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V.-C.B.
Anderson v. Anderson.

1872 mary sense, and when a codicil refers to a will, that must be a will which satisfies the requirements of the Wills Act : Croker v. Marquis of Hertford (); Wigram on Wills (). If there is no document legally satisfying the requirements of a will to which the codicil *can be held to refer, then, looking into the (384 extrinsic circumstances, papers purporting to be testamentary, though not so in the strict and primary sense, may be rendered valid by the duly attested codicil. But this rule of construction does not apply when the codicil purports to confirm as a will that which is not legally a will. For the purpose of seeing whether the will referred to is valid we are entitled to look at the attestation. Finding that, from the way in which the will has been attested, the gifts to George Anderson are rendered void, we say that the codicil has not the effect of curing the defect or rendering the particular gift valid.

Even if the decision of the Court should be against us we are entitled to our costs of obtaining the opinion of the Court upon a doubtful point of construction : Thomason v. Moses (3); Lee v. Delane (1); Morgan and Davey on Costs ().

Jan. 27. SIR JAMES Bacon, V.C. :

The question which arises in this suit is, I believe, entirely novel; the subject to which it relates is unquestionably of great importance, involving, as it does, a very valuable provision in the Statute of Wills, by which the law as it previously existed has been greatly altered and improved. Before the statute any beneficial interest given by will to the persons by whom such will might be attested was null and void; but the attesting witnesses were not disqualified from proving, as witnesses, the due execution of the testamentary instrument : 25 Geo. 2, c. 6. The existing statute, keeping in view the principle of public policy which is obviously involved in the former law, has extended its operation; and by the 15th section it is enacted, “ That if any person shall attest the execution of any will to whom, or to whose wife or husband, any beneficial devise, legacy, estate, interest, gift, or appointment of or affecting any real or () 4 Moo. P. C., 339, 363.

(") Page 18 ( 5 Beav., 77. (*) 4 De G. & Sm., 1.

("Page 67.

1872
Anderson v. Anderson...

V.C.B. personal estate, shall be thereby given or made, such devise, legacy, &c., shall, so far and only as concerns such person attest385] ing the execution of such will, *or the wife or husband of such person, be utterly null and void ; and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift or appointment mentioned in such will.” The Plaintiff's claim is founded upon that provision. [His Honor, after stating the case, continued :-] Upon this very simple state of facts the Plaintiff has contended that the provision of the statute to which I have referred applies in direct terms, and that by the effect of it all such interest as George Anderson would have taken under the will is forfeited, and the testatrix must be held to have died intestate as to so much of her estate as George Anderson would have taken according to the tenor of the will, if his wife had not been one of the attesting witnesses.

The Defendant, on the other hand, insists that the will and codicil together form one, and but one, testamentary instrument; and that the object and effect of the codicil was to repeat and confirm the bequests contained in the will; that its operation was to incorporate the will with the codicil; and that the latter instrument having been duly executed by the testatrix, and attested by unobjectionable witnesses, neither the letter nor the spirit of the statute is infringed; that all the requisites of the law are complied with ; and that there is no foundation for the Plaintiff's suit. ..

Now, in order to decide the point which is raised, the first question to be solved is, what is the will of the testatrix ? The statute (sect. 9) enacts that no will shall be valid unless it be in writing, signed or acknowledged by the testator in the presence of, and attested by, two witnesses. If the codicil in question can be held to be the will of the testator, these requisites are complied with. In the course of the argument reference was made to several cases, the most important of which, as well as the most recent, appears to be Allen v. Maddock (), in which the testatrix, having made what purported to be a will, dated in December, 1851, but attested by one witness only, had afterwards, in September, 1856, executed a testamentary paper,

(1) 11 Moo. P. C., 427.

V.-C.B.

Anderson v. Anderson..

1872

which was duly attested, and which commenced with the words, “ This is a codicil to my last will and testament.” The Court of Probate, being satisfied that* the instrument of 1851 [386 was the will which the testatrix referred to in the codicil, decreed probate of the two papers as together constituting the will of the testatrix; and it was from that decision that the appeal to the Privy Council was brought. The argument in that case principally turned upon the question, whether the codicil had sufficiently identified the paper of 1851, and it was contended that parol evidence of that fact, upon which the Court below had proceeded, was inadmissible for the purpose of proving such identity. No such point exists in the present case, because the two papers, will and codicil, having been together admitted to probate, the identity of the paper of 1851 with the will mentioned in that testatrix's codicil must be taken to be established. The Privy Council decided that the parol evidence was admissible, and that it proved satisfactorily the identity of the paper referred to in the codicil. But the greater value of this most valuable judgment is, that it decides in very express terms, and by reference to numerous authorities as well before as since the Statute of Wills, that the due execution by a testator of a codicil amounts to a republication of a former will, if the codicil refers to such former will, and that, without any regard to the fact whether or not the paper so referred to complied with the requirements of 'the law as to execution or attestation of such paper; and, referring to the alterations introduced by the existing statute, it pronounces that thereby “ 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 would 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.” And their Lordships, referring to the case on Lord Hertford's testamentary papers (-, point out and adopt the distinction to be made since the new Act with respect to the unattested papers referred to, the identity of which was not clearly proved (). With these authorities the law is too clear to admit of any doubt upon the single question raised. Sect. 24 enacts that a will shall be construed to speak (1) 4 Moo. P. C., 339.

R 11 Moo. P. C., 458.

1872
. Anderson v. Anderson.

V.-C.B. from the death of the testator; and sect. 34 that the Act is not to extend to wills made before the 1st of January, 1838, " and 337] that every will re-executed or republished or revived *by any codicil shall, for the purposes of this Act, be deemed to have been made at the time at which the same shall be so reexecuted, republished, or revived.” It was much pressed in the argument on the part of the Plaintiff that the very existence of the will could not be proved, except by the persons who had attested it, and, therefore, that the evil which the statute sought to prevent wonld be admitted unless the legacy in question were declared to be forfeited. I do not know, and I have no right to inquire, upon what evidence the Court of Probate decided. But I am clearly of opinion that there is no reason to apprehend that, by treating the codicil duly attested as a republication and confirmation of the will, any relaxation of the wholesome provision of sec. 15 would be effected.

That in the execution and attestation of the codicil in question all the requisites of the statute were complied with is clear. None of the evils which the statute intended to prevent can arise; and it would be as much beyond the provisions and the contemplation of the statute, as it would be opposed to good sense and reason, to hold that the codicil, duly executed and attested, had not the effect of republishing the will, and making it a new and original disposition by the testatrix in January, 1869, of the estate which she had dealt with by the will of December, 1868. To hold otherwise would be to hold that any error in a will, once duly executed, could not be corrected but by an entirely new will, for which proposition there is no authority. It cannot be said that the testatrix could not have made a new will if she had been so minded. Suppose that, by the codicil, she had said, “I am aware that my will is so erra neously attested as that my son's legacy will be forfeited, and to prevent that I execute this codicil, and do thereby confirm my will.” There can be no doubt that she was competent to do this up to the latest moment of her life. I am of opinion that she has done this by the duly executed codicil; that the whole contents of the previously existing will were incorporated in the codicil; and, therefore, that Plaintiff's bill must be dismissed.

Solicitors : Mr. G. R. Longdon ; Mr. J. Letts.

INDEX.

А

names of their principals in the con.
tract, they were held personallyliable,
although they contracted as brokers
for a principal; and evidence was
also given of a similar custom in the
London colonial market:-

Held, that the evidence of the cus-
tom in the same trade was admissible,
as not inconsistent with the written
contract, on

the authority of Humfrey
v. Dale (7 E. & B., 266; E. B. & E.,
1004) ;and that the evidence of a sim-
ilar custom in the colonial market
was admissible, being evidence in a
similar trade in the same place, and
as tending to corroborate the evidence
as to the existence of such a custom
in the fruit trade. Fleet v. Murton,

32

ACQUIESCENCE

See TRUST, 538.

ACTION.

Sce LANDLORD AND TENANT. 26.

ADMINISTRATOR.

See EXECUTOR AND ADMINISTRATOR.

ADMIRALTY.

See CARRIER, 269.

GENERAL AVERAGE, 162.

ADVANCEMENT.

See WILL, 419.

AGENT.

1. The defendants, M. & W., fruit bro.

kers in London, being employed by
the plaintiffs, merchants in London, to
sell for them, gave them the follow-
ing contract note addressed to the
plaintiffs :-“We have this day sold
for your account to our principal” 80
many tons of raisins. (Signed) “M.
& W., brokers.” The defendants'
principal having accepted part of the
raisins, and not having accepted the
rest, the plaintiffs brought an action
on the contract against the defend
ants, and they sought to make the
defendants personally liable by giv-
ing evidence that, in the London fruit
trade, if the brokers did not give the

2. The defendant, a merchant in Liver-

pool,' employed the plaintiffs, tallow
brokers in London, to buy tallow for
him in the London market.

In an action brought by the plaint-
tiffs against the defendant to recover
the loss upon the re-sale of the tallow,
which the defendant had refused to
accept, it was proved “That there ex.
ists an established custom in the Lon-
don tallow-trade, for brokers, when
they receive an order from a principal
for the purchase of tallow to make
a contract or contracts in their own
names without disclosing their prin-
cipals, and also to make such contracts
either for the specific quantity of tal-
low so ordered, or to include such
order with others they may have re-
ceived in a contract for the entire
quantity, or in any quantities, at their
convenience, at the same time ex.
changing bought and sold notes with
the selling brokers, and passing to
their principals a bought-note for the
specific quantity ordered by them;
and that, when a broker so purchases
in his own name, he is personally
bound by the contract; and that, on
the usual settling days, the brokers
balance between themselves the pur-
chases and sales so made, and make
or receive deliveries to or from their

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