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CHAPTER THE SECOND.
OF THE NATURE AND INCIDENTS OF WILLS AND CODICILS OF
Definition of a Will and Testament.
A LAST Will and Testament is defined to be “the just sentence of our will, touching what we would have done after our death” (a); and in strictness, perhaps, the definition might be narrowed by adding “respecting personal estate :" For a devise of Lands is considered by our Courts not so much in the nature of a Testament, as of a conveyance by way of appointment of particular lands to a particular devisee (b): And upon that principle it was established that a man could devise those lands only which he had at the time of the date of such conveyance, and no after purchased lands would pass, whatever words might be used (c); whereas a Will and Testament would operate upon whatever personal estate a man died possessed of, whether acquired before or since the execution of the instrument (d).
In strictness, according to the older authorities of the
(a) Swinb. Pt. 1, s. 2. Godolph. Jekyl, 1 P. Wms. 575. It did not Pt. 1, c. 1, s. 2. 2 Black. Comm. turn upon
the construction of the sta499.
tutes of Wills (32 H, VIII. c. 1, & (6) Harwood v. Goodright, Cowp. 34 H. VIII.c.5), which say that any 90, by Lord Mansfield. 1 Saund. person having land may devise; (asit 277, e, note (4), to Duppa v. Mayo. has sometimes been said, see Toller It is said by Lord Coke, Co. Lit. on Executors, p. 2;) for the same 111, a. that in law most commonly rule held before the statute, where ultima voluntas in scriptis is used, lands were devisable by custom : where lands or tenements are de- Harwood v. Goodright, Cowp. 90, vised, and testamentum, when it by Lord Mansfield. Brunker v. concerneth chattels. See also, to Cook, 11 Mod. 122. Brydges v'. the same effect, Godolph. Pt. 1, c. 6, Duchess of Chandos, 2 Ves. Jun.
427. 1 Wms. Saund. 277, e, n. (4). (c) 1 Saund. 277, e.n. (4). Wind v. (d) 1 P. Wms. 575. And now, by
ecclesiastical law, the appointment of an executor was essential to a testament. “The naming or appointment of an executor," says Swinburne (e), " is said to be the foundation, the substance, the head, and is indeed the true formal cause of the testament, without which a Will is no proper testament, and by the which only the Will is made a testament.” So Godolphin observes (f), that“ the appointment of an executor is the very foundation of the testament, whereof the nomination of an executor, and the justa voluntas of the testator, are two main essentials.” And the common law judges, in Woodward v. Lord Darcy (g), laid down that “without an executor a Will is null and void” (h). However, this strictness has long ceased to exist (i), as it will appear in the subsequent chapter, respecting the form and manner of making the Will (j): And even by the old authorities above mentioned, an instrument which would have amounted to a testament, if an executor had been nominated, was recognised as obligatory on him who had the administration of the goods of the deceased, under the appellation of a. Codicil' : which is accordingly defined by Swinburne (k) and Godolphin (), to be “the just sentence of our will, touching that which we would have done after our death, without the appointing of an executor :" and hence a codicil was called "an unsolemn last Will” (m). It was termed codicil, codicillus, as a diminutive of a testament, codex (n).
stat. 1 Vict. c. 26, s. 3, (which, how- (h) See also Chadron v. Harris, ever, does not apply to any Will Noy, 12. Finch, 45 b. Bro. Test. made before Jan. 1,1838,) the power pl. 20; and see the judgment of of disposing by Will, executed as Mr. Baron Wood in Attorney-Gerequired by that Act, is extended to neral v. Jones, 3 Price, 383. all such real and personal estate as (*) Wyrall v. Hall, 2 Chanc. Rep. the testator may be entitled to at 112. the time of his death, notwithstand- (j) Post, Pt. 1. Bk. II. Ch. 11. SIII. ing he may become entitled to the (k) Pt. 1, s. 5, pl. 2. same subsequently to the execution (1) Pt. 1, c. 6, s. 2. of his Will. See this enactment, (m) Swinb. Pt. 1, s. 5, pl. 4. cerbatim, Preface.
Godolph. Pt. 1, c. 6, s. 2. (e) Pt. 1, s. 3, pl. 19.
(n) Godolph. Pt. 1, ch. 6, s. 1. ) Pt. 1, c. 1, s. 2.
However in respect of distribution (9) Plowd. 185.
under the custom of York, &c., it But although it appears that "codicils” might be made by those who died without testaments (o), yet the more frequent use of a codicil was, as an addition made by the testator, and annexed to, and to be taken as part of a testament, being for its explanation or alteration, or to make some addition to, or else some subtraction from, the former disposition of the testator (m): in which sense the term codicil is applied in modern acceptation.
A codicil, in this latter sense of it, is part of the Will, all making but one testament (q). A strong illustration of this principle may be found in the case of Sherer v. Bishop (1), where the testator gave the residue of his personal estate among such of his relations only as were mentioned in that his Will: he afterwards made a codicil which he directed to be taken as part of his Will; and a second, by which he gave legacies to two of his relations, but gave no such direction : and it was held by Lord Commissioner Eyre, (dubitantibus Ashhurst, J. and Wilson, J.) that as every codicil was a part of the testamentary disposition, though not part of the instrument, the relations named in the second codicil were entitled to a share of the residue (s). But in
may at this day be a material question whether a man dies testate in the strict sense of having appointed an executor : See Wheeler v. Sheer, Moseley, 302. Wilkinson 2:. Atkinson, 1 Turn. Chane. Rep. 255; and infra, Pt. III. Bk. iv. Ch. II.
(0) Swinb. Pt. 1, s. 5, pl. 9. Godolph. Pt. 1, c. 6, s. 3.
(P) Swinb. Pt. 1, s. 5, pl. ū. Godolph. Pt. 1, c. 6, s. 1. Although in a codicil, regularly, executors may not be instituted or primarily appointed, yet executors may be substituted or added by a codicil : Godolph. Pt. 1, c. 1, s. 3. Swinb. Pt. 1, s. 5, pl. 5.
(9) Fuller v. Hooper, 2 Ves. Sen. 242, by Lord Hardwicke. Crosbie v. MacDoual, 4 Ves. 610. Eyans r.
Evans, 17 Sim. 108. Hartley v.
(v) 4 Bro. C. C. 55.
(8) This decision has been considered as carrying the principle too far: And in Hall v. Severne, 9 Sim. 515, 518, Shadwell, V. C., said he could not accede to it. In the latter case, the testator, by liis Will, gave pecuniary legacies to several persons, and directed his residue to be divided amongst his before-mentioned legatees in proportion to their several legacies therein before given : By a codicil, which he directed to be taken as part of his Will, he gave several pecuniary legacies to persons some
Fuller v. Hooper (t), where a person by Will gave legacies to all her nephews and nieces, except those thereinafter named, and desired her executors to look upon all memoranda in her handwriting as parts of, or a codicil to, her Will; and then bequeathed the residue to the children of her sisters; and by a codicil she gave legacies to some other nephews and nieces; Lord Hardwicke held, that the nephews and nieces mentioned in the subsequent part of the Will, and not those mentioned in the codicil, were excluded from the first mentioned legacies; because the testatrix meant to refer, not to her Will or Testament, which takes in all the parts, but to the particular instrument (u). A Will is in its nature a different thing from a deed, and A Will is diffe
rent in its na. although the testator happen to execute it with the formali. ture from a ties of a deed; e.g., though he should seal it, which is no part or ingredient of a Will; yet it cannot in such case be considered as a deed (x). It is also a peculiar property in a Will, as it will hereafter in all cases re
vocable : more fully appear, that by its nature it is in all cases a revocable instrument, even should it in terms be made
of whom were legatees under his Bruce, V. C., held that the legacies Will, and declared that the several given by the codicil were not given legacies mentioned in the codicil free of legacy duty, his Honor were given to the therein-men- being of opinion that the word tioned legatees in addition to what "herein” was meant to refer to no he had given to them or any of more than the particular instruthem by his Will: And the V. C. ment in which it was contained. held, that none of the legatees un- However, several cases may be der the codicil were entitled to found, where an additional legacy share in the residue in respect of given by a codicil, though not so their legacies under the codicil. expressed, has been held subject
(0) 2 Ves. Sen. 242, and Supple- to the same incidents as the ori. ment by Belt, 333.
ginal legacy given by the Will. (u) So, in Early r. Benbow, 2 See Day v. Croft, 4 Beay. 561, Coll. 354, the testator, by his Will, Warwick v. Ilawkins, 5 De G. & directed that the legacies "herein- Sm. 481. See also the other debefore by me bequeathed,” should cisions with respect to the legacy be paid free of legacy duty: By a duty, collected, infra, Pt. III. codicil which he directed might Bk. v. Ch. III. be taken as part of his Will, he (x) Lord Darlington v. Pulteney, gave other legacies: And Knight 1 Cowp. 260. Attorney-General
irrevocable (y); for it is truly said, that the first grant and the last Will is of the greatest force (2).
Therefore a Will made by way of provision for a wife, in contemplation of marriage, is revoked by a Will of later date (a).
Another essential difference between a Will and a deed may be mentioned, that there cannot be a joint, or mutual, Will : an instrument of such a nature is unknown to the testamentary law of this country (6).
there cannot be a joint Will.
v. Jones, 3 Price, 368. See post,
(y) Vynior's case, 8 Co. 82. a.
(+) Co. Litt. 112, b.
(a) Pohlman v. Untzellman, 2 Cas. temp. Lee, 319.
(b) 1 Cowp. 268, in Lord Mansfield's judgment. Hobson v. Blackburn, 1 Add. 277: but see post, Pt. 1. Bk. II. Ch. III., as to the validity of such a Will in Equity.