might, by reference to such repealing will, at any time make a testamentary disposition of the estates, without the least attention to the ceremonies required by the statute. This would let in all the inconveniencies of frauds and perjuries intended to be prevented by the last-mentioned statute, in regard to testamentary dispositions of land: nay, the legal absolution might possibly be extended to the statute of wills, as well as that of frauds, &c.; and by considering the first intermediate will a sufficient compliance, as well with the requisition of writing, required by one statute, as of the ceremonies of execution, by the other, a parol appointment of the trusts might be attempted, under a power worded for that purpose in the original absolving will." This opinion has been established as good law, by the following determination. 5 Term R. 51. Samuel Hill, by a will duly attested, devised his Habergham freehold estates to five trustees, and the survivors and V. Vincent, survivor of them, their and his heirs and assigns, to 92. the use of his grand-daughter for life, remainder to her first and other sons in tail male, remainder to her daughters as tenants in common in tail general, remainder unto or for the use of such person or persons, and for such estate or estates, as he, by any deed or instrument to be executed by him, and attested by two or more credible witnesses, should direct, limit, or appoint. The devisor, by a deed-poll dated the day after, under his hand and seal, attested by two witnesses, after reciting his will, in pursuance of the power thereby reserved to him, limited and appointed his estates, after the death of his granddaughter, and failure of her issue, to the first and other sons of his son, &c. A question was referred by the Court of Chancery to the Court of King's Bench, VOL. VI. G 2 Ves. Jun. 204. Vide Rose v. Cunningham, infra. Wills charg whether the two instruments, taken together, were, at the time of the death of the devisor, sufficient to pass any estate or interest in the freehold premises, not given by the first instrument. The Court of King's Bench certified their opinion, that the two instruments taken together were not sufficient to pass any estate or interest in the freehold premises, not given by the first instrument; on the ground, that the second instrument was a deed and not a will. The cause coming on for further directions, Lord Loughborough called to his assistance Mr. J. Buller, and Mr. J. Wilson, and they were all of opinion that the second instrument was testamentary; but not being attested according to the statute of frauds, could have no operation or effect. 52. The statute of frauds requires that all devises ing Lands are of lands or tenements shall be executed in the manwithin the Statute. 2 Atk. 272. ner above stated; and it has been determined, that all devises by which terms for years, or other interests arising out of lands, are created, or by which powers to sell or charge lands are given, are within the statute. And therefore where an estate is devised 2 Ves. 179. for a term of years, or a sum of money is given originally and primarily out of land, a will containing such a charge, must be executed in the manner prescribed by the statute; because it is the same as a devise of the land, since the term of years is an interest in the land; and money thus given can only be raised by a sale of the land. But not Wills or Codicils giving Lega cles. 53. There is one exception to this rule, which has been already mentioned; namely, where a will duly executed according to the statute, contains a general charge on lands, in aid of the personal estate, 1Ab. Eq.409. it will extend to legacies given by a subsequent will or codicil, not duly attested. Hyde v. Hyde, 54. Richard Boughton, by a will executed ac- Brudenell v. Boughton, cording to the statute of frauds, gave his sister 4007. MS. Rep. and the remainder of his estate, after payment of his 2 Atk. 268. debts and legacies, to his brother. By another will, not duly attested, he gave to the same sister 1007., and to another sister 400l., and all the rest of his estate, real and personal, to his brother. One of the questions in this case was, whether the legacies given by the second will, could be considered as charged upon the land, by the first will; the testator having subjected his real estate to the payment of his debts and legacies. Lord Hardwicke." I am of opinion, that the lesser legacies given by the second will, are chargeable upon the lands devised by the first. Consider them first as new original legacies; the second will is a complete disposition of his personal estate; and if a man charges his lands by his will with all his debts and legacies, and afterwards gives other legacies by a codicil, not properly executed within the statute of frauds, the new legacies would affect the land, notwithstanding the insufficiency of the codicil to pass lands; because this is considered as done in execution of a power which the testator had reserved to himself, by charging his lands with his debts and legacies in general; according to Masters v. Masters, 1 P. Wms. 421. And there is no more inconvenience in this, than in a charge upon his lands of all his debts; where debts contracted at any time after, during his life, would certainly affect all his lands. So if a man makes two wills, one of his real, the other of his personal estate, legacies given by the second will, though executed only so as to pass the personal estate, would still affect the land, if there was a general charge of his debts and legacies upon the land, by the first. But in our case the second legacies are not new legacies, they are but a modification of the former; and had they been given in the same manner as the first, there could not have been a doubt of this matter. The difficulty arises only from the difference of interests given by the one will, and the other; but still it is only an alteration of the intent of the testator as to the quantum, and Vide 5 Term a modification of the former; they remain part of the former, and the revocation but pro tanto." R. 95. 434. 8 Ves. 495. 2 Ves. Jun. 231. Fearne's Op. 55. This doctrine is founded on the principle, that a charge of debts or legacies amounts to no more than making the real estate auxiliary to the personal; or in other words directing it to be converted into, and applied as part of the testator's personal estate, and in aid thereof. And Mr. J. Buller, in the case of Habergham v. Vincent, cited the case of the Duke of Bolton v. Williams, in which a term for years was created by a will duly attested, for payment of all snch legacies as the testator should mention in a codicil. He afterwards made a codicil unattested, giving legacies and annuities; the annuities were held to be legacies. And Lord Loughborough observed, that all the cases of this kind were not cases of a primary substantive and independent charge upon the real estate, but a charge upon it in aid of the personal, which was primarily charged; and that the statute of frauds did not prevent a man from creating, by will, a fluctuating charge upon real, in aid of personal. Smart v. 56. But if a person by a will duly attested, charges his real estate with such legacies and annuities as he shall afterwards give and charge upon that estate, whether attested or not; a charge by an unattested codicil will not be good. 57. A person by his will duly executed, devised to trustees, their heirs, executors, &c., a plantation in the island of Grenada, upon trust, by and out of the produce thereof, to pay off debts and incumbrances; and also to pay off and discharge all such annuities, legacies, or bequests, as he should give by his will, or by any codicil or codicils thereto, or by any writing or writings at any time or times after signed by him, or in his own handwriting, whether witnessed or not. The testator by an unattested codicil gave an additional annuity of 100%. to his wife, out of his Grenada estate; and the question was, whether this codicil was sufficient to charge the Grenada estate. Sir W. Grant, M. R.-" The ground upon which it is contended that this additional annuity of 1007. might be good as a charge upon the Grenada estate is, that the estate being once charged with all legacies and annuities, the testator may afterwards give either legacies or annuities by an unattested codicil. That the rule is so settled in many cases; and if this were that case, unquestionably it is too well established to be now disturbed; though it may be doubted whether it is perfectly consistent with the statute of frauds; for in effect the testator does dispose of his land by an unattested codicil, when he is at liberty to burthen it with legacies so given. However, in this case, the testator does not charge the Grenada estate with legacies or annuities generally, but with such only as he shall afterwards give and charge upon that estate; so that, as legacy or annuity, it is not at all chargeable upon the estate; but it is as he has thought fit, by an unattested codicil, to declare, that it shall be a charge upon the estate. The reason that debts and legacies may be a burthen upon the Rose v. Cu12 Ves 29. ninghame, |