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another unattested codicil, dated the 29th of August, 1825, to the same effect, and afterwards made several codicils properly executed and attested, for the purpose of including in the operation of his will, after-purchased estates. The last of these codicils was dated the 5th of February, 1830, and was in these words: "I, John Robins, do make this further codicil to my will, which bears date the 12th day of September, 1823. I give and devise all real estates and hereditaments purchased by me since the date and execution of my said will, to the trustees therein named, their heirs and assigns, to the uses and upon the trusts in my said will expressed and declared of and concerning the residue of my real estates."

The house in Portugal Street had been purchased between the date of the will and of the codicil of the 29th of August, 1825, and the question for the consideration of the court was, to whom the house in Portugal Street passed; it being contended on the part of Mrs. Utterton, that the last codicil, though not referring to any instrument but the will, operated as a republication of all the codicils, whether attested or unattested, and that the house in Portugal Street passed to Mrs. Utterton. The case of Gordon v. Lord Reay was not cited, and the court did not decide whether such codicil would or would not establish the unattested codicils not referred to; though Mr. Baron Parke may be considered to have intimated an opinion against giving to the codicil what he terms "that immense effect in republication which Mrs. Utterton's counsel ascribe to it; " but the court held, that supposing the codicils in favor of Mrs. Utterton to have been duly attested, the last codicil would have revoked them, and devised the estate in question to the trustees under the will. The learned judges had no doubt that any testamentary paper unattested, sufficiently referred to [in] a duly executed and attested codicil, would be established by such codicil, though the two instruments were not only not on the same paper, but were not even in the same country.

This is the result which we collect from the observations which fell from the judges in the course of the argument, though they contented themselves with sending a certificate of their opinion to the Court of Chancery as to the effect of the devise, without assigning any reasons.

In the case of Radburn v. Jervis, 3 Beav. 450, decided by Lord Langdale; the cases of Guest v. Willasey, Gordon v. Lord Reay, and Utterton v. Robins, were all cited; and his Lordship was of opinion, that a codicil duly executed and attested, though referring only to the will, operated to establish and republish all previous codicils, whether duly executed or not.

The testator there made a will giving various legacies, and charging his real estates with all legacies thereby given. He made many codicils, some duly executed and attested, and some not; and by one of the latter class he gave a legacy to Mr. Brundrett. His eleventh codicil was duly executed and attested, and began in these words: "This is a further codicil to the last will and testament of me, Sir Thomas Clarges,

Bart., made this 10th day of April, 1828." The codicil was confined to revoking the appointment of two gentlemen named in the will as trustees, and the legacies given to them, and to appointing Brundrett an executor and trustee in their stead. Lord Langdale held, that the legacy to Brundrett was not charged on the real estates, because the codicil did not so charge it, and the will charged only the legacies thereby given; but he was clearly of opinion, that the last codicil operated as a republication of all the preceding codicils, as well as of the will, though none of the codicils were referred to. His language is: "The object of the last codicil, which was duly executed and attested, was to revoke the appointment of trustees and executors named in the will, and the bequests given to these trustees, and to appoint Mr. Brundrett to be executor and trustee; and though, in effect, it operated as a republication of the will and former codicils, and might have extended any prior general devise to lands subsequently acquired before the date of the last codicil, and have subjected such subsequently acquired lands to a general charge contained in the will; yet, considering it as a republication of the will and all the preceding codicils, I do not think the effect is to charge on the land, legacies which by those codicils were not so charged."

Aaron v. Aaron, 3 De Gex & Sm. 475, before Lord Justice Knight Bruce, recognizes the rule of law as established in Gordon v. Lord Reay, and treats it as not inconsistent with the decision in Utterton v. Robins; and his Lordship observes "that it can make no difference whether the codicil be written on the same paper with the will, or written at a subsequent period, or not.”

The cases to which we have referred all turned upon instruments anterior to the late Wills Act; but they show that before that Act, in order to give validity against real estate to a testamentary instrument previously ineffectual for the purpose, such a general reference was sufficient as, when compared with the evidence produced, would enable the court to identify the document; that a codicil would operate as a republication of the will, and that a republication of a will would amount to a republication of whatever antecedent papers might answer the description of codicils, leaving it to be ascertained by parol evidence what might be the particular papers answering the description of either will or codicil.

This doctrine was very much discussed in the case of Hitchings v. Wood, before the Judicial Committee in 1841, reported in 2 Moore's P. C. Cases, 355; and many valuable observations bearing upon this question were made by Lord Lyndhurst, though, as the case arose before the Wills Act of 1837, and related only to personal estate, it has not the authority of a decision on the point in controversy.

As to the certainty of the reference required by the law in the incorporating instrument, there does not seem to be much distinction, under the Statute of Frauds, between a will and any other instrument. In either case it is necessary, and it is sufficient, that the description should

be such as to enable the court, when the evidence is produced, to say what is the instrument intended.

In the case of Shortrede v. Cheek, 1 Ad. & Ell. 57, a guarantee in writing referred to "the promissory note," and evidence was offered of a particular promissory note, alleged to be the one in question. It was objected that the writing did not specify what promissory note was meant; that there might be more than one. But the opinion of the court was, that, although if there had been more than one, there would have been difficulty in admitting parol evidence to prove which note was meant, yet as only one was proved, and there was no evidence of any other, the description was sufficient. Mr. Baron Parke observed, in answer to the argument that there might be other notes, "Even if the note had been fully described, you might say that it was possible there might have been another note, and that the contrary should have been shown."

The same doctrine was carried still further by Lord Lyndhurst in the case of Hodges v. Horsfull, 1 Russ. & Myl. 116. A contract in writing was made, one of the terms of which related to the execution of certain buildings," as per plan agreed upon." In that case several plans had been drawn out, and discussed at different times, and it was doubtful which was the plan meant. Lord Lyndhurst, in a bill for a specific performance of the contract, held, on the authority of Clinan v. Cook, 1 Sch. & Lef. 22, that parol evidence was admissible to prove which of the plans was intended, but he thought that the evidence was insufficient to identify the one insisted on, and on that ground dismissed the bill.

It has been supposed that this case is open to criticism, on the ground that the contract did not of necessity refer to any writing, and that to ascertain, by parol evidence, which, of several documents, all answering the description, was intended, is going further than any former case, and is contrary to the opinion, or inclination of the opinion, of the judges in Shortrede v. Cheek (Wigram's "Extrinsic Evidence in aid of the Interpretation of Wills," Prop. vii. par. 165, p. 127, in note).

For the present purpose it is quite immaterial to consider the value of these objections. In this case it is clear, that the thing referred to is a writing; that it is in its nature a single instrument; and that only one document is found to answer the description.

The cases of Shortrede v. Cheek, and Hodges v. Horsfall, are referred to by Lord Cottenham, in Squire v. Campbell, 1 Myl. & Cr. 480, as only establishing a principle which he seems to consider as settled, that when an agreement refers to some other document, the identity of the thing referred to may be established by parol evidence.

A reference in a will may be in such terms as to exclude parol testimony, as where it is to papers not yet written, or where the description is so vague as to be incapable of being applied to any instrument in particular; but the authorities seem clearly to establish that where there

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is a reference to any written document, described as then existing, in such terms that it is capable of being ascertained, parol evidence_is admissible to ascertain it, and the only question then is, whether the evidence is sufficient for the purpose.

Supposing the evidence to be admissible as the case would have stood under the Statute of Frauds, has the Wills Act of 1837 altered the general law upon the subject? There are no words in the Act by which changed any such intention is declared. It has altered the mode in which the instrument containing the will is to be executed, but it has left untouched, as it appears to us, the question what papers are to be held included in the instrument so executed. The Statute of Frauds enacted, that all devises of lands shall be in writing, and signed by the devisor, or by some other person in his presence, and by his express directions, and shall be attested and subscribed in his presence by three or four credible witnesses, or else they shall be void.

The Wills Act, 7th Will. IV., and 1 Vict. § 9, provides, that no will shall be valid unless it be in writing, and signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction, and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.

The ceremonies necessary to authenticate the instrument are altered, but no alteration is here made in the effect to be given to words used in it. It should seem that a paper which would have been incorporated in a will executed according to the Statute of Frauds must now be incorporated in a will executed according to the new Act.

In those instances in which the Legislature was of opinion that the construction put by decided cases upon the Statute of Frauds, as to the execution of wills, or the rules applied to devises contained in them, required alteration, provisions for that purpose were introduced into the Act.

The incorporation of unattested documents by reference in an attested will, was a subject of very great importance, and had excited much attention, the propriety of which had been sometimes doubted, at least to the extent to which it had been carried. It can hardly be supposed that if it had been intended to introduce so great an alteration in the law, it would not have been introduced by express declaration. But to have introduced any such declaration would have occasioned, in many cases, great inconvenience and injustice.

The only circumstance of which we are aware from which any color can be given to the argument that the Statute had the operation now suggested, is the construction put upon it by this committee, in Smee v. Bryer, 6 Moore's P. C. Cases, 404, by which it was held that the signature must be so affixed at the end of the will as to leave no blank space for any interpolation between the end of the will and the signa

ture; and it might be said that such a security against fraud could not be afforded if a paper only referred to in the will could be admitted as part of it. But this construction was found to produce such extensive injustice that, by the Statute, 15th & 16th Vict. c. 24, the Legislature interfered to alter the law so established, and this Act passed before the codicil in this case was executed. It was not contended in this case, nor, as far as we are aware, has it been contended in any case since the Wills Act of 1837, that no reference, however distinct, is now sufficient to incorporate another testamentary paper in the paper duly executed as a will or codicil, but the question has always been, what reference in the valid paper is sufficient to let in evidence to identify the invalid paper.

Upon this point an important distinction has been introduced by the Act, to which we have already alluded, namely, that whereas before the Act a paper not duly executed might be a codicil as to personal estate, and might, therefore, be referred to by that description, no such paper can now be properly so designated.

That, with this exception, the law on this subject remains as it was before the Act, appears from an examination of the authorities, although in deciding on the question what is or is not a sufficient description to let in evidence, cases of great nicety are to be found.

In April, 1841, the question now raised came before the Prerogative Court in Smith's Case, 2 Curt. 796. In that case the testator, in May, 1838, made a codicil to his will, signed but not attested. In August, 1840, he made a further codicil, signed and duly attested. This was written on the second side of the paper on which the former codicil was written, and the deceased described it as " a second codicil to my last will and testament." Sir Herbert Jenner Fust decreed probate of both codicils, observing: "The latter codicil being duly executed, referring to the former, is an execution of the former codicil also."

In the case of the Goods of Sotheron, 2 Curt. 831, the same learned judge recognized the rule as laid down in Smith's Case, but held the reference in the will not to be sufficient to let in evidence of the paper propounded.

In January, 1843, in the case of Claringbull, 3 Notes of Cases, 1, Sir Herbert Jenner Fust again acted on the rule laid down in Smith's Case, referring to it as the interpretation which this court has put upon the Statute of Wills.

In the course of the same year he had to determine the important case of Lord Hertford's Will, 3 Curt. 468. The testator had there made a will and twenty-nine codicils. Some of the codicils were made before the Act of 1837, and required no attestation; others were made after the Act, some of which were attested, and others not. One codicil, made at Milan in October, 1838, was unattested. He made a further codicil dated in April, 1839, duly executed and attested, and thereby declared that he ratified and confirmed his will and codicils. The question was whether the Milan codicil was thereby established, and it was

VOL. IV. 14

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