the instructions will take effect as a will only upon evidence that the testator adhered to them down to his death. Bone v. Spear, 1 Phillim. 345; Devereux v. Bullock, ib. 60, 72; Sandford v. Vaughan, ib. 48; In bonis Herne, 1 Hag. 222; Barwick v. Mullings, 2 Hag. 225; Mitchell v. Mitchell, ib. 74; Dingle v. Dingle, 4 ib. 388; Reay v. Cowcher, 2 ib. 249; Antrobus v. Nepean, 1 Add. 399; Monroe v. Coutts, 1 Dow. 437; Matthews v. Warner, 4 Ves. 186; Torre v. Castle, 2 Moo. P. C. 133.

An unexecuted paper, containing only a partial disposi- Partial disposition of the testator's property, will not take effect as a will, tion. unless it be shown to contain the final intention of the testator as far as it goes. Montefiore v. Montefiore, 2 Add. 354; Cundy v. Medley, 1 Hag. 140; Maclae v. Ewing, ib. 317; In bonis Wenlock, ib. 551; In bonis Robinson, ib. 643; Devereux v. Bullock, 1 Phillim. 60; Sandford v. Vaughan, ib. 48; Theakston v. Marson, 4 Hag. 290; Bayle v. Mayne, 3 Phillim. 504

tions.

Alterations in the will of a soldier, which was made Alterawhile on actual military service, will be presumed to have been made during the continuance of such service. In bonis Tweedale, 3 P. & D. 204.

A charge of legacies on real estate contained in a will Charge of legacies on duly executed to affect realty will include legacies given realty. by a subsequent unattested will when the testator is one of the persons competent to dispose of his personalty by such will. Buckeridge v. Ingram, 2 Ves. J. 652; Sheddon v. Godrich, 8 Ves. 481; Wilkinson v. Adam, 1 V. & B. 445; Swift v. Nash, 2 Kee. 20; see Rose v. Cunynghame, 12 Ves. 29.

Legacies charged upon real estate as an auxiliary fund may be revoked by a subsequent valid will, though not executed so as to affect realty. Brudenell v. Boughton, 2 Atk. 68; A.-G. v. Ward, 3 Ves. 327.

Legacies charged only upon real estate cannot be re

Revoca

tion by

marriage and birth

of children.

Marriage of

voked by a subsequent valid will not executed so as to affect realty. Beckett v. Harden, 4 Mau. & S. 1; Locke v. James, 11 M. & W. 901; see Mortimer v. West, 2 Sim. 274; Fitzgerald v. Field, 1 Russ. 428.

Legacies given out of a mixed fund of realty and personalty can be revoked by a valid will not executed to affect realty only so far as they are payable out of the personalty. Stocker v. Harbin, 3 B. 479.

A valid will of personalty not executed to affect realty may dispose of any portion of the personalty free from legacies, though the effect may be to increase a charge of legacies on realty contained in a prior will effectually disposing of real estate. Coxe v. Bassett, 3 Ves. 155.

The marriage of a privileged testator or the birth of a child subsequent to the date of the will will not alone revoke the will. Doe v. Barford, 4 M. & S. 10; Wellington v. Wellington, 4 Burr. 2171; Wells v. Wilson, 5 T. R. 52, note; Jackson v. Hurlock, Amb. 495.

But the birth of children alone after the date of the will affords a presumption against the will. Johnston v. Johnston, 1 Phillim. 447.

A privileged will is revoked by the subsequent marriage of the testator and the birth of children, unless the wife and children are provided for by the will or by a previous settlement. Overbury v. Overbury, 2 Stow, 242; see 1 Phillim. 479; Kenebel v. Scrafton, 2 East, 530; Doe v. Lancashire, 5 T. R. 49 (posthumous child).

The same rule applies to the case of a widower who widower. marries a second time and has children, though the will may be in favour of children by the first marriage. Christopher v. Christopher, Dick. 445; Holloway v. Clarke, 1 Phillim. 339; Walker v. Walker, 2 Curt. 854. It appears to be unsettled whether the birth of children by a first wife after the date of the will and marriage to a second wife revokes the will. Gibbons v. Caunt, 4 Ves. 848.

The will is not revoked where it does not dispose of all the testator's estate. See Kenebel v. Scrafton, 2 East, 541; Marston v. Roe d. Fox, 8 Ad. & E. 57; Brady v. Cubitt, Dougl. 40; Doe v. Edlin, 4 A. & P. 587.

for wife.

Provision made for the wife alone by a settlement or Provision by the will itself will not prevent its revocation. Marston v. Roe d. Fox, 8 A. & E. 14; 2 Nev. & P. 504.

Provision by a settlement subsequent to the will will not prevent revocation. Israell v. Rodon, 2 Moo. P. C. 51; see Talbot v. Talbot, 1 Hag. 705; Ex parte Ilchester, 7 Ves. 348; Johnson v. Wells, 2 Hag. 561; In bonis Cadywold, 1 Sw. & T. 34.

The will is not revoked where such revocation would not benefit the afterborn children. Sheath v. York, 1 V. & B. 390.

The fact that the wife and children predecease the testator will not revive the revoked will. Helyar v. Helyar, 1 Phillim. 413; Sullivan v. Sullivan, ib. 343; Emerson v. Boville, ib. 342, overruling Wright v. Netherwood, 2 Salk. 593, n., 2 Phillim, 266, n.

In the case of privileged wills it seems clear that a will, though revoked by marriage and birth of children, may be set up again by evidence of intention to adhere to it, such wills being free from the operation of the Statute of Frauds and Wills Act. See Marston v. Roe, 8 A. & E. 14; Gibbens v. Cross, 2 Add. 455; Fox v. Marston, 1 Curt. 494; Israell v. Rodon, 2 Moo. P. C. 51; Matson v. Magrath, 1 Rob. 680; Tupster v. Holtzappfell, 5 N. of C. 554.

No will revoked to be revived otherwise than by

re-execu

tion, or a codicil to revive it.

Revocation of

CHAPTER VIII.

REVIVAL OF WILLS-INCORPORATION.

THE Wills Act (1 Vict. c. 26), section 22, enacts, that no will or codicil, or any part thereof which shall be in any manner revoked, shall be revived, otherwise than by the re-execution thereof, or by a codicil executed in manner thereinbefore required, and showing an intention to revive the same; and when any will or codicil which shall be partly revoked and afterwards wholly revoked shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown.

Where a testamentary disposition is revoked by a subserevoking quent disposition, which latter is in its turn revoked, the

will.

Revival by codicil.

former disposition is not thereby revived. Burtenshaw v. Gilbert, Cowp. 49; In bonis Brown, 1 Sw. & T. 32; Brown v. Brown, 8 E. & B. 876; Wood v. Wood, 1 P. & D. 309. It has recently been doubted, whether since the Wills Act a codicil, described as a codicil to a will of a particular date which has been revoked, would be sufficient to revive the revoked will in the absence of any additional evidence of "intention to revive the same." In bonis Steele, 1 P. & D. 575.

There is an obvious distinction between a codicil incorporating and giving effect to earlier unattested instruments, for which purpose a mere reference is sufficient, and a codicil reviving a revoked instrument.

There are, however, cases in which a codicil described as a codicil to a particular will which had been revoked by marriage, there being no other will in existence, has been held sufficient to revive the revoked will. In bonis Chapman, 1 Rob. 1; Payne v. Trappes, 1 Rob. 583. This was clearly the rule before the Wills Act. Lord Walpole v. Earl of Orford, 3 Ves. 402; S. C. 7 T. R. 138. In the case of Neate v. Pickard, 2 N. of C. 406, and in The goods of Reynolds, 3 P. & D. 35, there appear to have been express words of confirmation.

gent

It seems a codicil, described as a codicil to a will of a Continparticular date, though the codicil is directed to take effect codicil. only in events which do not happen, may have the effect of reviving the will. In bonis Da Silva, 2 Sw. & T. 315; see Parsons v. Lanoe, 1 Ves. Sen. 190.

referring to will

If there are two wills, the latter of which revokes the Codicil earlier, it seems a codicil described as a codicil to the testator's last will, but giving the date of the revoked will, revoked by will not revive that will or revoke the second will. In bonis May, 1 P. & D. 581; In bonis Ince, 2 P. & D. 111. These cases may very well be supported on the ground that the description of the will by the codicil was ambiguous, the will of the date mentioned not being the last will of the testator, or, in fact, his will at all, as it had been revoked.

In In bonis Anderson, 39 L. J. P. 55, the principle applied was the same. In that case the codicil was expressed to be a codicil to the testator's last will, but confirmed a will by date which had been revoked.

In In bonis Wilson, 1 P. & D. 582, the codicil, though referring to a revoked will by date, went on to refer to certain bequests as contained in that will, which were, in fact, contained in a later will. There was, therefore, a clear case of mistaken description.

the will

A testamentary disposition, written at the foot of a will Writing on revoked by marriage, and referring to a bequest contained referring to