other legacies) *£50 to each trustee, to the Foundling Hospital £2000, and to the hospitals of L. and S. £1000 each. Afterwards, by a codicil, he revoked the devise and legacy to one of the trustees, and substituted another trustee, to whom he gave a legacy of £50. He also revoked the legacies to the three hospitals, and gave £1500 to the Foundling, £500 to the Infirmary of N., and a sum to be distributed among the poor of S. It was unsuccessfully contended for the charities, that the legacies given by the codicil were not, like those of the will, charged on the land, and were therefore valid. Lord Thurlow seems to have thought, that the necessity which this would have occasioned of holding, that the legacy to the new trustee must also come out of the personalty, formed a conclusive argument against the construction. [But it seems that even without this ground the decision must have been the same.(m)

So, in Fitzgerald v. Field, (n) where a testator gave his personal and freehold estates to trustees, upon trust, with the money arising from his personal estate, and in aid thereof, by sale or mortgage of part of the freeholds, to pay certain annuities and legacies. By a codicil he revoked this bequest and devise, and gave the real and personal estate to other trustees upon the trusts in his will and codicil mentioned. He then bequeathed an annuity to A for life, with the payment of which he charged the residue of his said lands, and with a power of distress. Lord Gifford, M. R., held, that, whatever might be the construction if the codicil stood alone, it was evident, looking at the will and codicil together, the intention of the testator was, that all his personal estate should be applied in the first instance to the payment of annuities and legacies. [But this does not apply where the residue is by the will given to the legatees in proportion to the legacies "herein," or "by the will" bequeathed to them, and by codicil additional legacies are given to some of the legatees; the proportion in which the residue is to be divided here remains unaltered.] (o)

Whether a legacy bequeathed by a codicil is to participate in an exemption from duty created by the will in favor of the Whether legacies in general given by the will, (p) or of some par- by codicil is

[(m) Johnstone v. Earl of Harrowby, 1 D., F. & J. 183; In re Smith, 2 J. & H. 594.]

(n) 1 Russ. 428.

legacy given

(p) What expressions exempt legacy or annuity from duty.-The following expressions have been held to exempt the legatees from payment of

[(9) Hall v. Severne, 9 Sim. 515; see duty. A direction to executors to make Sherer v. Bishop, 4 B. C. C. 55.] payment of all the legacies without any

ticular legacy for which the legacy in the codicil is substituted, has often been 'a point of dispute. Even in the latter case, it seems the intention to exempt the substituted legacy must be distinctly indicated, there being no necessary inference that

the legacy *bequeathed by the codicil is to stand pari passu in all respects with the legacy for which it is substituted. Thus, where the legacies bequeathed by a will were to be paid free from legacy duty, and the testator by a codicil bequeathed to the husband of one of the legatees who had died an equal legacy, "instead of" the legacy given by the will to the deceased wife; it was held by Lord Eldon, affirming a decree of Sir J. Leach, V. C., that the legacy given by the codicil was an independent, distinct, substantive bequest; and, therefore, was not within the exemption.(q)

So, where a testator by his will gave to A and B an annuity of £300, equally to be divided between them, during their joint lives, free from all taxes and stamp duties, and after the death of one of them, to the survivor during her life, and after the death of the survivor, over to C for life. By a codicil the testator revoked the annuity of £300, and gave A and B a clear annuity of £100 each, with benefit of survivorship. It was held, that the gift by the codicil was independent of the gift in the will, and, therefore, the annuities were not exempt from the duty. (r)

he had received the legacy, Foster v. Ley, and therefore a gift of an annuity to be 2 Scott 438, [2 Bing. N. C. 269.

A direction in a will that the legacy duty on the legacies "herein" given shall be paid out of his estate, does not extend to legacies given by codicil, even though the codicil is directed to be taken as part of the will, Early v. Benbow, 2 Coll. 355; and see (as to "herein ") Radburn v. Jervis, 3 Beav. 450; Fuller v. Hooper, 2 Ves. 242; Jauncey v. Att.-Gen., 3 Gif. 308; secus where legacies generally are given duty free, Byne v. Currey, 2 Cr. & Mees. 603, 4 Tyr. 479; see also Williams v. Hughes, 24 Beav. 474.

A direction to pay "legacies" free of duty will not generally include the proceeds of realty directed to be sold, White v. Lake, L. R., 6 Eq. 188; but probably would include legacies payable out of such proceeds, see Hodges v. Grant, L. R., 4 Eq. 140. "Legacy," "legatee," may however be explained by the context to refer to realty, post ch. XXII., ? 6. As to exemption from property tax. -Property tax is a charge on the person,

paid without any deduction (Abadam v. Abadam, 33 Beav. 475), or free from legacy duty and other deductions (Lethbridge v. Thurlow, 15 Beav. 339; Sadler v. Rickards, 4 K. & J. 302), does not exempt from the tax unless the testator has elsewhere shown that he considers income tax to be a "deduction," Turner v. Mullineux, 1 J. & H. 334. But a gift of an annuity without any deduction on account of any taxes, &c. (Festing v. Taylor, 3 B. & S. 235), or a direction to trustees to pay all taxes affecting the hereditaments given to the devisee (Lord Lovat v. Duchess of Leeds, 2 Dr. & Sm. 62), exempts the annuitant or devisee from income tax as between himself and the testator's estate: and the exemption does not contravene the income tax acts. Ib. Wall v. Wall, 15 Sim. 513, appears to be overruled.]

(q) Chatteris v. Young, 2 Russ. 183; see also S. C., 6 Mad. 30, where the bequests are inaccurately stated.

(r) Burrows v. Cottrell, 3 Sim. 375.

It is clear, however, that if a testator by his will gives a legacy free from duty, and by a codicil, after reciting his intention of increasing the legacy, revokes it, bequeathing in lieu thereof a larger sum to the same legatees upon the same trusts, &c., the latter is also exempt.(8) Sometimes a codicil has the effect of impliedly revoking the posterior of two wills, by expressly referring to and recognizing effect of a codi- the prior one as the actual and subsisting will of the

Implied revocation by the

cil reviving an

earlier will.

testator.

Thus, if a testator makes a will in the year 1830, and at a subsequent period (say in 1840) makes another will inconsistent with the former, but without destroying such former will, and he afterwards makes a codicil which he declares to be a codicil to his will of 1830, this would set up the will so referred to, in *opposition to the posterior will; (t) and parol evidence that the testator actually intended to refer to the will of 1840 would be inadmissible. (u) An inaccuracy in regard to the date of the will referred to would not prevent the application of this doctrine, unless the mistake were such as to render it doubtful which of the two wills the testator had in view. (v) And it seems to have been considered, in the Ecclesiastical Court at least, that the fact of the codicil being written on the same piece of paper as the prior will (though it does not in terms refer to such will), sufficiently indicates an intention to treat that as the subsisting will, especially if (as happened in the case referred to) the posterior will was out of the testator's custody, so that he had no opportunity of canceling it. (x) [But in a case (y) where the reference was to "my last will dated," &c. (giving the date of the first will), it was held that the will which was really the last was meant, and that the date was a mistake.]

Republication

In applying the doctrine that a reference in a codicil to the prior of two wills as the actual will of the testator sets it up against a posterior will, it is necessary to bear in mind, that every codicil is a constituent part of the will to which it belongs; for in a general and comprehensive sense a will consists

of will by codicil, without referring to intermediate codicil, does not revoke latter.

(8) Cooper v. Day, 3 Mer. 154. [See also Fisher v. Brierley, 30 Beav. 267.]

(t) Lord Walpole v. Earl of Orford, 3 Ves. 402; S. C., nom. Lord Walpole v. Lord Cholmondeley, 7 T. R. 138; [Payne v. Trappes, 11 Jur. 854, 1 Rob. 583; In re Chapman, 8 Jur. 902, 1 Rob. 1.]

(u) Crosbie v. Macdoual, 4 Ves. 610;

[Payne v. Trappes, supra.]

(v) Jansen v. Jansen, cit. 1 Ad. 39. (x) Rogers v. Pittis, 1 Ad. 30; see also Lord C. B. Eyre's judgment in Barnes v. Crowe, 1 Ves., Jr., 488; Guest v. Willasey, 12 J. B. Moo. 2, [2 Bing. 429.

(y) In re Ince, 3 P. D. 111; and see Thompson v. Hempenstall, 1 Rob. 783,

of the aggregate contents of all the papers through which it is dispersed; and, therefore, where a testator in a codicil refers to and confirms a revoked will, it is not necessarily to be inferred that he means to set up the will (using the word in its special and more restricted sense) in contradistinction to, and in exclusion of, any intermediate codicil or codicils which he may have engrafted on it. He is rather to be considered as confirming the will with every codicil which may belong to it; 66 and, accordingly in a case (z) where a person made his will, and afterwards executed several codicils thereto, containing partial alterations of, and additions to the will; and by a further codicil, referring to the will by date, he changed one of the trustees and executors, and in all other respects *expressly confirmed the will, this confirmation of the will was held not to revive the parts of it which were altered or revoked by the preceding codicils: Sir R. P. Arden, M. R., observing, that if a man ratifies and confirms his last will, he ratifies and confirms it with every codicil that has been added to it.

previously

[But the doctrine of Burton v. Newbery (a) is, that where by codicil a "will" is referred to by date, it is a reference to that Does it revive instrument alone exclusive of any intermediate codicil. the latter if And Crosbie v. Macdoual is treated as a case where the revoked? intermediate codicil was not revoked, rather than as one where it was actively confirmed. (b) According to this, the direct action of the latest codicil is upon the instrument called a will, and on that only. The codicil is left untouched, and operates by its own inherent force, if it has any; and the ultimate result is, that the will is confirmed as medified by the codicil. (c) If that is the correct view of the case, it will not govern one where the intermediate codicil has previously been

13 Jur. 814, where the internal evidence was sufficient to correct the mistake as to date.]

66. But if the testator use the words, "I give, devise and bequeath to A and B all the residue of my real and personal estate, whatsoever and wheresoever, undisposed of by my will and this codicil thereto," an intermediate codicil will be revoked thereby. In the goods of Hastings, 26 L. T. (N. S.) 715.

(2) Crosbie v. Macdoual, 4 Ves. 610; see also Gordon v. Lord Reay, 5 Sim. 274, stated ante p. *116; [Wade v. Nazer, 12

Jur. 188, 6 No. Cas. 46, 1 Rob. 627; In re De la Saussaye, L. R., 3 P. & D. 42; Green v. Tribe, 9 Ch. D. 231.]

[(a) 1 Ch. D. 234, ante p. *117.

(b) The M. R. is even reported to have said that Crosbie v. Macdoual "goes to this, that a mere reference to an instrument with a date is not a reference to the subsequent instrument," p. 240.

(c) Where the first of two inconsistent wills is set up, the modus operandi would. be similar, though the ultimate result (viz., the unavoidable revocation of the second will), is different.