Sir W. Grant, M. R., after stating the preceding cases, said, the Lords Commissioners in Barnes v. Crowe appeared to have held, that in Acherley v. Vernon it was established, that every codicil duly attested ought to be held a republication, and to have adopted and acted upon that rule in that case; their opinion seemed to be, that the codicil was incorporated in the will. The general proposition referred to by Lord Commissioner Eyre was, that the execution of a codicil should in all cases be an implied republication. Lord Commissioner Eyre stated the particular circumstances in that case, amounting to what he called internal evidence of annexation; the first codicil, which was not duly executed, was begun upon the last sheet of the will, and the codicil duly attested was begun upon the last sheet of that codicil. But Lord Commissioner Eyre inclined to think annexation could have no effect, and abandoned that ground, for fear of intrenching upon the statute, by raising evidence out of circumstances in their nature parol; and took the general ground, as safer and better. Undoubtedly, therefore, that case was determined upon that general ground. It would be impossible without contradicting that case, which, as it laid down a general rule, he had no disposition to do, to determine in this case against the republication: except the single circumstance of annexation, which Lord Commissioner Eyre laid out of the question, there was no substantial difference between that case and this. That afforded a certain rule; and if he departed from that, it would only be to set every thing loose again, and not to get back to what he thought the better, the old rules, for then Acherley v. Vernon would be in the way. from the convenience He was therefore disposed, of adhering to settled rules, Walpole v. ley, 7 Term R. 138. Cholmonde 3 Ves. 402. Holmes v. Unless confined to Lands devised by the Will Strathmore v. Bowes. 7 Teri R. 482. and deference to former decisions, to hold the codicil a republication. And decreed accordingly. In a subsequent case, Sir W. Grant said, that though a codicil had the effect of republishing the will, and making it speak as at the time of the republication; yet that where a power was executed by a will, but afterwards discharged, and a new power created, a subsequent codicil would not, by the mere effect of republishing the will, be an execution of the power. 10. But where the effect of a codicil is expressly confined to the lands devised by the will, to which it is annexed; it does not operate as a republication of such will, so as to make it pass after-purchased lands. 11. G. Bowes devised all his freehold and copyhold lands to trustees, upon certain trusts: he afterwards purchased other lands, and then made a codicil, whereby, after reciting that he had devised all his freehold and copyhold lands to trustees, he revoked the same, so far as related to two of the trustees named in his will, and devised his said lands, &c. to the other trustees upon the same trusts; and concluded by declaring the codicil to be part of his will. Upon a case sent out of Chancery for the opinion of the Court of King's Bench, Lord Kenyon said, it was clear that a codicil, confirming a will of lands in general words, would pass lands purchased between the making of the will and the codicil. But here the question was, whether it was the intention of the devisor to pass by the codicil any thing more than would have passed by the will itself. Now what was this case? The testator gave all his real and copyhold estates to several trustees by his will, in words sufficiently comprehensive to carry all the estates of which he was then seised; then he made a codicil, not to extend his will, but only to revoke so much of it as vested the estates in some of the trustees, whom he had named in his will; and then he gave his said lands, &c. that is, those lands which he had before given by his will, to the rest of the trustees. The Court certified, that the codicil was not a republication of the will, so as to extend the operation of the will to the real estates purchased after the will was executed; it extended to the estates devised by the will, and no farther. 500. The Court of Chancery decreed accordingly. And 2 Bos. & Pull. on an appeal to the House of Lords, the decree was affirmed, with the concurrence of the Judges; Lord Thurlow dissenting, and holding the codicil to be a republication. 12. In the case of Piggott v. Waller, Sir William 7 Ves. 124. Grant said, he did not conceive the decision in Strathmore v. Bowes to be inconsistent with that of Barnes v. Crowe. It did not follow from the doctrine in the latter case, that if it distinctly appeared upon the face of the codicil that it was not the intention to republish the will, the codicil should be held a republication. In Strathmore v. Bowes, the Court held, that it appeared upon the face of the codicil that it was not the intention to pass any other lands than those which were devised by the will; it would have been a contradiction, therefore, to make it pass afterpurchased lands. second Will 13. Where a person makes a will, and afterwards Cancelling a revokes it by making another will, but does not republishes actually cancel the first will; the cancelling of the the first. second will is a republication of the first. 14. A person made a will in 1757, and another in Goodright 1763. The former was never cancelled; the latter 4 Burr. 2512. v. Glazier, But a Will once can was cancelled by the testator himself. Both were in the testator's custody at the time of his death; the second cancelled, the first uncancelled. The counsel for the heir at law contended that the second will revoked the first, and being afterwards cancelled, the testator had died intestate; and cited the case ex parte Hillier, 3 Atk. 798; where Sir George Lee determined that the execution of a second will was a revocation of a first, though the second was afterwards cancelled; and that the cancelling the second did not set up the first; which was the same point, only that it was personal property. Lord Mansfield said, that with regard to the case ex parte Hillier, Mr. Atkyns only reported what passed in Chancery: there might be other circumstances appearing to the ecclesiastical court, which might amount to a revocation of a will of personal estate. Here the intention of the testator was plain and clear. A will was ambulatory till the death of the testator. If the testator let it stand till he died, it was his will; if he did not suffer it to do so, it was not his will. Here he had two; he had cancelled the second; it had no effect, no operation; it was as no will at all, being cancelled before his death; but the former, which was never cancelled, stood as his will. Mr. Justice Yates said a will had no operation till the death of the testator; the second will never operated, it was only intentional; the testator changed his intention, and cancelled it. If by making the second, the testator intended to revoke the former, yet that revocation was itself revocable, and he had revoked it. 15. But where a person, having made a new will, celled mustbe cancelled the former one, and afterwards cancelled re-executed. the latter will; it was held that this did not amount to a republication of the former will: because, where a will is once cancelled, nothing but a re-execution of it will amount to a republication. Cowp. 49. 16. N. Newenden made a will in 1759, of which he Burtenshaw executed a duplicate, and gave it to another person: v. Gilbert, he made a second will in 1761, at which time he cancelled one of the copies of his first will, by tearing off the seal. After the testator's death, both the first and second wills were found together in a paper cancelled; and the duplicate of the first will was found uncancelled, in the testator's room, among other papers. It was determined that the testator had died intestate; for the cancelling the copy which the testator had in his possession, of the first will, was a cancelling of the duplicate: and therefore, at the time of making the second will, the first was, Pemberton upon every principle of law, most clearly revoked, v. Pemberand could never be set up again, but by a re-execu- ton, 13 Ves. tion. 290. 17. A surrender of a copyhold to the use of a A Surrender person's will may be worded in such a manner of a Copyas to operate as a republication of a former will, publication. so as to make the copyhold estate pass by such will. hold is a Re 18. A person having made his will, and devised Heylin v. all his freehold and copyhold estates to several Heylin, Cowp. 130. uses, afterwards purchased other copyhold lands, which he surrendered thus: "To the uses declared or to be declared in and by his last will and testa ment." The Court of Chancery directed a case to be sent to the Court of King's Bench, whether the afterpurchased copyholds passed by the will. |