication? Secondly, whether the intention is sufficiently expressed? As to the first, I am of opinion it is not. The annexing a codicil unites both the instruments, and is sufficient. Beckford v. (a) 1 Ves. 486; S. C. 4 Brown's Chan. Cas. 2. (b) Com. Rep. 381. (c) Ambler, 571. Parnacot (a), Alford v. Alford (b), Lytton v. Lady Falkland, and Lord Lansdown's case, as cited in the case of Acherly v. Vernon. In Lytton v. Lady Falkland, Mr. Justice Tracy, Lord Chief Justice Trevor, and Lord Chancellor Somers, were of opinion, that the codicil was not a republication of the will, because it was not annexed, and was not made for that purpose. Lord Lansdown's case is reported only in a bad book, called Lucas's Reports; but the reason of the determination may be collected from that report of the case. The words spoken seemed sufficient to republish the will, but, being only parol declarations, were inadmissible; it then rested on the codicil, which not being annexed, was held not sufficient to republish the will, as in Lytton v. Lady Falkland. In Hutton v. Simpson (c), it is said, that, annexing a codicil to a will, if it relates only to personal estate, will not operate as a republication; but I am of opinion, that either the report is mistaken, or that it is not law. The principal question was not, whether the codicil was a republication of the will? but, whether the sense of the words, "heirs of the body," could be altered by the death of his daughter in his life-time, and the testator afterwards making a codicil; it was held, they could not, as in Stead v. Berrier (d). In Lytton v. Lady Falkland, the codicil was not annexed, and the words were not sufficient. In Acherly v. Vernon the codicil was not annexed, but the words of the codicil were so blended with, and incorporated into the will, that the one could not stand without the other. Every case on this head, where the codicil is not annexed, depends on the mode of expression. Lord Northington followed the same idea, in Jackson v. Hurlock. There are no such expressions in this codicil, nor does it incorporate itself into the will." In this case, the will, and the three codicils, were in fact (a) 1 Roll. Abr. 618. Marginal note in Dyer, 143. (b) Cited in Marwood v. Turner, 3 Peere Wms. 163. (c) 2 Vern. 722. 1826. GUEST v. WILLASEY. |