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Sir C. Cresswell said : “ Such being the facts of the case, the judgment in Allen v. Maddock points out the conclusion at which I ought to arrive. It adopts the opinion of Lord Eldon in Smart v. Prujean, 6 Ves. 565, that a testamentary paper duly executed, in order to incorporate another, must refer to it as a written document then existing, in such terms that it may be ascertained.”

On the authority of these cases, I hold that in order to let in parol evidence to ascertain the truth as far as it can be ascertained by such evidence, with regard to an unexecuted testamentary document, the passage in the will by which reference is made to it, must describe it as a document then existing. I think that these papers are not so described, and I therefore grant probate of the will and codicils alone.


[Reported L. R. 1 P. & D. 201.] THE Dowager Lady Truro died on the 21st of May, 1866, leaving a will dated the 15th of September, 1865, and a codicil dated the 10th of October, 1865. The will contained the following clause: “I likewise bequeath to the present Baron Truro, in affectionate recollection of his kindness to me, all my library and books and maps, except such parts thereof as I shall herein or after or by codicil otherwise dispose of; and also all my engravings, paintings, pictures, and drawings, save and except such parts thereof as I shall herein or after or by codicil otherwise dispose of; also all my household bed and table linen, and also all such articles of silver plate and plated articles as are contained in the inventory signed by me and deposited herewith.

The will was deposited by the deceased at Messrs. Coutts', the bankers, in an envelope with an indorsement in her writing, and in the same envelope with the will was found an inner envelope containing a list of plate. The list, which was in several sheets, was headed “List of plate and plated articles left by my will dated the 15th of September, 1865, to the present Baron Truro. Augusta E. Truro.” The list was signed by the deceased in several places, and on the last sheet was her signature and the date, 21st of September, 1865. Affidavits were filed showing that the will and the list were deposited with Messrs. Coutts on the 21st of September, 1865, and that the codicil was deposited at a subsequent date. One of the affidavits also proved that when the will was executed the attention of the testatrix was called to

i See Goods of Lancaster, 29 L. J. (P. & M.) 155 (1860); Goods of Kehoe, 13 L. R. Ir. 13 (1884). The case of Goods of Hunt, 2 Rob. Ec. 622 (1853), inust be considered as overruled.

the importance of signing the inventory and depositing it with her will, and that she intimated her intention of acting upon that suggestion.

The Queen's Advocate and Dr. Spinks moved for probate of the will of the 15th of September, 1865, the list of plate dated the 21st of September, 1865, and the codicil of the 10th of October, 1865.

Sir J. P. WILDE. I have very serious doubts whether I could allow this list to form part of the probate if the question depended upon the words of the will, because, although to some extent they point to an existing document, I should, construing them by the existing facts, read them as meaning, not that the document had been signed at the a time when the will was executed, and would be deposited with it, but as meaning that it would be signed and deposited when the will should be deposited. There is no distinct reference to an existing document. For, though the testatris, in using the words, “ signed by me, and deposited herewith,” would prima facie seem to mean “ now already signed and deposited,” yet those words, like all others in a written document, must be construed in connection with the existing and surrounding state of things. Now, the will could not have been deposited at the time at which the testatrix was speaking, and the list when produced was plainly not signed till the 21st of September. The true meaning, therefore, of the words, as spoken at that date, would seem to be, “ a list which I intend to sign and deposit,” &c. It is, however, unnecessary to decide whether the list is incorporated with the will, because I am of opinion that it is entitled to probate by force of the codicil.

This makes it material to look into the decisions on the subject. The general rule as to the consequences of republication is thus laid down by a most careful and learned text-writer: “ It has long been settled law that the republication of a will is tantamount to the making of that will de novo; it brings down the will to the date of the republishing, and makes it speak, as it were, at that time. In short, the will so republished is a new will.” (Williams on Executors, part i. b. ii. § 2, page 188, 5th ed.)

He then goes on to refer to numerous cases which have been decided in accordance with this principle, and amongst others to Skinner v. Ogle, 4 N. of C. at page 79, where it was held that “ a codicil duly executed will give effect and operation to a will altered after the passing of the Act, although the alteration was not duly attested, and though the will itself was executed before 1838,” and to In the Goods of Hunt, 2 Robert. 622, where Sir John Dodson held that a codicil duly executed will give effect to unexecuted papers which have been written between the periods of the execution of the will and the codicil, although the latter does not refer to the former.

The question came before Sir C. Cresswell in March, 1863, In the Goods of Stewart, 3 Sw. & Tr. 192, and in June, 1863, In the Goods of Matthias, 3 Sw. & Tr. 100. In the first case, the will contained this clause: “I direct my executors to distribute all pictures, books,

h of the soill confirmed a willairect in

and other articles according to any list or lists signed by me.” A paper was found without any date, but which was executed before a second codicil, headed “ List referred to in my will and codicil.” The second codicil commenced “ This is a codicil to the last will and testament of me ... I hereby confirm my last will with all the codicils thereto duly signed by me.” “Held that the unattested paper was sufficiently identified and referred to in the will, and having been signed before the execution of the codicil was entitled to be admitted to probate as a portion of the will confirmed by the codicil.”

In the second case the testatrix executed a will in 1848, in which she requested her trinkets to be divided “as I shall direct in a small memorandum.” She executed a codicil in 1853, and another in 1862. On her death the will and two codicils and a paper beaded “ Memorandum of trinkets referred to in my will ” were found folded together in a locked portfolio. There was no evidence to show that the memorandum was in existence when the will was executed, but there was evidence from which it might be inferred that it was in existence before the date of the last codicil, but the last codicil did not refer to it. It was held “ that the re-execution of the will by the last codicil could not make that a part of the will which was no part of it before, and that the memorandum ought not to form part of the probate.” The learned judge is reported to have said : “ Assuming it as a fact that the memorandum was in existence before the date of the last codicil, can that entitle it to forın part of the probate? There is nothing to show that the memorandum was in existence when the will was signed; it therefore formed no part of the will. How can the execution of the codicil, which is a re-execution of the will, make that to be a part of the will which was no part of the will before, and the codicil contains no reference to the memorandum?” And accordingly probate of the memorandum was refused. Now there is no doubt that probate could not have been granted of that memorandum, because, treating the will as having been re-executed at the date of the second codicil, the reference was not sufficient to incorporate it according to the rule laid down in Allen v. Maddock, 11 Moo. P. C. 427. But if the language of the learned judge was intended to have a universal application, if it is to be taken as laying down a general rule that by the kind of re-execution of a will which is involved in the execution of a codicil nothing can be inferentially added to a will which it did not contain before, it is at variance with the decision of the same learned judge in In the Goods of Wyatt, 2 Sw. & Tr. 495. In that case a testator executed a draft will in April, 1847, and an engrossed will in May, 1847. In September, 1854, he executed a codicil purporting to be a codicil to his last will of April, 1847. . The draft will contained interlineations and cancellations in the testator's handwriting in ink and in pencil. Both wills were in the handwriting of the same person, who deposed that he copied the engrossed from the draft will. The engrossed will agreed with the draft will as altered in ink but not as altered in pencil. Pro

bate was decreed of the draft will of April, 1847, including the alterations in ink, in so far as they agreed with the will of May, 1847, together with the codicil of 1854, but not those in pencil. If the proposition laid down by the learned judge in In the Goods of Matthias is a general one, that decision cannot be supported. I think that the proposition is not a general one, but must be read in reference to the case to which it refers.

After considering these cases I have come to the following conclusion as to the rule by which the court should in future be guided in dealing with the republication of a will by a subseqnent codicil.

It is plain on the one hand that the republication of the will, which is involved in the execution of a codicil, may have the effect of adding something to the will which formed no part of it when executed, and which is not to be found in the codicil itself. The case just quoted, In the Goods of Wyatt, 2 Sw. & Tr. 494, in which the codicil was beld to give effect to alterations made in the will after its execution, is a direct authority for this proposition. On the other hand it is plain that there must be a very distinct limit to the action of the court in this direction. For the tendency of such a doctrine, if not restrained, would be to place unexecuted papers on the same footing with those which have received due execution, merely because they were in existence at the subsequent date of the execution of a codicil. The court cannot, according to the authorities, give greater or less effect to a codicil than this: to treat its execution as if the testator had at the same time sat down and re-executed his will. Looked at in that light, the following rule would appear to be the consequence: Where the will, if treated as executed on the date of the codicil, and read as speaking at that date, contains language which, within the principle of Allen v. Maddock, would operate as an incorporation of the document to which it refers, testamentary effect may be given to such document. But when this is not the case, the mere fact of unexecuted papers having been written or signed between the date of the will and that of the codicil, will not suffice to add such papers to the will by force of republication, or to make that testamentary which would not have been so if the will had been originally executed at the later date...

Applying that doctrine to the present case, and treating this will as having been re-executed on the date of the codicil, its language runs thus : “ And also all such articles of silver plate and plated articles as are contained in the inventory signed by me and deposited herewith.” Now, construing these words by the light of the events which had then happened, they appear with sufficient distinctness to refer to a document then existing. For the inventory referred to had then been signed by the testatrix and deposited at the bankers. The operation of the codicil as a re-execution of the will, therefore, gets rid of all diffculty, and I admit the will and the codicil to probate, together with the inventory signed by the testatrix.



(Reported 38 L. J. (N. S.) (P. & M.) 1.) MARY Reid, late of Oxford Parade, Cheltenbam, in the county of Gloucester, widow, died on or about the 19th of October, 1867, leaving a duly executed will and codicil. The will bore date the 24th of May, 1864 ; the codicil was not dated, but it appeared from the affidavit of the attesting witnesses that it was executed in the latter part of April or the beginning of May, 1866. By her will she gave all her ready money to her executors, “to pay her funeral expenses, &c., as also some small sums as remembrances to friends, to be named in a letter addressed to my two nieces, Margaret G. Thain and Lilias Thain,” whom she appointed residuary legatees. In disposing of certain sheep in Australia, she divided the flock into four parts. Three of these she specifically bequeathed, and then continued, “ the other portion to be given to my residuary legatees, to be appropriated by them as specified in my letter.”

The codicil ran thus : “In consequence of some deaths in our family, it is necessary that I add a short codicil to my will, &c. In the first place, my set of pearl ornaments, which I then left to Mary Eweretta Thain, in consequence of her early and melancholy death, so much lamented by us all, Inmust now destine to someone else, and as Mrs. Thain has no female in her family that either she or I would wish to possess those family jewels, I now leave them as intimated in the letter addressed to my residuary legatees."

The will and codicil were found in an envelope in a sealed parcel. In the same parcel, but in a separate envelope, two unexecuted testamentary papers were also found. Paper No. 1 bore date the 1st of March, 1866, and commenced thus: “ To my dear nieces, Margaret G. 'Thain and Lilias Thain, named in my last will and testament as my residuary legatees, and to whom I there stated it was my intention to address to them a letter which I wish to be equally binding and legal as if its contents had been expressed in the will itself. This my intimated intention I now shall endeavor to perform.” The paper gave trifling legacies to certain friends and acquaintances, and also referred to her pearls, – this reference and some other portions of the document being in pencil.

Paper No. 2 simply expressed a wish that the fourth part of the sheep in Australia might go towards forming a fund to pay off a debt on a cottage, and had at the foot of it " Cheltenham, 1865.” Both papers were in the handwriting of the deceased.

Dr. Srabey moved for probate of the will and codicil, together with the two unexecuted testamentary papers as incorporated by reference.

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