#### *James Rose and H. A. DeSaussure, ex’ors. of Philip*Tidyman, vs. *Alfred R. Drayton and Susan Tidyman.*

A codicil annexed to a will is a republication thereof ¡ — lands purchased after the date of the will and prior to the execution of the codicil, *held*to pass under the residuary clause of the will.

*Before*Dunkin, Oh. *at Charleston, June,*1851.

Doctor Philip Tidyman, of Charleston, died June 11, 1850, leaving of force his last will and testament, bearing date March .20, 1843. He left as his heir at law his daughter, Susan Tidy-man. His will contained sundry devises and bequests and the following residuary clause:

*“ Rem.*I give and devise all the rest and residue of my estate, of every kind and nature whatsoever, unto my nephew, Alfred Drayton.”

*261About September 6, 1848, Dr. Tidyman purchased a farm in Greenville, containing sixty-eight acres; and about March 7,1850, entered into a mitten contract to sell to the Greenville and Columbia Nail Road Company about three acres, part of said farm: but, at the time of his death, the purchase money had not been paid, nor had titles been executed.

On March 12, 1850, the testator made and executed a codicil, which he annexed to his will, in the following words:

“ I declare the following to be a codicil to my will:

“Whereas, in m *j foregoing*will, I gave and bequeathed to my cousin, James Rose and his wife, Mrs. Julia Rose, or the survivor of them, certain house servants after the death of my daughter, and among them, one named Judy; since the date of my will the said Judy has had a child. I now, therefore, give and bequeath the present and future issue and increase of my said servant Judy to the said James Roso and his wife, Mrs. Julia Rose, or the survivor of them, in the same manner as I have heretofore given Judy to them.”

One object of the bill was to ascertain whether the farm in Greenville descended, as intestate property, to the testator’s daughter, or whether it passed under the residuary clause of the will; and for instructions as to who should make titles to the Rail Road Company for the part of the farm agreed to be sold them, &c.

DüNKIN, Ch. The pleadings present the facts of the case and the points submitted for the adjudication of the Court. Whereupon it is declared that the testator’s will was re-published by the codiqil annexed, and executed on the twelfth day of March, one thousand eight hundred and fifty, *(a)***and that the legal estate in the premises contracted to be sold to the Rail Road Company, vested in the defendant, Alfred R. Drayton, and that he is a trustee, as to the premises so contracted to be sold, for the purchaser, and bound to execute a conveyance when required by the *262purchaser. And that tbe executors are entitled to receive the purchase money, and are bound to account for the same to the said Alfred R. Drayton as part of the rest and residue of the testator’s personal estate bequeathed to him.

The complainants appealed on the ground: — that the testator’s will was not re-published by the codicil annexed to it; that the legal estate in the premises contracted to be sold to the Rail Road Company, did not vest in the defendant, Alfred R. Drayton ; that the testator died intestate as to the farm in Greenville, and that the same vested in his daughter and heir at law, Susan Tidyman.

*BeSaussure,*for appellants.

*Petigru, T. Y. Simons, jun.,*for Alfred R. Drayton.

*Memminger,*for Susan Tidyman.

(a)

**1 ltolle Abr. p. 617. Z. No. 8; *Richardson*vs. *Richardson,*Dud. Eq. 184.

*Per Curiam.*

We concur in the decree of the Chancellor: and it is ordered, that it be affirmed, and the appeal dismissed.

JohNStoN, DüNKIN, Dargan and Wardlaw, CO., concurring.

*Appeal dismissed.*