the case of the Attorney-General v. Dowding was overruled in Barnes v. Crowe, 1 Ves. jun. 486, upon the authority of Acherly v. Vernon. The principle established by Barnes v. Crowe seems to be that a codici attested by three witnesses, though it relates only to personal estate, is an implied republication of the will. For the testator's acknowledgment of his former will considered as his will at the execution of the codicil, if not directly expressed in that instrument, must be implied from the nature of the instrument itself; because by the nature of it, it supposes a former will, refers to it, and becomes part of it, and being attested by three witnesses, his implied declaration and acknowledgment seems also to be attested by three. By the codicil in Barnes v. Crowe, the testator revoked some legacies, and gave a moiety of two leasehold houses, and concluded thus: "In witness "whereof I, the said testator,

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"of, set my hand and seal." And in Pigott v. Waller, 7 Ves. 98, a codicil executed by the testator in the presence of three witnesses, though it only revoked two legacies given by the will, and another codicil, and gave another legacy in lieu thereof, was holden to be a republication of the will to pass after-purchased lands. There the words of the codicil were, "A co"dicil made and published by me, and to be annexed to my will, and made part thereof to all intents and purposes." But where the testator had by his will devised all his freehold and copyhold estate, and afterwards purchased new lands, and then made a codicil, whereby, after reciting that he had devised all his freehold and copyhold to certain trustees, he revoked the same so far as related to two of the trustees named, and devised his said lands to the other trustees upon the same trusts, and concluded with declaring the codicil to be part of his will, that was held not to pass the afterpurchased lands. For in that case 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. 7 T.R. 482. Strathmorev. Bowes (s).

Bowes. A codicil attested by three witnesses, "to be taken as

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With respect to revocations of wills, they are either implied by operation of law, which may still be, notwithstanding the Statute

part of his will," was held to be a republication, and to pass lands contracted for before the date of the will, and conveyed between it and the codicil. 2 M. & S. 5. Goodtitle v. Meredith. That case was decided on the authority of the series of cases mentioned in this note of Mr. Serjeant Williams: the effect of which, as stated by Lord Ellenborough, C. J., is, “to give an operation to "the codici per se, and inde"pendently of any intention, so "as to bring down the will to the "date of the codicil, making the "will speak as of that date, un"less indeed a contrary intention "be shewn, in which case it will

repel that effect." See also 1 Mer. 285. Hulme v. Heygate. 2 Mer. 128. Rowley v. Eyton. [3 B. & C. 705. Duffield v. Elwes. 5 D. & R. 764. S. C. 2 Bing. 429. Guest v. Willasey. 10 Moo. 223. 3 Bing. 614. 12 Moo. 2. S. C. 10 B. & C. 895. Williams v. Goodtitle. 12 M. & W. 591. Doe v. Walker. 1 Roberts, 363. 6 M. & Gr. 813, 825. Doe v. Marchant. 11 C. B. N. S. 341. Dickinson v. Ste

of Frauds, or express, according to the direction of the statute. Implied revocations have been decided upon nice and artificial

In

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The new

dolph. 4 Kay, 23, 673. re Earle's Trust.] For instances, where, in accordance with Strathmore v. Bowes, the ordinary presumption of republication by codicil has been counteracted by a contrary intention apparent on the face of it, see 3 Y. & Jerv. 278. Smith v. Dearmer. 2 Russ. & M. 117. Monypenny v. Bristow. 3 Mylne & K. 666. Hughes v. Turner. 15 Q. B. 848. Doe v. Hole. 11 Moo. Hughes v. Hoskins. Statute of Wills (1 Vict. c. 26) does not appear to have altered the general law as to republication by codicil. See 12 M. & W. 591. Doe v. Walker. 4 Notes of Cas. 74. Skinner v. Ogle. 1 Roberts, 363. S. C. The subject, however, with respect to wills within the operation of that statute, has greatly diminished in importance; for not only is the testamentary power extended to after-purchased lands (s. 3, see ante, p. 402, n. (m)), but it is further enacted (s. 24, ante, p. 403, n. (m)) "that every will "shall be construed, with reference to the real estate and per

reasons, from an inclination, it is said, which the law always shews to favour an heir, and to prevent him from being disinherited, being disinherited,

"sonal estate comprised in it, to speak and take effect as if it "had been executed immediately "before the death of the testator, "unless a contrary intention shall appear by the will." With respect, indeed, to wills, which shall be in any manner revoked, the law as to republication has been materially altered by the 22nd section; for it is thereby enacted, that no such will or codicil, or any part thereof, shall be revived otherwise than by reexecution or by a codicil duly executed as required by that Act, and shewing an intention to revive the same. This section proceeds to enact, that "when any will or codicil, which shall "be partly revoked, and after. "wards wholly revoked, shall be "revived, such revival shall not "extend to so much thereof as "shall have been revoked before "the revocation of the whole "thereof, unless an intention to "the contrary shall be shewn." This enactment appears to provide for cases similar to that of Crosbie v. M'Doual, 4 Ves. 610, where the testator had executed several

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where the intention of a testator is doubtful. 3 Atk. 747. Parsons v. Freeman. The grounds of the decisions have not always

codicils to his will containing partial alterations of, and additions to it; and, by a further codicil, referring to the will by date, he changed one of the trustees and executors, and in all other respects expressly confirmed the will: And this confirmation was held not to revive the parts of it which were altered or revoked by the former codicils. It has been held that a will or codicil not duly attested may be republished and made operative by a subsequent codicil having the requisite attestation, though the latter document be in no way annexed to the prior will or codicil. But it should seem that it must distinctly refer to it. See 1 Cr. & M. 42. Doe v. Evans. 1 A. & E. 423. Utterton v. Robins. 2 Nev. & M. 819. S. C. 5 Sim. 274. Gordon v. Reay. [2 De G. & Sm. 475. Aaron V. Aaron. Though a codicil confirms a will, and, for certain purposes, brings down the will to the date of the codicil, it certainly does not make the will necessarily operate as if it had been originally made at the date of the

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1 SAUND. 2866.]

Here it may not be improper to take notice of the case of a contingent will, where, whether it will eventually take place as a will or not depends upon the happening or not happening of a certain event. As where a person intending to go to Ireland made his will in these words: "If I die "before my return from my jour"ney to Ireland, that my house "and land at F., and all the appurtenances and furniture furniture "thereto belonging, be sold as

soon as possible after my death, "and thereout all my debts and

(a) [The courts, however, are cautious how they construe conditions of this sort. Therefore, where a testator, by three letters, gave certain testamentary directions, "in case I should die on

my travels," it was held by Sir J. Nicholl, in the Prerogative Court, that although the testator returned and lived many years afterwards, yet, as by subsequent acts he recognised the papers two years before his death, his return was not such a defeasance as to invalidate the disposition of his property directed by them. Phillim. 209. Strauss v. Schmidt. See also 2 Phillim. 294. Ingram V.Strong. 3 Phillim. 625. Forbes v. Gordon. In Burton v. Collingwood, 4 Hagg. 176, a will,

3

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"funeral charges be paid. Item, "1000l. to A. out of the said

money arising by the said sale, "and 100l. to B." The testator, after making the said will, went to Ireland and returned to England, lived some years afterwards and died. It was held by Lord Hardwicke that the will was contingent, depending upon. the event of the testator's returning to England, or not; and that, as he did return, the will could have no effect, but was void. Parsons v. Lanoe, 1 Ves. 190 (x).

written eighteen years before the testator's death, containing this passage, "lest I die before the "next sun, I make this my last "will," was admitted to probate, the court holding the disposition not contingent; and adherence to it being shewn by careful preservation. But see 4 Hagg. 179. In the goods of Ward. 3 Moo. P. C. C. 223. Bateman v. Pennington. 18 Jur. 136. In the goods of Tylden. But since the new Wills Act, it is clear that no evidence of adherence can establish the will where it is in its terms conditional, as where the will is expressed to take effect in case of the testator's death during his absence on a particular voyage; 2 Sw. & Tr. 147. In the goods of