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Anderson v. Anderson..
V.C.B. 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 (3). 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.
( 11 Moo. P. C., 458.
Anderson v. Anderson.
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 397] 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 erroneously 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.
IN DE X.
names of their principals in the con-
Held, that the evidence of the cus-
See TRUST, 538.
See LANDLORD AND TENANT. 26.
See EXECUTOR AND ADMINISTRATOR.
See CARRIER, 269.
GENERAL AVERAGE, 162.
See WILL, 419.
1. The defendants, M. & W., fruit bro-
kers in London, being employed by
2. The defendant, a merchant in Liver.
pool,' employed the plaintiffs, tallow
In an action brought by the plaint-
principals, as the case may be, or, if in the purpose to which the money
Stock Exchange contracted to pur.
pany, and gave into the Plaintiff's
execution of the transfer it was dis-
stock Exchange the jobber was, in the
See MORTGAGE, 437.
335 1. The defendants' correspondents at
Valparaiso bought on their account
also directors of Company B., and and on the 16th of July, 1868, they
of soda while lying at the port of
to supply other soda, on the 2d of Sep- 5. Held, that the deed nevertheless
tect, and entered into a contract with
42 £13,690, with power for the architect
to order extra works, and with a
plaintiff not to carry on the business between the parties under the con-
Held, that the account was too com-
177 note 191 7. Held, Also, that on the evidence the
architect was the agent of the em.
that the defendant should not“ travel been concealed from the builder, the
Held (by Bramwell and Pigott, Plaintiff was entitled to an account
378 executed under the contract the price
for which was not therein included,
made between A., of the first part, architect's directionof works included
511 note 532
was agreed that company A. should
Parliament, and the transaction was