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a codicil will
not republish
if a contrary
intention ap-
pear on the face
of it.

2ndly. The effect of the statute 1 Vict. c. 26.

But although the general rule as to the republishing operation of a codicil is as above stated, yet in all cases of this kind, the question to be considered is, whether the particular case is or is not within the general rule: (q) for, if it appears on the face of the codicil, that it was not the intention of the testator to republish, the ordinary presumption derived from the existence of the codicil will be counteracted (r).

Secondly, It remains to consider the effect of the statute of Victoria on the mode of republication (s) or revival of Wills.

The only mode in which a Will, which has been revoked, can be revived, is that pointed out by the 22nd section.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
to the Will to which the codicil
does expressly refer: Lord Walpole

. Lord Orford, 3 Ves. 402. S. C.
by the name of Walpole v. Chol-
mondeley, 7 T. R. 138. Crosbie
v. MacDoual, 4 Ves. 616. This
decision has been applied in the
Spiritual Courts to a Will of per-
sonalty since the stat. 1 Vict. c.
26: In the goods of Chapman,
1 Robert. 1. See also Payne .
Trappes, 1 Robert. 583. S. S. 5
Notes of Cas. 147, 478. Thompson
v. Hempenstall, 1 Robert. 783,
793. S. C. 7 Notes of Cas. 141,
148.

When a testator refers in a codicil to a last Will, and there is nothing in the contents of the codicil to point to any particular Will, it must be construed to refer to the Will in legal existence as the last Will, and not to a revoked Will: Hale v. Tokelove, 2 Robert. 326, by Dr. Lushington.

(1) By Lord Eldon, C. in Bowes v. Bowes, 2 Bos. & Pull. 506.

(r) Strathmore v. Bowes, 7 Term Rep. 482, S. C. under the name of Bowes v. Bowes, in Dom. Proc. 2

Bos. & Pull. 500. See also Lord Mansfield's judgment in Heylin v. Heylin, Cowp. 132. Parker v. Biscoe, 3 B. Moore, 24. Smith v. Dearmer, 3 Y. & Jerv. 278. Ashley v. Waugh, coram Lord Cottenham, cited in Doe v. Walker, 12 M. & W. 598, 601. Moneypenny r. Bristow, 2 Russ. & M. 117. Hughes v. Turner, 3 Mylne & K. 666. Doe v. Hole, 15 Q. B. 848.

(s) The Real Property Commissioners (4th Report, pp. 33, 34) intimate that since publication is no longer necessary for a Will (see sect. 13 of the stat. 1 Vict. c. 26), it will be improper to continue the expression "republication." But it may be observed that this expression has always been in use, as a convenient term, with respect to Wills of personal estate, although no publication was ever necessary for their validity. And the 34th section (see post, p. 193) of the new Act itself (as was observed by Sir H. Jenner Fust in Skinner v. Ogle, 4 Notes of Cas. 78,) distinguishes between a republication 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 revoked." 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 (c).

(t) Major v. Williams, 3 Curt. 432. Ante, p. 157.

(u) Doe v. Walker, 12 M. & W. 591, post, p. 194. Skinner v. Ogle, 4 Notes of Cas. 74. S. C. 1 Robert. 363.

(r) A Will and codicil revoked, under the new Statute, by the marriage of the testator, were held to be revived by a codicil made after the marriage and duly attested, though it did not expressly confirm or revive any particular Will, but referred merely to "the last Will of me," and "my said Will," (it not appearing that more than

one Will of the testator was in existence). Neate v. Pickard, Prerog. T. T. 1843. 2 Notes of Cas. 406. Again, where one part of a Will in duplicate remained undestroyed in the possession of the testator, but the other part in the possession of his solicitor had been destroyed by the testator on the execution of a subsequent Will made in 1838, in terms revoking the prior Will, it was held that such prior Will was revived by a codicil, made subsequently to the second Will, though referring to the prior 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).

The Will re

published is a new Will of

SECTION II.

Of the Consequences of Republication.

It has long been settled law that the republication of a Will 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 it speak, as it were, at that time. In short, the Will so republished is a new Will (2).

republication:

such reference sufficiently showed
"an intention to revive:" Payne
v. Trappes, 1 Robert. 583. See
also Hale v. Tokelove, 2 Robert.
318, post, p. 195.

(y) Hobbs v. Knight, 1 Curt.
768, 774. De Zichy Ferraris v.
Lord Hertford, 3 Curt. 468, 512.
So, conversely, a Will of lands
made before January 1, 1838, and
revoked, may be republished after
that day by a codicil attested by
two witnesses only: Andrews v.
Turner, 3 Q. B. 177.

(z) So far has this principle been carried, that where a testator had made his Will in December, 1734, before the Statute of Mortmain, 9

Geo. II. c. 36, and devised all the residue of his personal estate to be laid out in land, and settled to certain charitable uses, and had confirmed that Will by a codicil made in July, 1739, after the statute, the codicil, by making the Will a new Will, was held to bring the devise within the statute; and so much of the Will as related to the residue of the testator's personal estate, was consequently, held to be void. Vide Attorney-General v. Heartwell, Amb. 451. 1 Add. 38, note. But the contrary has been held of real estate. See Willet v. Sandford, 1 Ves. sen. 178, 186.

other Will, of a date prior to

Consequently, upon the ordinary and universal principle it revokes any that, of any number of Wills, the last and newest is that in force, it revokes any Will of a date prior to that of the that of republi republication (a).

But there is a great distinction between Wills and codicils in this respect for as every codicil is, in construction of law, 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 (b).

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.

(b) Crosbie v. MacDoual, 4 Ves. 610. 1 Powell on Devises, p. 624, Jarman's edition. See Grand v. Reeve, 11 Sim. 66. Bunny v. 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
of the codicils, and (at all events,
in a court of probate) from all
other circumstances of the case,
whether the later are cumulative
to, or substituted for and revocatory
of the former: Methuen v. Methuen,
1 Phillim. 410. Greenough v. Mar-
tin, 2 Add. 239. Ante, p. 144, 145.
See also infra, Pt. 1. Bk. IV. Ch.
III. § V. But see Thorne v. Rooke,
2 Curt. 799. Ante, p. 145.
(c) 3 Curt. 636.

cation:

distinction Le

tween Wills

and codici's,

Republication extends the

operation of the Will to

property, &c. acquired after its date;

that evidence, that the codicil was not revoked by the republication of the Will (d).

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And now, by stat. 1 Vict. c. 26, s. 22, when any Will or codicil, which shall be partly revoked, and afterwards wholly revoked, shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown."

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).

Another consequence of a republished Will being considered as a new Will of the date of the republication, is, that its operation is extended to subjects which have arisen between its date and republication. As if one give to Sarah 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,

(d) See also Wade v. Nazer, 1 Robert. 627. S. C. 6 Notes of Cas. 46.

(e) Neate v. Pickard, 2 Notes of

Cas. 406.

(f) 1 Went. Off. Ex. c. 1, p. 62, 14th edition.

(g) Ibid.

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