i

The question was, whether the fourth codicil, so far as it was inconsistent with the will, was revoked, in consequence of the reference by the fifth to the will. The Master of the Rolls', adverting to the stress which had been laid upon the case of Lord Walpole v. Lord Orford, observed, that that case only determined that a codicil referring to a former will as the last will, cancels intermediate wills. But the point contended in this case is, that it sets up all the will against a codicil revoking it in part. The case will not by any means bear out that arguIf a man ratifies ment. It is perfectly true, that if a man ratifies last will, he rati- and confirms his last will, he ratifies and confirms it with it every with every codicil that has been added to it. There

and confirms his

fies and confirms

codicil which has

and if an inter

has changed any

been made to it; is a great difference between wills and codicils in mediate codicil this respect. If there are two separate papers, both of it, it called wills, inconsistent with each other, it is not with these the rule to prove both in the Ecclesiastical Court, The last is the will. From the nature of the instru

part

is confirmed

changes; for the

codicil was a part of it. But if a

making fome

will is made, and ment it revokes the other. If the last purports to be then another will the whole will, a complete substantive will, they do different d fpofi- not, I conceive, prove both. Unless there is somecodicilconfirming thing to shew it was meant to be coupled with

tions, and then a

the will first made,

made by the in

termediate will

are gone.

the alterations another instrument, it is not taken to be a codicil. But if it do purport to be coupled with another instrument, it is as much a part of that instrument as if it were written on the same paper. Many absurditics would flow from the contrary construction. Suppose a testator had by his will given a legacy of 2001. and by a codicil had given the lef Lord Alvanley.

% 3 Vez. 402.

gatee 1001. instead of the 2001. and then should make another codicil, of this sort, merely changing an executor, and ratifying and confirming his will in all other respects, is the legatee to have both the 2001. and the 1001.? That must be contended,

This case differs from Lord Walpole v. Lord Orford in this essential point. The question in that case was not upon a will and a codicil. It was upon two inconsistent wills; one made in 1752, the other in 1756. The second had destroyed the first, unless the testator thought fit to revive it. He made a codicil in 1776, which he expressly declared to be a codicil to his last will and testament, dated the 25th of November, 1752. That was held to revoke the intermediate will. All that the Courts of Law (2) determined was, that the evidence could

3 Vez. jun. 402.

(2) See the case of Lord Walpole v. Lord Cholmondeley, 7 T. R. 138. The doubt was whether the will of 1752 was revived by the codicil, which expressly referred to the first will in point of date, but which might be considered as contemplating the will of 1756, if the word last in the codicil were to be read as denoting that which was posterior as to the time of the making. External evidence of facts and declarations were offered to shew that the testator had no design of revoking the will of 1756, and to enforce the propriety of receiving this evidence it was contended, that as the ambiguity was introduced by the production of matter external, viz. the fact of the existence of the two wills with the contrariety in the terms of the reference by the codicil, parol evidence ought to be admitted to ex

not be admitted to prove a mistake. It would not at all affect the case of any codicil made as an appendix to either of his two wills. If the will had dropped, perhaps a codicil, professedly a codicil to that will, would have dropped with it.

PART XV.

1

Of the Doctrine of Revocation, as to Wills made under Powers.

IN a former part of this Treatise, where the execution of wills was under consideration, that part of the subject was viewed in its connection with wills made under and in execution of powers: it seems important also to consider how the law in respect to revocations applies to this description of wills.

plain the doubt. But the evidence was refused on the ground that there was not in truth any ambiguity in the case, the word last being in the opinion of the Court no counterpoise to the express reference to the earlier will by date. A will is ambulatory till the death of the testator, and there is properly no last will until that time arrives, and his calling the will of 1752 his last will, imported only an intention that it should be his last. See a full note on this case in Roberts on statute of frauds, page 20. That the word last is merely a word of form, see Thomas v. Evans, 2 East, 496.

by will works

cording to the

ties of fuch an

It appears to be a general established point, that An appointment the instrument by which a power is directed to by the will acbe executed, must have the requisites which specifi- nature and quali cally belong to its nature, and proper constitution, instrument. and be attended also by all the train of incidents which legally accompany it. Upon this principle it is that a will made in execution of a power, is to all intents a will; it is ambulatory and incomplete till death, and alterable and revocable by cancellation or any of the methods whereby a will in the strictest and most absolute sense is so affected. It is also equally clear that if an appointee under a power executed by will, die before the appointer, the interest under the appointment fails by lapse, as in the ordinary cases.

This rule is universal. It extends to a will of copyhold, which, though not considered as the act by which the estate is transferred, (that being the operation of the surrender), is nevertheless in its own nature specifically a will, though in its instrumentary operation it is only directory of the uses of the surrender. Thus, if a copyholder surrenders to the use of his will, and then makes his will in favour of A. and survives him, the benefit is gone; for as a will the appointing instrument is inefficacious till the death of the appointer, and if the appointee is not then in existence, the gift cannot take place. It seems

a 2 Freem. 61.

b See the great case of the Duke of Marlborough v. Lord Go. dolphin, 2 Vez. 61.

inftances of this

rule,

Some particular also that an appointee under a power must claim according to the nature of the instrument by which the power is directed to be executed. Thus, if a power is given by deed to appoint lands by will, and the person to whom the power is given makes his will accordingly, and gives the lands to A. and his issue, which words in a deed convey only an estate for life to the grantee, though the devisee takes properly under the power, yet because the appointment is by will, the words are construed to convey an estate tail. So it seems if it were "to A. for ever," the estate would be construed a fee simple for the

same reason.

Upon the same grounds, such an appointment by will, in execution of a power, is held to be revocable, and therefore, though where a power is executed by deed, unless a power of revocation is reserved by the deed, (which may always be done toties quoties, whether the deed creating the power gives authority to revoke or not,) the appointment cannot be revoked (1), yet if it be executed by will

• 2 Vez. 77. S. C. ibid. 610, and see Robinson v. Hardcastle, Bro. C. C. 30, Reid v. Shergold, 10 Vez. jun. 370.

Adams v. Adams, Cowp. 651.

(1) Hatcher, Curtis, 2 Freem. 61. And such appointment by deed cannot be revoked without a fresh reservation of a power in the executory instrument for that purpose, though the original deed should expressly authorize such future revocations, as was adjudged in the leading case of Hele v. Bond, Prec. in Ch. 474.