revoked with the will to which it belonged, and where, therefore, it has no force except such, if any, as may be supplied by the subsequent codicil and Burton v. Newbery deciding that a mere reference by date to an unrevoked will does not set up an invalid codicil to that will, goes far to decide also that in the case supposed the intermediate codicil would not be reinstated. However, Sir R. P. Arden's language, which has been adopted by later judges, (d) implies a more intimate connection between will and codicil, and a more active operation upon the latter by an instrument referring to and confirming the will, though described by its date, than Sir G. Jessel would appear to admit or approve. Where, however, a testator referring to his will by date revokes it, the case is different, because there the principle applies that a clear disposition is not to be revoked except by clear words.] (e) Doctrine as applied to wills under the new law. In one case in the Ecclesiastical Court it was held, that the mere fact of the testator ratifying his will and certain specified codicils, did not of itself amount to an implied revocation of other codicils not so specified. (f) But, in another case, the court *arrived at a different conclusion, on a comparison of the contents of all the instruments, and looking at the conduct of the testatrix in relation to them. (g) Such questions may occur even in regard to wills made since the year 1837; for though the 22d section of the recent statute, (h) prevents the revival of a revoked will, except by re-execution, or by "a codicil showing an intention to revive the same," and, therefore, no such effect would follow from the mere revocation of a posterior revoking will; yet it still holds, according to the doctrine of Lord Orford's case, that a recognition in a codicil of the earlier of two inconsistent and may revive it; undestroyed wills, by date or otherwise, as the will on which the codicil is founded, shows an intention to revive such earlier --but such will, will. (i) [It has been decided, however, that if the earlier in order to be and revoked will has been destroyed by the testator or by be in existence. his authority, it cannot be thus revived, though its contents might be satisfactorily proved from other sources: on the ground [And see In re Reynolds, L. R., 3 P. & D. 35. Recognition in a codicil of a revoked will revived, must (d) Sir J. Hannen, in In re De la Saussaye, L. R., 3 P. & D. 42, and Sir E. Fry, Green v. Tribe, 9 Ch. D. 238. (e) Per Fry, J., 9 Ch. D. 237, citing Farrer v. St. Catharine's College, L. R., 16 Eq. 19.] (f) Smith v. Cunningham, 1 Ad. 448. (h) Ante pp. *140, *145. (i) Payne v. Trappes, 11 Jur. 854, 1 Rob. 583; In re Chapman, 8 Jur. 902, 1 Rob. 1; In re M'Cabe, 31 L. J.. Prob. 190; In re Reynolds, L. R., 3 P. & D. 35. Sir J. Wilde has expressed a contrary that the will being non-existent as well in fact as in law, this would be to make a new will without the formalities required by section 9 of the statute. (k) And the reference to the earlier will being insufficient to effect its revival, is insufficient also, of itself, to effect the revocation of the latter will; (7) on the principle alluded to at the commencement of this section that an instrument inoperative to effect its direct purpose (viz. revivor) does not give effect to an intention (viz. revocation) of which nothing is known but by that purpose. (m) The latter part of section 22 provides, that "when any will or codicil which shall be partly revoked and afterward 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." Now if partial revocation of a will-as, of a devise of Black acre to A in fee-has been caused by a codicil devising Blackacre to B in fee; and if this codicil has itself been afterwards included in the final revocation of the will, and the "will" is then revived; the devise of Blackacre remains revoked unless a contrary intention is shown. The will is restored as modified by the codicil, but by a short statutory method, without having recourse to the codicil, concerning which the statute is silent; and it may still be a question what becomes of the codicil. In Neate v. Pickard (n) a will and codicil were revoked by marriage, and afterwards by another codicil the testator confirmed his "last will" without referring to the date; and it was held that both were revived. At the date of the second codicil there were several alterations (unexecuted it would seem) on the face of the will, and it was further held that the will was revived in its altered condition.] opinion; see his judgment, In re Steele, L. R., 1 P. & D. 575; sed qu. the statute is there not quite accurately represented. (k) Hale v. Tokelove, 2 Rob. 318, 14 Jur. 817; Newton v. Newton, 12 Ir. Ch. Rep. 118; Rogers v. Goodenough, 2 Sw. & Tr. 342, 31 L. J., Prob. 49. "I limit this, in my judgment, to cases where the will has been destroyed by the testator or by some person in his presence and by his authority. I say nothing as to what would be the effect if the instrument had been destroyed without his knowledge; that question may arise another day." Per Cresswell, J., in Rogers v. Goodenough. (1) Rogers v. Goodenough, 2 Sw. & Tr. 342, 31 L. J., Prob. 49. But see Hale v. Tokelove, 2 Rob. 318, 14 Jur. 817; Newton v. Newton, Law Times, Oct. 26th, 1861, reversed on app. 12 Ir. Ch. Rep. 118; in both of which cases the codicil, besides reference to the earlier (destroyed) will, contained an express confirmation thereof, and great stress was laid on this circumstance by the court. Sed qu. (m) Ex parte Earl of Ilchester, 7 Ves. 377-8; Powell v. Powell, L. R., 1 P. & D. 209. [(n) 2 No. Cas. 406. See also In re M'Cabe, 31 L. J., Prob. 190; In re Reynolds, L. R., 3 P. & D. 35, in neither of which, however, was 22 mentioned.] what. Express repub *CHAPTER VIII. REPUBLICATION. Republication is of two kinds, express and constructive. 1 Express Republication, republication occurs where a testator repeats those ceremonies which are essential to constitute a valid execution, lication. with the avowed design of republishing the will. Under the statute of frauds, to republish a devise of freehold estate required an attestation by three witnesses; while, on the other hand, a will might have been republished with respect to copyholds and personalty without any attestation. 2 It is not often necessary, however, to 1. "By republishing a will was meant repeating, either expressly or by construction, the formal declaration which, before Jan. 1, 1838, used to be made by a testator at the time of signing his will, that the document signed was his last will and testament. Prior to that date, the term signified the revival of a revoked instrument. Since the wills act 1838, this formality has been dispensed with. * * * For the term republication then we must now substitute that of re-execution, although the former is now occasionally used; yet really since the wills act 1838, there has been no such thing as the republication of a will, the execution of a codicil being equivalent to the reexecution of a will, if the act be done with such intention, or rather perhaps without any contrary intention." Flood on Wills 361. See also Wms. Ex'rs (6th Am. ed.) 245, et seq. In such of the American states as do not require any formal publication of a will, in the first instance, the term re-execution would be as appropriate as the term republication. Blackstone says that the republication of a former will revokes one of later date, and establishes the first again. 2 Comm. 502. Republished wills are as new wills. Musser v. Curry, 3 Wash. C. C. 481; Barker v. Bell, 46 Ala. 216; Pringle v. McPherson, 2 Brev. 279; Flood on Wills 362. The case of Ackerly v. Vernon, 1 P. Wms. 783, introduced the doctrine of constructive republication, which doctrine has been almost, if not quite, universally adopted. 2. As a general rule the same forms and solemnities are requisite for the republication of a will as for its original publication. Havard v. Davis, 2 Binn. 406, 425; Jack v. Shoenberger, 22 Penna. St. 416; Musser v. Curry, 3 Wash. C. C. 481; Barker v. Bell, 46 Ala. 216; Love v. Johnston, 12 Ired. 355; Sawyer v. Sawyer, 7 Jones L. 134; Warner v. Warner, 37 Vt. 356; Hickman v. Holliday, 6 Mon. 587; Mooers v. White, 6 Johns. Ch. 375; Hatch v. Hatch, 2 Hayw. 33; Dunlap v. Dunlap, 4 Desaus. 321; Jackson v. Holloway, 7 Johns. 394; Jackson v. Potter, 9 Johns. 312. But in Pennsylvania this does not prevent a parol republication. Havard v. Davis, ubi supra; Jones v. Hartley, 2 Whart. 103; Jack v. Shoen inquire as to the republication of wills of personal estate, (a) inasmuch as a residuary bequest, even under the old law, embraced all that species of property of which the testator died possessed; so that republication (which merely causes the will to speak and operate from the period of its being republished) had no effect in enlarging the operation of such a bequest. berger, ubi supra. On this point it was said by Sergeant, J.: "The rule of law is, that the republication of a will must be accompanied by the same solemnities as were necessary to the publication in the first instance, (2 Binn. 419;) but no others are required. Hence, in England, since the statute of frauds, requiring a will to be in writing signed by the party, and to be attested and subscribed in his presence by three witnesses, a parol republication is not good; but in Pennsylvania, the witnesses to a will need not be subscribing witnesses. If there be a will in writing, signed by the testator, it is sufficient that it be proved by any two witnesses who can establish the fact, whether they attested as witnesses or not. As therefore the original proof of the will may be on parol, so may the proof of republication; but the number of witnesses must be the same. In this respect our law stands on the footing of the English law, under the statute of 32 Hen. 8th, prior to the statute of frauds; and under the statute of Hen. 8th, the decisions in England were uniform in favor of receiving parol evidence of the republication of a will in writing; and it was held that anything which expressed the testator's intention that the will should be considered as of a subsequent date, was sufficient. * * * Parol evidence of republication is proper in Pennsylvania, with the requisition, however, that the proof of the republication be by the same number of witnesses and be as conclusive of the facts as would be required to estab * * lish an original will. The animus republicandi must be shown, that is, it must be shown that it was the intention of the testator at that time, that the will in question was and should be his will. The identity of the will must be shown, or in other words, that the will produced is the same will to which the testator referred his declarations. The witnesses need not be called for the purpose, for that is not required in order to establish an original will; nor need the will be present at the time of such declarations. * Nor need declarations be at the same time to the witnesses; they may be to one on one day, and to another on the next. It is sufficient if they satisfactorily show that after the date of the revocation, the testator declared his intention that the writing was his last will, and that fact is proved by two competent witnesses to the satisfaction of the jury." Jones v. Hartley, 2 Whart. 103, 110. But, in Connecticut, a will once revoked by a written declaration cannot be set up or republished by parol. Witter v. Mott, 2 Conn. 67. And this is undoubtedly the rule of law in the greater number of the American states. Warner v. Warner, 37 Vt. 356; Love v. Johnston, 12 Ired. 355; Cogdell v. Cogdell, 3 Desaus. 346; Carey v. Baughn, 36 Iowa 540. Where one has made a holographic will, and placed it among his valuable papers, and afterwards, being about to go abroad, he deposits such will, together with other papers, with a friend for safe keeping, this depositing will not amount to a republication. Battle v. (a) As to the republication of wills of personalty, vide Long v. Aldred, 3 Ad. 48; Miller v. Brown, 2 Hagg. 209. Constructive republication by codicil. Constructive republication takes place where a testator, for some other purpose, makes a codicil to his will; in which case the effect of the codicil, if not neutralized by internal evidence of a contrary intention, is to republish the will. By this means, under the old law, lands of inheritance acquired since the execution of the will were often brought within the operation of any general or Speight, 9 Ired. L. 288. And it is probable that a holographic will once revoked can be republished only by a written instrument setting forth the testator's intentions, and duly attested by the statutory number of witnesses, or by a paper written by the testator himself and deposited by him as required for the original will. Love v. Johnston, 12 Ired. 355; Sawyer e. Sawyer, 7 Jones L. 134. And such subsequent writing would be construed to be a codicil. Ibid. But where a testator, just before his death, said that he had made a will, and deposited it with S., and that all the change he desired in it was to add another executor, this was not a sufficient republication. Jackson v. Potter, 9 Johns. 312. Nor is a memorandum endorsed upon the will and attested by two witnesses, where the statute requires three witnesses. Jackson v. Holloway, 7 Johns. 394. But such a memorandum endorsed upon the will and signed by the requisite number of witnesses, the testator having actually republished the will, is, in Ohio, a good republication, although the testator did not sign it. Reynolds v. Shirley, 7 Ohio, pt. 2, 39. It has been said that where a testator has two wills, the first not being actually canceled or destroyed, or expressly revoked on the making of the second, if the second be afterwards canceled, the first will is revived. However, it is not well set tled whether this is so. But if a testator make a second will, and actually revoke the first by an absolute act, rendering it void, and then cancels the second will, the first is not thereby revived; in such case, republication is essential to restore the first will. 4 Kent 531, and notes; Bohannon v. Walcot, 1 How. (Miss.) 336; Lively v. Harwell, 29 Ga. 509; Marsh v. Marsh, 3 Jones L. 77; Barksdale v. Hopkins, 23 Ga. 332; James v. Marvin, 3 Conn. 576; Beaumont v. Keim, 50 Mo. 28; Rudisiles v. Rodes, 29 Gratt. 147; Colvin v. Warford, 20 Md. 357, 387. But the opposite rule prevails in Pennsylvania. Lawson v. Morrison, 2 Dall. 286; Flintham v. Bradford, 10 Penna. St. 82. In Bates v. Holman, 3 Hen. & Munf. 502, A made a will in legal form, to which he afterwards attached a codicil; he then made a second will, and annexed a postscript to it, by which he revoked all former wills, and signed the postscript; thereafter he canceled the second will, by cutting his name out from the body of the will, but leaving the postscript with his name subjoined to it. This paper A carefully preserved, as also the first will, and after the death of A both were found. It was held that the second will was a complete revocation of the first, and that the canceling of the second did not necessarily cancel the postscript so as to set up the first will. See 2 Greenl. Ev., 683. "If a prior will be made, and then a subsequent one expressly revoking the former, in such case, although the first will be left entire, and the second will be afterward canceled, yet the better opinion seems to be, that the former is not thereby set up again." 1 Powell on Devises 528. And on this point it is said by Hosmer, C. J.: “An express revocation is a positive act of the party, which operates, by its own proper force, without being at all dependent on the consummation of the will in which it is found, and absolutely annuls all pre |