person, without naming the charge, it still remains upon the land, in the hands of the second devisee.27 But the cases cited in confirmation of this proposition, go only to show, that the legacies were not intended to be revoked, and do not seem to clearly establish the proposition, which does not appear entirely consistent with the probable intent of such a change in one's will, under ordinary circumstances.28 And it seems clear that general words will not, ordinarily, be held a revocation of a specific devise or bequest, where it is apparent such could not have been the intent of the testator.29

15. Where a codicil gave a devise, in terms described as being "instead" of one contained in the will, but failed to dispose of the ultimate fee in the estate devised by the codicil, it was held, that it must go according to the conditions expressed in the will.30 It was held, that the terms, " instead of the devise and bequest contained in my said will," were satisfied, by holding it to be a substitute for that, only to the extent that the disposition in the codicil was inconsistent with that contained in the will.31

16. As a general thing, a codicil will be construed as operative upon some portion of the estate, even where its terms, literally interpreted, would be found to have no operation.32 But, as we have before said, the codicils will be construed as

* 1 Jarman, 162; Beckett v. Harden, 4 Maule & Sel.

* Ravens v. Taylor, 4 Beavan, 425; Lushington v. Boldero, G. Cooper, 216; Clarke v. Butler, 1 Mer. 304.

"Barclay v. Maskelyne, 5 Jur. N. s. 12. See also, Hill v. Walker, 4 Kay & J. 168; Butler v. Greenwood, 22 Beavan, 303; Arrowsmith's Trusts, 6 Jur. N. s. 1231; s. c. 7 id. 9.

* Doe d. Murch v. Marchant, 6 Man. & Gran. 813.

By Tindal, Ch. J., in Doe d. v. Marchant, supra.

* Earl of Hardwicke v. Douglas, 7 Cl. & Fin. 795; s. c. before the chancellor, Lord Cottenham, 5 L. J. N. s. 25, where his lordship held the codicil could have no operation, and which opinion was adhered to by his lordship, in the House of Lords, where the opinion was reversed.

1

being consistent with the will, where the discrepancy claimed is not obviously intended by the testator.38

17. And where the same person is appointed to more than one of the offices of guardian, trustee, or executor, a revocation of his office, in one particular, will not operate to revoke the other offices, 34 But in some cases it may be apparent, from the will, that these appointments were intended to be united in the same person,35 and if so, the revocation of one office will revoke the others. And where a legacy was given to the testator's trustees and executors, "as a mark of his respect for them," it was held, not to be revoked, by a codicil, appointing other trus'tees, in their room, and giving a legacy of the same amount to the newly-appointed trustees and executors, in similar language.* And where the testator uses terms, in a peculiar sense, in his will, the same terms will ordinarily, but not always, have the same import, in a codicil, so as not to disturb the will more than is indispensable.87.

18. And a later will is often treated, as being merely in the nature of a codicil, intended to supply the deficiencies of the will, and to make desired alterations of the same. And in this view, a specific devise of real estate was held not revoked by a subsequent will, making a general residuary devise to a different person.38

Inglefield v. Coghlan, 2 Coll. 247; Evans v. Evans, 17 Sim. 108. See also, Lee v. Delaine, 4 De G. & Sm. 1.

"Ex parte Park, 14 Sim. 89; Graham v. Graham, 16 Beavan, 550; Cartwright v. Shepheard, 17 Beavan, 301; Worley v. Worley, 18 Beavan, 58; Hare v. Hare, 5 Beavan, 629.

* Barrett v. Wilkins, 5 Jur. N. s. 687. Here the codicil substituted the new appointment to one office, by name, and gave the same powers given "throughout my will."

36 Burgess v. Burgess, 1 Coll. 367. But a legacy to one as executor, or by the name of the office merely, must fail when the office is changed. Lord Eldon, Chancellor, in Roach v. Haynes, 8 Vesey, 593.

"Hearle v. Hicks, 1 Cl. & Fin. 20; Evans v. Evans, 17 Simons, 86, s. c. nom. Williams v. Evans, 1 Ellis & Bl. 727.

as Freeman v. Freeman, 5 DeG., M. & G. 704.

19. Lord Camden held,39 that where one devised his freehold estates to trustees, for certain uses, and subsequently devised certain leasehold estate, to be held for the same uses, "so that they shall not be separate;" and thereafter suffered a recovery of the freehold estates, which operated as a revocation of the devise of such estates, that this operated as a revocation of the devise of the leasehold estate. But his decree was reversed in the House of Lords, upon this point.40

20. And where a specific devise to trustees, for the benefit of the residuary legatee after named, was given in the will, and, by codicil, the testator gave the residue to the former legatee, and another jointly, it was held, this did not affect the specific devise to trustees for the sole benefit of the legatee just named. Sir William Grant, M. R., laid stress upon the fact, that the will manifested a disposition in the testator to keep the specific devise in the hands of trustees, and separate from the general residuum of his estate.11.

1

Darley v. Darley, Ambler, 653.

40 3 Br. P. C. Toml. 359. But in Beauclerk v. Mead, 2 Atk. 167, it seems to be considered, that where the testator directed, in his will, that his personal estate be laid out in land, to be settled in the same way as his freehold lands were in the will, and then, by codicil, made a new disposition of the residue of his lands, tenements, and hereditaments, that the personal estate did not follow this new disposition. See also, 1 Jarman, 166; Salter v. Fary, 12 L. J. Ch. 411.

"Roach v. Haynes, 6 Vesey, 153. This judgment is affirmed in 8 Vesey, 584, by Lord Eldon, Chancellor, but with more than his usual hesitation, and merely upon the ground, that among doubts and conjectures, "the opinion of the Master of the Rolls is the better opinion." See also, Francis v. Collier, 4 Russell, 331. This case is put upon the ground, that the testator referred one bequest to the same terms expressed with reference to another, in order to save repeating, and not because he intended they should, in every event, follow the same track. But where the testator directed certain chattels, in his mansionhouse, such as pictures, books, &c., should be annexed to the mansion, and be inherited and enjoyed by the persons who should succeed to his real estate, under the limitations in his will, and by a codicil changed these limitations to other persons, it was held, that this had the effect to change the direction of the chattels to the same extent. Evans v. Evans, 17 Simons, 108.

21. But where the residue of the estate is given, in the same way as a prior specific devise, which is changed by codicil, it was held, that the residue followed the new direction.42

22. A mere recital, by way of explaining the testator's purpose, or motive, may aid the construction of doubtful words, but cannot warrant the rejection of words that are clear.43 As where, by a codicil, reciting a specific and limited purpose, the testator proceeds to revoke the whole devise made in his will, declaring the trusts again, with the proposed alteration, and confirms the will in every particular, not thereby altered or revoked: the omission of one trust, although contrary to the intention of the testator, cannot be supplied. And it was held, that the confirmation of the will, in every particular not thereby altered or revoked, were mere words of course, and did not refer to this particular devise, which was both revoked and altered, by the express terms of the codicil.45 Mr. Jarman considers this case as having virtually overruled Mathews v. Bowman,46 where the residue of an estate being given to the testator's daughters, as tenants in common, and a codicil, made for a particular purpose, redevised it to them, omitting the words of severance, and it was held, that the legatees took as tenants in

common.

12 Lord Carrington v. Payne, 5 Vesey, 404. This case is put upon the ground, that the codicil produced no revocation, but only a substitution of other names in the will.

43 Sir William Grant, M. R., in Cole v. Wade, 16 Vesey, 46.

"Holder v. Howell, 8 Vesey, 97. Sir William Grant, M. R., here said: "It was by a slip, I believe, that he omitted" to do "as he had by the will, . . . but he did not do so. It is forgetfulness; omission which the court cannot supply. It is a misfortune . . . whatever conjecture I may have, there are no materials in this codicil from which I can supply the omission, which I suppose has accidentally taken place."

45 Sir Wm. Grant, M. R., in Holder v. Howell, 8 Vesey, 103.

48 3 Anstr. 727, whom Mr. Jarman authority."

66 pronounces, a reporter of very doubtful

23. Where property is specifically bequeathed, in terms admitting of no question, this bequest will not be held to be revoked by a subsequent bequest, so imperfectly written as to admit of great uncertainty what was intended, although there seems a high degree of probability that it might include some of the same articles.47 And where the codicil refers to a legacy in the will, as being £200, when it was in fact £300, it was held not to have the effect to reduce it.18 And where the testator gave legacies of £200 each, to seven of the children of J. B., and by a codicil revoked all these legacies, and gave legacies of £200 to Samuel, and four of the children of J. B. by name; and by a second codicil, cancelled all the legacies given in his will to the children of J. B., and by a third codicil, revoked the legacy given by a previous codicil to Samuel, it was held, that the legacies given to the four children, by the first codicil, were not revoked.49

Goblet v. Beechy, 2 Russ. & My. 624. This case is made the subject of very extensive commentary in Sir James Wigram's excellent treatise upon Extrinsic Evidence, in aid of the Interpretation of Wills. See Baldwin v. Baldwin, 22 Beavan, 413.

Gorden v. Hoffman, 7 Sim. 29; Mann v. Fuller, Kay, 634.

"Benny v. Benny, 3 Beavan, 109; Pratt v. Pratt, 14 Sim. 129; Sawrey v Rumney, 5 De G. & Sm. 698; Stokes u. Heron, 12 Cl. & Fin. 161. A reference in the codicil to the will, by the words, "my will," is generally construed to embrace all the existing testamentary papers in force. Crosbie v. Macdoual, 4 Vesey, 610. And the recognition of a prior revoked will, by date or otherwise, as the will on which the codicil is founded, shows an intention, and will have the effect, to revive it. Payne v. Trappes, 1 Rob. 583; s. c. 11 Jur. 854; Re Chapman, 1 Rob. 1, 8 Jur. 902. And where one confirms his will, in every other respect, except some specific alteration named, it raises a presumption against any other changes. Crosbie v. Macdoual, supra. And where the codicil refers to the former of two inconsistent wills, by date, as the last will of the testator, it has the effect to cancel the intermediate will, and evidence of mistake cannot be admitted. Id. See Lord Walpole v. Lord Orford, 3 Vesey, 402. The M. R., Sir R. P. Arden, in Crosbie v. Macdoual, said: "It is perfectly true, that if a man ratifies and confirms his last will, he ratifies and confirms it