« AnteriorContinuar »
a codicil will But although the general rule as to the republishing not republish if a contrary
operation of a codicil is as above stated, yet in all cases of intention ap
this kind, the question to be considered is, whether the pear on the face of it.
particular case is or is not within the general rule :(9) for, if it appears on the face of the codicil, that it was not the intention of the testator to republishi, the ordinary presumption derived from the existence of the codicil will be
counteracted (r). 2ndly. The Secondly, It remains to consider the effect of the statute effect of the statute 1 Vict. of Victoria on the mode of republication (8) or revival of
The only mode in which a Will, which has been revoked, can be revived, is that pointed out by the 22nd section. There must be a re-execution, or a duly executed codicil.
the testator did not mean to refer Bos. & Pull. 500. See also Lord to the Will to which the codicil Mansfield's judgment in Heylin v. does expressly refer: Lord Walpole Heylin, Cowp. 132.
Parker 0. . Lord Orford, 3 Ves. 402. S. C. Biscoe, 3 B. Moore, 24. Smith v. by the name of Walpole v, Chol- Dearmer, 3 Y. & Jerv. 278. Ashmondeley, .7 T. R. 138. , Crosbie ley v. Waugh, coram Lord CottenV. MacDoual, 4 Ves. 616. This ham, cited in Doe v. Walker, 12 decision has been applied in the M. & W. 598, 601. Moneypenny Spiritual Courts to a Will of per- 2. Bristow, 2 Russ. & M. 117. sonalty since the stat. 1 Vict. c. Hughes r. Turner, 3 Mylne & K. 26: In the goods of Chapman, 666. Doe v. Hole, 15 Q. B. 848. 1 Robert. 1. See also Payne i. (s) The Real Property CommisTrappes, 1 Robert. 583. S. S. ó sioners (4th Report, pp. 33, 34) Notes of Cas. 147, 478. Thompson intimate that since publication is no t'. Hempenstall, 1 Robert. 783, longer necessary for a Will (see 793. S. C. 7 Notes of Cas. 141, sect. 13 of the stat. 1 Vict. c. 26), 148. When a testator refers in a it will be improper to continue the codicil to a last Will, and there is expression "republication." But nothing in the contents of the it may be observed that this excodicil to point to any particular pression has always been in use, as Will, it must be construed to refer a convenient term, with respect to to the Will in legal existence as Wills of personal estate, although the last Will, and not to a revoked no publication was ever necessary Will : Hale v. Tokelove, 2 Robert. for their validity. And the 34th 326, by Dr. Lushington.
section (see post, p. 193) of the (9) By Lord Eldon, C. in Bowes new Act itself (as was observed v. Bowes, 2 Bos. & Pull. 506. by Sir H. Jenner Fust in Skinner
(r) Strathmore v. Bowes, 7 Term v. Ogle, 4 Notes of Cas. 78,) disRep. 482, S. C. under the name of tinguishes between a republication Bowes v. Bowes, in Dom. Proc. 2 and revival.
There are no other means of showing an intention to revive. Destruction of the revoking instrument is not sufficient (1).
But it must be observed that the 22nd section, the terms of which have been stated at the beginning of this chapter, is confined to Wills, &c. “which shall be in any manner reroked.” It is obvious, however, that, inasmuch as the old doctrine of the republication of Wills by parol acts or declarations depends on the principle that the Will so recognised becomes a new Will of the date of the recognition, no such republication can take place, in respect of any Will whatever, since the new statute came into operation, because no new Will can be made, unless with the prescribed formalities. Again, it is clear that no republication can now, in any case, be effected by a codicil, unless the codicil be executed according to the exigencies of the new statute; because such republication depends on the codicil becoming a part of the Will; and it cannot become a part unless it be so executed. But if it be so executed, it will still amount to a republication of the Will, according to the old law, as above stated, unless it appears, on the face of it, that it was not the intention of the testator to republish ; (u) or unless the Will has been in some manner revoked, in which case the new statute further requires that the codicil should show an intention to revive the Will (x).
(1) Major 1. Williams, 3 Curt. one Will of the testator was in 432. Ante, p. 157.
existence). Neate 1. Pickard, (u) Doe r. Walker, 12 M. & W. Prerog. T. T. 1843. 2 Notes of 591, post, p. 194. Skinner v. Ogle, Cas. 406. Again, where one part 4 Notes of Cas. 74. S. C. 1 Robert. of a Will in duplicate remained un363.
destroyed in the possession of the (6) A Will and codicil revoked, testator, but the other part in the under the new Statute, by the mar- possession of his solicitor had been riage of the testator, were held to destroyed by the testator on the be revived by a codicil made after execution of a subsequent Will the marriage and duly attested, made in 1838, in terms revoking the though it did not expressly con- prior Will, it was held that such firm or revive any particular Will, prior Will was revived by a codicil, but referred merely to “ the last made subsequently to the second Will of me," and " my said Will," Will, though referring to the prior (it not appearing that more than Will merely by date ; for that By section 34,—“This Act shall not extend to any Will made before the first day of January, 1838."
The result appears to be this; that a republication or revival by parol acts or declarations, or by an unattested codicil or other writing, according to the old law, shall be valid, if it took place before the 1st of January, 1838; but that, after the expiration of the year 1837, no republication shall be effectual unless by re-execution, according to the solemnities required by the statute of Victoria for an original Will, or by a codicil executed in the same manner, notwithstanding the Will itself may have been executed before the 1st of January, 1838 (y).
Of the Consequences of Republication.
The Will re- It has long been settled law that the republication of a Will publisbed is a new Will of
is tantamount to the making of that Will de noro: it brings the date of the down the Will to the date of the republishing, and makes republication :
it speak, as it were, at that time. In short, the Will so republished is a new Will (z).
such reference sufficiently showed Geo. II. c. 36, and devised all the "an intention to revive:” Payne residue of his personal estate to be v. Trappes, 1 Robert. 583. See laid out in land, and settled to ceralso Hale v. Tokelove, 2 Robert. tain charitable uses, and had con318, post, p. 195.
firmed that Will by a codicil made (y) Hobbs v. Knight, 1 Curt. in July, 1739, after the statute, the 768, 774. De Zichy Ferraris v. codicil, by making the Will a new Lord Hertford, 3 Curt. 468, 512. Will, was held to bring the devise So, conversely, a Will of lands within the statute ; and so much of made before January 1, 1838, and the Will as related to the residue of revoked, may be republished after the testator's personal estate, was that day by a codicil attested by consequently, held to be void. two witnesses only: Andrews v. Vide Attorney-General v. HeartTurner, 3 Q. B. 177.
well, Amb. 451. 1 Add. 38, note. (z) So far has this principle been But the contrary has been held of carried, that where a testator had real estate. See Willet r. Sandmade his Will in December, 1734, ford, 1 Ves. sen. 178, 186. before the Statute of Mortmain, 9
Consequently, upon the ordinary and universal principle it revokes any
other Will, of that, of any number of Wills, the last and newest is that
a date prior to in force, it revokes any Will of a date prior to that of the that of republi
cation : republication (a). But there is a great distinction between Wills and codicils distinction le.
tween Wills in this respect: for as every codicil is, in construction of law, and codici's. a part of the Will, a testator by expressly referring to, and confirming the Will, will not be considered as intending to set it up against a codicil or codicils, revoking it in part. And, therefore, in a case where a testator made his Will, and afterwards executed several codicils thereto, containing par. tial alterations of, and additions to the Will; and by a further codicil, referring to the Will by date, he changed one of the trustees and executors, and in all other respects expressly confirmed the Will; this confirmation of the Will was held not to revive the parts of it, which were altered or revoked by the former codicils ; Lord Alvanley, M. R., observing, that if a man ratifies and confirms his last Will, he ratifies and confirms it with every codicil that has been added to it (6).
In Upfill v. Marshall (c), a Will (dated February, 1837) disposed of real and personal estate : A codicil (dated June, 1837) partly revoked the disposition of the personalty: A memorandum (dated July, 1838) formally republished the Will: And it was held that parol evidence was admissible to show quo animo the memorandum was made; and upon
(a) Serocold v. Hemming, 2 Cas. temp. Lee, 490. Rogers v. Pittis, 1 Add. 38. Jansen v. Jansen, ibid. 39. Walpole v. Orford, 3 Ves. 402. Walpole v. Cholmondely, 7 T. R. 138.
(6) Crosbie v, MacDoual, 4 Ves. 610. 1 Powell on Devises, p. 624, Jarman's edition. See Grand v. Reeve, 11 Sim. 66. Bunny r. Bunny, 3 Beav. 109. Cartwright v. Shepheard, 17 Beav. 301. Where there are several codicils of different dates, it will always be a question,
to be determined from the contents
(c) 3 Curt. 636.
that evidence, that the codicil was not revoked by the
In a case where a Will and codicil, which had been revoked, under the new statute, by the testator's marriage, was revived by a codicil referring to the Will, several alterations appeared on the face of the Will: And it was held by Sir H. Jenner Fust, that the codicil revived the Will as it stood at the time of republication, being of opinion that it was the intention of the deceased in the alterations to revoke the altered legacies, and that therefore he could not have intended to revive that part of the Will which he had
revoked before (e). Republication
Another consequence of a republished Will being concxtends the
sidered as a new Will of the date of the republication, is, operation of
that its operation is extended to subjects which have arisen property, &c. aequired after between its date and republication. As if one give to Sarah its date :
his wife a piece of plate, or other thing, and hath no such wife at the time, but after marrieth one of that name, and then publisheth the Will again ; now this shall be a good bequest (f). So if one devise goods which he hath not, if he after do purchase the same, and then say that his Will before made shall stand or be his Will, it shall be a good Will and bequest : for this in effect is a new making (g). So where a man had devised a lease to his daughter, and afterwards renewed the lease, which was held to amount to a revocation by ademption of the lease originally bequeathed; it was holden, that the renewed lease passed by means of a codicil,
the Will to
(d) See also Wade v. Nazer, 1 Robert. 627. S. C. 6 Notes of Cas. 46.
(e) Neate v. Pickard, 2 Notes of
(f) 1 Went. Off. Ex. c. 1, p. 62, 14th edition.