1830.

WILLIAMS

v.

considered as establishing the rule laid down by Lord Ellenborough in Goodtitle v. Meredith. But the language of the codicil in Acherly v. Vernon is prospective, and the terms GOODTITLE. used are very peculiar. The case, however, has since been accepted, not as turning on any particular circumstances, but upon the general grounds laid down by Lord Ellenborough. In Barnes v. Crowe (a), Lord Commissioner Eyre remarks on the effect of prospective words, intended to operate wholly upon after-acquired lands. It is now too late to contend against the general rule which, in Pigot v. Waller (b), Sir Wm. Grant, M. R., admits and regrets. But the plaintiffs in error rely upon the authorities which engraft a material exception upon the rule now received; Heylyn v. Heylyn (c); namely, that where the intent of the testator in the codicil clearly is to pass only such property as was disposed of by the will, the after-acquired property is virtually excluded. [Bayley, J. And the will must have words sufficiently ample to pass the after-acquired lands.] Here the codicil is tied up by the particular words used. It contains an express declaration that the intention of the testator was to ratify the will in respect of the lands which he possessed at the time at which that will was made. If the codicil had ended with the first clause, the evidence of intention would have been sufficiently strong; but here the testator goes on to recite the purchase of the very property from Jones, and to make a particular disposition of it. The plaintiffs in error rely principally upon the case of The Countess of Strathmore v. Bowes (d). There Lord Kenyon stopped the counsel (e) who was to have argued against the operation of the codicil upon the newly purchased lands; and the opinion of this Court was afterwards confirmed in the House of Lords (f), though Lord Thurlow certainly dis

(a) 1 Ves. jun. 486.
(b) 7 Ves. 98.

(c) Cowp. 130.

(d) 7 T. R. 482.
(e) Erskine.

(f) Bowes v. Bowes, 2 B. & P.

500.

sented, reading the codicil as if the word "all" had been there. [Lord Tenterden, C. J. Lord Thurlow imports the word "all;" it is not in 7 T. R.]

Reynolds, for the defendant in error.

Where a codicil is

such a re-publication as to make the will speak from the date of the codicil, the question is, not whether the testator meant to re-publish, but whether he has expressed an intention which would be defeated by such a construction of the act of re-publication.

Here he was stopped by the Court.

Lord TENTERDEN, C. J.-I can find no intention to exclude the after-purchased lands. Both these instruments are to be read as of the date of the codicil.

It is admitted that if all this had stood in one will, the lands would have passed. The words "I did give all the real and personal estate I was then possessed of”—rather seem to indicate an intention that the lands should pass.

BAYLEY, J., and LITTLEDALE, J., concurred.

PARKE, J.-It is clearly to be taken as one instrument.

(a) But in Monypenny v. Bristow, 2 Russell and Mylne, 117, it appears to have been held, that where a codicil in its dispositive part, is applicable solely and expressly to the property previously devised by the will, such codicil has not the effect of re-publishing the will, so as to carry after-purchased property, notwithstanding a more general intent indicated in a recital contained in such codicil.

Judgment affirmed («).

And see Hulme v. Heygate, 2 Me-
rivale, 128; Guest v. Willasey, 2
Bingh. 429; 10 B. Moore, 228;
3 Bingh. 614; 12 B. Moore, 2;
Gibson v. Rogers, Ambler, 93;
Jackson v. Hurlock, ibid. 487; At-
torney-General v. Downing, ibid.
571; Doe d. Pate v. Davy, Cowp.
158; Potter v. Potter, 1 Ves. sen.
437; Brown v. Higgs, 4 Ves. jun.
709; Parker v. Biscoe, 8 Taunt.
699; 3 B. Moore, 24.

1830.

767

WILLIAMS

v.

GOODTITLE.