that the testatrix purposed the abandonment of her second will. There is no reason in the law why her manifest purpose should not be given effect.

The object of the Statute of Wills is to effectuate that which is proved to be the last will of a deceased person. To that end, it prescribes certain formalities of execution, whereby the possibility of imposition, or of fraud, is minimized. When a codicil is executed with those formalities, it is a final testamentary disposition and the will, to which it is shown to be the codicil, if itself an existent and a completed instrument, according to the statute, is taken up and incorporated; so that the two taken together are deemed to, and necessarily do, express the final testamentary intentions. In such a case, it must, logically and manifestly, follow that any other will, or codicil, prior in date to the codicil in probate, is revoked and the presence of express words to that effect, in the codicil, is unnecessary. See 1 Williams on Executors (6th Am. Ed.) pp. 251, 252; 1 Jarm. on Wills (5th Am. Ed.) *114-*191; Brown v. Clark, supra; In the Goods of Reynolds, L. R. 3 Probate & Divorce, 35.

In Brown v. Clark, a married woman executed a codicil, which, in terms, referred to and republished a will executed by her before her marriage, and it was held that it effected a re-establishment and a valid publication of the will, which had been revoked as the effect, under the statute, of the marriage. In the English case cited, In the Goods of Reynolds, a will had been executed in 1866, and a codicil to it in 1871. Later, in 1871, another will was executed, revoking all previous wills and codicils. In 1872, a codicil was executed, entitled: "This is a codicil to the will of B. R., dated May, 1866." Probate was decreed of the will of 1866 and of the codicil of 1872, by which it had been revived. The codicil of May, 1871, was held not to be revived, as there was nothing to show such an intention.

I think the judgment below is right and that it should be affirmed, with costs to the respondents, the Albany Historical and Art Society and the executors, to be paid out of the estate. Judgment affirmed.*

IZARD v. HURST.

(High Court of Chancery, 1697. 2 Freem. C. C. 224.)

The defendant's testator by his will gave his four daughters £600 apiece, and afterwards married his eldest daughter to the plaintiff, and gave her £700 portion; after that he makes a codicil and gives £100 apiece to his unmarried daughters, and thereby ratifies and confirms his will, and dies; and the plaintiff preferred his bill for the legacy of £600 given to his wife by the said will; and the only question was,

See Neff's Appeal, 48 Pa. 501 (1865). On the correction of a mistaken reference to a prior will, see note 11 to Crosbie v. MacDoual, ante, pp. 352, 353.

whether the portion given by the testator in his lifetime, should be intended in satisfaction of the legacy?

And held [by Sir JOHN TREVOR, M. R.] that it should; and agreed to be the constant rule of this court, that where a legacy was given to a child, who afterwards upon marriage or otherwise had the like or a greater sum, it should be intended in satisfaction of the legacy, unless the testator should declare his intent to be otherwise; and it was said the words of ratifying and confirming do not alter the case, though they amount to a new publication, being only words of form, and declare nothing of the testator's intent in this matter.13

13 See Tanton v. Keller, 167 Ill. 129, 47 N. E. 376 (1897); Langdon v. Astor's Ex'rs, 16 N. Y. 9 (1857). Compare Trustees v. Tufts, 151 Mass. 76, 23 N. E. 1007, 7 L. R. A. 390 (1890).

"It has been argued that the codicil of the 23d of June, 1818, confirming the will, makes the will speak as of the date of the codicil, and therefore revives the legacy, if it had been adeemed by the settlement, and at all events is evidence of an intention that the legacy should take effect. It is very true that a codicil republishing a will makes the will speak as from its own date for the purpose of passing after-acquired lands, but not for the purpose of reviving a legacy revoked, adeemed, or satisfied. The codicil can only act upon the will as it existed at the time: and, at the time, the legacy revoked, adeemed, or satisfied formed no part of it. Any other rule would make a codicil, merely republishing a will, operate as a new bequest, and so revoke any codicil by which a legacy given by the will had been revoked, and undo every act by which it may have been adeemed or satisfied." Lord Cottenham, in Powys v. Mansfield, 3 Myl. & Cr. 359, 375, 376 (1837).

In Hubbard v. Hubbard, 198 Ill. 621, 64 N. E. 1038 (1902), a codicil confirming a will was held not to restore a bequest in the will stricken out by the testator prior to the execution of the codicil. On the effect of republication on lapsed legacies, see 1 Jarman on Wills (5th Am. Ed.) *200.

CURATIVE EFFECT OF A CODICIL.-While an adeemed gift will not be renewed by mere republication of the will by a codicil, a will bad for want of testamentary capacity may be rendered good by a codicil republishing it.

"It is clear, from this evidence, that the issue made up on the appeal from the ordinary involved the validity of the codicil, as well as the will. * This is manifest from the consideration that, although the will, when executed, might be bad, or the testator might be non compos mentis, or under duress or undue influence, at its execution, yet if he was sane and free from duress or undue influence when he executed the codicil, that would be a republication and confirmation of the will, and would free it from the objection to which it was liable at its execution." Evans, J., in Farr v. O'Neall, 1 Rich. Law (S. C.) 80, 89 (1844). See Taylor v. Kelly, 31 Ala. 59, 68 Am. Dec. 150 (1857). If a will be vitiated by undue influence, nothing short of republication will validate it. Lamb v. Girtman, 26 Ga. 625 (1859); Chaddick v. Haley, 81 Tex. 617, 17 S. W. 233 (1891). But where a testator retains a will unrevoked, when he is free from undue influence and has ample opportunity to revoke it, a presumption that there was no undue influence in its execution may be indulged. Kelly v. Thewles, 2 Ir. Ch. 510 (1852). A duly executed codicil, of course, covers other defects in jurisdictions recognizing the doctrine of incorporation by reference. In Walton's Estate, 194 Pa. 528, 533, 45 Atl. 426, 428 (1900), for instance, the court said: "There was a grave irregularity in the execution of the first codicil. One of the subscribing witnesses did not attest it in the presence of the testatrix. But there was a subsequent codicil, properly executed and attested, and that codicil contained an express republication of both the will and the first codicil, and the latter instrument was thereby validated." But the New York and the Connecticut rule must be borne in mind. See In re Emmons' Will, ante, p. 349.

GURNEY v. GURNEY.

(High Court of Chancery, 1855. 3 Drew. Ch. 208.)

Thomas Gurney made his will on the 6th April, 1853, and by it, among other legacies, he gave £100 to Richard Fry.

He gave also a share of his residue to W. G. Temple.

Neither Fry nor Temple attested the will. The testator made two codicils, both of which were attested by Fry and Temple.

By the first codicil the testator revoked certain bequests, the effect of which was to swell the residue.

Among other questions on the will this question arose: Whether the legacy to Fry was avoided by his attesting the codicils; and whether the title of Temple to a share of the residue was affected by his attesting the codicils?

THE VICE CHANCELLOR [Sir R. T. KINDERSLEY], after stating the facts and referring to the Wills Act, proceeded:

Now the word "thereby," referring as it does to the words preceding, must be construed to mean by the same testamentary instrument which is attested; and that does not apply to the case where a legatee has not attested the instrument by which he takes his legacy, but only where he has attested the same instrument under which he takes. I think, therefore, that the legacy to Fry is not void under the statute. Then there is another case of the same description relating to another person who witnessed one of the codicils, viz., Temple. The testator by his will gave his residue in equal shares among his brothers and sisters for their lives, and on their deaths to go among their respective children; and Temple, who attested the codicil, was a child of one of the sisters, and under the will he was therefore entitled to a share of the residuary estate. By the codicil the testator revoked a legacy, the effect of which was to increase the shares of those who were entitled to the residue, and Temple, who was benefited by this increase, attested the codicil. The question is, what is the effect of the statute on this state of things?

It appears to me that I am not to extend the operation of the statute, but to look at what is the fair interpretation of the words; and the question is whether, by the codicil so attested, any beneficial devise, legacy, estate, interest, gift or appointment is given or made to the legatee who attested it. I think that the effect of the codicil does not amount to any beneficial devise, legacy, estate, interest, gift or appointment given or made to Temple, and therefore that Temple's case is not within the statute.14

14 See Tempest v. Tempest, 2 K. & J. 635 (1856). Compare Anderson v. Anderson, L. R. 13 Eq. Cas. 381 (1872).

In re MCCAULEY'S ESTATE.

Appeal of STATE.

(Supreme Court of California, 1903. 138 Cal. 432, 71 Pac. 512.) CHIPMAN, C. Jennie C. McCauley duly executed a will on February 12, 1900, in which she, among others, made several bequests to charitable institutions. On March 16, 1900, she duly executed a codicil to this will. She died April 14, 1900, 28 days after the execution of the codicil. The state, by the attorney general, filed objections and contest to the petition for final distribution, so far as concerned the charitable bequests, and prayed that they be adjudged void, and that they be distributed to the state for the support of the common schools. The trial court adjudged the said bequests to be valid, and decreed distribution accordingly. The state appeals from the de

cree.

* * *

The codicil did not attempt to change any of the charitable bequests, or any of the general provisions of the will, but related solely to specific bequests and devises to certain individual legatees. It stated that "the foregoing codicil was, at the date hereof, signed, sealed, and published as, and declared to be, together with the will set forth on the preceding pages, to be her last will and testament," etc.

Section 1313, Civ. Code, provides as follows: "No estate, real or personal, shall be bequeathed or devised to any charitable or benevolent society or corporation, or to any person or persons in trust for charitable uses, except the same be done by will duly executed at least thirty days before the decease of the testator." Section 1287 of the same Code reads as follows: "The execution of a codicil, referring to a previous will, has the effect to republish the will, as modified by the codicil." The testatrix left "no relatives or next of kin,” as she declared in her will, and, as seems to be conceded by respondents, the bequests in question will escheat if, as to such bequests, the will is invalid.

Appellant's contention is "that the effect of the republication of the will by the codicil of March 16, 1900, and the testatrix dying in less than 30 days thereafter, is to invalidate all the bequests to charity contained in the will." Appellant cites numerous cases to the effect that the codici brings the will to it, and makes it the will from the date. of the codicil. Some of the cases speak of the codicil as a republication of the whole will at the date of the codicil. Still others hold that the codicil operates as a republication of the will, the effect of which is to bring down the will to the date of the codicil, so that both instruments are to be considered as speaking at the same date, and taking effect at the same time. Payne v. Payne, 18 Cal. 292, at page 302, and In re Ladd, 94 Cal. 670, 30 Pac. 99, are cited as in line with the authorities elsewhere holding as above stated.

In the Ladd Case it was said that "the execution of the codicil had the effect 'to republish the will as modified by the codicil' (Civ. Code, § 1287) as of the date of the codicil (Payne v. Payne, 18 Cal. 302).” Again: "The effect of its execution was to republish the entire will, and not merely the clause so modified, 'as if the testator had inserted in the codicil all the words of the will.'" Doe v. Walker, 12 Mees. & W. 597. In giving construction to the will it was said that "the whole of the original will and the codicil are to be construed as a single instrument executed at the date of the codicil, and of which all the parts are to be construed, 'so as, if possible, to form one consistent whole.'" Civ. Code, § 1321. But it was also said: "A codicil is never construed to disturb the dispositions of the will further than is absolutely necessary for the purpose of giving effect to the codicil. 1 Jarman on Wills, 176. "The dispositions made by a will are not to be disturbed by a codicil further than is absolutely necessary in order to give it effect, and a clear disposition made by the will is not revoked by a doubtful expression or inconsistent disposition in a codicil.' Kane v. Astor's Ex'rs, 5 Sandf. (N. Y.) 533. The different parts of a will, or of a will and codicil, shall be reconciled if possible; and, where a bequest has once been made, it shall not be revoked, unless no other construction can fairly be put upon the language used by the testator. Colt v. Colt, 32 Conn. 446. See, also, Wetmore v. Parker, 52 N. Y. 462; Johns Hopkins University v. Pinckney, 55 Md. 365.'"

was

*

*

No one for a moment can suppose that the codicil in the present will was intended to disturb the bequests made in the original will in aid of the charities named. These bequests were not only left untouched by the codicil, but the testatrix declared that "the foregoing codicil * * published as, and declared to be, together with the will set forth on the preceding pages, to be her last will." That the testatrix intended her bequests first made in the will to stand unaffected by the codicil can admit of no doubt, and yet we are asked to give such construction to section 1287 as shall destroy a large number of her bequests, and practically nullify the testatrix's clearly expressed intention with respect to them. We have seen that no such construction can be given to the codicil itself. Can we—or, rather, are we compelled to-so construe the statute as to destroy these bequests, and thus thwart the design of the testator?

Section 1292 provides that: "Except in the cases in this chapter mentioned, no written will, nor any part thereof, can be revoked or altered otherwise than: (1) By a written will, or other writing of the testator, declaring such revocation or alteration; * * * or, (2) by being * * * destroyed, with the intent and for the purpose of revoking. And section 1317 provides that: "A will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible."

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