IN cafe a fortune be given to a child by the father, subfequent to the making of his will, wherein he had bequeathed her a portion, this shall be taken as a revocation of the legacy and will for fo much; as where a man by his will gave his four daughters 600l. a-piece, and afterwards married his eldest daughter to the plaintiff, and gave her 700l. portion. After that he makes a codicil, and gives rool. apiece to his unmarried daughters, and thereby ratifies and confirms his will, and dies. The plaintiff preferred his bill for the legacy of 600l. given to his wife by the will. It was held by the mafter of the rolls, that the portion given by the teftator in his lifetime should be intended in fatisfaction of the legacy. And it was agreed to be the constant rule of the court of chancery, that where a legacy was given to a child, who afterwards, upon marriage, or other wife, hath the like or greater fum, it fhould be intendedin fatisfaction of the legacy, unless the teftator fhould declare his intent otherwife; and it was faid the words of ratifying and confirming do not alter the cafe, though they amount to a new publication, being only words of form, and declaring nothing of the teftator's intent in this matter. THUS having fhewn how a will, after being made, may be revoked in whole or in part, we come now to make fome obfervation on what might be done for rectifying the revocation; and as under fome circumftances this might be effectuated by a codicil, and in fome cafes by republishing the will, we shall now advert to and treat on those particulars. A CODICIL is a schedule or fupplement to a will, or an addition made by the teftator annexed to and to be taken as part of a teftament; being for its explanation or alteration, or to make some addition to, or fubtraction from the former difpofitions of the teftator. An executor cannot regularly be appointed by a codicil, yet may be fubftituted, according to the will of the teftator. A man may make divers codicils, and the first is of equal force with the laft, if not contradictory to each other; and herein they differ entirely in their nature from wills, for no man can die with two x Prec. in Cha. 183. y Cafe of Irod and Hurst, 2 Freem. Rep. 224. Where one of two legacies given to the fame perfon, by the fame will, may be a revocation, fee page 152. A legacy adeemed by the teftator receiving part under a statute of bankruptcy. See page 205. z Godolphin's O.L. p. 1. c.1, fect. 3. a Swinb. 14. M 4 teftaments, teftaments, 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. In the cafe of a real eftate, a codicil cannot operate unless it be executed according to the ftatute. It is neceffary, when a codicil is added to a will with intent to pass any real estate, to be careful in ufing words fufficient, whether it be for altering former difpofitions, or difpofing of eftates purchased after the will was made; and for the teftator to execute the codicil, in the fame manner, and with the fame number of witneffes, as is requifite to the executing an original will according to the ftatute. So, if a will concerns only perfonal eftate, and a codicil is added with intent to make any alteration, fubftraction, or addition, care ought to be taken in ufing words fufficient for the purpose.Where there is time and opportunity for writing over the will afresh, and thereby to make fuch alteration as may be neceffary, it is much more advisable, and far better, than doing it by codicil; which will not only increafe 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. WHERE a man may have by him two or more wills, the latter whereof, as has juft been mentioned, overthrows the former; but the republication of a former will revokes one of a latter date, and establishes the firft again: fo that what was before rendered void, becomes valid by the new b Swinb. 15. That a will may be effectual for conveying land, there are many requifites neceffary to be attended to, more than in a will which only concerns perfonal eftate; and as we have hinted in a former chapter (page 150.) with respect to the heir at law; that his title is not to be defeated but by fome other certain title; fo if there be two inconfiftent wills of the fame date, neither of which can be proved to be the last executed (unless explained by fome fubfequent act of the teftator), both are void for uncertainty, and will let in the heir. For revoking a former will, it is neceffary that the second will fhould be fubfifling and effective at the time of the teftator's death; there- CI Ark. 426. 5022 publication; publication; and if there are words contained therein fufficient for paffing or conveying such estate as the teftator is poffeffed of at the time of the republication, to the perfon or persons for whom the fame is defigned; it may answer the purpose of making a new will; but if the words contained therein are infufficient, 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 fufficient to convey the eftate to the perfon or perfons for whom it is defigned.-Where the will concerns real estate, it is fafe to republish it in a formal manner, as by the testator's taking it in his hand and declaring the fame to be his laft will, in the prefence of three witneffes; and then to make a memorandum thereof in writing at the bottom of the will, or if there should not be room fufficient, then in the margin or on the back thereof, which may be as follows, viz. WHEREAS I John Mills, the teftator named in this will, have republished the fame, 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 teftament, in the prefence of John Smith, Alice Smith, and Thomas Jones, who I have defired to fubfcribe their names as witnesses hereto : and in witness whereof I the faid John Mills have hereunto fubfcribed my name this in the year of our Lord 17 day of 1 Signed by the faid John Mills, in the prefence of us, who, at his request, and in his prefence, have fubfcribed our names as witnesses to the above republication. JOHN SMITH. JOHN MILLS. ALICE SMITH. If the will concerns only perfonal estate, it will not be amifs to use the fame formality for republishing it, though more flender evidence will be fufficient for the purpose. As As to bequests and teftaments of perfonal eftate, and a devife affecting real eftate, there is this diftinction. The former will operate upon whatever the teftator dies poffeffed of, whether he had it at the time of making his will or the fame was afterwards acquired. The latter will operate only upon fuch real estates as were the testator's at the time of executing and publishing his will; wherefore no real estate purchafed afterwards will pafs under fuch devife, unless fubfequent to the purchase or contract the devisor republishes his will. So here, if a man having made his will, and thereby devised the whole of his eftate and effects, and afterwards purchases any real eftate, and dies, without either republishing, or altering and re-executing his will, as directed by the ftatute heretofore often mentioned, he may die both teftate and inteftate, and his perfonal eftate may be disposed of by himself, and his after-purchased real estate by the law, or will defcend to his heir at law: which circumstance now leads us to fhew, as was propofed, how in various cafes a man may die both testate and inteftate, and thereby part of his eftate be difpofed of by himself, and the other part by the law. THOSE Cafes will be readily perceived if we advert to what has been treated on under this and the next preceding head; as under the head of making the will, it was shewn that, if the teftator by his will gives his heir at law no other eftate than the law entitles him to, he will take by defcent and not by the will: fo, if there are not words in the will fufficient for difinheriting the heir at law, or if there is a defect in executing the will, as in figning or witneffing it, whereby the fame may be rendered invalid as to the real estate; and, if it be not in writing, but only nuncupative or verbal, which may be fufficient for the teftator's goods and chattels. In those cafes a man having real and perfonal eftate, and having made his will and died, may be faid to die both teftate and inteftate; inteftate as to his real estate, which will defcend to his heir at law in fuch manner as here 1 tofore tofore fhewn, and teftate as to his perfonal; for here he may have a will fufficient with respect, to his goods and chattels. In like manner a man may die both teftate and inteftate where he has a will duly figned and witnessed, but has thereby difpofed only of part of his real and personal... eftate, and not mentioned the reft, or devised the refidue to any one; in which cafe part of his real estate will defcend to his heir at law, and part of his perfonal be diftributed in fuch manner as was heretofore fhewn; unless it should devolve to the executor under fuch circumftances as have been mentioned. UNDER this head of revoking the will, it may be perceived that a man, after having made his will, may die either wholly inteftate, or part teftate and part inteftate; as where he revokes his will; which revocation may arife from a variety of causes, and be either expreffed or implied; as if the teftator cancels his will by tearing, obliterating, or burning it, which is an exprefs revocation; fo where, after having made. his will, he marries and has a child; this is held a presumptive or implied revocation; and hereby, as well as by tearing, obliterating, or burning his will, he may die wholly inteftate, both as to his real and perfonal eftate. Likewife implied revocations are, where the eftate devised is altered after making the will; as in cafe the teftator afterwards conveys the fame to another, even though it may be re-conveyed to him, yet the conveying it, is an implied revocation of his will, as to the eftate conveyed by him. So if a man poffeffed of a leafehold eftate, and after having devised it furrenders his leafe, and takes a new lease of the estate, this is an implied revocation of his will as to this particular, and if he dies before republishing it, he may die both testate and inteftate; teftate as to that part of his will which is unrevoked, and inteftate as to the part revoked; fo that one part of his eftate may be difpofed of by himself, and the other left to the difpofition of the law. So it may be in respect to other cafes that amount to implied revocations, • Page 86-92. f Page 66. g Page 155. THERE |