quent instrument makes an advancement of some other bounty, or gratuity, by way of provision, to the same object (3), and the circumstances of the case warrant the inference that the second provision was meant to take place of the first, this is not properly a case of satisfaction. A satisfaction it ultimately may be, but the true operation of it is to revoke or adeem the legacy. Neither is the term satisfaction expressive, in any other sense than as a discharge, of its ultimate effect in equity, since a smaller sum given in the lifetime may, under circumstances, annul a greater provision by will.

But if a legacy of a larger sum can be wholly set aside by the substitution of a less, this cannot be called a performance, still less a satisfaction by performance, and less still a satisfaction by election ; but there seems to be no impropriety or confusion of terms in calling it a satisfaction, (meaning only thereby a discharge),

revocation or ademption. And this phrase is the more appropriate, because it is certainly not in strictness of legal language an ademption or revocation simply: it is a satisfaction working by way of revocation; for in truth it operates as a revocation on a principle of equitable presumption'.

It does not redound much to the accuracy of a science to multiply terms, and apply different rules to

Vide Hartop v. Whitmore, 1 P. Wms. 680. Shudall v. Jekyll,

Atk. 517. Rosewell v. Bennett, 3 Atk. 77.

' Vide Ellison v. Cookson, 1 Vez. Jun. 100.

(3) Vid. post. Cap. V. Sect. 1. where the doctrines of equity on the subject of double portions is considered more at large.

them, without first distinguishing between the different ideas to be implied by those terms: and, therefore, until the word satisfaction' has a more appropriate and exclusive sense, it will only perplex the subject to talk of cases of satisfaction as distinguished from cases of performance, cases of election, and cases of revocation. The idea which is meant to be conveyed by satisfaction, simply used, is neither descriptive of cases of performance, cases of election, nor cases of revocation. It is not descriptive of performance, because it is not used to signify the identical, or substantial, or virtual effectuation of the thing contracted to be done, but the substitution of one thing for another. And as there are only two sorts of cases, wherein a substitution can take place, viz. where the thing to be done is voluntary, and where it is obligatory or resting in contract, in the former of which cases the satisfaction operates by revocation, in the other, by putting the party benefited to his election, the final consequence only of each operation is properly expressed by the word satisfaction.

CHAP. III.

REPUBLICATION OF WILLS.

SECTION I

The Doctrine of early Decisions.

AFTER the statutes 32 and 34 Hen. 8. the courts of justice were frequently divided on the validity of parol republications of wills of lands; and it appears that, in opposition to the clear sense of those statutes, the favour with which all testamentary dispositions were regarded, sometimes gave the effect of a republication to slight and unconsidered expressions. In the case of Beckford v. Parnecott, which was determined in the 37th year of Elizabeth, a man seised of lands in A. devised the same to B. and C. and appointed them his executrixes, and then purchased other lands in A., and being requested to sell the lands which he had lately purchased, refused so to do, saying, "No, they shall go with my other lands in A. to my executrixes;" and afterwards being sick, the will was read to him, without his making any observation; but in a codicil, which he annexed, he gave legacies of goods to other persons on his death. Upon a question being made, whether by these words spoken to a stranger, the will was republished, so as to make the

Cro. El. 493.

new purchased lands pass; Fenner, Clinch, and Popham held them to amount to a new publication (1).

In Fuller v. Fuller (2), which took place much about the same time with that of Beckford v. Parnecott, where the devise was to the testator's son Richard, and the heirs of his body; which Richard afterwards died in the life-time of the testator, and the testator said, "My will is, that the sons of Richard, my deceased son, shall have the land devised to their father, as they should have had if their father had lived, and died after me," Popham and Fenner held, that this was a new publication to carry the land to Richard's son, but Gawdy and Clinch were of a contrary. opinion.

The point of republication was also frequently in agitation after the statute of 29 Car. 2. c. 3. and there are early decisions of great laxity on the subject, notwithstanding the provisions of that statute. Thus, in Cotton v. Cotton, which was before the Court of Chancery in the year after the passing of the statute

(1) According to the report in Mod. 404. Gaudy J. doubted. Dyer, 143 a. marg. pl. 55. cites S. C. as adjudged, and says, the main reason given by Fenner was, that the annexing of the codicil amounted to a new publication.

(2) Cro. El. 423. In Mod. 353. where the same case is reported, the reporter adds a query, and says, the reason given for the difference in opinion was, because the last publication was not in writing; but the others thought there was enough before in writing, to pass the land to the issues; though there they were to take by descent, but, under the republication, by purchase. The better opinion appears clearly to have been that of Gawdy and Clinch, according to the analogy of all the best cases.

of frauds, A. being seised of several lands in D. made his will, devising his lands in D. and all other his lands and tenements whatsoever unto his wife, and afterwards purchased other lands, and then discoursing with B., B. desired him to let him have those newly purchased lands at the rate at which he bought them; and the testator answered, "No," for that he had made his will and settled his estate, and he intended that his wife should have his whole estate; the court inclined strongly to hold this a new publication, and particularly with respect to the lands; and that it was not material that the words should have been expressed animo testandi, for that must necessarily be intended when the discourse had particular reference to the will. By the report of the same case in Chancery Reports, it appears that the point of republication was referred by the Court of Chancery to a trial at law, at which a special verdict, by the direction of Lord Chief Justice North, was found, and on a solemn argument before all the Judges of C. B. they unanimously gave judgment for the devisee against the heir at law.

there can

plied re

tion of a

About forty years afterwards it was held by Lord Whether Macclesfield, when he sat as Chief in the King's be any imBench, that since the statute of Charles, there could publicanot be an implied republication of a will of lands, will, since even by the execution of a codicil referring thereto, of frauds. but that the will must be re-executed (3). At a trial at bar before his Lordship and the other Judges of the

the statute

(3) That a will may be republished by the testator's repeating upon it the ceremonies required by the statute, vid. Herbert v. Turbal, 1 Sid. 162. 1 Keb. 589.