Cases wherein two legacies have been given by will to the same person, and he decreed to have only one, or both of them, have heretofore been mentioned, in treating on reconciling repugnant clauses i And that a legacy may be adeemed by testator's selling stock specifically bequeathed, is hereafter shewn in treating on specific legacies.

And thus having proceeded concerning how a will, after being made, may be revoked in whole or in part, we come now to make some observation on what might be done for rectifying the revocation; and as under some circumstances this might be effectuated by a codicil, and in some cases by

Page 199.

generis, and equally beneficial to the child. Therefore land is not a satisfaction for money, nor is money for land. Bengough v. Walker, 15 Ves. 512. So a gift for the absolute benefit of the legatee is prima facie not an ademption of a legacy which gives only a qualified interest. Thelluson v. Woodford, 4 Madd. 420. And an advance to a legatee is not an ademption, if the nature of the gift is different from the legacy. Bell v. Coleman, 5 Madd. 22. Unless, indeed, the intent of the testator that they should so operate is manifest and expressly declared. Id. ibid. Byde v. Byde, supra. There is however this restriction imposed upon the generality of the rule, that to have the effect of satisfaction or of ademption the donor must be a parent, or a person acting as a parent, and discharging parental duty towards the legatee, for the rule is founded upon the artificial notion, that the parent is paying a debt of nature, and a sort of feeling upon what is called a bearing against double portions. A gift by a stranger to a legatee is not an ademption of a legacy given by such stranger to him, because a stranger is in general understood as giving a bounty, not as paying a debt; he must therefore be proved to mean it as a portion or provision, either upon the face of the will, or by evidence applying directly to the gift proposed by that will. 18 Ves. 153, 154. Coop. 281. And in this respect an advantage is given to illegitimate over legitimate children, for in the latter case a portion would be a satisfaction of a legacy; but it would not so operate in the former case. Ex parte Dubost, 18 Ves. 140. Wetherby v. Dixon, Coop. 279.

republishing the will, we shall now advert to and treat on those particulars.

A codicil is a schedule or supplement to a will, or an addition made by the testator annexed to and to be taken as part of a testament; being for its explanation or alteration, or to make some addition to, or subtraction from the former dispositions of the testatork. An executor cannot regularly be appointed by a codicil, yet may be substituted, according to the will of the testator 1. A man may make divers codicils, and the first is of equal force with the last, if not contradictory to each other; and herein they differ entirely in their nature from wills, for no man can die with two testaments, because the latter doth always infringe the former, but a man may die with divers codicils, and the latter doth not hinder the former, unless they be contrary m.

When a codicil is added to a will with intent to pass any real estate, care should be taken in using words sufficient, whether it be for altering former dispositions or disposing of estates purchased after the will was made; and the testator should execute the codicil in the same manner, and with the same number of witnesses, as is requisite to the executing an original will according to the statute. So, if a will concerns only personal estate, and a codicil is added with intent to make any alteration, subtraction, or addition, care ought to be taken in using words sufficient for the purpose. Where there is time and opportunity for writing over the will afresh, and thereby to make such alteration as may be necessary, it is much more advisable so to do than to make alteration by a codicil, which will not only increase the expence of the probate when the will comes to be proved, but perhaps require as much, if not more nicety in framing than the will itself.

With respect to what will be a republication of a will of land, or real estate, by a codicil, under different circumstances, appears to have been a subject of much litigation; a variety of cases pertaining thereto are collected and discussed

* Godolphin's O. L. p. 1. c. 1.

sect. 3.

í Swinb. 14.

Ibid. 15.

in the case of the Attorney General v. Downing before the court of chancery in 1769". And in a case before the court, where the testator after having made his will renewed a prebendal lease, and some years after having purchased another prebendal lease, he made a codicil to his will, (which he declared was to be annexed to his will,) and thereby he gave the newly purchased estate to trustees, to the use of his daughter Mary for life, remainder to other uses. On the question, Whether the renewed lease was not an ademption of the bequest, and if so, whether the codicil was a republication of the will? It was argued, that, in the Attorney General v. Downing, it was decided that a will was republished by a codicil annexed to it, though the codicil related to subjects perfectly distinct from the will, and that a will of land would be republished by a codicil relating wholly to personalty, provided it was attested by three witnesses.Lord Chancellor. The ground of Lord Camden's opinion in the Attorney General v. Downing was, that where the testator annexes a codicil to his will, he treats them as one instrument, and makes them so from that time. But, without entering into the question of republication of wills of lands, I think that in this case, where the testator speaks of a codicil to be annexed to his will he speaks again of his will, and, at least, in case of personal estate, it amounts to a republication ⚫ (10).

n

Reported in Amb. Rep. 571. • Coppin v. Fornyhouse, 2 Bro. Cha. Rep. 291. The same point was agitated, and divers cases alluding

thereto cited, in arguing the case of Powel v. Cleaver. But nothing was said by Lord Chancellor thereon. Ibid. 511. 513.

(10) A codicil executed with the same solemnities which are required in order to render valid a devise of real estate, and which contains a general clause of confirmation of the will, or sufficiently indicates an intention that the will shall be deemed of the same date with the codicil, will have the effect of republishing a will of real estate, although the codicil relate merely to personal estate. Gibson v. Lord Montfort, 1 Ves. sen. 493. For where the will is republished by a codicil, the will and codicil are considered in point of

Where a man may have by him two or more wills, the latter, as above mentioned, overthrows the former; but the republication of a former will revokes one of a later date, and establishes the first again P; so that what was before rendered void becomes valid by the new publication; and if there are words contained therein sufficient for passing or conveying such estate as the testator is possessed of at the time of the republication, to the person or persons for whom the same is designed, it may answer the purpose of making a new will; but if the words contained therein are insufficient, it will not be effectual; for the republication makes no alteration in the words of the will, and therefore can have no effect where the words are not sufficient to convey the estate to the person or persons for whom it is designed. Where the will concerns real estate it is safe to republish it in a formal manner, as by the testator's taking it in his hand and declaring the same to be his last will, in the presence of three witnesses; and then to make a memorandum thereof in writing at the bottom of the will, or if there should not be room sufficient, then in the margin or on the back thereof, which may be as follows, viz.

P 2 Black. Com. 502.

law as constituting but one instrument; and the operation given to the codicil is to bring down the will to the date of the codicil, making the will speak as of that date. Acherley v. Vernon, Com. 381. Barnes v. Crowe, 1 Ves. jun. 486. S. C. 4 Bro. C. C. 2. Piggot v. Waller, 7 Ves. 98. Therefore lands purchased after the date of the will, and before its reexecution, or before the date of the codicil, or lands contracted for before the date of the will, but conveyed between the dates of the will and codicil, will pass under the will, if the terms of the will are sufficiently comprehensive to include them. Goodtitle v. Meredith, 2 Mau. & Selw. 5. Hulme v. Heygate, 1 Meriv. 285. Rowley v. Eyton, 2 Meriv. 128. And an actual annexation of the codicil to the will is not essential to its republication. Toller on Executors, 30.

Whereas I John Mills, the testator named in this will, have republished the same, with an intent thereby to make void all and every other will and wills at any time heretofore by me made, and to confirm and establish this, which I have declared to be my last will and testament, in the presence of John Smith, Alice Smith, and Thomas Jones, who I have desired to subscribe their names as witnesses hereto : and in witness whereof I the said John Mills have hereunto subscribed my name this day of in the year of our Lord 18

Signed by the said John Mills, in the presence of us, who, at his request, and in his presence, have subscribed our names as witnesses to the above republication.

JOHN SMITH.

ALICE SMITH.

THOMAS JOnes.

JOHN MILLS.

If the will concern only personal estate, it will not be amiss to use the same formality for republishing it, though more slender evidence will be sufficient for the purpose. As to bequests and testaments of personal estate, and a devise affecting real estate, there is this distinction. The former will operate upon whatever the testator dies possessed of, whether he had it at the time of making his will or the same was afterwards acquired. The latter will operate only upon such real estates as were the testator's at the time of executing and publishing his will; wherefore no real estate purchased afterwards will pass under such devise, unless subsequent to the purchase or contract the devisor republishes his will (11). So here, if a man having made his will, and thereby devised the whole of his estate and effects, and afterwards purchases any real estate, and dies, without

(11) See the observations of Lord Eldon in Bland v. Lamb, 2 Jac. & Walk. 405.