publication by the codicil. He has certainly deposed, in this particular, with a degree of blameable confidence in the face of the instrument itself, and the attesting witnesses; but that very confidence tends to show his sincerity-for he must have been aware that the three attesting witnesses, supported by the instrument itself, might and probably would be, as they have, in fact, been, brought to contradict him.

But it has been contended that, at all events, this witness is so inaceurate and so defective, in point of memory, that the Court ought to place no reliance upon him, even though it should acquit him of intentional falsehood. This, however, is not a sound argument, to that extent at least, in my judgment. It by no means follows, that because a witness is inaccurate as to the date of a transaction which occurred six years before his examination, no reliance can be placed upon his memory as to facts and circumstances that passed only as many months before; and which facts and circumstances must have early become fixed in his mind, by his attention being called to them in consequence of proceedings to which they almost immediately gave rise. I think, therefore, that I cannot reject the evidence of this witness altogether, on the score of inaccuracy or deficiency of memory.

The other circumstance objected to this witness is, his having written receipts on the back of his own bond for 10007. lent to him by the deceased, acknowledging the payment of interest, and having signed those receipts himself. But this only proves to me, that neither of these parties were in habits of business, and that they were acting towards each other with that want of circumspection, proceeding from their mutual confidence in each other, which is by no means unusual in persons of their class and occupation. The deceased is proved to have been a person of very great indolence-and this witness signing the last of these receipts with the deceased's name, which has been much insisted upon, could hardly, by possibility, have been for any purpose of fraud. There appears to me no attempt whatever to imitate the deceased's hand-writing, such as it was. The bond, too, was to remain in the deceased's own possession-so, that this witness should have forged his signature at the back of it—that is, should have placed it there for any purpose of fraud-is quite out of the question. The occurrence at first sight may be startling to those who are accustomed to transact business in a more orderly and methodical manner-but it is an occurrence of no uncommon sort, between country farmers-something very similar to it would have passed, between two persons of this class, no long time back, under my own eye, but for my intervention. I think, therefore, that this objection does not materially detract from the credit due to Mr. How, any more than the preceding objections-and, giving him credit, he not only corroborates, and is corroborated, by the attesting witness-but he speaks to the history of the making and preparing of this codicil in a manner, which does not leave a doubt in my mind that it was legally prepared and executed, and is, in itself, a valid instrument.

The codicil then being, in the judgment of the Court, proved, and valid, the next consideration is, with which of the two wills is it to operate in conjunction? the will of 1814, or the will of 1817.

Now this I take solely to depend upon the result of a necessary previous inquiry, which is, to which of these two wills is the instrument in question to be taken as a codicil: For I apprehend the law to be

settled, 1st, that making a codicil to a will republishes that will; 2d, that the republication of a former will supersedes one of a later date, and re-establishes the first. If, therefore, this codicil is to be taken as a codicil to the will of 1814, I shall have no hesitation in pronouncing for it in conjunction with that will, notwithstanding the intermediate will of 1817.

First, then, I apprehend it to be clearly settled, that making a codicil to a will, republishes that will-that a codicil even of personalty, if executed so as to act on the subject, that is, if attested by three witnesses, republishes a will of lands; so that a will of personalty a fortiori, or a mixed will so far as respects personalty, is republished by a codicil, whether so attested or not. No evidence of intention to republish is requisite, in either case; the very act of making the codicil, prima facie at least, infers the intention. It is true, indeed, that this prima facie inference may be rebutted by proof, that the act was done by the deceased, in error, or obtained from him, by fraud. So the cancellation of a will may be shown to have taken place in error, or the execution of a new will to have been procured by fraud. Prima facie at least, however, the making of a codicil to a will, as much republishes that will, as a will is revoked, prima facie, by its cancellation, and as a new will, prima facie, annuls, and makes void any will of a prior date.

2. Secondly, the republication of a will is tantamount to the making of that will de novo; it brings down the will to its own date, and makes it speak, as it were, at that time. In short, the will so republished, is, to all intents and purposes, a new will. (a) Consequently, upon the ordinary and universal principle, that of any number of wills, the last, and newest, is that in force, it revokes any will of a date prior to that of the republication.

By the cases quoted of the Attorney-General v. Downing(b), of Barnes v. Crowe, 1 Ves. jun. 486, of Walpole v. Cholmondely, 7 Durnford & East, 138, and the rest, both these points seem to be clearly established, in the judgments of other Courts. It may be satisfactory to show, that in a case where the same points fell under the consideration of this Court, they were viewed in the same light, and determined upon the same principle.

I allude to the case of Jansen and Field v. Jansen, which occurred here in Trinity Term, 1797, in which case I was of counsel. The deceased, in that case, had executed a will dated on the 21st of July, 1792; he had made another will dated on the 18th of July, 1796; lastly, there was a codicil dated in March, 1797, referring, in terms, to his will (not of the twenty-first, but) of the first of July, 1792. The Court (Sir William Wynne), said, "If the codicil of 1797 refer to the former will and not to the latter, it revives the former. In the case of Lords Walpole and Cholmondely, it was held, that parol evidence was inadmissible to show, that the testator intended by his codicil, in which he referred to his last will of 1752, not to republish that will, but to confirm his real last will of 1756; there being no latent ambiguity as to which of the wills it referred to, in the codicil itself. In the present case, however, there is some ambiguity, in the codicil itself, as to this point; for it refers, in terms, to a will of the 1st of July, 1792, and there is no will of that

precise date extant. But here, in the first place, I must observe, it is much more probable that the deceased should have written the "1st of July, 1792," in error for the "21st of July, 1792," than that he should have written the "1st of July, 1792," in error, for the "18th July, 1796." The codicil is written somewhat inaccurately, and bears date only a short time before the deceased's death. It agrees with either will in its contents, but it was formed in conjunction with neither of the two; it is possible, therefore, and indeed to be presumed, that the deceased had neither of the two wills before him when he drew up this codicil." The Court then went on to state and examine the circumstances of the case, as disclosed in the evidence, for the purpose of determining to which will it was most probable that the codicil should refer; and having arrived at a conclusion, that it was to be referred, with much greater probability, to the will of 1792, than to that of 1796, it proceeded finally to pronounce for the will of 1792, in conjunction with this codicil, and against the intermediate will.

Here, then, is a case directly in point, and under the authority of that case, I proceed to consider whether this codicil is to be taken as a codicil to the will of 1814, or that of 1817; and I shall have no hesitation in pronouncing for it in conjunction with that will of which it is to be taken as a codicil, although this should be the prior will in point of date, or the will of 1814, not that of 1817.

Now, upon a full review of the case, what possible doubt can exist of the intentional, as well as actual, annexation of this codicil by the deceased, to the will of 1814, and not to the will of 1817? And, first, as upon the face of the several instruments, and without having recourse to extrinsic evidence.

And here, in the first place, is the circumstance of actual annexationit is annexed to the will of 1814, in point of fact; it is written on the very instrument itself. Why, this circumstance, as observed by the First Commissioner Eyre, in the case of Barnes v. Crow, is powerful to show, that it was intended as a codicil to the will of 1814, and to no other will. It is headed, "a codicil added to my will;" and begins, "Furthermore it is my will," &c. Could this be meant of any other will than that upon which it was written? A casual inspection even of the two instruments, will render it evident that any mistaking of the one will for the other by the deceased, at the execution of the codicil, was hardly possible. The codicil is written towards the bottom of the third side, or sheet, of the one instrument, the will of 1814. On the upper part of that sheet were, fairly and legibly, written, not only his own signature, but the subscriptions of the three attesting witnesses; at the head of them, that of his confidential solicitor, Mr. Worsley, written in a large character. Why the deceased, when about to execute this codicil, could hardly fail to perceive that he was going to execute a codicil written upon Mr. Worsley's will, namely, the will of 1814, and not written upon the other will, that of 1817, which has no external resemblance to the former-as being written on one side of paper only, and with much darker ink, and which was subscribed by three persons, with whose names the deceased could not be familiar, as it does not appear that he ever saw either of them, but upon the single occasion of their attesting his will. Added to this, I may just observe, that it is an admitted fact in the cause, that the will of 1814 was constantly in the deceased's possession; that the will of 1817 was taken, and kept posses

sion of, by Pittis, and was never in the deceased's custody, or under his controul, for a single day. Lastly, the contents of the codicil agree with those of the first will, and those of the first will only; for the furze-house, bequeathed to Vesey by it, is plainly an adjunct to the cottage, opposite the deceased's house, on Brook Green; the bequest of which cottage to Vesey, by the will of 1814, is revoked by the will of 1817.

Now, I very strongly incline to hold what has been forcibly argued by one of the counsel, that nothing in the shape of what he has termed mere inferential evidence could avail, to counterweigh these strong presumptions, growing out of the instruments themselves, that the deceased meant this as a codicil to the will of 1814, and not as a codicil to the will of 1817. But mere inferential evidence is all that has been attempted to be adduced by way of countervailing those presumptions. For what in substance is the case set up by Mr. Pittis, the party upon whom, I must observe, the burthen of proof is clearly imposed by the circumstances of It is this: the deceased's augmented regard and affection for him, and his family; his diminished regards, and alienated affections, to, and from, his other nieces. Upon this showing, this Court is asked to infer, that the deceased could not mean to revoke a will by which he had given the whole of his property to Pittis, and to revive one in which it stood bequeathed equally to Pittis and the other nieces, and upon this inference, it is further asked to pronounce for the will of 1817.

the case.

I entertain, I repeat, strong doubts whether this inference, if ever so fairly raised, could enable me to arrive at any such conclusion as that which is prayed; and, in this view of the subject, it is perhaps unnecessary to travel further into the circumstances of the case. But I am un

willing to pass them over altogether, as being of opinion that, upon the result of the whole evidence, no such inference as that contended for on the part of Mr. Pittis, is fairly raised.

Stephens, the deceased, was an opulent farmer, living at Brook Green, in the Isle of Wight; he was about sixty years of age, and of reserved habits, and suffered much from illness, being severely afflicted with rheumatism. During his brother's life he principally managed the deceased's concerns; but on the death of his brother, which preceded his own about ten or eleven years, the management of the deceased's business, and property, fell, considerably, into the hands of Mr. How, a neighbouring yeoman, and much in his confidence, who appears to have served parochial offices for him, and, in brief, to have done him a variety of kindnesses. The deceased himself was so indolent, as, during his brother's life-time, hardly ever to have gone to Newport, the nearest market town; and it seems that he had not been there for the last four or five years of his own life.

The deceased had made a will in the month of November, 1813, disposing of the bulk of his property, in a manner precisely similar to that in which it was disposed of by the subsequent will of 1814, before the Court, namely, to, and equally between, his three nieces. He bequeathed by that will, an annuity of 50l. as well as his household goods and plate to his old servant Vesey, and appointed a Mr. New and Pittis, his

executors.

In July, 1814, the deceased made a new will, being the one of that date propounded in this cause. His sole object in making it, as spoken to by Mr. Worsley, his solicitor, was to leave, in addition to his for

mer bequests, the cottage on Brook Green, already mentioned, to Vesey, and to substitute Mr. Howe for an executor, in the room of Pittis.

Now, from these alterations two inferences necessarily arise; the one, that the deceased's regard for Vesey was increasing at this time; the other, that his confidence in Pittis was diminishing, for Pittis is displaced from the executorship, and How, as I have already said, is substituted in his room. In these testamentary intentions, however, the deceased appears to have persisted for nearly three years, till the 4th of June, 1817; when he is alleged to have signed the will propounded by Pittis; a transaction to the brief consideration of which I now proceed to apply myself.

On the 4th, then, of June, in the year 1817, Mr. Pittis applies (not to the gentleman whom the deceased had constantly employed in that capacity, but) to his own solicitor, and instructs him to prepare a will, as for the deceased to execute; the purport of that will being to appoint himself an executor, and his wife the sole legatee of the deceased's property, real and personal, with the single exception of a life annuity of 50l. to Vesey; a bequest, which it is open to conjecture, was inserted purely for colour, and by way of saving appearances. No time is lost in complying with Pittis's instructions, which are reduced into a will on that very morning; and Pittis himself is the person who conveys it to the deceased for execution. The attesting witnesses are neither friends, or neighbours, of the deceased, nor any persons casually at hand; but Pittis sends into the country, a distance of ten miles, for two of his own labourers, and his brother's shopman, for the express purpose of attesting the execution. Vesey, the deceased's old confidential servant, his faithful housekeeper, is left wholly in the dark as to the nature of this transaction-whether it is a will, or a bond, or what it is, that her master is to execute in the presence of these witnesses, she is kept in utter ignorance of. The will itself is not read over to the deceased, in the presence of any one of these witnesses. Pittis is the person all along closetted with the deceased-and how he represented the matter to himwhat he said, or did not say,-what he did, or omitted to do-is matter of mere conjecture. He might have read over the will to the deceased, but there is no proof that he did. The witnesses are then introduced: one of them speaks to hearing the deceased desire them to come in, and "witness the execution of his will:" one other says, that he "appeared to be reading over the instrument (not specifying its nature) which he subsequently executed," and that "he put it down, and said he was satisfied with it." Other than this there is no proof that the deceased knew that the instrument, which he was about to execute, was a will; still less is there any proof that he knew what were its contents. The formal execution then takes place.

Observations undoubtedly might be made upon the face of that execution; it might be fairly questioned whether it was, or was not, such an execution as would amount to a revocation of the will of 1814, under the statute of Frauds. But I conceive that they are wholly uncalled for, and consequently that they would be out of their place, upon the present occasion. It is quite sufficient for any purpose with which I am considering the transaction in question to state, that it is one, in my judgment, of a very unsatisfactory, and of a very unexplained character. True it is, that agents of unimpeached capacity are presumed to be aware of the contents of instruments which they execute de facto; and the agent's capacity, in the present instance, is unimpeached; so that the