its contents.

Codicil

attached

will.

in the will, though not referring to the will in terms or described as a codicil, is sufficient to revive the will. In bonis Terrible, 2 Sw. & T. 8.

The fact that a codicil is found attached by tape to a will to revoked which has been revoked by a later will will not revive the revoked will. Marsh v. Marsh, 1 Sw. & T. 528. Destroyed A will which has been destroyed and no longer exists in writing cannot be revived by a codicil, though there may be a draft of the will in existence. Hale v. Tokelove, 2 Rob. 318; Newton v. Newton, 12 Ir. Ch. 118; Rogers v. Goodenough, 2 Sw. & T. 342.

will.

tion of will

Confirma- A codicil making an alteration in a will, and confirming altered by it in all other respects, does not revive the will so far as it codicil. has been altered by intermediate codicils. Crosbie v. Macdoual, 4 Ves. 610; Green v. Tribe, 9 Ch. D. 231.

Incorpora

tion of

documents.

Whether document must be described as existing.

Any document in existence when the will is executed, and sufficiently described to enable it to be identified, may be incorporated with the will, and may be referred to for purposes of construction, whether incorporated in the probate or not. Hutchings v. Wood, 2 Moo. P. C. 355; Aaron v. Aaron, 3 De G. & S. 475; In bonis Sunderland, 1 P. & D. 198; In bonis Mercer, 2 P. & D. 91; see In bonis Pascall, 1 P. & D. 606; In bonis Gill, 2 P. & D. 6; Quihampton v. Going, 24 W. R. 917.

It has been said that the document must not only be in fact in existence when the will is executed, but also that it must be described as existing. Van Straubenzer v. Monk, 3 Sw. & T. 6; In bonis Watkins, 1 P. & D. 19; In bonis Dallow, ib. 189; In bonis Sunderland, ib. 198.

It would seem, however, that if the document is proved to have been in existence at the date of the will, and is sufficiently identified by the description in the will, it is not necessary that it should be actually described as existing. See Singleton v. Tomlinson, 3 App. C. 404.

tion of

ence at

It seems that a document sufficiently referred to in the Incorporawill, though not in existence, may be incorporated if it documents exists at the date of a codicil to the will. In bonis Hunt, in exist2 Rob. 622; In bonis Stewart, 32 L. J. P. 94; 3 Sw. & T. date of 192; 4 Sw. & T. 211; In bonis Lady Truro, 1 P. & D. 201, not following In bonis Mathias, 32 L. J. P. 115; 3 Sw. & T. 100.

But for this purpose it must be clear that the will, if read as of the date of the codicil, refers to a definite instrument, and that the instrument in question satisfies the description in the will.

Thus, a codicil confirming a will, which directs certain property to be distributed as the testator may by any memorandum or deed direct, will not have the effect of incorporating memoranda executed between the dates of the will and codicil. In bonis Lancaster, 29 L. J. P. 155; see In bonis Warner, 10 W. R. 566.

codicil.

will.

A memorandum not described as a codicil written on Memorandum on the back or the fourth side of a paper containing an invalid back of will to which it does not refer does not incorporate the will. In bonis Drummond, 2 Sw. & T. 8; In bonis Tovey, 47 L. J. P. 63; see In bonis Willmott, 1 Sw. & T. 36.

66

So a reference to executors hereunder named," or the words "turn over," will not incorporate a clause not contained in the body of the will, though written before execution. In bonis Dallow, 1 P. & D. 189; In bonis Dearle, 39 L. T. N. S. 93; see In bonis Watkins, 1 P. & D. 19.

On the other hand, the words "see over," with an asterisk, have been held sufficient to incorporate a sentence on the second side of a sheet of paper, by the side of which was also written "see over," with an asterisk. In bonis Birt, 2 P. & D. 214.

The cases above cited on the subject of revival are also authorities on the subject of incorporation.

Memo

randum

to contents

of will.

Thus it would seem that a memorandum at the foot of

referring a will, referring to something contained in the will, would incorporate it, though there is no express reference to the will as such. In bonis Terrible, 2 Sw. & T. 8; In bonis Widdrington, 35 L. J. P. 66.

Upon similar principles it has been held that a testamentary disposition not described as a codicil, but written on the back of the will underneath two codicils described as codicils to the will, and altering a provision contained in the second codicil, had the effect of republishing the will and codicils. Guest v. Willasey, 2 Bing. 429; 3 Bing. 614. A reference by a duly attested codicil to a will incorporates the will, if there is only one document in existence to which the term "will" can apply. Barnes v. Crowe, unattested 1 Ves. Jr. 485; Doe d. Williams v. Evans, 1 Cr. & Mee. 42; Allen v. Maddock, 11 Moo. P. C. 427; In bonis Heathcote, 29 W. R. 356.

Reference

to a will in a codicil incor

porates an

will.

Reference

to unattested codicil.

Reference to will where

there is a

valid will

and codi

cils.

Reference to will

where

valid will

Similarly, a reference in a codicil to a prior unattested codicil will incorporate it. Ingoldby v. Ingoldby, 4 N. of C. 493; Smith's case, 2 Curt. 796.

A reference, however, in a codicil to a will and prior codicils, where there is a will and codicils duly attested, will not incorporate a codicil not duly attested. Croker v. Marquis of Hertford, 3 Curt. 468; 4 Moo. P. C. 339.

And upon the same principle it would seem that a reference by a codicil to a will where there is a duly attested there is a will and some unattested codicils will not set up the unattested codicils. Utterton v. Robins, 1 Ad. & E. 423; 2 Nev. & M. 821; In the goods of Phelps, 6 N. of C. 695; Haynes v. Hill, 7 N. of C. 256; see, however, Radburn v. Jervis, 3 B. 450; Guest v. Willasey, 2 Bing. 429; 3 Bing. 614.

and unattested codicils.

Will may

include

will and codicils.

Possibly a reference to a will in general terms would incorporate all the valid instruments constituting the will, such as a will and several codicils.

A codicil referring to a will by date incorporates the Reference to will by will of that date only, and not subsequent codicils. date. Burton v. Newbery, 1 Ch. D. 234; In bonis Reynolds, 3 P. & D. 35.

The case is not altered by the fact that a valid codicil referring to the will by date is written on the same paper as a valid will and an intermediate unattested codicil. In bonis Hutton, 5 N. of C. 598; In bonis Phelps, 6 ib. 695; In bonis Willmott, 1 Sw. & T. 36; In re Spotten, 5 L. R. Ir. 403.

Perhaps where a codicil is directed to be taken as part of the will, a subsequent codicil referring to the will by date and confirming it will have the effect of confirming the codicil as well. See Gordon v. Lord Reay, 5 Sim. 274, disapproved in Burton v. Newbery, supra.

If the codicil recites the will by date and a codicil by date, and then confirms the "said will," the term "will" may include both will and codicil. Aaron v. Aaron, 3 De

G. & S. 475.

As to whether a codicil headed "This is a fourth codicil to my will" would incorporate a codicil headed "This is a third codicil to my will," see Stockil v. Punshon, 6 P. D. 9.

tion.

Incorporation of an instrument into a will does not alter Effect of the effect of the instrument so far as it is already valid. incorpora So far as it is invalid as an independent instrument it takes effect as a testamentary disposition, subject to the ordinary rules as to lapse, ademption, &c., applicable to wills. Bizzey v. Flight, 3 Ch. D. 269.

in exist

ence

incor

A paper not in existence at the date of the execution of Paper not a testamentary instrument cannot be incorporated in it or referred to for purposes of construction. Countess Ferraris cannot be v. Lord Hertford, 3 Curt. 468; In bonis Watkins, 1 P. & porated. D. 19; In bonis Dallow, ib. 189; Singleton v. Tomlinson, 3 App. C. 404; Smith v. Conder, 9 Ch. D. 170.

Where a gift is made by will to a person, and it appears Gift on

trusts declared

by parol

to the trustee.

Power

cannot be reserved

by will of

on the face of the will that the gift is to be held on trust, but the trusts are not declared, oral evidence of the trusts is admissible if they have been communicated to the legatee prior to the execution of the will. Crook v. Brooking, 2 Vern. 50, 106; Pring v. Pring, 2 Vern. 98; Irvine v. Sullivan, 8 Fq. 673; Riordan v. Banon, I. R. 10 Eq. 469; In re Fleetwood; Sidgreaves v. Brewer, 49 L. J. Ch. 514.

A testator cannot reserve by his will the power of making a testamentary disposition of his property by a making a subsequent unattested paper. Habergham v. Vincent, subsequent 2 Ves. Jr. 204; 4 B. C. C. 353; Countess de Zichy Ferraris v. Marquis of Hertford, 3 Curt. 468; 4 Moo. P. C. 339.

unattested

will.

Persons to take

may de

pend on a

Thus, a gift to trustees to hold upon the uses appointed by a letter to be signed by the testator is invalid. Johnson v. Bull, 5 De G. & S. 85.

But there is no objection to a gift to persons to be under a ascertained by a subsequent act on the part of the testator, particular description provided the act is one which must be done as the natural result of the state of the property at the date of the will, subsequent and is in no way dependent upon a power reserved by the will. Stubbs v. Sargon, 2 Kee. 255; 3 M. & Cr. 507, where the gift was to the persons who should be in co-partnership with the testatrix at the time of her decease, or to whom she should have disposed of her business.

act of the testator.

Gift on trust;

closed

later.

It has been said that where the will discloses that a trust dis bequest is made to a person as a trustee, but the nature of the trusts is not disclosed, evidence of the trusts is admissible, if they have been communicated to the legatee after the execution of the will. See Moss v. Cooper, 1 J. & H. 352; Riordan v. Banon, I. R. 10 Eq. 469; In re Fleetwood; Sidgreaves v. Brewer, 49 L. J. Ch. 514; 15 Ch. D. 594, where Johnson v. Bull, 5 D. G. & S. 85, which is an authority to the contrary, is discussed.

The distinction between this class of cases and those