to leave the property alone, than to dispose of it, and that the codicil could not alter the construction. der old law, brings property comprised in a lapsed specific devise within "residuary de Though it is quite clear, as we have seen, that republication has no effect in restoring the operation of a specific devise, which Whether, unhas failed by the decease of its object in the testator's life- republication time, yet it was somewhat doubtful under the old law, whether lands, of which a devise in fee had so lapsed, passed by a residuary devise in the republished will. This vise in will. seems to depend on the point whether, if the specific devisee had been dead when the will was made, the residuary devise would have comprised the lands expressed to be given to the person so deceased; for, if it would not, then the lands, the devise of which subsequently lapses, could not, by the effect of the republication, pass under the residuary devise; because republication merely makes the will speak from its own date, and cannot bring within the scope of a devise in the will any subject which it would not have comprehended, in case the circumstances under which the republication takes place had existed at the period of the original execution of the will. In short, the inquiry is no other than simply this, whether, under wills made before 1838, a residuary devise includes particular lands, the devise of which is void ab initio. The [only] authority on the point [appears to be] Doe v. Sheffield, (c) where the Court of K. B. treated it as clear, that where a testator devised certain lands to the sisters of A, and the residue of his lands, not thereinbefore disposed of, to B, and it turned out that all the sisters of A were dead when the will was made, the lands in question passed by the residuary clause. The real facts of the case, however, as eventually ascertained, did not raise the question. (d) clusion from *Although, in the case just stated, the extension of a residuary clause to lands comprised in a specific or particular devise Suggested conin fee, which is void ab initio, appears rather to have Doe v. Shefbeen assumed than discussed, and (c) 13 East 526. [(d) Williams v. Goodtitle, as reported 10 B. & Cr. 895, appears to be an authority that a residuary devise passed lands, a previous devise of which in the same will or codicil was void; but the report 5 Man. & Ry. 757, shows that no such question arose; lands were devised to trustees for a term of years, (not in fee as might be supposed from the report in B. & Cr.) though, if the matter field. upon charitable trusts; and as the reversion on the term, supposing it a valid term, would have passed under the devise of the residue, it followed, of course, that the term being void, the residuary devisee took an estate in possession; the sole question was, whether the will was republished, so as to pass after-acquired lands. were res integra, there might be ground to contend that a residuary devise, being in its nature specific, ought not to extend to any interest in real estate, which the will purports to dispose of; yet, considering how imperfectly this principle has been adhered to, the probability is, that a residuary clause would be held (in accordance with the notion of the judges who decided Doe v. Sheffield) to take in all that is not effectually disposed of, according to circumstances existing at the making of the will; (ƒ) and, consequently, that in the case of the lapse of a particular devise in fee, succeeded by the republication of the will, a residuary clause in the republished will would operate on the lands comprised in the lapsed devise. The point, however, cannot be considered as settled, and possibly now may never arise, as it cannot occur under a will made since the year 1837; the recent act having (§ 25) expressly and (as preventing all such questions) most beneficially extended a residuary devise to all property comprised in lapsed or void devises. Lapse of residuary devise as to aliquot share. If the residuary devise itself has lapsed, of course the republication of the will is inoperative to impart new efficacy to the devise, as well where the lapse affects an aliquot share only of the residue, as where it embraces the entirety. Thus, if a testator devise the residue of his lands to A, B and C, as tenants in common in fee, and A dies, and then the testator makes a codicil to his will, by the effect of which the will is republished, he would nevertheless die intestate as to one-third, since the subsisting devise, which originally embraced two-thirds only, could never, by the mere effect of the republication, be expanded into a gift of the entirety. (g) [And where by codicil the testator revoked the share of one tenant in common, and directed that it should "fall into the residue and be disposed of accordingly," it was held that these special words did not contain any gift to the *others, or distinguish the case from one of mere revocation of the share.] (h) The doctrine of republication has lost much of its interest under Republication, the stat. 1 Vict., c. 26, not, indeed, by the effect of the how far affected by the act I Vict., c. 26. provision which dispenses with publication as part of the ceremonial of execution (though this may seem to render (f) See however ch. XX., ? 1, post; and Smith v. Lomas, 33 L. J., Ch. 578. (g) See Skrymsher v. Northcote, 1 Sw. 566; In re Wood's Will, 29 Beav. 236. (h) Humble v. Shore, 7 Hare 247, 1 H. & M. 551, n. See for the case of mere revocation, Cresswell v. Cheslyn, 2 Ed. 123.] the term re-publication scarcely appropriate, (i) but by the operation of the enactment, which makes the will speak, in regard to the subjects of disposition, from the death of the testator: and more especially of the provision, which extends a general or residuary devise to all the real estate to which the testator may happen to be entitled at his decease. This, of course, will render it unnecessary, in regard to wills made since 1837, to have recourse to the doctrine which makes a codicil, by means of its republishing force, extend a general devise in a will to after-acquired real estate. It is to be remembered, however, that with respect to the objects of gift, the statute leaves the pre-existing law untouched; though, considering how slight an effect is produced by a republishing codicil in this respect (for we have seen that it does not revive a lapsed gift), this forms no very large exception to the remark, as to the diminished practical interest of the doctrine of republication, in connection with the new law. Effect of rewill by codicll publication of made since 1837. However, where a will made before is republished by a codicil made on or since the 1st of January, 1838, or by re-execution, in the manner prescribed by the new law, the effect of such republication will be most important; it will not, as heretofore, merely extend any general or residuary devise in such will to intermediately-acquired real estate, but will, unless a contrary intention be indicated, bring within its operation all the real estate to which the testator may be entitled at his decease, and make the will speak, in regard to the property comprised in it, from that period; in short, the codicil (the contents not forbidding,) or the re-execution, will have the effect of subjecting the will for all purposes to the operation of the new act, the 34th section having expressly provided, that every will re-executed, or republished, or revived by any codicil, shall, for the purposes of the act, be deemed to be made at the time at which the same shall be so re-executed, republished, or revived. (k)5 *[Where a will made since the act is so worded as to exclude afteracquired lands from a general devise, a codicil republishing the will has no more effect in altering the effect of the general devise, than it would have had if both instruments had been subject to the old law. (7) (i) But see section 34. [(k) See Winter v. Winter, 5 Hare 306; Doe d. York v. Walker, 12 M. & Wels. 591; Andrews v. Turner, 3 Q. B. 177; Skinner v. Ogle, 4 No. Cas. 74, 9 Jur. 432; Brooke v. Kent, 3 Moo. P. C. C. 5. See Wms. Ex'rs (6th Am. ed.) 263. A singular question was raised in Dunn v. Dunn, (m) namely,— whether a legacy bequeathed by will dated before 1838, would fail, if after that date the will was re-executed in the presence of two witnesses, of whom the legatee was one. The contention appears to have been that this must be so, because the will was now to be deemed for the purposes of the act, to have been made at the time of re-execution. Sir J. Wilde said it would be a case of great hardship, but did not decide the question. Should the question recur, it will probably be found unnecessary to hold that the legacy is defeated: for though the re-execution is "a new making of the will," (n) the old making of it, under which the legacy is claimed, is not thereby merged or abolished.] It remains only to be observed, that a codicil or re-execution may still, as formerly, operate to revive a will which has been revoked by marriage, or by a subsequent will, or otherwise; but the remarks on .this subject have been anticipated in a former chapter, (o) to which the reader is referred. (m) L. R., 1 P. & D. 277. (n) 3 Q. B. 178, 12 M. & Wel. 600. (0) Ante p. *188.] *CHAPTER IX. RESTRAINTS ON THE TESTAMENTARY POWER. SECTION I. Gifts to Superstitious and Charitable Uses. uses, what. [About the period of the Reformation, statutes were passed to defeat or prevent dispositions of property to purposes which were Superstitious then accounted superstitious. Thus the statute 1 Edw. VI., c. 14, after premising that great cause of superstition and error in Christian religion was the fantasying of vain opinions concerning purgatory and masses satisfactory for the dead, declared the king entitled to all real (a) and certain corporate personal (b) property theretofore disposed of for the perpetual finding of a priest, or maintenance of any anniversary or obit or other like thing, or of any light or lamp in any church or chapel. This statute affects previous dispositions only. But by the earlier statute 23 Hen. VIII., c. 10, all uses thereafter declared of land (except for terms of not more than twenty years) to the intent to have obits perpetual, or the continual service of a priest or other like uses, were made void. But there is no statute making superstitious uses void generally: (c) and the latter statute does not relate to personalty.] Superstitious uses, which are not within the letter of these statutes, [and whether they seek to affect land or personal estate,] are nevertheless void by the general policy of the law; and, in such cases, if charity be not the object, but the design of the bequest be to secure a benefit to the testator himself, (as, to say masses for his soul, &c.,) the testator's own representative (who would be entitled if there was no such gift), and not the crown, would be let in. (d) [(a) 5, 6.] See Att.-Gen. v. Vivian, 1 Russ. 226; [Att.-Gen. v. Fishmongers' Company, 2 Beav. 151, 5 My. & Cr. 11. (b) Section 7. (c) Per Sir W. Grant, Cary v. Abbot, 7 Ves. 495.] (d) West v. Shuttleworth, 2 My. & K. 684. [See also In re Blundell's Trusts, |