was, that they speak from the day of the testator's death, and are not referable to the state of the property at the time of making the will, unless there are expressions in the will showing it was intended to describe property with *reference to the day of the date of the will, and not to the day of the death. (e) It has been decided that the effect of this section is not to make a will valid, which was invalid in its inception (e. g. a will of a married woman unauthorized by a power), but to give a rule for the construction of a valid testamentary instrument. (f) But the will of a married woman is not excluded by the 8th section from the operation of this section. (g) .... tator made a gift of " all my ready money, bank, and other shares, freehold property, and any other property that I may now possess," and it was held that personal estate acquired subsequently to the date of the will passed by the bequest. Lord Romilly M. R. having noticed the language used by the testator in Cole v. Scott, said he thereby showed "that he had clearly in his mind the distinction between the property he was then possessed of and that which he should afterwards acquire. There is no doubt a testator may make his will in this way." Then referring to the case before him, he says: "If the testator had said, 'I give all my real and personal estate,' there can be no doubt that after acquired property would have passed. So again, if he had said, 'I give all the real and personal estate I possess.' Does it make any difference when he puts in the word 'now?' The words 'I possess' mean the same thing as 'I now possess.' In all these cases the law says that you must read the will as if it had been written on the day of the testator's death, and you must have distinct words, as there were in Cole v. Scott, in order to show that the property acquired subsequently to the date of the will is not intended to pass." See, also, Garrison v. Garrison, 5 Dutcher, 153; Roney v. Stiltz, 5 Whart. 381, 385.] (e) Cole v. Scott, 1 Mac. & G. 529 ; post, pt. 111. bk. 111. ch. IV. § VIII. See Douglas v. Douglas, Kay, 400, 404, and Goodlad v. Burnett, 1 Kay & J. 341, 347, 348, as to the cases where the testator bequeathed the whole of some one genus of his property, as "all debts due to me on bond," or all "my stock." The effect of the wills act on cases of this kind will be considered hereafter. See pt. III. bk. III. ch. IV. § VIII. [See ante, 221, note (d). If the language is general, not specific, and not limited, the will speaks from the testator's death, and of course disposes of whatever property the testator had at that time, or to such persons as answer the description. So a general bequest of any particular species of personal property, as " my furniture and effects," has been held to embrace property of this description belonging to the testator at his death. A will also is held to speak from the death of the testator in reference to gifts to classes, or fluctuating bodies of persons, as to children, descendants, or next of kin, which apply to the persons answering the description, at the death of the testator, irrespective of those to whom the description was applicable at the date of the will, but who died in the testator's lifetime. Ellsworth J. in Gold v. Judson, 21 Conn. 616, 623; Bowers v. Porter, 4 Pick. 198; Stimpson v. Batterman, 5 Cush. 153.] (f) Price v. Parker, 16 Sim. 198, 202; ante, 62; Noble v. Phelps, L. R. 2 P. & D. 276, accord. (g) Thomas v. Jones, 1 De G., J. & S. 63; Noble v. Phelps, L. R. 2 P. & D. 276, accord. See ante, 53. Upon this enactment it may be further remarked, that even in the case of wills within its operation, it has not rendered wholly inapplicable the doctrines which have just been stated with respect to the consequences of the republication of wills; because the statute does not enact absolutely that the will shall speak as if it had been made just before the death of the testator, but only that it shall do so in respect of the property comprised in it. Therefore, with respect to the description of persons in the will, the law remains as before the passing of the act. (h) a will re &c. shall be deemed to It is further enacted by the 34th section, that "every S. 34: will reëxecuted, or republished, or revived by any codicil, published, shall for the purposes of this act be deemed to have been made at the time at which the same shall be so reëxecuted, republished, or revived." have been made when repub lished: a will fore the new act, lished af and repubterwards, lands acafter the date of the may pass quired republica An illustration of the effect of these enactments has occurred in the case of Doe v. Walker, (i) where a will, made bemade in February, 1837, was held to be republished by a codicil* dated in February, 1838 (appointing an additional trustee, and "in all other respects ratifying and confirming the will "), and to pass real estates, purchased by the testator after the date of the codicil, under a bequest of "all the estates of which I am seised in the parish of B.;" inasmuch as the will, so republished, tion: constituted, together with the codicil, a new will of the date of the codicil, and such new will having been so executed since the new act came into operation, must be construed, by sect. 24, to speak as if it had been executed immediately before the testator's death. (k) Another illustration has been afforded by the cases which have arisen as to the application of the 33d section (by which it is enacted that a bequest from a testator to a child, who dies in his lifetime, but leaves children living at his decease, shall not lapse) to wills made before, and republished after, the act came into operation. But it will be more convenient to consider these cases hereafter, together with the general subject of lapsed legacies. (1) so it will be brought within the the 33d section, and a leg acy to a child who sue living tor's death leaves is at testa will not lapse. (h) Bullock v. Bennett, 7 De G., M. & Kay, 404. But see, also, Cole v. Scott, G. 283. (i) 12 M. & W. 591. (k) See accord. Douglas v. Douglas, ante, 221, note (d); Langdale v. Briggs, 3 Sm. & G. 253. (1) Post, pt. 111. bk. 111. ch. 11. § v. A codicil may give effect to unattested alterations or addi tions to the will: A codicil duly executed will give effect and operation to a will altered after the passing of the act, though the alteration was not duly attested, and though the will itself was executed before 1838; (m) or to unexecuted papers, which have been written between the periods of the execution of the will and codicil, although the latter does not refer to the former; as where a testator by his will bequeathed articles of plate "specified in schedules A. and B. to be annexed to this document" [his will], and after his death two such schedules, marked A. and B., were found, which, it was sworn, were not written when the will was executed, but were in existence prior to the execution of a subsequent codicil, in which no mention was made of the schedules; *Sir John Dodson admitted the two schedules to probate, together with the will and codicil. (n) or may render The general question whether, and in what cases, an unexecuted will or other paper may be rendered valid as a testamentary disposition by a subsequent duly executed cuted will, codicil, has been already considered in an earlier part of valid a previous unexe &c. Effect of showing intention will. this work. (0) A question of no little difficulty has lately arisen in the consistory court of London. (p) A testator having, after the new codicil statute came into operation, duly executed two wholly inconsistent wills, destroyed the earlier one animo revodestroyed candi, and then duly executed a codicil, showing an intention to revive it. Dr. Lushington held that this codicil necessarily revoked the later will, thought it might be inoperative to revive the earlier one by reason of its having been so destroyed. The learned judge further expressed the inclination of his opinion (though it was not necessary to decide that question) that probate could not be decreed of the draft of the destroyed will; for that it was an unexecuted paper, not specifi(m) Per Sir H. Jenner Fust, in Skinner to this suit, as if they had been expressly v. Ogle, Prerog. E. T. 1845; 4 Notes of mentioned in the codicil."] Cas. 79. [And in Mooers v. White, 6 John Ch. 360, 375, Chancellor Kent said, "This codidil was indorsed and written on the back of the original will, and I see no reason why the codicil, executed with all the solemnities required by the statute, was not a republication of the will, so as to give effect to the devise to the parties (n) In the Goods of Hunt, 2 Robert. 622. See, further, In the Goods of Baldwin, 5 Notes of Cas. 293; [Beall v. Cunningham, 3 B. Mon. 390.] But see, also, In the Goods of Lancaster, 29 L. J., P. M. & A. 155. (0) Ante, bk. II. ch. 11. § II. p. 97. cally adverted to or recognized by the codicil. But he gave no opinion on the point (which indeed does not appear to have been raised), whether, as in the case of a lost will, or a will destroyed unduly or sine animo revocandi, (q) probate might have been granted of the will itself, as contained in the draft and the depositions of the witnesses. This decision was approved and acted on by Sir C. Cresswell as establishing the principle that where a will had been destroyed by the testator, or with his approval, it cannot be revived by any intention of his manifested in a subsequent codicil. (r) Effect of republication by a widow: by an inattaining fant after majority: * It has been already observed, that although a will made by a widow before or during coverture, will not revive by the mere circumstance of her husband's death, yet if she republish it, it will become valid. (8) So if, at any time before the statute of Victoria came into operation, an infant having attained the age of fourteen, if male, or twelve, if a female, by approval or recognition, or any other means, republished a will, which he or she made before arriving at those ages, it was thereby made effectual to all intents. and purposes. (t) Likewise, although if the testator make his will while non compos, and afterwards recover his understanding, the will does not thereby obtain any force or strength; (u) yet if he should, after having regained a sound state of mind, republish the will made standing. during his former insanity, it would doubtless become a valid will. (u1) (q) See post, pt. 1. bk. IV. ch. 111. S VII. (r) Rogers v. Goodenough, 2 Sw. & Tr. 342. The learned judge, moreover, held that the codicil did not revoke an intermediate will, not being inconsistent therewith and not showing any intention to revoke it. See ante, 186. (s) Ante, 55, 63. [See Fransen's Will, 26 Penn. St. 202.] But see Du Hourmelin v. Sheldon, cited ante, 220. by a person memory, under (t) Swinb. pt. 11, s. 2, pl. 8; Herbert v. Torball, 1 Sid. 162. (u) Swinb. pt. 2, s. 3, pl. 2; Godolph. pt. 1, c. 8, pl. 2. (ul) [A will executed under undue influence may be republished and confirmed by a codicil executed afterwards, when the testator is free from such influence. O'Neall v. Farr, 1 Rich. (S. Car.) 80.] [225] *BOOK THE THIRD. OF THE APPOINTMENT OF EXECUTORS, AND THE ACCEPTANCE OR REFUSAL OF THE OFFICE. THE word executor, taken in its largest sense, has three acceptations for there is, 1. Executor a lege constitutus, and that was the ordinary of the diocese. 2. Executor ab Episcopo constitutus, or Executor dativus, and that is he who is called an administrator to an intestate. 3. Executor a testatore constitutus, or Executor testamentarius, and that is he who is usually meant when the term "executor is used. (a) The proper term in the civil law, as to goods, is hæres testamentarius; (b) and executor, said Lord Hardwicke, is a barbarous term unknown to that law. (c) An executor, as the term is at present accepted, may be defined to be, the person to whom the execution of a last will and testament of personal estate is, by the testator's appointment, confided. (d) "To appoint an executor," says Swinburne, (e) “is to place one in the stead of the testator, who may enter to the testator's goods and chattels, and who hath action against the testator's debtors, and who may dispose of the same goods and chattels, towards the payment of the testator's debts, and performance of his will." (e1) (a) Godolph. pt. 2, c. 1, s. 1; Swinb. pt. 6, s. 1; Wentw. Off. Ex. c. 1. (el) [A testator may appoint different executors in different countries in which his (b) Godolph. pt. 2, c. 1. s. 1; Swinb. effects may lie, or different executors as to pt. 6, s. 1, pl. 4. (c) Androvin v. Poilblanc, 30 Atk. 304; In the Goods of Oliphant, 1 Sw. & Tr. 525; post, 249. (d) 2 Bl. Com. 503; Farrington v. Knightly, 1 P. Wms. 548, 549; Toller, 30. (e) Swinb. pt. 4, s. 2, pl. 2 different parts of his estate in the same country. Hunter v. Bryson, 5 Gill & J. 483; Despard v. Churchill, 53 N. Y. 192; Allen J. in Hartnett v. Wandell, 60 N. Y. 351; Hill v. Tucker, 13 How. (U. S.) 466. Executors may be appointed with separate functions, or to succeed each other in the event that those first named shall die, be |