[ 404] If an estate be limited to B and his heirs, and B die in the testator's life lication of Sir William Lytton,() by his will, 23d March, 1700, devised all his lands to his nephew, Lytton Strode and his heirs, and directed that he should take the surname of Lytton; and his personal estate he devised to Dame Russell, his sister, and Lytton Strode, and made them executors. After his will made, Sir William Lytton purchased the equity of redemption from the mortgagors in fee, of premises which were mortgaged to him before he made his will; and on the 13th June, 1704, by a codicil attested by three witnesses, he said, I make this codicil, which I will shall be added to and be part of my last will which I have formerly made, and the Lord Chancellor Cowper assisted by Sir John Trevor, Master of the Rolls, Lord Chief Justice Trevor, and Mr. Justice Tracy, on the 16th June, 1706, decreed that this was a not a republication, for, that since the statute of frauds, there could be no devise of lands by an implied republication; for the paper in which a devise of lands is contained, ought to be re-executed in the presence of three witnesses. *With respect to the first of these two cases, determined by Lord Parker and the judges of the court of King's Bench, though the resolution seems to have been grounded upon the rule then adopted, of holding the statute of frauds to be inconsistent with time, the de- all implied republications of wills, and which, consequently, forvise lapses; bade such effect to be given to a codicil which declared no positive and a repubintention to republish the will, yet, according to the principle of the will does the case of Brett v. Rigden, k) above-mentioned, and the rule of not give to the heir of B construing a republication of a will, not to expand or alter the a claim by purchase. sense of its expressions, or the legal effect of its limitations, but . to apply those expressions and limitations to the existing state of the subjects and objects of the dispositions at the date of the republication, I do not see how any other judgment could have been given, even on the supposition that the will was republished ; for if a will limits an estate to go by descent, and the person through whom the descent is to be transmitted, dies before the testator, the devise has clearly lapsed; and if such will is republished, no person can take an estate under it in any other way, than that in which the original limitation was calculated to give it to him; he cannot take as a purchaser what, according to the effect of the limitation, he was designed to take by descent. (i) Lytton v. Lady Falkland, Vin. Abr. tit. Dev. (Z.) 345; and see Hartop's case, Cro. El. 243. (k) Plowd The principle of this reasoning was recognised in Sympson v. Hornsby,() the question in which case arose upon the will of one T. A. who, having a wife and only two daughters, devised lands in several towns to his wife for life, for her jointure; and, after the death of his wife, to his daughter Bridget, and the heirs male of her body; and for want of such issue, to his daughter Jane for her life, and after her death, to her first and other sons, in tail-male successively, with several remainders over. Bridget died in her father's life-time, leaving issue a son, whom the grand-father took into his own house, and expressed much kindness for. Afterwards *the grand-father made a codicil which be- * [405] gan thus: "A codicil to be annexed to my will." And thereby he gave some part of a leasehold estate (which by his will was given to his daughter Bridget) to her son, added another trustee for some charities, and duly executed the same. And the Lord Chancellor, after looking into the books, said he found it already settled, that Bridget dying in the life-time of the testator, the heirs male of her body could not take by purchase, for these words, heirs male of her body' were inserted to express the quantity of the estate; though if the thing were res integra, he thought it plainly the intention of the testator, that Jane should not take till there should be a failure of the issue of Bridget, for this he thought the words for want of such issue fully imported. These cases, therefore, involved circumstances which would have been an answer to the claims set up under the will on the ground of its being republished by the codicil, with oppugning the doctrine of an implied republication, for, upon the principle just above discussed, the republication of the will would not have extended the devise to the parties founding their pretensions upon it in those cases. However, in Lord Lansdown's case, we have observed, that Lord Parker in terms denied the possibility of any implied republication of a will of lands since the statute of frauds; and in the case above mentioned of Lytton v. Falkland, the reso lution could only be founded upon the supposed effect of the sta tute, to exclude all implied republications, where real property was in question. Upon these authorities a clear doctrine arose, apparently agreeing with the provisions of the statute, the sense whereof ap (1) Prec. Ch. 439. * [406] peared to be, that though the will and codicil were both executed according to the statute of frauds, yet the codicil should be no republication of the will, so as to draw down the date of such will to that of the codicil, but the will itself ought to be re-executed to affect real property acquired since its original execution. About 10 years after Lord Macclesfied, *then Lord Chief Justice Parker, had decided the case of Panphrase v. Lord Lansdown in the court of King's Bench, Acherley v. Vernon(m) came before him in the Court of Chancery, when his Lordship held an opinion on this subject, not conformable to that which he is represented to have pronounced on the former occasion. The case was as follows: J. S. by a will dated the 17th January, 1711, devised to M. his wife, 1000l. per annum for her life, to issue out of his real estate at H. &c. to his sister E. 200l. per annum, for her life; and 1000l. to L. her daughter, for her portion; and after other legacies, he devised the residue of his real and personal estate to A, B, C, D, and E, and their heirs, executors, and administrators, on trust to vest the residue of his personal estate in lands of inheritance, and directed that his trustees should stand seised and possessed of his real and personal estate to the uses of his will, during his wife's life; and after her decease, if he should die without issue, to the intent that his freehold and leasehold estates, and the lands to be purchased, should be settled to the use of the defendant G. for 99 years; then to his first and other sons in tail male, &c. J. S. purchased several fee-farm rents, assart rents, and other lands and tenements, and then by a codicil, dated 2d Feburary, 1720, being two days before his death, he recites, that he made a will, dated 1st January, 1711, and then says, "I hereby ratify and confirm the said will, except in the alterations hereafter mentioned. The portion to my niece L. shall be made up 60007. and what I have given to my sister and niece shall be accepted by them in satisfaction of all they may claim out of my real and personal estate, and on condition they release all right, &c. to my executors and trustees, in my will named ; and thus having provided for my sister and niece, I devise all the lands by me purchased since my will, to my trustees and executors in my will named, to the same uses, and subject to (m) Com. 381. the same trusts which I have mentioned, to devise the manor of H, and the bulk of my estate; and I revoke that part of my will, whereby I appoint A, B and C, three of my trustees, in my will, and I desire K and N to be two of my trustees, and devise my said real estate to them accordingly." Lord Chancellor Macclesfield decreed, that the will was confirmed by the codicil; that J. S's signing and publishing his codicil, in the presence of three witnesses, was a republication of his will, and both together made but one will; and by the said will and codicil, his fee-farm rents, assart rents, and lands, contracted to be purchased, and all his real and personal estate, (except the copyhold purchased before his will) did well pass. On appeal to the Lords, the decree was affirmed. Notwithstanding the codicil in the case last produced, expressly confirmed the will, yet the decree of the Court, and the judgment of the Lords, have been considered as standing on the general ground, that every codicil refers to and acts upon the will, and must, in its nature, not only suppose the existence thereof, but must attract it into a union and incorporation with itself, bringing it down to its own date. And upon the authority of this case, has been built the proposition, that whatever be the apparent purpose of making the subsequent instrument, and whether the subject of its express disposition be real or personal estate, if it import to be a codicil, and have the signature of the testator, and the attestation of three witnesses, agreeably to the directions of the statute, in respect to wills of real property, it will have the effect of republishing the will. This interpretation of the ground of the decree in Acherley v. Vernon, seems to be built upon the general expression of Lord Macclesfield, in that case, "that the codicil being executed and attested by three witnesses, was a republication of the will; and that they became one will;" and to be sure, this seems the safest and broadest ground for the doctrine to repose upon; for the words of confirmation in the codicil, in Acherley v. Vernon, and those declaring the codicil to be part of the will, were only the utterance of the tacit effect of every codicil, which in its very nature supposes and recognises the existence and operation of the will. [ 408 ] That this was Lord Hardwicke's apprehension of the latitude of the case of Acherly v. Vernon, is clearly made to appear by * * [ 409] The present doctrine the expressions used by him, in Gibson v. Lord Mountfort,(n) where his lordship says, that in Acherly v. Vernon, it was the opinion of the judges, that the codicil was incorporated with the will, which made it a republication: thence deducing this general proposition, that every codicil executed according to the statute of frauds, to whatsoever part of the property it may relate, would be a republication of the will. It was admitted for the heir, said his lordship, that though it is a codicil only to a personal estate, yet if there is a general clause of confirmation of the will, that that will make the codicil, duly executed, a republication of the will. But, said the same Chancellor, this will make every codicil a republication, if it is executed by three witnesses, though it relates only to personal estate; for a codicil is, undoubtedly, a farther part of the last will, whether it be said so or not. But in the Attorney General v. Downing,(0) the Court seemed to be inclined to a middle course between the case of Acherley v. Vernon, wherein the mere act of making a codicil executed according to the statute, was a republication, and those of Panphrase v. Lord Lansdown, and Lytton v. Lady Falkland, in which all implied republication was excluded; by requring an intention to republish to be declared or expressed, or otherwise distinctly manifested, by the testator, in order to give to his codicil that effect. And Lord Chancellor Camden held, that the annexation of the codicil to the will was one of the modes by which such intention might be declared, and was therefore a republication. And his Lordship seemed to think, that the expressions used in the codicil, in Acherly v. Vernon, were the founda tion of the decree, for the words, he said, were so blended with, and incorporated into the will, that the one could not stand without the other. *By the settling case of Barnes v. Crowe,() the case of Acherley v. Vernon, has been set up as the great authority on this subholds every ject, to the full extent of the doctrine ascribed to it by Lord Hardless it be con- wicke, in Gibson v. Mountford, as above laid before the reader; fined in ex- and the effect of annexation was there denied, as being only papression, a codicil, un republication rol evidence of a republication, which Lord Commissioner Eyre of a previous said, could not be received since the statute of frauds. will, if such "If we codicil be ex- disentangle ourselves from the rule," said the Lord Commisecuted and attested acsioner, "that there shall be no republication without re-execution, cording to the statute. (n) 1 Vez. 492, 3. (o) Ambler, 571. (p) 7 Vez. jun. 486. |