[395] *

A will, though it be proceeded in

hands as witnesses to it, which they all three did in his presence, but without seeing any of the writing, or being told by the testator it was his will, or what it was, but that he believed it to be the same paper, because his name was there, and the names of the other witnesses, and he never witnessed any other paper for the testator; this was held to be a sufficient publication of the will, after the statute of 29 Car. 2. but it should be remembered, that Lord Hardwicke, in the case of Ross v. Ewer, 3 Atk. 161. mentioned a case of Mr. Windham of Clearwell, in the court K. B. which was a trial at bar, upon the will of his uncle; wherein the only question was, whether the testator published it; there was no doubt of his having executed it in the presence of three witnesses, or of their having attested it in his presence; which showed, his Lordship said, that publication is, in the eye of the law, an essential part of the execution of a will, and not a mere matter of form.

The point, therefore, seems subject to some doubt, whether publication is to be considered as a mere floating term, expressing generally the act of authenticating and announcing the veritable will of a testator, but depending as to the mode by which it is to be effectuated, on the particular ceremonies and solemnities prescribed by the legislature and construed and applied by courts of justice, or imposes a specific obligation upon the testator beyond the execution and attestation of the will according to the statute of frauds. If any positive declaration by the testator, that it is his will, be necessary to constitute a sufficient publication since the statute, it does not seem that the mere acknowledgment of the signing can operate as an equivalent, for the acknowledgment of the signing, unless the testator at the same time acknowledge his will, cannot be more extensive *in effect than the act of signing in the presence of the witnesses. Upon the whole, however, we are to consider that, great as is the weight of Lord Hardwicke's opinion, it was delivered on this point in Ross v. Ewer, gratuitously and extrajudicially; whereas the cases of Peate v. Ougley, Trimmer v. Jackson, Stonehouse v. Evelyn, and others, which have been cited for the contrary doctrine, are decisive and direct authorities.

It is established by the agreement of all the cases, that a testator may make his will at different times, if the subsequent writing

at different times, and often suspend

takes up and continues the former; and it matters not by how long the intervals these acts are separated; they will compose one entire instrument, if the first purpose appears to have proceeded ed and resumed, will to its accomplishment, though with many pauses and resump- need only one tions. Thus,(c) where an illiterate person made and signed his execution. will, in which there was a devise of lands, and at a subsequent period added more to it on the same sheet of paper, and declared that he did not thereby mean to disannul any part of his former devise and disposition, and signed it, and then took the sheet of paper in his hand, and declared it to be his last will and testament, in the presence of three witnesses, and desired the witnesses to attest it, which they did in his presence, this was held to be one entire will, though made at different times, and to be attested agreeably to the statute of frauds; or, in other words, the additional writing was held to be part of one entire will, and not a codicil, and the execution and attestation to be an original publication, and not a republication. But where the will was written en different pieces of paper, it Of the exewas holden, that the witnesses ought to see all the pieces of paper, or the will was not properly attested. Thus, in ejectment, d) where the special verdict set forth, that J D. *made his will in 1670, with two witnesses who subscribed their names in his presence; and in 1679, made a codicil, and thereby confirmed his will in what was not altered, and inserted some new bequests, and there were two witnesses to it, one of whom had witnessed the will, and the other was a new one, the only point was, whether these made together three witnesses to the will, to satisfy the statute of frauds; but the court decided against the devise, because the third witness was not a witness to the first will. There was no entire instrument attested by three witnesses.(140) And

(c) Carleton. Griffin, 1 Burr. 549. Carth. 37, arguendo, and, as it seems, agreed to by Dolben, J. (d) 2 Mod. 263.

(140) The reader should compare this case of Lea v. Libb, with Bond Seawell, 3 Burr. 1773. Blackst. 407, 422, 454; in which latter case it was proved, that C made his will, consisting of two sheets of paper, all of his own hand-writing, and signed his name at the bottom of each page; and that he also made a codicil of his own hand-writing upon one single sheet, and then called in H, and showed him both the sheets of his will, and his signature to every page thereof, and told him that

Uu

cution of a will written

on different pieces of pa

per.

* [ 396 ]

if the additional writing is not a resumption and continuation of the former, but a distinct act and disposition by way of codicil, it may operate as a republication of the will as to lands, if both the

that was his will, and then he showed H the codicil, and desired him to attest both the will and codicil; which he did in the presence of the testator, and then went out of the room. V and L came in immediately afterwards, and the testator showed them the codicil, and the last sheet of his will, and sealed both before them. C then took each of them up severally, as his act and deed for the purposes therein mentioned. Then the witnesses attested the same in the testator's presence, but never saw the first sheet of the will; nor was that sheet produced to them; nor was the same or any other paper upon the table; both the sheets of the will were found with the codicil, in the testator's bureau, after his death, all wrapped up in one piece of paper; but the two sheets of the will were not pinned together; and the question upon these facts was, whether this will was duly executed according to the statute of frauds? After three several arguments before the court of King's Bench, and one argument before all the judges in the Exchequer Chamber, Lord Mansfield delivered the judgment; his Lordship said, that the question made at the trial, and submitted by the case, as it stood, turned upon the solemnity of the execution, and they were of opinion, that the due execution of this will could not be come at, in the method wherein the matter was then put that if this were considered as a special verdict, they thought it was defectively found as to the point of the legal execution of the will. But that every presumption ought to be made by a jury in favour of such a will, when there was no doubt of the testator's intention, and that they all thought the circumstances sufficient to presume, that the first sheet was in the room; and that the jury ought to have been so directed; but upon a special verdict, nothing could be presumed: therefore, they were all of opinion, that it ought to be tried over again; and if the jury should be of opinion, that it was then in the room, they ought to find for the will generally, and they ought to presume, from the circumstances proved, that it was then in the room.

It is to be observed, that Lea v. Libb was on a special verdict, and, therefore, no facts could be presumed; but it does not seem that the ease afforded the same ground for presumption, as that of Bond v. Seawell, in which last case there were three witnesses, if any, to the whole will, for the question was not as to the complement of witnesses, but whether the whole will (the first sheet not having been seen by them) was covered by the attestation; whereas, in Lea v. Libb, it was necessary to make the will and codicil one instrument, before the attestation could be held sufficient, for to neither, and to no part of either, were there three witnesses; and if they were distinct instruments, it seems, according to the authorities, that each ought to have been attested by three witnesses, to have been valid within the statute.

will and codicil are attested respectively according to the statute; but if the will was not so executed and attested, the codicil will not help the defect, although it have the requisites of the statute, for what was bad in its creation, cannot be made good by any thing ex post facto, and the operation of a codicil, where it is a re publication, is only to set up the will in its original state and efficacy, making it, as far as it is efficient in itself, by the solemnities of its execution and legal compass of expression, reach to the date of the codicil, and embrace intermediate acquisitions.t

*Thus, a testator(e) devised his lands to trustees and their heirs, in trust for maintaining and providing for the poor scholars of a college in Cambridge, and for other charities, and the will was written with his own hand, but had no witnesses, and afterwards he made a codicil, which was duly executed and subscribed by four witnesses, wherein he recited and took notice of the will. And one of the questions in the case was, whether the codicil was a good publication of the will within the statute of frauds? It was contended on behalf of the devisees, that the codicil, taking notice of the will, and being duly executed, made the will valid in the same manner as if it had been affixed to the will at the execution thereof, for the law would construe it as part of the will, and its being laid in a different place signified nothing. But it was held, that the will was void, for though there were three subscribing witnesses to the codicil, yet that would not support the will.

This difference between the relation which a codicil 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, is not very difficult to understand, though the partition will appear extremely thin when the theory is attempted to be shown by example, or applied in practice. Upon this distinction, however, will, it seems, depend the question, whether or not, the first act of testamentary disposition will require to be executed and attested according to the statute. But whether the subsequent writing be considered as a republication by way of codicil, or as the conclusion of something already be

(e) Attorney-General v. Barnes, 2 Vern. 597. Prec. in Ch. 270.

Vid. Heylin. Heylin, Cowp. 130.

[398] Of the dif

ference between a wri

ting in continuation of a will for. merly begun and a repub. lication."

• [399] In what sense a codi

cil is to be understood

as incorporated into, and making a

part of the

will.

gun, as in the case just mentioned of Carleton v. Griffin, it appears quite clear, upon the principles of Habergham v. Vincent, already so much discussed, and the doctrines of other cases, that such subsequent writing, to be effectual to pass land, must be executed and attested as the statute directs, in the case of devises of lands.

*When a will, properly executed to pass freehold estates, refers to an unexecuted paper already in existence, by an unambiguous description, and expressly adopts its contents among its own dispositions, such paper is, with exact propriety, said to be incorporated into, and to be executed by the execution of the will, för 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, instead of being adopted by the will, and absorbed into its frame and composition.— Hence, we see the necessity of its being 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 will, and has no testamentary operation before it receives the strength imparted to it by the execution of the will; 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, not of its own original execution, but of the execution of the codicil, with which it becomes incorporated, and thus, by consequence of reasoning, becomes re-executed and re-published with the solemnities prescribed by the statute.

Ofthe meanThe effect and meaning, therefore, of a republication is, that ing andeflect the terms and words of the will shall be construed to speak with of a republication. regard to the property of the testator, and the objects of his dispositions, just as they stand circumstanced at the date of the codicil;(141) in construing such will so republished, it must be considered, therefore, what the words of the will, at the time of

(141) But the expressions of the codicil may prevent the passing of intermediate acquisitions, as, where the codicil, reciting the devise, revoked the same as to two of the trustees, and then devised the said lands, &c. the lands purchased between the will and the codicil did not pass. Bowes v. Bowes, 2 Bos. et. Pull. 500, 7 T. R. 482.