1832. DOE dem. v. HICKS. will directed;" and then ratifies and confirms the several annuities and donations by him in his said will and former codicils given and bequeathed, and gives a further annuity of 100l. to his wife under the same restrictions as the former. Now, if this devise in the codicil can be construed to be confined to the property which formed the testator's residue only, then the devise in the will of the copyhold estate in question to the wife for her life, will remain unrevoked, and the object of the testator in his codicil may still be carried into effect. And that such may be the construction, without violating the words of the codicil, appears to be by no means unreasonable. In the first place, the codicil professes to make void "several of the dispositions heretofore made by him in his will and codicils of all his freehold, copyhold, and personal estate and effects of all and every kind and description;" now, the only disposition made of all his freehold, copyhold, and personal estate and effects, is that devise which relates to the residue, in which all his property, freehold, copyhold, and personal, is brought together in one mass, with the exception of that part of the personal estate which is given to the wife absolutely by the will, and which is expressly confirmed to the wife by the subsequent part of this very same codicil. In the second place, the testator says, "instead of such devise, disposition, and bequest," using the singular number, which would, in strict grammatical construction, be applicable to the devise or disposition of the residue, but not to the various dispositions contained in the will. In the third place, the death of his only surviving son, William, who was the first taker for life under the clause disposing of the residue, makes it not improbable that he should wish to substitute in the residuary clause his only only surviving daughter, to take the same estate therein which was before given to the son. In the fourth place, if the devise to the wife, of the copyhold estate, is to be held to be revoked, then, not several only of the dispositions of the real property contained in the will, but all such dispositions, are revoked or altered. For the wife's life estate in the Plomer Hill property is gone; the equitable estate for life given by the will to the daughter in the Treravel estate, for her separate use, is merged in a legal estate for life given to her generally; and the daughter has a life estate in the residue now for the first time interposed before that of John Graves. But to revoke all the dispositions of the realty in the will and codicil, is against the express directions of the testator. Still further, if the devise of the Plomer Hill estate to the wife is revoked, inasmuch as the codicil confirms the donations made in the will and codicil, the wife would still be entitled absolutely to the furniture, and to every thing which constitutes the establishment of the house. So that the house, upon the death of the testator, would immediately go to the daughter, but stripped and dismantled of all its furniture and establishment, which the testator appeared anxiously to intend should be kept together. Again, the codicil gives an estate for life to A. M. Hearle, and from and after the determination of that estate, to his grandson John Graves, and his heirs in strict entail," as in his said will directed." Now this express reference to the will draws the attention to that part of the will in which alone there is any mention of John Graves, that is, to the disposition of the residue. It seems, therefore, a very reasonable construction of the codicil, that as the ultimate remainder of the property intended to be thereby disposed of, is limited by express reference to the clause in the will which contains the devise to John Graves Kk 2 1832. DOE dem. ข. HICKS. 1832. DOE dem. บ. HICKS. Graves in strict entail, to infer that the property itself devised by the codicil is the same property as that contained in the devise of the will to which such reference is made, viz. the residue only. By this construction the only alteration effected by the codicil is, the substitution of a devise to the daughter for life, instead of that given to the son, to take place immediately next, before the estate given to John Graves. But if the devise operates on the residue only, as before observed, it leaves the particular estate already devised to the widow, untouched. There are, undoubtedly, some difficulties attending the construction of the will and codicil, whichever way they are construed. It may be said against the construction above made, that the words of devise in the codicil to the daughter, are immediate, and that the testator, by his first codicil, shews that he knew how to interpose a new estate by proper terms, between those already created by the will. It certainly is so; but it is obvious on comparing the frame of the first and the fourth codicil, and looking to the description of the witnesses to each respectively, that the former was made with, the latter without, legal assistance, so that no great reliance can be placed on that argument, It may be argued again, that the testator by the codicil directs that in case his grandson shall not be twenty-one at the time the estates shall devolve on him by the death of the testator's daughter, the rents shall accumulate for his benefit: and that if the wife took a life estate in the copyhold non constat but that she might survive the daughter; in which case the Plomer Hill estate would not devolve to the grandson on the daughter's death. But it is not at all surprising that a testator, in preparing such an instrument, should have overlooked, or not cautiously have provided for, the possibility of his wife outliving his daughter, the more especially especially where the devise to the wife related only to a part of the estate. It may further be contended, that by the fifth codicil, the testator has proved that he was aware that the fourth codicil had revoked the estate for life which he had previously given by the first codicil to his son-inlaw; for he would not otherwise have devised to him the rents and profits of the Treravel estate during his life. It must be granted that the fourth codicil has necessarily that effect; but this arises, not from his devise of the life estate to his daughter, for the only effect of that devise was to convert her equitable estate for her own separate use into a legal estate for life; but it arises from the devise to the grandson being made "from and after the determination of that estate; words that necessarily excluded the devise to the sonin-law, which he had before made by his first codicil. This argument, therefore, does not seem to bear upon the question, whether the life estate to the widow is revoked or not. Upon the whole, although these, and perhaps other, difficulties may be urged against the construction above proposed, we think the onus probandi of shewing that the devise to the wife is included in the clause of partial revocation, is cast upon those who claim under such revocation, and that it is not shewn with sufficient certainty that this devise to the wife is included in such clause; on the contrary, that, upon the proper construction of this codicil, the intention appears to have been that the devise to the wife should not be revoked by the codicil. Upon these grounds, we think that the devise in question has not been revoked. Judgment of the Exchequer Chamber affirmed. 1832. DOE dem. บ. HICKS. 1832. May 25. An advowson belongs to a prebendary in right of his prebend: the church be comes vacant, and prebendary dies without having presented: the presentation belongs to his personal IN THE HOUSE OF LORDS. MIREHOUSE and Another, who have survived THE judgment of the Court of Common Pleas in this cause, delivered in Michaelmas term 1825 (a), having been reversed by the Court of King's Bench in Trinity term 1827 (b), (Tenterden C. J. dissentiente); upon error to the House of Lords, the question was, An advowson belongs to a prebendary in right of his prebend, and the church becomes vacant, and the prebendary dies without having presented. Does the right of presentation belong to his personal representative? Upon which, the following opinions were delivered by representative, eight of the Judges, who have so reviewed the whole of according to the authorities cited, as to render any report of the the opinion of six Judges out argument superfluous. of eight, delivered in the House of Lords. BOSANQUET J. My Lords, -The question proposed by your Lordships to the Judges for their opinion is this: An advowson belongs to a prebendary in right of his prebend, and the church becomes vacant, and the prebendary dies without having presented, does the right of presentation belong to his personal representative? In offering my humble reasons to your Lordships for answering this question in the affirmative, I propose, with permission, to consider it, first, with reference to the right of presentation itself, to which the question relates ; secondly, with reference to the person (a prebendary of (a) 3 Bingb. 223. (b) 7 B. & C. 113. a cathedral |