legalize bequests, thereafter to be made, by an informal instrument. The point is perspicuously explained by Sir William Grant, in Rose v. Cunynghame.2 "It is impossible," says the learned judge, "previously to ascertain, what debts a man may

12 Vesey, 29, 37. And as under the statute of frauds, and by all the English statutes, until that of 1 Vict. ch. 26, an unattested instrument was sufficient to create legacies; if they had before been made a charge upon land, by a will duly attested, the unattested, codicil was held sufficient to create the legacy thus charged. See also, Whytall v. Kay, 2 Mylne & Keen, 765, where the Master of the Rolls says: "It is now settled, though not upon a very satisfactory principle, that a testator may, by will duly executed, charge his real estate with the payment of all legacies, which will include future legacies given by a future unattested codicil, thus placing debts and legacies upon the same footing; but he cannot, by a will duly executed, reserve to himself a power to charge his real estate, or the produce of his real estate, with legacies given by an unattested codicil." See also, Wilkinson v. Adam, V. & B. 422; Briggs v. Penny, 3 De G. & S. 546; Johnson v. Ball, 5 De G. & S. 85; Smith v. Attwill, 1 Russ. 266. This last case is distinguished from the former by the instrument being signed by the trustees, thus operating as an admission of the trusts. And in the case of Metham v. The Duke of Devon, 1 P. Wms. 529, the deed of appointment, which is treated as if made at the same time as the will, does not appear ever to have been proved in the ecclesiastical courts, and, if not, could not properly be said to have any effect, as a testamentary paper.

The general doctrine of the cases which have held, that after a charge of all legacies upon real estate, an unattested codicil is sufficient, under the statute of frauds, to create such legacies, has been seriously questioned, as an infringement of the statute itself. But it is now too well established to require argument, either for its support or overthrow. The following cases, in addition to those already cited, may be referred to upon this point. Hyde v. Hyde, 3 Ch. Rep. 83; s. c. 1 Eq. Ab. 409; Masters y. Masters, 1 P. Wms. 421; s. c. Eq. Ca. Ab. 192; Lord Inchiquin v. French, Amb. 33; Hannis v. Packer, id. 556; Brudenell v. Boughton, 2 Atk. 268; Buckeridge v. Ingram, 2 Vesey, Jr., 652 i Swift v. Nash, 2 Keen, 20.

But where the testator only charged his real estate with legacies "hereinafter" bequeathed, it has been held, that the charge did not extend to legacies given by a codicil. Bonner v. Bonner, 13 Vesey, 379; Strong v. Ingram, 6 Simons, 197; Radburn v. Jervis, 3 Beavan, 450; Early v. Benbow, 2 Coll. 342, 355; Bengough v. Edridge, 1 Sim. 173; Rooke v. Worrall, 11 Sim. 216.

owe at the time of his death; and it is difficult to ascertain, when he is making his formal and regular will, what legacies he may think fit, or his fortune will enable him to give. The court has therefore said, that, where he has by a will, duly executed, charged debts and legacies, it is only necessary to show, that there is a debt, or that there is a legacy, in order to constitute a charge. For the moment that character is shown to belong to the demand, you show, that it is already charged upon the estate." But it is here said, that the charge must be created in the present tense, and not be left to depend upon the instrument giving the legacy.2

4. But where the testator devised certain freehold estates to trustees, the yearly income of the same to be paid to the sister of the testator during her life, and after her decease, to dispose of and divide the same unto and amongst the partners of the devisor, who should be in partnership with her at the time of her decease, or to whom she might have disposed of her business, in such shares and proportions as the trustees should deem advisable, it was held, that this was a good devise to the persons to whom it was ascertained the testatrix had disposed of her business in her lifetime. This was regarded as nothing more than a description of the legatee, instead of naming him. and we suppose the right to do that was never questioned. And whether the legatee were to be ascertained, at the date of the will, or at the death of the testator, or upon the determination of an intervening estate, which should only begin at the decease of the testator, has never been considered material. One may give real or personal estate to his wife, to the children of his brother, and to the next of kin of the testator, after the decease of all his lineal descendants, and in all these cases, and many others, the devise may be so expressed, as to raise serious question, not only in regard to the identity of the persons, which

Stubbs v. Sargon, 2 Keen, 255; s. c. affirmed by the Lord Chancellor, Coitenham, 3 My. & Cr. 507.

may be ascertained by resort to extraneous evidence; but also, as to the period at which the description of persons, or classes, is to be applied, and this must be removed by legal construction. But we had never supposed any doubt could exist in regard to the complete disposition of the property under such a devise.*

1 Jarman, Eng ed. 1861, 87. Mr. Jarman, who is the most reliable textwriter, perhaps, in regard to the law of wills, has called in question the soundness of the decision in Stubbs v. Sargon. "Now,” says this writer, "it certainly was going a great way to say, that the disposition in the case was complete. It is conceived, that no devise can be complete till every act, depending solely upon the volition of the devisor, has been done, to point out of what, and to whom, the devise is." And the learned writer proceeds to illustrate the distinction between an indefiniteness of description in the will, which depends upon the will of the testator for its determination, and that which depends upon other agencies, and insists, that if in the latter case the disposition is to be held complete, there is no reason why the act of the testator, which is to determine this event, may not as well be the signing of a paper by the testator, designating the person, or naming to a third party the person, who shall be the devisee. And the editors of this valuable work, in the latest English edition, claim, that the principle contended for by Lord Cottenham, Chancellor, in the case of Stubbs v. Sargon, will justify the admission of a memorandum found in the testator's possession, at his decease, explaining the import of ciphers used in the will, and which, without such explanation, would be wholly unintelligible, as was denied in Clayton v. Lord Nugent, 13 M. & W. 200. But, with all proper deference to so high an authority, we must say, we think the cases are not parallel, and there seems to us no incongruity in the decision of Stubbs v. Sargon, and no want of completeness in the disposition of the will in that case. And we confess our inability to comprehend, why the persons who should be one's partners in business, or to whomsoever he should dispose of his business, can fairly be said to be exclusively determinable by his own will. That his own will must have considerable influence in the determination of the question, is true; but not more so, than in the selection of a wife, and in neither case can the determination be said to be exclusively dependent on the will of one of the parties to the new relation, And it was never questioned, that one may make a bequest to his wife, he having none at the time, and if he should leave a wife, a widow, surviving him, there has never been any question that she would be clearly entitled to the bequest, although not sustaining that relation at the date of the will, and her coming into that relation depending, in one sense, ex

5. But where real estate is ordered to be sold, and converted into personalty, the avails will not be held a portion of the general personalty of the estate, unless so expressed in the will. The conversion must be out and out, as it is called; that is, for all purposes, and not merely for the purposes of the will; or else the courts of equity will treat the produce of the sale of the real estate the same as if there had been no sale,5 and it will not pass by an unattested codicil.5

6. And although all charges upon real estate, for the payment of debts or legacies, must of necessity, in the absence of directions to the contrary, be construed, as merely in aid of the personalty, and only intended to supply any deficiency in that fund; nevertheless, even in cases where the charge of the real estate is specifically in aid of the personalty, under the old law, it was competent for the testator, by an unattested codicil, to make a specific disposition of any portion of the personal estate.6

7. And where the real estate is charged for the payment of legacies, expressly given in the same instrument creating the charge, it is, nevertheless, competent for the testator to revoke any of these legacies by an unattested codicil, since such a charge is merely in aid of the personalty.

8. But where the sum is given, originally, exclusively out of land, or as a charge solely upon land, the same can neither be revoked or modified by an unattested will or codicil, but it must be done by some instrument executed with all the formalities necessary to create the charge, in the first instance.8

clusively upon the future will and volition of the testator, since no one could become his wife against his consent.

Sheddon v. Goodrich, 8 Vesey, 481; Hooper v. Goodwin, 18 Vesey, 156; Gallini v. Noble, 3 Mer. 691.

Coxe v. Bassett, 3 Vesey, 155.

Attorney-General v. Ward, 3 Vesey, 327.

Lord Hardwicke, in Brudenell v. Broughton, 2 Atk. 268, 272; Beckett v. Harden, 4 M. & S. 1; Locke v. James, 11 M. & W. 901. In the last case, the

9. And where the testator, by his will, gave an annuity, payable out of his freehold, copyhold, and personal estate, and by a codicil, not duly attested, revoked the annuity, it was held an effectual revocation only as to the personalty, and that it still remained a charge upon the freeholds. But in other cases, where a sum of money, or an annuity, is made a charge upon a general fund, consisting, partly of real and partly of personal estate, and the bequest has been attempted to be revoked by an instrument not duly attested under the statute of frauds, it has been held, that the revocation being inoperative, so far as the real estate was concerned, the claimant was entitled to that proportion of the sum given, which the real estate bore to the personal.10

10. There seems to be no question, however, that the testator, after having charged both real and personal estate with the payment of legacies, may, by a subsequent unattested instrument, so far withdraw the personal estate from the operation of such bequest, as to leave it a sole charge upon the real estate. And this effect will be produced by a new disposition of all the testator's estate, real and personal, by means of an unattested codicil, it being operative only upon the personalty, and leaving the former legacies a charge upon the real estate."1

testator, after creating a charge upon his real estate of six hundred pounds, by his will duly attested, subsequently run a pen through the word "six,” and wrote the word "two" above it, leaving the word "six" still legible, and on the same day, added a memorandum or codicil to his will, signed in the pres-ence of one witness only, recognizing the alteration, and it was held the altera-tion of the will must be regarded, as not duly made, and that the instrument remained in full force, as originally drawn.

• Mortimer v. West, 2 Simons, 274. This case is regarded as standing some-what alone, inasmuch, as being a charge upon both real and personal estate, it might, on general principles, be regarded as subject to informal revocation, in part, at least. See Fitzgerald v. Field, 1 Russ. 428.

11

10 Stocker v. Harbin, 3 Beavan, 479.

Buckeridge v. Ingram, 2 Ves. Jr. 652; Sheddon v. Goodrich, 8 Vesey,. 481, 500.