#### Wm. H. B. Richardson, Ex’or. of James B. Richardson, v. Mrs. Ann Richardson, et. al.

A codicil, to operate as a rc-publication of a will, must either be annexed to it at the time of its execution, or expressly confirm it.

A party who would be benefited by the re-publication of a will, so as to pass after acquired lands, is an incompetent wiiness to codicil, so far as it would have the effect of a re-publication.

Separate testamentary papers not referring to each oilier, may be established together. The words “revoking and disannulling all other will or wills, inconsistent or repugnant to the foregoing deed of conveyance, or any part thereof to the true intent and meaning of the same,” do not amount to a revocation of a former will, except in so far as it may bo repugnant to the latter.

A gift of negroes by a parent to a child on marriage, may operate as a satisfaction *pro tanto*of a legacy of negroes.

There is no ground for declaring not to be of force, tlie Stat. 25 Geo. 2 c. 6, providing that any legacy or devise to a person who attests a will, shall be void, and the witness competent.

*Before Ms Honor Chancellor HARPER, at Charleston, June*1837.

His decree embraces all the facts which it is necessary to state, and was as follows:

James Burchell Richardson, by his will, bearing date the 25th August, 182G, made various dispositions, among which, it may be only necessary to notice the following:

He gave to his wife, for life, or widowhood, along with his manor plantation, the slaves he should leave on that plantation at his decease, not otherwise disposed of by his will; with power *to*dispose of a moiety of them, and a limitation bf that moiety (including some specified by name) to his sons, in the event of hor failing to make a disposition.

To his two sons, the complainant, W. H. B. Richardson, and the defendant, -Richard C. Richardson, respectively, he gives, besides real estate, a number of negroes, specified by name, “with such others as to make up the number devised to him, (each) one hundred negro slaves.” The testator gives to his daughter, Dorothy Mitchell, besides real estate, and certain specific slaves, one half the number of slaves he should have on his Belvedere plantation at his decease. To his five daughters, the defendants, Mar*185garet C. Spann, Sarah I. C. Moore, Hermoine Richardson, Mary M. Richardson, and Julia C. Richardson, he gives, each, forty negroes; directing, however, that certain slaves which he had previously given to them, respectively, should bo taken into computation in making up their number of forty. The testator makes various dispositions of his stock of blooded horses, and among the rest, to his daughter Hermoine, the mare Lucadia, with her present and future increase. He directs the sum of twenty thousand dollars to be invested in bank stock, and the interest on so much as may be necessary, applied to the education of his two younger children, and of his grandson Richardson; and when their education should be completed, he gives one fourth of the fund to each of his two sons, and the remaining moiety to be distributed among the rest of his children.

The residue of his estate, real and personal, he directs to be equally distributed between his two sons. By a paper, executed on the 9th November, 1835, the testator *gives, devises,*and *bequeaths,*to his wife, absolutely, a certain number of slaves, specified by name, and also all the ready money which should be in his house at his decease, “pronouncing and ■ declaring this to be my act and deed, and conveying all the property hereinbefore expressed, and conveyed, and so intended to be conveyed, revoking and disannulling all other will or wills, deed or deeds, inconsonant or repugnant to the foregoing deed of conveyance, or any part thereof, to the true intent arid meaning of the same.”

This instrument was attested by three witnesses, one of whom was the complainant. The'testator died on the 28th day of April, 1836.

The object of the bill is to obtain the directions of the court in the administration of the estate, on the circumstances stated. After the execution of the will, the testator gave to complainant forty-seven slaves, of whom four are of the number given specifically to him by the will, and five of the number so given, to his brother.

The paper of the 9th of November, 1835, (called a codicil,) also includes two of the slaves given to Richard C. Richardson. After the execution of the will, the testator’s daughter Hermione, married the defendant, John J. Mooro. After the marriage, testator *186paid to the said John J. Moore, the sum of five thousand dollars, who thereupon executed to the testator a conveyance expressed to he in consideration of that sum, of thirty-two slaves. On this conveyance, the testator executed a sort of declaration of trust, that the slaves were to be conveyed to the use of his daughter, and her husband, during her life, not subject to his debts, and at her death to her children; with a stipulation, that if she should die without children, the husband might re-purchase them and their increase, for the same consideration.

The testator’s daughter, Mary Matilda, was afterwards married to the defendant, Augustus Eludd. The testator also paid him the sum of five thousand dollars, and took his acknowledgment under seal of the receipt of that sum, *“to*be invested and laid out in the purchase of negroes, and when so done, to be conveyed, by deed; from him, for the benefit of my wife (his daughter Mary Matilda) and myself, for our mutual benefit, as shall be therein expressed and conveyed by the said intended deed of conveyance.”

The bill states, that the number of negroes left by the testator at his death, is not equal to the number bequeathed by him. It also states, that of the stock of Lucadia, bequeathed *to*the testator’s daughter, Hermoine Moore, a valuable filly, called Little Yenus, was given by the testator in his life time, to his daughter Julia.— On this subject no evidence was offered, and it is proposed to make it a matter of reference. It is’agreed, that the two younger children of the testator, and the grandson, whose education is provided for, are now of age, and that their education has been completed. The fund given for that purpose is therefore distributable, according to the directions of the will.

After the making of his will, the testatoracquired some real estate, and the complainant contends, that the testamentary paper of the 9th of November, 1835, must have the effect of a re-publication of the will, so as to pass the after acquired real estate under the residuary clause. The defendants, on their part, contend that if the paper can be considered testamentary in its character at all, it is void — the complainant not being a competent witness to it; or if it be valid, that the effect of it must be to revoke the will. There was some argument in relation to an implied revocation upon cir*187cumstances, with respect to which there was no shewing by evidence.

To determine on the competency of the complainant, as a witness, it is necessary to inquire whether the paper, if valid as a testament, would have the effect of re-publishing the will. The elder cases were, that there could be no re-publication of a will of land, by implication, or the due execution of a codicil, under the statute of frauds; but that to make a re-publication there must be an actual re-execution in the presence of witnesses. — Lyton v. Viscountess Falkland, *2*Eq. Ca. Ab. 768; Marquis Penphrase v. Lord Lansdourne, *ib.*In the case of Acherly v. Vernon, however, (ib. and Com. Rep. 381,) where J. S. having made his will, duly executed a codicil, in which he says : “I ratify and confirm the said will, except in the alterations hereinafter made.” Lord Mac-klesfield held, that the will was confirmed by the codicil, and that the execution of the codicil was a re-publication of the will, so as to pass land intermediately acquired. In the Attorney G-eneral v. Downing, (Amb. 57,) Lord Camden held, that a codicil duly executed, was not a re-publication of a will, on the ground, as I understand it, that it did not refer to the will, and was not annexed to it. It is said that there are *two methods*by which a codicil operates as a re-publication of a will: 1st, by being annexed to it.— 2d, by the contents shewing the intention, or as it is again expressed, “by express speech or word, that it shall stand as his will.” He refers to Hatton v. Simpson, (2 Vem. 722,) where it is said, that a codicil annexed to a will of personal estate will not operate a re-publication, and thinks the report is mistaken, or that it is not law.

In Gibson v. Lord Mantfort, (2 Ves. 492,) Lord Hardwicke comments on the doctrine without pronouncing a judgment. In that case the codicil referred to the will, and the testator “desires that writing shall be a further part of his said last will and testament.”

The Chancellor says, It is admitted for the heir, that though a codicil only to a personal estate, yet, if there is a general clause of confirmation of the will, that will make that codicil duly executed amount to a re-publication; because it is the same thing as if *188lie had re-published every devise iu the will over again. In the present codicil indeed, there are not the words, *I confirm my will;*but it is, “I desire,” &c., between which and an actual confirmation there seems very little distinction. This indeed, will make every codicil, if executed according to the statute of frauds, do, though it relates only to personal estate; for a codicil is undoubtedly, a further part of the last will, whether said so or not.”

Ho says he does not know that annexation would vary the case unless annexed at the time of execution.

In the case of Barnes v. Crow, (1 Yes. 186,) which was very fully considered, Lord Commissioner Eyre, who delivered the opinion of the court, thought the cases of Archerly and Vernon, and the Attorney General and Downing, in direct opposition to each other, and that the authority of the former must prevail, having been determined by the house of lords; he insists on the difficulty of drawing any tangible rule from the cases, and comes to the conclusion that the execution of a codicil is, of itself, ■ a re-publication. In this, he is followed by Sir William Grant, the master of the rolls, in Piggott v. Walker, (7 Yes. 98,) who, however, *expresses his*preference of the old rule, that there should *be*no re-publication without re-execution, but acquiesces, for the sake of having a settled rule. I confess, that I do not perceive the opposition between the cases of Acherly and Vernon, and Attorney General v. Downing. In the former there was an express confirmation of the will, and the .case seems to be decided upon it; and this is admitted by the latter t.o amount to a re-publication. A part from the authority of the cases of Barnes v. Crow, and Piggott v. Walker, I should not think it difficult to draw a rule from the older cases— that there must be an express confirmation, or annexation, at the time of the execution. The difficulty suggested by Lord Hard-wicke, that the directing the codicil to make part of the will, amounts to pretty much the same thing as a confirmation, and then, that this is implied, although it be not expressed, does not strike me very forcibly. The argument, that the will and codicil must make one instrument, and, therefore, that the latter must have the effect, as some of the cases express it, of drawing the will .down to its own date, seems to me more technical than substan*189tial. In regard to their construction and effect, they may well he taken together, as one instrument, and yet be regarded as speaking at different dates, in relation to a matter not included in either the will or codicil. But one modification of the rule, which seems to me, laid down in Crow v. Barnes, would he sufficiently definite and intelligible; that if the codicil contains no reference to the will at all, and is not annexed to it by the testator, this shall not be a re-publication. This seems, indeed, to be the ground of Rord Camden’s judgment, in Attorney General v. Downing; and so I am satisfied it ought to be. It seems extravagant to say, that an act shall have the effect of re-publishing a will, which the testator seems not to have had in his mind at all, the existence of which, he may, for ought that appears, have forgotten at this time, or which he might have then intended to revoke. And this would not be inconsistent with the decision, in the cases of Crow and Barnes, and Piggott and Walker, although it would seem to be so with the grounds of it. In both those cases, there was an express confirmation of the will; Lord Commissioner Eyre, indeed, seems to -regard a codicil as always referring to a will. He says, the sanctioning of the will is to be implied from it, “because by the nature of it, it supposes a former will, refers to it, and becomes part of it.

Yet he refers to what is said by Lord Hardwicke, in Gibson v. Montfort, and of which there can be no doubt, that whether a codicil refers in terms to the will, or no, it must equally form a part of it. So it is understood by Sir William Grant. He says, “the general proposition referred to by Lord Commissioner Eyre is, that the execution of a codicil should, in all cases, be an implied re-publication.” It is not for me, however, to unsettle that which appears to have been settled by authority. I must hold the codicil if duly executed, to be are-publication. Then the question is as to the due execution. Is the complainant a competent witness to the codicil under the statute of frauds, which applies to the case1?

It has been sufficiently settled, that he would not have been a competent witness to the will, under which he is a devisee. But it is argued, that nothing is given to him by the codicil; that he gains only an incidental and indirect advantage ; and that the legatee, under the codicil, is entitled to the benefit of his testimony.— *190Certainly lie seems to have that direct interest in the establishment of this paper, which according to the well known general rule will disqualify a witness. If established, the effect would be to vest in him a moiety of the after acquired estate, which would be adjudged him in this suit. Let it be recollected, that the execution of the codicil is an implied re-publication, coming Instead of the actual re-publication. Now suppose there were an actual republication, by re-execution in the presence of witnesses, it is plain that the same interest which disqualified him as a witness to the original will, would disqualify him as to the re-publication. By the statute, (25 Geo. 2d, c. 6,) it is provided that any legacy or devise, .given by the will *to*a person who attests it, shall he void, and the witness competent. This act Is expressly made to extend to all the British colonies, in which the statute of frauds is, by act of assembly made, or by usage received as law. This applies to the colony of South Carolina, which had adopted the statute of frauds by the act of assembly of 1712. I do not perceive any reason why this statute should not be of force in the State. I am not aware that the colonies claimed exemption from being bound by acts of the British parliament, unless in matters of taxation. The statute, 5 Geo. 2, c. 7, making lands liable for debts which was received in this, and all the other colonies, and has made the law ever since, rests upon no other authority. The A. A. of 1712 (P. L. 26,1 Br. Dig. 394,) certainly recognizes such authority in parliament. In adopting the British statutes therein enumerated, it provides that the act shall he of as full force, power and virtue, “as if the same had been *specially enacted, and made for this province,*or as if the same had been made and enacted therein, by any general assembly thereof.” Yet in the ease of Snelgrove v. Snelgrove, (4 Eq. R. 274,) the witness was declared incompetent, and the will void, as to the real estate; and so I believe the law has been since received.— The stat. 25 Geo. 2, is not referred to in the case, although the decision is in direct contravention of it. I do not feel myself at liberty to overrule a decision of the appellate tribunal, however clear the case may seem. If that is to he done, I shall leave it to the same authority. But though void as a re-publication of the former will, it does not follow that it is void as a will of personal estate. *191That does not depend upon the statute 29, Car. 2, hut upon our A, A. 1824. If this act had directed a will of personal estate to he attested by two witnesses, the will so attested would be good; yet it could not operate a re-publication of a former will, under the statute. As I have said, I regard the execution of the codicil, so far as it is to effect a re-publication, as the execution of the former will. To that, the complainant would be an incompetent witness. But he is not an incompetent witness to this will, regarded merely as a will of personal estate, in which he has no interest, and attested in the very terms of the act of assembly. I think, therefore, that the legacies, given by the codicil, must be established. For it is hardly necessary to say, that the paper is testamentary in its character. There are legatory words in it, but if there were not, it is well settled by the English decisions, and our own, that whatever may be the form of an instrument, if the only object of it is to dispose of property after the donor’s death, this shall be regarded as testamentary.

But it is argued that the effect of this instrument is to revoke the will, and if this were so, the complainant would certainly be a competent witness, as its establishment would be against his interest.

This is upon an idea which I have already incidentally noticed, and which, seems to be in some sort sanctioned by the expression of Lord Commissioner Eyre, before quoted — that this is not a codicil, because it has no reference to any previous will, but must be regarded as an independent will — and then an authority is quoted, that a man cannot die with two testaments; but the latter makes void the former, though no intention to revoke be expressed. So it is said by Lord Hardwicke, in Willet v. Sandford, 1 Yes. 187.

A codicil made after a will, and directed to be annexed thereto is considered both in our law and in the civil law, (from which we borrow ours, with regard to wills,) as part of the will. This differs, therefore, from the case of a second will, which, from the nature of the instrument, has been held a revocation of the former, though no clause of revocation was inserted. Yet in Stitchins v. Basset, (Salk. 592,) where, after making a will devising lands, the jury found that the testator made another will, of the contents of which they were ignorant, and it was argued, that this must be a *192revocation, the court said the *other will*might concern other lands or no lands at all, or he as confirmation of the former; of course, that they might stand together. To the same effect was the case of Harewood v. Goodright, Cowp. 87, and Thomas v. Evans, 2 East. 488.

But the difference is, perhaps, more verbal than real. As our testamentary law, and paticularly this term *codicil*is derived from the civil law, we may properly refer to the civil law for its explanation. A *testament*is defined to be the institution.of an heir or *executor.*— 2 Domat. Lib. 3, sec. 1. A *codicil,*to be a disposition made in prospect of death *without such*institution. — Id. Lib'. 4, see. 1. It is elsewhere said, (Lib. 3, sec. 5,1,) that as every testament implies the disposal of the whole estate, two testaments cannot subsist together, but the second annuls the first. The institution of an heir; or an executor, of itself, operated a disposal, of the whole estate. *We*have nothing analogous to. the-institution of an heir, and the appointment of an executor would not, with us have that effect. The only distinction which it seems possible for us to make, is, that a will is a complete disposition of the estate, and tho codicil only a partial one, though the terms may be confounded in ordinary language. It is said that a codicil may be made before a will, or after it, 'or at the same time, and “whether they be made at one, and the same time, or at different times, and whether the testament, or codicil, make mention of each other, or make no mention, the codicil is considered as making apart of the testament.” Swinburne certainly had reference-to the civil law, from which indeed, his whole book is derived. In many cases, sepai'ate testamentary papers, not referring to each other, have been established together.

The next question made, and to be considered, -is whether the sum of five thousand dollars, advanced to each of the defendants, John J. Moore, and Augustus Fludd, and vested, or stipulated to be vested, in slaves, for the use of themselves and their wives, is to be taken as part satisfaction of the legacy of forty slaves given them by the will. The subject is examined, and the cases referred to by Mr. Saunders, in his note to Bellasis v. Athuraldt, *(2*Atk. 427,) and he lays down tho rule, that if a legacy be given by will, *193to a child who afterwards, on marriage, or otherwise, receives from the testator, in his life time, the like, or a greater sum, that shall he deemed in satisfaction of the legacy. If the money so advanced, he not equal to the legacy, then it shall be a satisfaction *pro tanto.*For the latter position, he refers to Hoskins v. Hoskins, P. Ch. 263, and Shudal v. Jekyl, 2 Atk. 518. The like rule obtains when the testator, under a covenant hy marriage settlement, or otherwise, to provide for his children, gives them a legacy by his will, this shall he taken as satisfaction in whole, or in part. In the note to Fonblanque, (2d vol. 326, N. C.) the editor refers to this note of Saunders, and seems to doubt whether, as respects the *satisfaction fro*tanto, he is supported by the authorities. And he refers to the case of Warren v. Warren, 1 Br. C. C. 305. If any doubt be raised by that case, it is from the dictum of Lord Thurlow, and applies to the entire rule as laid down by Saunders, of entire, as well as part, satisfaction. Lord Thurlow says : “I have not found that it would do as a distinct rule, that where a parent has made a provision, by will, for a child, whom he afterwards provided for in marriage, it is *prima facie*a satisfaction.” Yet Lord Thurlow repeatedly acknowledged the existence of the rule.

It is said *by*the master of the rolls, in Henckliffe, (4 Yes. 527,) after quoting the passage to which I have referred, “from that, and what follows, it has been assumed, that he was of opinion there was no such rule. In subsequent determinations he has said, that it is too late to question the rule, but that it has been carried too far.” He recognizes the existence of the rule, in Graves v. Salisbury, 1 Br. C. C. 426. He censures the rule, but adds, “I will not displace the rule laid down by wiser men, that it shall be a satisfaction, however reluctant I may be to follow it.” In Powell v. Cleaver, (2 Br. C. C. 518,) he says, “whatever foundation there might be for the original application of the rule, that the advancement of a parent shall not be a further gift, it is not now to be disputed.” And in Ellison v. Corkeson, (1 Yes. Jun. 107,) he lays it down as a rule or presumption of law, “that where a legacy is given to a child, it is deemed a portion;” and “if he advances in his life that sum which he has adjudged to be the due and proper portion for that child, the presumption of law is, that he has satisfied that *194intent, and consequently that there is no longer a ground for any further demand;” and he decreed accordingly. See Jenkins v. Powell, 2 Vern. 114; Copley v. Copley, 1 Pr.’Wms. 137.

The case of Hoskins v. Hoskins, referred to by Saunders, as I find it quoted, (7 Bac. Lib. 348,) supports his position. A father having given his son a legacy of ¿6700, afterwards bought him a commission at ¿6650, and this was held a satisfaction *fro*tanto.— In the case of Shudal v. Jekyl, the decision turned upon a different principle, but the general principle, is recognized, that if there be a legacy, and afterwards a portion given, this is a satisfaction.— Indeed it might lather be inferred, that though the portion be smaller than the legacy, it shall be a full satisfaction. As might be also inferred from Startop v. Whitmore, 1 Pr. Wms. 681.— But in the latter case, it appears from the editor’s note, that there was *evidence*of the testator’s intention to give the portion in full satisfaction. In Jesson v. Jesson, (2 Vern. 255,) there was a legacy of ¿63000 to daughters, and a portion of ¿61800 paid in the father’s life time. The court said it might be a question, whether the daughters should have more than ¿61800, but no question whether that should go in part.

In Graves v. Salisbury, it was contended, that a lease, worth ¿64,400, should be a satisfaction *fro tanto*of a legacy of ¿610,000. No question was made but that there might be a satisfaction *fro tanto,*but the decision was on the ground, that the things were not *ejusdem generis.*It is said by the Chancellor, in Chaplin v. Chaplin, (3 Pr. Wms. 247,) that “when on a marriage, a portion is secured to a child out of land, and the parent gives the child a portipn, (in money,) equal to what is so secured, it shall, by implication, be a satisfaction; and if not equal, yet a satisfaction *fro tanto.”*— See Bengough v. Walker, 15 Ves. 507. Yet there are many cases to shew, that where the things given are not *ejusdem generis,*there the portion shall not be considered a satisfaction, as in Graves v. Salisbury. Such was the case of Holmes v. Holmes, (1 Br. C. C. 551,) in which it was held, that a money legacy was not satisfied by the gift of a portion of the testator’s stock in trade. So in Bellaris v. Atheratt, before referred to, that a money legacy was no satisfaction of annuities vested in the legatee, *195when the legacy was upon a contingency. And it was contended, that the present case comes within the exception; that the legacy was of slaves, and the gift by the testator, in money. But in the case of the defendant, John J. Moore, it was slaves of which the testator declared the trust, or stipulated to convey to his daughter.

There can he no doubt respecting the true nature of the transaction. It was partly a purchase of slaves hy the testator, for the use of his daughter, and partly a voluntary settlement by the husband. So far as it was a purchase, it must be regarded as a satisfaction. So in the case of the defendant, Augustus Fludd. The money was stipulated to be laid out in slaves, and equity regards that as done, which is agreed to be done. Indeed, the slaves were to be purchased as the property of the testator, and this defendant seems to have been no more than an agent for the purpose. The slaves were to be conveyed by the testator to the use of his daughter and her husband.

I am satisfied that this agrees with the true intention of the testator; from the circumstance of his providing so carefully, that all the negroes given to his several daughters before the will, should be brought in to make their legacy of forty, as well as from his stipulating that the monies advanced by him should be converted into slaves. The decretal order is agreed upon hy counsel, except as to the particulars I have considered. Other questions may a-riso, and especially as to the applicability of the assets to the payment of debts and legacies, which may he made on the reference, and which ai'e reserved.

*It is ordered,,*that an account be taken of the negroes given by the testator to his children, in his life time, and of the number of negroes belonging to him at his death, and that a distribution be made among his widow, and children, so as to allow to complainant, in addition to those already given him, so many as will make up one hundred. To Richard C. Richardson, so many as will make up one hundred. -To the widow the negroes which were on the *Manor*at the time of the testator’s death, except those which were given by name to the other legatees, and all the ne-groes not on the *Manor,*which are specifically given her by the will, or codicil. To Dorothy Mitchell, one half of the negroes on *196Belvidere plantation. To Margaret C. Spann, so many as will complete the forty given her by the will. To Sarah J. C. Moore, so many as will complete her number of forty. To Hermione Moore, so many as will complete her number of forty, considering the five thousand dollars given by the testator in his life time, as having been laid out in the purchase of negroes, to be taken as part of the forty, at the present value of negroes. To Mary Matilda Fludd, so many as will make hor number of forty complete, considering the five thousand dollars agreed by Mr. Fludd to be laid out in negroes, as actually so laid out, and such negroes to be taken as part of her number, at present prices. To Julia Richardson, her compliment in like manner. And in case there should not be so many negroes as the legacies amount to, then the deficiency shall be made up by purchasing negroes for such legatees as may not be satisfied, out of the testator’s stock, or by securing an equivalent in money to the same uses as are declared by the legacies by the will.

*It is further ordered,*that the sum of twenty thousand dollars, directed by the testator to be raised, and the principal to be distributed after the education of his younger children is provided for, be paid and distributed accordingly; that is to say, one moiety to the complainant, and his brother, Richard C. Richardson, equally to be divided between them; and l¡he other moiety equally between the widow and her daughters.

*It is also ordereA,*that an enquiry be had as to the horses bequeathed specifically by the tostator, and as to the alleged gift to Julia Richardson; and that an account be taken of the residuary estate of the testator, and of the real estate descended, acquired of the testator, after the making of his will: *And it is ordered,*that in taking the account, it be enquired and stated what crops have been made since testator’s death, and whether the legatees of negroes are entitled to any, and what share thereof; and that complainant account for all the assets which have come to his hands, and pay over to the legatees their respective legacies, to be ascertained as before mentioned, and do account for, and pay over to Richard C. Richardson, one moiety of the residue; and that all the costs of the suit be paid out of the estate. Parties to be at liberty to apply for further directions.

*197The following is a copy of the Codicil referred to in the decree of the Chancellor:

“I do hereby give, bequeath, and devise, to my dearly beloved wife, Ann Cantey Richardson, the following negro slaves, after my decease, with all their future issue and increase, then to her own proper use and behoof, forever, viz: my servant Moses, raised from his infancy and appreciated for his honesty and attachment. The trusty cook-woman Harriet, and the pastry-woman Eve, both have been attentive and faithful. Also, Fanny the seamstress, Lenn the lifer, Bess the house-maid, Roller, the house-servant, Lucy the washer, Sharper the weaver, Henry the gardener, Betty the child of Fanny, Dick and Frederick the bricklayers, Ellick the blacksmith, Jesse the painter, Amelia the chamber-maid, George Harriett the carpenter, Prince the carpenter, Alice the home dairywoman, Judy and her children, Tenah and Ned, Aphna and her children Sampson and RollaJ Clarentine, Clementine, Doll the scullion, Lizzy, old Davy, Fiscal Philly, then of Fiscal Fanny and her family, Maria, Phoebe, Sary and her infant child, Linney and her three children, Olivia, these with all their future issue and increase, I give, devise, and bequeath as aforesaid,to my well beloved wife Ann Cantey Richardson, as aforesaid, and to her disposal as may seem meet to her, and to her own proper use and behoof forever. I also give, bequeath and devise, unto my beloved wife, all the specie (gold and silver) and all the ready money that I have in my possession, in my dwelling house, at the time of my decease, consisting of bank bills, or of checks for money, amounting to thirty thousand dollars, ($30,000,) be the same more or less, to her and her own pi'oper use and behoof forever. In testimony whereof I have hereunto set my hand, and affixed my seal, acknowledging, pronouncing, and declaring this to be my act and deed, and conveying all the property hereinbefore expressed and conveyed, and so intended to be conveyed, revoking and disannulling all other will or wills, deed or deeds, inconsonant or repugnant to the foregoing deed of conveyance, or any part thereof, to the true intent and meaning of the same. Done this ninth day of November, in the year of our Lord one thousand eight hundred and thirty-five, and *198in the 60th year of the Independence of the United States of America.

James B. Richardson, [l. s.]

Signed, sealed, pronounced, and declared to be my act and deed, in the presence of

W. H. B. Richardson.

R. C. Richardson.

J. J. Moore.”

From the decree of Chancellor Harper, the defendants, John R. Spann and wife, appealed on the following grounds:

1st. Because the testamentary paper of November 1835, is not a codicil to, or re-publication of the original will of 1826; and that the lands acquired by the testator, after the date of the will of 1826, ought to be distributed among his heirs at law.

2nd. Because the testamentary paper of November 1835, contains an *express*revocation of the will of 1826; and it is to be considered as the *last*will and testament of the testator.

*Win. Hice,*solicitor for the defendants.

From the decree of Chancellor Harper, the defendant, John I. Moore and Hermione his wife, appealed on the following grounds:

1st. Because the payment of five thousand dollars to John I. Moore, and the bill of sale, and covenant executed at the time of payment, are not in law to be construed an ademption in part or in whole, of the legacy to Mrs. Hermione Moore.

2nd. Because the testamentary paper of 9th November, 1835, is not a codicil to, or a re-publication of, the original will of 1826, and that the land acquired by the testator after the date of the will of 1826, ought to be distributed amongst his heirs at law.

3d. Because, if the said testamentary paper of 1835 be held valid, either as a will or codicil, then it is made void by the want of competent witnesses; the witnesses thereto being parties who take an interest under the will.

4th. Because the testamentary paper of 1835 is a revocation of the will of 1826.

*1995th. Because the decision is in other respects erroneous and contrary to law.

*Petigru 8f Lesesne,*complainant’s solicitors.

*Curia per*

Harper, Ch.

Though it may be regarded as the settled doctrine of the English courts at the present day, that every codicil is a re-publication of the will, whether annexed to it or referring to it or not, yet we certainly are not bound to follow the decision of the English courts, innovating on previously established doctrine, since our jurisprudence was separated from theirs. At that time the law stood as it was settled by the cases of *Acherly*if *Vernon,*and the *Attorney General and Downing-,*between which, notwithstanding what is said in Crow v. Barns, I am unable to perceive any contradiction. In the former, the decision was on the ground of an express confirmation; the latter recognizes that there may be a re-publication by “express speech or word that it shall stand as his will.” It also supposes that there maybe are-publication by annexing the codicil; which Lord Hardwicke, in Gibson v. Montfort, suggests must be at the time of execution.

When the codicil is annexed to the will at the time of execution, it may very well be regarded not as an implied, but as an express re-publication. The codicil being annexed and made part of the will, and then executed in the presence of witnesses, would seem to be a publication of the entire instrument, consisting of will and codicil, and not of the codicil merely.

So, when there is an express confirmation, the testator at the time of executing the codicil, declares his then present intention that it shall operate and have effect as his will. This seems nearly equivalent to an express re-publication. The testator declares that the will shall speak as at the time of the execution of the codicil.

I do not suppose that this effect will be produced by merely referring to the will, nor even by a direction that the codicil shall bo annexed to and form part of it; as has been said, it will equally form part of the will, whether this direction be given or not. The substantial purpose for which the will and codicil are said to form one instrument is, that the whole may be construed together for the purpose of ascertaining the testator’s intentions, and giving consis*200tent effect to his dispositions. But that purpose has no relation to the matter we are now considering. We are more inclined to these views, because one of the most eminent of the English Judges has expressed his dissatisfaction at the departure from this ancient rule.

Not being a re-publication in this case, all the witnesses to it are competent as of a will of personal estate. Even if there were an express re publication, we should think it good as a testamentary disposition of personal estate. A will in England disposing both of land and personalty, will, if not attested by a sufficient number of witnesses, be good for the personalty, thoirgh not for the land; so, by parity of reason, if ono of the witnesses were incompetent; so, if the will were duly executed and the codicil insufficiently attested, this would form part of the will. Yet it would not pass land, even though it contained an express confirmation, or were annexed to the will at the timo of execution.

Though it might not be necessary to the decision of the case, wo think it proper to say that we perceive no ground on which we would be justified in declaring the statute 25th *Geo. 2nd,*c. 6, not of force in this State; it has been omitted in compilations of the laws, and one or two decisions have been made contrary to the effect of it, in cases in which it was evidently not brought to the view of the Court. But this can hardly be thought sufficient to repeal a statute, which there is no serious ground to contend was not once of force.

We do not think it necessary to add any thing to reasoning of the decree, to chew that the paper of the 9th of Nov. 1835, must be regarded as testamentary and as a codicil; it is contended, however, that the words “revoking and disannulling all other will or wills, deed or deeds inconsonant or repugnant to the foregoing deed of conveyance or any part thereof, to the true intent and meaning of the same,” must have the effect of revoking the whole of the previous will. But this interpretation, I apprehend, would be more litoral than sound. When an act of the Legislature repeals all acts repugnant to itself, this I think is universally received to mean, in so far as they are repugnant. The testator was making a particular disposition of a portion ofhis estate in favor of his wife. \Vhal c.tm we reasonably suppose the intention of the testator in *201using the terms in question? Why, to prevent any former disposition of his estate from interfering with the effect of the act he was then performing according “to the true intent and meaning of the same.” In his' will, where he made a competent disposition of his estate, he revokes all wills “heretofore made.” Is this difference of phraseology tohave no difference of effect? It would be too much to suppose that the testator intended to annul a full and well considered disposition of his whole estate, by the use of terms so loose.

This Court concurs with the Chancellor, that slaves conveyed by the testator to his daughter, Mrs. Moore, and the sum of five thousand dollars paid to Mr. Fludd to be invested in slaves, to be conveyed for the mutual benefit of himself and wife, must be regarded as part satisfaction of the testator’s legacies to them, according to the principles of the decree.

It is suggested that the decretal order should be so enlarged, as to direct more explicitly an account to be taken of the debts due by the testator’s estate. This is ordered accordingly, and the decree is afiirmed.