changed by the statute of frauds; and this appears to have been the opinion of Lord Hardwicke, from the words used by his Lordship in the case of Abney v. Miller, wherein the act of republication insisted upon was, that the testator, after renewing his leases, being in search for another paper, and the person who was assisting him, having taken up the will by mistake, he said, "This is my will," not meaning thereby to republish, but to shew that it was not the paper he wanted. His Lordship observed, that to make it a republication, there must be the animus republicandi in the testator, which observation warrants the inference, that he was then of opinion, that if the words used had been declarative of an intention to republish, they would have been effectual to produce such a consequence. What will be the weight of this doctrine of Lord Hardwicke, when the point comes directly under adjudication, remains to be seen; but in the mean time, one may be permitted to suggest, that there is a difficulty in conceiv, ing why the clauses of the statute, which affect the publishing of wills, should not also reach to the republication of them.

A republication is a new publication; and if a will can be republished by parol so as to make it pass property not affected by its original disposition, (1) what is this but making, partially at least, a nuncupative testament, unaccompanied by the forms pre

a 2 Atk. 599.

(1) This supposes the case of a specific bequest, for a general disposition of personal estate would be prospective, and therefore would not raise the question.

The destruction

voking in

strument

scribed by the statute? We have seen that many of the judges struggled hard against admitting a parol republication of wills of lands, even before the statute of frauds, as being in contravention of the statute of wills; and where the requisites are not observed so as to make good a nuncupative testament, the statute of frauds has imposed the same necessity for a written declaration of the will in respect to personalty. No subsequent writing can republish a will of land, since the statute of frauds, unless it be executed so as to be itself capable of passing land according to that statute; why then should a will of personal estate be capable of being republished without the observance of the mode whereby alone a personal will can be rendered effectual ?(2)

This branch of my subject may be concluded of the re- by observing, that although words are never allowed to have the effect of republishing a will of lands, rate as an (whatever may be the doctrine in respect to personal testaments) yet where an express or implied revoting up the cation has taken place, it has been held that the will

may ope

implied republication by set

original

will.

may be set up again by a species of implied republication, founded upon the destruction of the revoking instrument. As where a testator makes two wills, the latter of which is inconsistent with, or expressly revokes the former, yet if he afterwards destroy the second will, leaving the first in a perfect state, the original will is held to be set up again". And this

Glazier v. Glazier, 4 Burr. 2512.

(2) Words written in a void space left in a will was held by Lord Hardwicke to be a republication. Carte v. Carte, Ambl. 30. But it is clear that this can only be so in respect to personal estate.

seems to stand upon plain principles, for the first will, being ambulatory during the testator's life, is in existence without any alteration at the time when its operation is to begin, and that which was to be destructive of its operation, is out of the way at the moment when it was to have its destructive effect.

But if a legacy given by a will be adeemed, a codicil, ratifying and confirming the will, has not the effect of setting up the adeemed legacy.

Monck v. Lord Monck, 1 Ball and Beatty, 298. and see Irod . Hurst, 2 Freem. 224. Drinkwater v. Falconer, 3 Vez. Jun.

623.

CHAPTER IV.

OF THE IMPORT OF WORDS AND PHRASES.

chattels ;

comprehend.

SECTION I.

As to moveable things.

Goods and "GOODS and chattels" are the most comprehenwhat they sive terms of description for passing property of a personal nature by will. In the civil law all estates are divided into bona mobilia and bona immobilia; and it has been authoritatively said that in wills relating to personal estate words should be construed agreeably to the rules of the civil law. Thus it may be regarded as settled that the word “goods” is sufficient in its general sense to pass the testator's leases and bonds, where there is nothing expressed to afford an inference of its being used in a narrower signification. But though this is the original and technical

a Cro. Eliz. 387. 1 P. Wms. 267.

D 1 Eq. Ca. Abr. 199.

sense of the word "goods," yet the word is very susceptible of modification from the context, and it will be seldom found to have this comprehensive effect except where it makes part of the residuary clause. Thus in the case of Crichton v. Symes, where the bequest was in these words, I give and bequeath to B. all my goods, and wearing apparel, of what nature and kind soever, except my gold watch, Lord Chancellor Hardwicke decreed, that, as these words stood in the will, the testatrix intended to give only her wearing apparel, ornaments of her person, and household goods and furniture, but no other part of her per sonal estate. And in another case, where, after a devise by a testator, of all his household goods, and other goods, and all his stock, &c. he bequeathed the residue of his personal estate to J. S.; it was considered that if the devise of all the testator's goodswere taken in its largest sense, it would frustrate the bequest of the residuum, which should not be allowed; and that it seemed reasonable that the words "other goods," should be understood to signify things of the same nature with household goods, The decree accordingly was, that the money, cash, and bonds passed by the residuary devise".

Bonds, being a species of choses in action, and as such admitting of no locality, will not pass under a devise of "goods and chattels" in a particular place, though they happen to be there at the testator's death®. And the same may be said of bills of exchange, promissory notes, judgments and records,

3 Atk. 61. • Woolcomb v. Woolcomb, 3 P. Wms. 112. Chapman v. Hart, 273.