specify, which he altered and revoked. After the date of this codicil, and in the month of August, 1835, the testator purchased a parcel of land *containing 1,400 acres, which was afterwards conveyed to him; and on the 5th of July, 1836, the testator, by a third codicil, altered the disposition of certain portions of the real estate, made by his will and the second codicil; and after making certain specific devises not affecting the 1,400 acres of land, which were not mentioned, this codicil proceeded as follows: "And whereas by my said will or codicil, or one of them, I did give and bequeath all my real estate (not specifically otherwise disposed of) to the trustees therein named, upon trust for my said son, Edward Terry, for life, and at his decease for the heirs of his body, if any, and failing his issue to my own right heirs; now, I hereby revoke and annul such part of my said bequest as relates to my own right heirs, and I do hereby give, devise and bequeath the same real estate in the event of my said son's death without issue, to all the children of John Terry, of Boxhill, and of my nephew, John Terry Hughes, and of my daughter, Martha Foxlowe Hosking, who shall be then living, share and share alike, as tenants in common; and I direct my said trustees upon such event, to convey the said real estate unto and to the use of such the children of John Terry, John Terry Hughes, and Martha Foxlowe Hosking accordingly." The testator died in the year 1838, without having revoked his said will or codicils. Suits were instituted in New South Wales for the purpose of administering the testator's estate, part of which consisted of a farm called Terry's Meadows, and a question having arisen as to what part of the farm was included in the residuary estate, or passed by the residuary devise in his will, an order of reference was made in the suits, by the Supreme Court of New South *Wales, by which it was referred to the Master to inquire what part of such estate, or farm, called Terry's Meadows, was included in and formed part of the residuary estate of the testator. The Master by his report found, that the estate called Terry's Meadows, contained 4,100 acres of land, or thereabouts, and was composed of two several portions of lands amounting to 2,700 acres, which, together with the 1,400 acres purchased by the testator in 1835, made the total amount of 4,100 acres ; and he found that the 2,700 acres, and no other part of the estate of Terry's Meadows, were included in or formed part of the testator's residuary estate. The appellants took exceptions to this finding of the Master, on the ground, that thereby the above-mentioned 1,400 acres of land were excluded from the residuary estate of the testator. These exceptions were argued HUGHES v. HOSKING. [ *4 ] [5] before his Honour, Roger Therry, Esquire, Primary Jud equity, and on the 27th of August, 1853, that Judge ove the exceptions with costs. The appellants appealed against this order, to the Su Court of New South Wales, praying that the exceptions mig allowed. On the 12th of October, 1853, the CHIEF JUSTIC the Puisne Judges of the Supreme Court, by an order of date, decreed that the order of the Primary Judge in should be affirmed with costs. The grounds upon whic Supreme Court proceeded were, that the testator was not of the parcel of land containing the 1,400 acres, at the d his will, or of the first or second codicil thereto, and although he was seized thereof at the date of the third c and that such third codicil operated as a republication of the yet that the testator intended by the third codicil to confir devise of his real estate, "not specifically *otherwise dispose to the same residuary real estate as was devised by his wil did not intend by his third codicil to devise the parcel of containing the 1,400 acres, which was purchased by him the date of his will. The appellants having obtained leave to appeal from the of the 12th of October, 1853, the appeal now came on for ment. lants. Mr. R. Palmer, Q.C., and Mr. Dickinson, for the * The Solicitor-General (Sir Richard Bethell), and Mr. house, for the respondents. Mr. Dickinson replied. * Judgment was pronounced by THE RIGHT HON. T. PEMBERTON LEIGH: In this case their Lordships have been assisted by a very judgment of the COURT below (1), and by an admirable arg at this Bar, and they have no doubt as to the advice that i be their duty to tender to her Majesty. The question is simply this. The testator made his w 1824, and that will contained a general devise of all the r of his real estates in favour of his son, Edward Terry, an heirs of his body. That will can apply only to the e (1) The judgment his Lordship here alluded to was that in the case of Clarke and others v. Terry and others, pronounced by the CHIEF JUSTICE of the Supreme Court of New South Wales, which involved th point as was the subject of disp this appeal. A manuscript co handed in to their Lordshi counsel. which the testator possessed at the time he made it. Subsequently to the date of that will, and in the year 1835, he purchased further real estate, and, in the year 1836, he made a codicil to his will; and the only question to be determined is this; whether the effect of that codicil was to bring down the residuary clause contained in the will, to the date of the codicil, as if it had been contained in the codicil and not in the will. Now, the rules of law which are applicable to this *subject have been conclusively settled by authority. A will at the date of the instrument in question could only pass estates which the testator had at the time, and if, therefore, he afterwards purchased other real estate, it became necessary for him to make a new testamentary disposition, for the purpose of disposing of that after-acquired estate. He might make that new testamentary disposition either by a codicil directly applying to it, or by a new will, or, if the words contained in the old will were sufficiently extensive to include all that he possessed, then the clause contained in the old will would be read as if it had been introduced into a new will at the date of the codicil. The effect of such further disposition obviously and necessarily would be, to include in the residuary devise all that he possessed at the time of its execution. In the case of Acherly v. Vernon (1), this principle was carried to an extent, the propriety of which great doubts have been, and as it appears to us reasonably, entertained. For it was there held, that the effect of a codicil referring to an existing will was not merely to amount to a recognition of that will in the state in which it existed and to the interpretation which it then bore, but that the effect of it was to bring down the date of such will to the date of the codicil, and, therefore, in truth not merely to recognize the existing instrument, but to create a new instrument. This case was followed by other cases, which in effect declared that the excution of a codicil is a recognition, and equivalent to a republication of the previously executed will, and, therefore, that you must read the residuary clause contained in the codicil, just as if there had been a republication in the more ordinary form of the will itself. This principle, whether reasonable or not, was at all events not open perhaps to any great objection so long as there was nothing in the codicil itself inconsistent with that construction; but, if a codicil contained a residuary disposition, referring to the same property as that devised by the will, property which the testator possessed at the date of the will, it was quite impossible that you could impute to the testator a presumed intention (1) Comyns's Rep. 381; S. C. 3 Br. P. C. Toml. ed. p. 83; 2 Eq. Ca. Ab. 769, pl. 1. HUGHES v. HOSKING. [15] which his declared intention in the codicil expressly c dicted. You could not read the clause in the will as con in the codicil; if you found in that very codicil a directly inconsistent with that interpretation. That wa case of Bowes v. Bowes (1), which was considered by Lord K as a perfectly clear case. In that case the testator by h made a general devise of his real estate to trustees upon trusts; he afterwards purchased other real estates, and ther a codicil; and by that codicil, after reciting that he had will devised all his real estates to two trustees, he thereby r that devise, and gave all his "said lands, tenements, and ditaments" to two new trustees. And it was held by the of Lords that the will was not republished so as to pas estate acquired between the dates of the will and the codi the ground that the word "said " confined the operation. codicil to the lands which had actually been devised by th And it seems certainly to have been very difficult to c that under such circumstances you could introduce in codicil an *intention to dispose, not of those estates wh the codicil he declared his intention of disposing of, dispose of those estates which were not included in the wil therefore, by the express language of the codicil, were ex from the codicil. Bowes v. Bowes was followed by Monypenny v. Brist and by Hughes v. Turner (3), and these cases do not car principle further. The case of Hulme v. Heygate (4), whi referred to in the argument, is not in the least degree sistent in principle with those authorities. There the t made a will containing a general devise of all his real whatsoever, upon certain trusts: he afterwards purchased real estates, some of which were conveyed to him before th of the codicil, and others for which he had contracted, h been conveyed. Those last estates, however, were in equ much his property as those which had been legally co to him. By the codicil he expressly devised the estates had been conveyed to him, and he expressly ratified an firmed in all other respects his will. It was, therefore, in which there was a clear declaration according to the ples established in Acherly v. Vernon, that the will was read with the residuary clause as applying to the time at that codicil was made, and not as confined to the time at the will was made; and the only question was, whether I the testator had made a devise of two of the estates exp (1) 2 Bos. & P. 500. (2) 34 R. R. 30 (2 Russ. & My. 117). (3) 41 R. R. 171 (3 My. & F (4) 1 Mer. 285. you could, therefore, infer that he did not intend to devise under the residuary clause those estates which, but for the previous devises, would *clearly have been included. Sir WILLIAM GRANT decided that the codicil amounted to a republication of the will, so as to pass the estates contracted to be purchased between the dates of the will and codicil. The question, therefore, in these cases is simply this: Does or does not a codicil, which is supposed to have the effect of extending the operation of the will, by its language exclude that interpretation? Is there, or is there not, contained in the codicil, a declaration, that the property with which the testator is intending to deal, is the same property with which he had dealt by his will-or does he intend only to alter the objects of its destination, and in no degree to affect its substance? Now, applying these principles to this case (with the exception of two points which were taken in the very ingenious argument of Mr. Palmer, and to which I shall afterwards refer), this case is infinitely stronger, as it appears to their Lordships, than any one of the authorities which have decided whether there is or is not a clear limit by the codicil of the residuary clause to the estates which were devised by the will. Now, here the testator by his will, after giving to his son certain particular estates, then devises: "All and singular other my messuages, farms, land, and hereditaments, of every description, not herein before disposed of by me, unto my said son, Edward Terry, and the heirs of his body for ever." He afterwards, by the second codicil to his will, dated the 1st of February, 1834, revoked this devise in favour of his son, and instead of giving them to his son and to the heirs of his body, he directed. that they should be held in trust *for his son for life; and after the decease of his son, if he should have lawful issue, to the use of the heirs of his son; and if he should die without leaving lawful issue, then upon trust to convey the same estates to his the testator's own right heirs. It is plain, therefore, that in this codicil, the only disposition which was made was of the estates which had already by the will been given to the son. At this time no purchase had been made of the property which is in question in this case. So that upon the 5th of July, 1836, the date of his third codicil, his estates stood thus limited: all the estates which he was possessed of at the time of making his will, with the exception of certain portions which had been devised away to other persons, were limited to his son for life, with remainder to his son's children; and if the son's children should die without issue, then there was an executory devise to the right heirs of the testator. On the 5th of July, 1836, the HUGHES v. HOSKING. [ *16] [ *17] |