Owens for custody; the second remained with the solicitor. On June 9th, 1880, the testator sent for the first will and had a Mr. Cooke draw a codicil to it. This codicil referred to the first will by date, recited and revoked the legacies of £300 and £100 to Elizabeth and gave £100 in lieu thereof, and "in all other respects confirmed the said will." Sir James Hannen's judgment was: "Where a simple mistake has been made as to the date of an instrument, the mistake can be set right; but in a case like this where the mind of the draftsman, whether the testator himself, or some one employed by him, has been really applied to the words of a particular instrument, it is impossible for me to say that it was by mistake that the instrument was referred to instead of another. It is plain that this was the actual instrument which the then draftsman had in his mind, and it is not possible to avoid the conclusion that the codicil which purports to be a codicil to the will of the 29th of October, 1878, and which, after making certain alterations, confirms that will in all respects, does revive that will. But has it by implication revoked the intermediate instrument of the 9th of November, 1878? It does not do so in terms, or except where it deals with the same subject-matter. The result, therefore, seems to be that in consequence of the unfortunate error which has been fallen into, I must grant probate of all three instruments, and leave it to a Court of Construction to interpret them together." In re Reynolds (a). This testator executed a will in May, 1866, and another will revoking all prior wills in 1871. In 1872 he executed a paper headed: "This is a codicil to the will of R., dated May, 1866." In re May was cited. Sir James Hannen, in delivering judgment holding the will of 1866 thereby revived, says: "The codicil of 1872 is expressly stated to be a codicil to the will of May, 1866; and there is nothing to show that the testator did not mean what he said, namely: That it should be a codicil to that will. (a) 3 P. & D. 35. The result is that in effect he revived that will." In this case the only evidence upon the face of the codicil of an intention to revive the revoked will was that afforded by the reference to its date. This case is not referred to in the report of McLeod v. McNab before the Judicial Committee. In re Anderson (b). The testator made a will in February, 1864, and another in June, 1864, revoking the former. He later made a codicil "to my last will dated February, 1864." The same solicitor acted throughout, and the evidence showed that his clerk had by mistake taken up the earlier will when the codicil was prepared. The codicil contained nothing but the date showing any intention to deal with the revoked will, and contained the word "last." Lord Penzance held the February will not revived. An Irish case, In re Edge (c), is also instructive: The testator made a first will on March 13th, 1876; a second will revoking the former on April 29th, 1876, and this codicil on June 9th, 1880: "I make and publish this codicil to my will dated 13th March, 1876. I cancel the gift of £400 willed to my son W. J., having paid him that amount since I made my said will." No legacy appears by the report to have been given by the April will to W. J. This fact is not adverted to in the judg ment, however, which holds the reference by date and the use of the words "my said will" to sufficiently show the required intention to revive the earlier will. In re Steele (d), In re Dyke (e), and In re Stedham (ƒ), are referred to in this case. Physical annexation of the codicil to a revoked will was in Marsh v. Marsh (g) held not to show an intention to revive within the meaning of the statute, inasmuch as any such inference from that fact would be drawn (b) 39 L. J. p. 55. (e) 6 P. & D. 207. (f) Ibid. 205. (g) 1 Sw. & Tr. 533. from something not appearing upon the face of the codicil itself; but it is submitted that while in itself clearly insufficient, such annexation is nevertheless a pertinent circumstance which may aid the Court very materially in arriving at the true intent shown by the words used in the codicil (h). Especially is this the case where upon the face of the codicil there is uncertainty, by reason of the use of the word "last," or a date inaccurately given, which testamentary document is really referred to. To what conclusion does the consideration of the foregoing cases direct us in seeking an answer to the question-what terms in a codicil purporting to be drawn to a revoked will, are adequate to effect the revival of such will? In the first place, cases where the identification of the revoked will is explicit and unambiguous are on an entirely different footing from cases where the reference to the testamentary document is ambiguous. Where In the latter class of cases, especially when the will is in the codicil referred to by the word "last," it would appear that irresistible evidence upon the face of the latter instrument in the form of dispositions absolutely inconsistent with any other intention, or language almost equivalent to express words of revival is necessary. Compare In re Turner (i) and In re Steele, In re Wilson and In re May (7) with In re Van Cutsem (k). there is ambiguity in the identification by the codicil parol evidence of intention would seem admissible (l); and it has even been admitted to prove mistake where the codicil contained no other evidence of intention to revive than the mere identification of the revoked instrument (m). In cases of ambiguous reference the word "confirm," notwithstanding the authority of the Privy h) In re Terrible, 1 Sw. & Tr. 140; Sed vide In re Snowdon, 75 L. T. 279, supra, p. 51. (i) 64 L. T. 805. (j) 1 P. & D. pp. 580-582. (k) 63 L. T. 252. (1) Chichester v. Quatrefegas, (1895) P. D. p. 188. (m) In re Snowdon, 75 L. T. 279. Council (n), would, it is with deference submitted, be clearly inadequate as a word of revival, its efficacy as such being, as already pointed out, not inherent, but dependent on the assumed presence in the testator's mind of the fact that he was dealing with a revoked instrument. The ambiguity of reference makes this quite uncertain, and the necessary presumption cannot arise. Is it not, therefore, clear that this word "confirm" is not synonymous with and has not the inherent force and virtue of the word "revive"? On the other hand, in those cases where the codicil refers in clear, distinct and unambiguous terms, by date or otherwise, to the revoked will, while such reference is probably not in itself sufficient (o), and some further evidence of the testator's intention upon the face of the codicil is necessary, any additional terms used by him, from which the inference can be drawn that when executing the codicil the testator dealt with the revoked instrument as his will, to become operative on his death, will suffice (p). These terms must, of course, be read as words deliberately used by a testator knowing he was dealing with a revoked will (q). And words which would not of their own inherent virtue be adequate-equivocal words-may be so, when read in the light of this most pertinent circumstance necessarily presumed (r). There being no ambiguity, parol evidence of intention is inadmissible to show mistake (s), although the Court can and should receive evidence of surrounding circumstances (t). Neither express words of revival nor words (n) McLeod v. McNab, (1891) A. C. p. 476. (0) McLeod v. McNab, (1891) A. C. 474; but see In re Reynolds, 3 P. & D. 35. (p) In re Edge, 9 L. R. Ir. 516; In re Dyke, 6 P. D. 207; In re Reynolds, 3 P. & D. 35. (q) McLeod v. McNab, (1891) A. C. 474. (r) Ibid. at p. 476. cott, (1897) P. D. 223. See also In re Edge, 9 L. R. Ir. 515; In re Chil P. & D. (s) Collins v. Elstone, (1893) P. D. p. 1; In re Reynolds, 35; In re Steele, 1 P. & D. at p. 576; Walpole v. Cholmondeley, 7 T. R. 138; In re Edge, 9 L. R. Ir. 516. (t) McLeod v. McNab, (1891) A. C. 474. expressing the testator's knowledge that the will referred to is a revoked will (r) are necessary; and by implication if the revived will is an exhaustive disposition of the testator's estate, and, by express language, if it contains a revoking clause, such will, operating upon its revival as a later instrument (u), revokes the former revocatory will itself (v). The raison d'etre of this article is the most recent English decision in In re Chilcott (w). FRANK A. ANGLIN. (u) Purcell v. Bergin, 20 App. R. 535. |