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executed upon the day of the republication; but a reference to the will proves only, that the devisor recognises the existence of the will, which the act of making a codicil necessarily implies; not that he means to give it any new operation, or to do more by speaking of it, than he had already done by executing it. Why his speaking of it should make the will speak, as it is said, is not very easily discernible, as a question of intention. If he speak of it at all, he must speak of it as existing upon the last day as well as the first; but can that shew that he means it to exist in any other form, or with any other effect than he originally gave it.

But his Honour concluded by saying, that Barnes v. Crowe, afforded a certain rule; and if he departed from that, it would only be to set every thing loose again; not to get back to, what he thought better, the old rule, for then Acherley v. Vernon would be in the way. He was therefore disposed, for the convenience of adhering to settled rules, and former decisions, to hold the codicil a republication.

From what has been said it may be collected, that though a codicil properly executed makes the will speak, (as it is expressed) at the date of the codicil, yet it must have words clearly applicable to the intermediate acquisitions, or it cannot have the effect of passing them. And if it had a specific reference to cific refer a thing existing when it was first published, but subthing subsequently withdrawn, the republication of it by a cowhen it dicil will not make it operate upon another subject, published, which has come by substitution into the place of the quently thing so withdrawn, though precisely similar in its drawn, the amount and quality. Thus, where a man, by his

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marriage settlement, having a power to charge a sum republica of 2000l. upon certain premises, made his will accord- by a codiingly, disposing of this sum, and afterwards by a sub- make it sequent settlement extinguished his former power, and upon anocreated to himself a new power of charging the same which has sum on other property, and afterwards made a codicil substituwith three witnesses, making no mention of the the place power; the Master of the Rolls, Sir William Grant, thing so held clearly that the power itself being gone before drawn the death of the testator, the will had nothing to mi operate upon, and could not be applied to the new and qua power. It is true, he observed, a codicil has the ef- lity. fect of republishing a will, and makes it speak at the time of the republication. But here the will speaks only of the power given by the marriage settlement, which was as much gone as if it had never existed. It was a new power, for a new consideration, affecting different estates.

This then appears to be the proper understanding of the doctrine, viz. that the codicil, if executed so as to act upon the subject, brings down the will to its own date, and makes it speak as if it were made at that time (3); but that still it is made to speak

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(3) There is a difference between the relation which a codicil Difference bears to a will, once completed according to the then existing intention, and that which subsists between the interrupted stages of one entire testamentary act; and upon this distinction, will, it seems, depend the question, whether or not the first act of the testamentary disposition will require to be executed and attested according to the statute. But whether the subsequent writing be

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considered as a republication by way of codicil, or as the conclusion of something already begun, such subsequent writing to be effectual to pass land, ought to be executed as the statute directs in the case of a devise of lands.

When a will properly executed to pass freehold estates, refers to codicil and an unexecuted paper already in existence, by an unambiguous description, and expressly adopts its contents among its own disposi tions, such paper is, with exact propriety, said to be incorporated into, and to be executed by the execution of, the will, for its relation to it is that of the part to the whole; but where a codicil is said to be part of, or incorporated into a will, this union must be understood to be the effect of its first acting upon the will by its own force, and attracting it to itself. The will must be completed by a previous execution to be so republished, and when so republished must be regarded as a new will. And it was upon this principle that in the Attorney General v. Heartwell, Ambl. 451. where a will was made before the statute of mortmain, bequeathing personalty to be laid out in lands for a charity, and after the statute the will was confirmed by a codicil; the codicil, by making the will a new will, brought the devise within the statute; and the same, accordingly, was declared void by Lord Northington.

Hence we see the necessity for both will and codicil to be executed according to the statute. In the case put of the reference by the will to an existing paper, such paper is mute till it is acted upon by the instrument that incorporates it, and has no testamentary operation before the execution of such instrument; whereas in the instance of the codicil, the will is first acted upon thereby, and being brought down to the date thereof, speaks again with reference to the state of the property, by virtue of the execution of the codicil, with which it becomes incorporated, and thus, by a consequence of reasoning, becomes re-executed and re-published with the solemnities prescribed by the statute. And this is properly the republication by codicil, the effect and meaning of which is, that the terms and words of the will shall be construed to speak with regard to the property of the testator, and the objects of his dispositions, just as they stand circumstanced at the date of the codicil. In construing such will so republished, it must be considered therefore what

exist during the interval between the will and codicil, the codicil will not, from the accidental aptitude of the words to another subject created or acquired since the will, have any operation upon that which was so entirely out of the original view of the testator.

In a very recent case (4), circumstanced in some respects like the one last above cited, where a will had been made, and a recovery subsequently suffered, upon which was reserved a power to the testator to declare the uses of the land by his will or codicil, and then the testator made a codicil confirming his will, except where altered by that codicil, but taking no notice of his power, the Court of King's Bench, upon a case for their opinion out of Chancery, held that the power was not executed by the codicil: one of their reasons for which opinion seemed to be, that

the words of the will at the time of the republication import Their sense cannot be enlarged, but their operation may, if time or accident have increased the amount or number of the particulars comprised within the compass of its expressions *.

(4) 10 East, 242. Lane v. Wilkins. It must be admitted however, that the more prevailing and ostensible reason seemed to be, that, as the will declared only the testator's intention not to disturb the existing limitation in tail by suffering a recovery, but to leave the estate to go as it stood limited, this declaration amounted to no devise at all; and when, after having altered his intention, and taken a new estate in the premises by suffering a recovery, reserving to himself a power of appointment by deed, will, or codicil, he executed a codicil expressly confirming his will, such codicil could not be considered as carrying the will further than its natural and proper effect, which was not a positive devise or disposition, but the declaration of a purposed omission.

It is obvious upon equitable principles, that if a will is republished, containing a general devise of the testator's estates, an estate only contracted for af ter such general devise, will pass. 10 Vez. Jun. 605. Broome v. Monck.

The effect

of a codicil

they could not infer an intention to execute the power from the mere general confirmation of the will by the codicil; though they readily admitted that it was not necessary, that any express reference should be contained in a will, to make it a valid execution of a power.

It has also been solemnly decided, that this effect as a repub- of a codicil upon a will, of making it speak as to

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its special strained by the manner in which the codicil is expressed. Thus, where the codicil, reciting the devise by the will, revoked the same as to two of the trustees, and then devised the said lands, &c., lands purchased between the will and codicil have been adjudged not to pass.

SECTION III.

Of the Republication of Wills of personal Estate.

AS it is hoped that by this view of the cases the progress of the doctrine of republication, as to real estate, is made clear to the reader; I shall now say a few words upon the question of the republication of wills of personal estate. In respect to this description of property, the doctrine is said not to have been

2 Bos. et Pull. 500. Bowes v. Bowes, (House of Lords).

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