1843. July 15th. WRENCH against MURRAY. capacity of Sir James Murray is concerned, I see no reason to doubt that he was of sufficient testamentary ability; more particularly do I see no reason to doubt it, when I recur to the several matters which occurred on the 16th of November. I see no want of understanding on his part ;-whatever may be said as to his prudence. I think there is sufficient on the depositions to establish this will; I am not prepared to say that Newstead is unworthy of credit; although to a certain extent he has identified, and mixed himself up with Mr. Wrench. I am under the necessity of pronouncing for this paper as a valid will; it is proved to have been read over to the deceased, and there is nothing to shew that he was not capable of understanding the contents. I pronounce this will to be sufficiently established; but I give the costs out of the estate. 1843. July 17th. February, UPFILL against MARSHALL. A will (dated THIS was a business of proving, in solemn form of 1837) disposed law, the will of J. Smith, and a codicil thereto. of real and per sonal estate. A codicil (June, 1837) partly revoked the disposition of the person alty. A memorandum The will in question bore date the 27th of February, 1837; the codicil the 17th of June, 1837. The codicil was written on a distinct and separate piece of paper from the will. (July, 1838) formally republished the will. Held, that parol evidence was admissible to shew quo animo the memorandum was made; and, upon the evidence, that the codicil was not revoked by the republication of the will. 1843. By his will, the deceased disposed of his real and personal estate; by his codicil he made an altera- July 17th. tion in respect to the disposition by will of a sum of 1000%. On the 10th of July, 1838, the testator caused the following memorandum to be written at the end of his will: in "This writing was republished by the said J. Smith, as and for his last will and testament, the presence of us.-(Two witnesses.)" The testator executed this memorandum by going over the signature to the will with a dry pen. The suit was instituted by Mrs. Upfill, one of the daughters of the deceased, against Mrs. Marshall, another daughter. The allegation of Mrs. Upfill pleaded, 1st Article, That the deceased duly made and executed his last will and testament, bearing date the 27th of February, 1837. 2nd, That the deceased, on the 17th of June, 1837, duly made and executed a codicil to his said will. 3rd, That subsequent to the making and execution of the will and codicil, but prior to the 10th of July, 1838, the deceased purchased certain freehold premises. That meaning and intending to subject such after purchased real estate to the trusts and provisions contained in his said will, and for that purpose to republish his will; he did, on the 10th of July, 1838, produce his will and republish the same, to wit, by going over his signature with a dry pen, in the presence of two witnesses, who duly attested and subscribed the same. That such republication of the will of the deceased was solely for the purpose aforesaid, and was wholly UPFILL against MARSHALL. 1843. July 17th. UPFILL against MARSHALL. irrespective of the said codicil; and that the deceased thereby neither intended to revoke, nor in fact, nor in law did revoke the said codicil. The two witnesses to the memorandum were examined, and deposed as follows:-The first witness deposed, (after stating the circumstances of the execution,) "I only knew what was the object of the republication of the will from what Mr. Smith told me. My impression is, that he told me the object was to pass some estate purchased since the execution of the will. It was under the impression that such was the sole object of the republication, that I attested it. Nothing passed in my presence to lead me to suppose that the intention of the republication was to revoke or affect any codicil to the will. I had reason to believe that prior to the republication, the deceased had executed a codicil." The second witness deposed, (after stating the circumstances of the execution,) "I have no recollection that anything was said by Mr. Smith as to the object of the republication of the will. I presumed it to be necessary on account of some fresh property purchased since the will had been executed, but I do not know that I was aware of the deceased having purchased any property. I had no idea that the republication was done with the intention of revoking any codicil to the will. No allusion was made to any codicil on the occasion." Addams and Haggard appeared in support of the will and codicil. The Queen's Advocate and R. Phillimore, contrà. testator, who has made a will and codicils, republishes his will, by intendment of law, he also republishes the codicils to that will, we rest our case on the equally well established exception to that rule, namely, that where the will has been wholly or in part revoked by any or either of such codicils, the republication of the will in its turn revokes the codicil and reinstates the will. The codicil, made in June, partly revoked the will of the February previous; then comes the memorandum of July, 1838, which republished or reinstated the will, and revoked the codicil, in so far as this latter instrument had previously revoked the will. Parol evidence is inadmissible to explain the intention of the memorandum of July; the intention can only be collected from the language of the memorandum; this is a mere formal or ceremonial writing annexed to a legal instrument, and having a definite and recognised legal effect; this is not even a case where parol evidence might be tendered, on the ground, that it was a question of testamentary intention, and that there was ambiguity in the language. Thorne v. Rooke (a), Guy v. Sharp (b), Rogers v. Pittis (c), Fawcett v. Jones (d), Powys v. Mansfield (e), Walpole v. Cholmondeley (f), Matthews v. Warner (g), Mitchell v. Mitchell (h), Castell v. Tagg (i), Draper v. Hitch (j). Reply. The codicil could only be revoked by an instrument shewing an intention to revoke it. (a) 2 Curt. 799. (d) 3 Phill. 434. (e) 3 Myl. & Cr. 359. (h) 2 Hagg. 74. 1843. July 17th. UPFILL against MARSHALL. 1843. July 17th. UPFILL against MARSHALL. Did the testator intend to revoke it? certainly not, if the language of the mememorandum is to furnish the proof of intention; but, admitting it to be doubtful, whether he did, or did not intend to revoke the codicil, then an ambiguity arises on the face of the memorandum itself, and parol evidence is admissible to explain that ambiguity. JUDGMENT. SIR HERBERT JENNER FUST. The deceased in this case made a will disposing of real and personal estate on certain trusts; afterwards, by a codicil, he made an alteration in one of the trusts declared by his will. This codicil is on a distinct and separate piece of paper from that on which the will is written, and it is duly executed and attested. In the month of July, 1838, the deceased caused a memorandum to be made at the foot of his will, by which he, in formal terms, declared, that he republished it as and for his last will and testament. This memorandum the deceased signed by going over the signature to his will with a dry pen; two witnesses attested the ceremony of republication. It is contended, on the one side, that, by this memorandum the deceased republished his will; that he in effect made the will speak as of the day of the date of the memorandum, July, 1838, and thereby revoked so much of the codicil as had previously revoked a certain portion of the will. On the other hand, it is contended, that the codicil is not thereby revoked; and the allegation, propounding the will, avers that the will was republished, not from any change in the intentions |