1826. GUEST v. WILLASEY. one and the same instrument; and, although they were attested at four separate times, the final attestation was sufficient to give validity to the whole. In Barnes v. Crowe, Lord Commissioner Eyre said (a), "The testator has inseparably annexed the codicil to the will, not by a wafer or wrapper, or any thing dehors the instrument, but by what I called internal annexation, and that of such a kind, that all the papers taken together may be considered as published, when the codicil was executed;" and his Lordship had previously observed (b): "Here is internal annexation, the most powerful of all; the first codicil being written upon the last sheet of the will, and the second upon the last sheet of the first. If it stood independent of all authority, a man, who, in a subsequent codicil refers to his will, and executes the codicil in the presence of three witnesses, seems, by that last dated instrument, to acknowledge, in the presence of three witnesses, that the former instrument is his will. What more is necessary to constitute a republication of a will? If, without having it in his contemplation to give it any new effect, will not that acknowledgment, that the former instrument is his will, operate as a republication?" And Lord Commissioner Wilson said (c): “In Doe v. Davy (d), there was nothing but the words ratify and confirm the will, and the instruments were joined by a wafer, and it was held to be a republication." But here, the case is far stronger, for all the codicils were, in fact, embodied with the will, by internal annexaion. Therefore, the due attestation of the last codicil in this case must be considered as a republication of the first codicil, as well as of the second, and of the will. Mr. Serjeant Spankie, contra.-The third codicil was no republication of the first; for, although all the three codicils were written on the same sheet of paper, there was (a) 1 Ves. 498. (b) Ibid. 490. (c) Ibid. 499. (d) Cowp. 158. no attestation of the whole, and as the first and second were attested by two witnesses only, the third must be taken to act per se, and without any reference to the contents of the will or the first codicil. Although it has been said, that the last codicil was annexed to the will and the two previous codicils, yet, it must be considered, that the will and each of the codicils had a different operation. The will was duly attested, but it could operate only as to the estates of which the testator was at that time possessed. Neither the first nor second codicils could have any operation or effect as to the estate purchased after the execution of the will; for the first was not duly attested, and the second makes no reference to it; the third, being duly attested, might have operated as to that estate, but no mention is made thereof. The third codicil merely refers to the second, concerning a change of executors. It is impossible that the first codicil, being originally ineffective as to the after-purchased estate, should derive effect from a posterior codicil, unless there was something in the latter which distinctly applied to the former: the annexation of a codicil, in order to render it valid, must draw down the will to the time of the making of such codicil. In the case of Barnes v. Crowe, Lord Commissioner Eyre said (a)," 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 seem also to be attested by three." The principle therefore is, that the codicil must, by its own context, refer to what preceded it, and the want of such (a) 1 Ves. 497. 1826. GUEST V. WILLASEY. 1826. GUEST บ. WILLASEY, reference cannot be supplied by parol; here, the last codicil refers merely to its immediate antecedent, viz. the second, and does not notice the first. The first codicil is clearly void, by the statute of frauds; and, as no reference is made to it in the third, it will be going too far, to say, that the third is to be considered as annexed to the two former, for the purpose of rendering the first operative. The term, annexation, can only be applied when a codicil gives an explanation of, or contains a distinct reference to the will, or some preceding codicil; and, whether it does so or not, is a pure matter of fact. There is nothing contained in the first codicil, as to the manner in which the trustees were to act; all the instructions to that effect are contained in the will itself; and the only question then is, whether, by any thing contained in the third codicil, which is duly attested for the purpose of passing lands, the first is rendered operative. All the cases that bear upon the subject, are collected by Mr. Serjeant Williams, in a note to Duppa v. Mayo(a). If the Court decide, that the last codicil refers to the first, and brings down the will to the time when the last codicil was executed, a question will then arise as to who is empowered to sell the Allerton estate. Mr. Serjeant Cross, in reply.-The only question is, whether the first codicil was republished and rendered valid by the final attestation of the last. The first codicil was clearly within the intent of the statute of frauds, as it was not attested by the requisite number of witnesses; and it is altogether a question of law, whether or not the will, with the three codicils, being all written on the same sheet of paper, constitute one entire document. It has been said, that there is no evidence as to the intent of the testator, but there can be no doubt that he meant the first codicil to operate as a supplement to his will; and though it was (a) 1 Wms. Saund. 277 d. 1 defective in form, the defect is remedied by the subsequent attestation; and, therefore, the first must be allowed to stand in full force and effect. The following certificate was afterwards sent by the Court to his Honour the Master of the Rolls: "We have heard this case argued by counsel, and are of opinion that the third codicil operated as a republication of the first codicil. W. D. BEST, J. A. PARK, J. BURROUGH, S. GASELEE." 1826. GUEST บ. WILLASEY. MASON v. ROBINSON, CLARKSON, and Others. THE following case was sent, by his Honour the Vice A testator di Chancellor, for the opinion of the Judges of this Court: rected that the rents of his free- applied, first, in payment of two sums charged thereon, and (subject thereto) in paying to A., the widow of his son R. D., 101, till her an annuity of death or second marriage; and, (subject as aforesaid), that the remainder of such rents should be applied to the maintenance and education of his grandson J. D., (son of the said R. D.), till he attained the age of twenty-one; that, if he should die before that time, the rents should be applied to the education of testator's grand-daughter, M. F. D., (daughter of the said R. D.), till she attained the age of twenty-one; and after J. D. (the grandson) should have attained his age of twenty-one, or M. F. D. (the grand-daughter), him surviving, should have attained that age, he gave to his son W. D., out of the said rents, an annuity of 201. for his life; and, subject thereto, he gave the remainder of the said rents to A. D., (the widow), during the life of W. D., (the son), or till her second marriage; and after the death of W. D., (the son), he gave the said lands, (subject as aforesaid), to the use of J. D., (the grandson), and his heirs; but if J. D. (the grandson) should die before the period aforesaid, without lawful issue living at the time of his death, then he gave the said rents to W. D. (the son) for life, (deducting thereout the annuity of 107. for A. D., as long as she should remain the widow of R. D.); and, after the death of W. D., (the son), he gave the said premises, (subject as aforesaid), to the children of the said W. D. as tenants in common; and, in default of such issue, to A. D. (the widow), her heirs and assigns for ever. The testator died, leaving all the above named parties surviving, W. D. (the son) being his heir-at-law. 4. D. (the widow) died intestate, and unmarried; J. D. (the grandson) being then eighteen. He attained the age of twenty-one, and died unmarried, leaving W. D. (the son) surviving:-Held, that W. D. (the son) took an estate for life in possession in the lands at L. 1826. MASON v. ROBINSON. "I charge all my freehold messuages, lands, and hereditaments, situate at Lownwith, in the parish of Richmond aforesaid, with the payment of my just debts and funeral expenses; and, subject thereto, I direct that the rents and profits thereof may be applied in paying to Margarite Dixon and Faith Dixon, their respective executors, administrators, and assigns, the interest of the principal sums of 1007., and 1507., which are charged upon the said premises; and, subject thereto, in paying unto Ann, the widow of my son Ralph Dixon, late of London, merchant, deceased, one annuity, or clear yearly sum of 10., till her death or second marriage, which shall first happen: the said annuity to be payable half-yearly, at Michaelmas and Lady-day; the first payment thereof to begin and be made at such one of those days as shall happen next after my decease, clear of all land tax and other outgoings: and, subject as aforesaid, I desire that the remainder of such rents and profits, from time to time, as they shall yearly accrue and be received; and all such rents and profits, from the death or second marriage of the said Ann Dixon, which shall first happen, may be applied for and towards the maintenance and education of my grandson John Dixon, son of the said Ralph Dixon, until he shall attain the age of twenty-one years; but in case he shall die before he attains that age, then, from and after his death, I direct, that such remaining rents and profits, or the whole thereof, from and after the death or second marriage of the said Ann Dixon as aforesaid, may be applied for and towards the maintenance and education of my grand-daughter Margarite Faith Dixon, the daughter of the said Ralph Dixon, deceased, until she shall attain her age of twenty-one years; and my will is, that the receipt of the person or persons who for the time being shall have the care of the persons of my said grandchildren respectively, shall be a sufficient discharge for the money so to be paid: and, from and after my said grandchild John Dixon shall have attained his age of twenty-one years, or my said grand-daughter |