Probate Court was to apply the principles of probate to wills before it, irrespective of the effect of those wills in relation to the execution of powers under them. There a testatrix possessing a power of appointment duly executed it by will dated 1815. By a later will, dated 1829, duly executed and attested according to the power, but without any recital of or reference to the power, she disposed of a real estate over which the power extended, and left "all the rest, residue, and remainder of her estates and effects, real or personal, plate, &c., or other property, whether in possession, reversion, or expectancy, or held in trust for her, and revoked and made void all and every other will or wills by her at any time theretofore made, and declared this only to be her last will and testament." The Prerogative Court in this case granted a general probate of the latter will (and codicil),' and, upon further proceedings, granted probate of the earlier will also, that but the Court the Court of Chancery might construe both. "In granting of Chancery: limited administration under the special circumstances of this case, I proposed," said Sir John Nicholl, "to put the whole matter in such a shape that the opinion of a court of equity might be taken as to the validity of the appointment." From this decree there was an appeal, during the hearing of which much comment fell from the Appeal Court, showing that the two Courts, probate and chancery, might in effect oppose one another's decrees. The Appeal Court then reversed the decree appealed from; further holding that the Probate Court below must itself decide whether the will of 1815 was under the circumstances revoked by the later one of 1829, and issue its grant accordingly, which it did, and in effect construed the due execution of the power under both wills by holding that the intention to revoke the former will was, taking all the contents of the latter will together, clear, and by refusing probate of the two papers as together containing her will, and grant- here, however, ing probate of the latter paper only. it was held otherwise. Thus, where a will was made under a power, the Court of Probate was not, it appears, at liberty to relieve itself from the task of construing the power itself. And, on the authority of Hughes v. Turner, a will under a power, containing a covenant not to revoke that will, was held to have been revoked by a subsequent codicil to the testatrix's last will revoking it in toto, so that she might die intestate.1 Here, the last paper only was admitted to probate; but the duty of deciding whether it was meant to revoke all the other papers was thrown upon the Court of Construction, which, it appears, would not have sufficient data before it for so doing. The case of Holt 2 being decided by consent proves nothing, but it is cited as an instance of two complicated executions of a power. The more reliable But later cases decisions, however, appear to be those of In the goods of Graham3 and of Fenwick. The question, though rexata in the time of Dr. Lushington and Sir John Nicholl, appears now to be settled in favour of the view taken in the cases just mentioned. are to the contrary. follow powers "A will disposing of personal estate situate in this Foreign wills country made in pursuance of a power of appointment, and not domi and executed in compliance with the requisites of the cile. power, has been held entitled to probate, though not executed according to the testamentary law of the domicil of the party making it."5 EXPRESS REVOCATION IN WRITING. Both in the Statute of Frauds and in the Wills Act (1838) there is a distinction between a will or codicil and some writing. 1 Brenchley v. Lynn, Robert. 441. 2 6 N. C. 93. 33 Sw. & Tr. 69; 32 L. J., Prob. 113; 2 P. & D. 385. See note, ante, p. 98. 4 1 P. & D. 319. 5 Alexander, 29 L. J., Prob. 93. Sect. 20, ante, p. 58. 66 An instrument, purporting to be a codicil, though simply revoking all former wills, containing no disposition of property, and expressing a testator's intention to die intestate, is testamentary, not apparently as some writing" but as a codicil.1 And a memorandum, duly executed, as follows: "This my last will and testament is hereby cancelled, and as yet I have made no other," was admitted to probate, though the court (Lord Penzance) had "serious doubts whether what was designated some writing, and was neither will nor codicil, could properly be the subject of probate." If they were well founded, the object in providing for the probate of some writing in both the Statute of Frauds and the Wills Act is not quite clear. In the preceding case the court decreed probate of the memorandum, chiefly because it did something more than merely revoke the will. Where a memorandum stopped at revocation, the court, alluding to the expression in the statute, "some writing declaring an intention to revoke the same," and finding this to be a writing, rejected it "because it in no way disposed of any property."3 From the careful way in which the revocatory writing was executed in this case, it may be inferred that the testator concluded that he had satisfied the requirements of the law; but it was held otherwise. A testamentary letter, duly executed, declaring an intention to revoke the writer's will, is "some writing declaring an intention to revoke," under the Wills Act. Here, however, the court deemed it "also of a testamentary character," and decreed probate of it; from which, on its past decision, it may be assumed that otherwise it would not have done so. At any rate, it appears to have shown a decided reluctance to admit to probate "some writing," as some writing only, though the act expressly provides for it. 5 1 Brenchley v. Still, 2 Robert. 3 Fraser, 2 Ibid. 41. 41837, sect. 20; see ante, p. 58. 5 Durance, 2 P. & D. 406; see ante, p. 106. REVOCATION BY CODICIL. will. Before the Wills Act, if a will were destroyed, primâ A codicil is facie the codicil fell with it, unless an independent opera- dependent prima facie tion by it were intended. Now an executed instrument of upon the will, but it may also revocation or other mode is requisite. An instance may revive the be given in which the codicil revived the will, and was itself, in forgetfulness of this fact, subsequently destroyed. Had it been permitted regardless of intention, it would have put an end to the revival of the will, which would have then remained revoked by a marriage. A testator executed a will, married, and then revived Example. his will, so revoked, by codicil. Subsequently, necessity for the codicil having ceased, as he thought, he handed a sealed packet (supposed to be the codicil) to a friend. On his death it was opened, but did not contain the codicil. He was proved to have adhered to his will till a late period in life, long after the supposed destruction of the codicil upon the death of his wife. The court, upon motion to grant probate of both the will, and codicil (in draft), on the presumption that the destruction of the latter was not animo revocandi as to the will, did so, being of opinion that the testator destroyed the codicil with no intention. of revoking the will. Here the codicil was requisite to maintain the revival of the will, and this the testator, while adhering to the will, appeared to have forgotten in destroying the codicil.2 The legal operation of a codicil is to confirm such part of the will to which it refers as it does not revoke; and hence where a testator by codicil revokes all bequests and dispositions in his will, and nominates executors, but does not, in direct terms, revoke the appointment of executors and guardians in his will, the will is not revoked.3 A codicil firms its will usually con As stated, the destruction of a will primâ facie revoked A revoked will the codicils, as they were dependent upon it before the the codicil. 1 Turner, 2 P. & D. 403. 2 James v. Shrimpton, 1 Ibid. 431. 3 Howard, Ibid. 636. revoked also The term, independent, as regards wills and codicils, cannot be decisions re Wills Act. And so it was held since.1 It was also held that revocation of the codicil did not ensue, if an intention were proved that it should operate notwithstanding.2 Lord Penzance found, on careful examination of previous decisions, that no satisfactory explanation of the term, in reference to a codicil, independent of the will, could be explained by gathered from the previous decisions upon the point. It lating to them. Was a general proposition that codicils should stand or fall with wills to which they belonged. The court pointed out certain exceptions under the old law. In one,1 Barrow v. Barrow, a codicil, as a substantive instrument, disposing only of residue, which was unascertainable without the destroyed will, was admitted to probate. In another, Medlycott v. Assheton," a codicil, preserved uncancelled upon the destruction of the will, was rejected, the presumption of intention that the will should revoke it being not repelled. Revocation of a will is held to revoke a codicil also, on proof that such was the testator's intention." 8 Lord Penzance took a somewhat different view of the law. Before the Wills Act, as seen, the codicil fell with the will when the will was revoked, unless an intention that the codicil should stand alone were proved. Since the act, a codicil can only be revoked by one of the modes indicated in the twentieth section of that act-ignoring intention alone." "In Clogston v. Walcot,10 this question was treated by the court as one of intention solely." The same view was taken in Grimwood v. Cozens.12 In the former case no reasons are given. The latter was held already decided Irreconcilable in the previous case. In one case 13 Sir J. P. Wilde decisions upon appears to have acquiesced in the decision of Sir C. Cress it. 11 1 Coppin v. Dillon, 4 Hagg. 362; 2 Clogston v. Walcott, 5 N. C. 623. 4 See 2 Lee, 335. 5 2 Add. 229. 6 Bleckley, 8 P. D. 169. Savage, 2 P. & D. 78. 8 1837. 9 Black v. Jobling, 1 P. & D. 690; and Turner, 2 Ibid. 403. 10 Lord Penzanee. 11 Sir H. J. Fust. 12 Sir C. Cresswell, |