
    Wm. H. B. Richardson, Ex’or of James B. Richardson, vs. Mrs. Ann Richardson, et al.
    A codicil, to operate as a republication of a will, must either be annexed to it at the time of its execution, or expressly confirm it.
    A party who would be benefitted by the re-publication of a will, so as to pass after-acquired lands, is an incompetent witness to codicil, so far as it would have the effect of a re-publication.
    Separate testamentary papers not referring to each other, 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 be 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, the Statute 25 G-eo. 2, c. 6, providing that any legacy or devise to a person who attests a will shall be void, and the witness competent.
    BEFORE HIS HONOR CHANCELLOR HARPER, AT CHARLESTON, JUNE, 1837.
    His decree embraces all the facts which it is necessary to state, and was as follows:
    James Burchéll Richardson, by bis will, bearing date the 25th of August, 1826, 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 of that moiety (including some specified by name) to his sons, in the event of her 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 Ms Belvidere plantation at bis decease. To Ms five daughters, the defendants, Margaret C. Spann, Sarab I. C. Moore, Hermione 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 be taken into computation in making up their number of forty. The testator makes various dispositions of Ms stock of blooded horses, and among the rest, to his daughter Hermione, 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 and 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. Moore. After the marriage, testator paid to tbe said John J. Moore, the sum of five thousand dollars, who thereupon executed to the testator a conveyance, expressed to be 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 Fludd. 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, Hermione Moore, a valuable filly, called Little Yenus, was given by the testator, in his lifetime, 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 this will, the testator acquired some real estate, and the complainant contends, that the testamentary paper of the 9th of November, 1835, must have the effect of a republication 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
    
      circumstances, witb respect to wbicb there was no showing by evidence.
    To determine on tbe competency of tbe complainant, as a witness, it is necessary to inquire whether the paper, if valid as a testament, would have the effect of republishing the will. The elder cases were, that there could be no republication of a will of land by implication, or the due execution of a codicil, under the statute of frauds; but that to make a republication there must be an actual, re-execution in the presence of witnesses. — Lyton vs. Viscountess Falkland, 2 Eq. Ca. Ab. 768; Marquis Femphrase vs. Lord Lansdowne, lb. In the case of Acherly vs. Vernon, however, lb. 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 Macclesfield held that the will was confirmed by the codicil, and that the execution of the codicil was a republication of the will, so as to pass-land intermediately acquired. In the Attorney-General vs. Downing, Amb. 57, Lord Camden held, that a codicil duly executed was not a republication 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 republication of a will: 1st, by being annexed to it. — 2d, by the contents showing the intention, or as it is again expressed, “ by express speech or word, that it shall stand as his will.” He refers to Hatton vs. Simpson, 2 Yern. 722, where it is said, that a codicil annexed to a will of personal estate will not operate a republication,, and thinks the report is mistaken, or that it is not law.
    In Gibson vs. Lord Montfort, 2 Yes. 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 republication; because it is the same thing as if he had republished every devise in the will over again. In the present codicil indeed, there are not the words, L confirm my will; but it is, “ I desire,” &c., between which au.il 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.”
    He says he does not know that annexation would vary the case unless annexed at the time of execution.
    In the case of Barnes vs. Grow, 1 Yes. 186, which was very fully considered, Lord Commissioner Eyre, who delivered the opinion of the Court, thought the cases of Acherly vs. Vernon, and the Attorney- General vs. 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 republication. In this, he is followed by Sir William Grant, the Master of the Rolls, in Piggott vs. Walker, 7 Yes. 98, who, however, expresses his preference of the old rule, that there should be no republication 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 vs. Vernon and Attorney- General vs. 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 to amount to a repnblication. Apart from the authority of the cases of Barnes vs. Grow, and Piggott vs. 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 Hardwicke, 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 substantial. In regard to their construction and effect, they may well be 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 Grow vs. Barnes, would be 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 republication. This seems, indeed, to be the ground of Lord Camden’s judgment, in Attorney-General vs. Downing; and so I am satisfied it ought to be. It seems extravagant to say, that an act shall have the effect of republishing 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 Grow vs. Barnes, and Piggott vs. 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 vs. 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 say, “ the general proposition referred to bjr 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 a re-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 case ?
    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. Certainly he "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 republication. Now suppose there were an actual Te-publication, 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. 2, c. 6,) it is provided that any legacy or devise, given by the will to a person who attests it, shall be 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 Act of Assembly of 1712 (]?. 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 be 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 case of Snelgrove vs. Snelgrove, (4 Eq. E. 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 be done, T 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. That does not depend upon the statute 29 Gar. 2, but upon our Act of Assembly, of 1824. If tbis act bad directed a will of personal estate to be attested by two witnesses, tbe will so attested would be good; yet it could not operate a, re-publication of a former will, under tbe statute. As I have said, I regard tbe execution of tbe codicil, so far as it is to effect a re-publication, as tbe execution of tbe former will. To that, tbe complainant would be an incompetent witness. But be is not an incompetent witness to tbis will, regarded merely as a will of personal estate, in wbicb be bas no interest, and attested in the very terms of tbe act of assembly. I think, therefore, that the- legacies, given by tbe codicil, must be established. For it is hardly necessary to say, that tbe paper is testamentary in its character. There are legatory words in it; but if there were not, it is well settled by tbe English decisions, and our own, that whatever may be tbe form of an instrument, if tbe only object of it is to dispose of property after tbe donor’s death, tbis 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 bis interest.
    This is based 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 vs. Sandford, 1 Ves. 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 Fills,) as part of the will. Tbis 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 vs. 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 revocation, the Court said the other will might concern other lands, or no lands at all, or be as confirmation of the former; of course, tbat they might stand together. To the same effect was the case of Harewood vs. Goodright, Cowp. 87, and Thomas vs. Evans, 2 East. 488.
    But the difference is, perhaps, more verbal than real. As our testamentary law, and particularly 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. 8, sec. 1. A codicil, to be a disposition made in prospect of death without such institution. — Id. Lib. 4, sec. i. It is elsewhere said, (Lib. 8, 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. Ye 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 fór us to make, is, that a- will is a complete disposition of the estate, and the 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 a part of the testament. Swinburne certainly had reference to the civil law, from which, indeed, his whole book is derived. In many cases, separate 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 Eludd, 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 vs. Athuraldt, (2 Atk. 427,) and he lays down the rule, that if a legacy be given by will, to a child who afterwards, on marriage, or otherwise, receives from the testator, in bis lifetime, the like, or a greater sum, that shall be deemed in satisfaction of the legacy. If the money so advanced be not equal to the legacy, then it shall be a satisfaction pro tanto. For the latter position, he refers to Hoskins vs. Hoskins, P. Ch. 263, and Shudal vs. Jekyl, 2 Atk. 518. The like rule obtains when the testator, under a covenant by marriage settlement, or otherwise, to provide for his children, gives them a legacy by his will, this shall be 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 pro tanto, he is supported by the authorities. An¿Lhe refers to the case of Warren vs. Warren, 1 Br.,ddt2&rW&*. If any doubt be raised by that case, it is fr^YjlW jliHilSi |of Lord Thurlow, and applies to the enthsTr^e as laidLAWn by Saunders, of entire, as well as par$/sá|i:'sfactipní,^yOT'afe'hur-low says : “I have not found thavif wo^d vanas a distinct rule, that where a parent has made ai&plmsion. hyg^Hjror a child, whom he afterwards provide^ for j^sMrruigáf it is prima facie a satisfaction.” Yet Lo'rd^ Mfurlowjrfepeatedly acknowledged the existence of the rule:
    It is said by the Master of the Rolls, in Henckliffe, (4 Ves. 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 óf the rule, in Graves vs. 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 vs. Clever, (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 vs. Corkeson, (1 Ves. Jun. 107,) he lays it down as a rule or presumption at 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 intent, and consequently that there is no longer a ground for any further demand;” and he decreed accordingly. . See Jenkins vs. Powell, 2 Yern. 114; Copley vs. Copley, 1 Pr. Wms. 137.
    The case of Hoskins vs. 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 seven hundred pounds, afterwards bought him a commission at six hundred and fifty pounds, and this was held a satisfaction pro tanto.— In the case of Shudal vs. Jelcyl, 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 rather be inferred, that though the portion be smaller than the legacy, it shall be a full satisfaction. As might be also inferred from Startop vs. 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 vs. Jesson, 2 Yern. 255, there was a legacy of three thousand pounds to daughters, and a portion of one thousand eight hundred pounds paid in the father’s life time. The Court said it might be a question whether the daughter should have more than one thousand eight hundred pounds, but no question whether that should go in part.
    In Craves vs. Salisbury, it was contended that a lease, worth four thousand four hundred pounds, should be a satisfaction pro tanto of a legacy-of ten thousand pounds. No question was made but that there might be a satisfaction pro tanto, but the decision was on the ground, that the things were not ejusdem generis. It is said by Chancellor, in Chaplin vs. Qhaplm, 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 portion, (in money,) equal to what is so secured, it shall, by implication, be a satisfaction; and if not equal, yet a satisfaction pro tanto.” — See Bengough ys. Walker, 15 Yes. 507. Yet there are many cases to show, that where the things given are not ejusdem generis, there the portion shall not be considered a satisfaction, as in Craves vs. Salisbury. Such was the case of Holmes vs. Holmes, 1 Br. C. 0. 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 Ballaris vs. Atheratt, before referred to, that a money legacy was no satisfaction of annuities vested in tbe legatee, when the legacy was npon 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 be no doubt respecting the true nature of the transaction. It was partly a purchase of slaves by 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 Eludd. 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 moneys advanced by him should be converted into slaves. The decretal order is agreed upon by counsel, except as to the particulars I have considered. Other questions may arise, and especially as to the applicability of the assets to the payment of debts and legacies, which may be made on the reference, and which are 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 0. 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 negroes not on the manor, which are specifically given her by the will, or codicil. To Dorothy Mitchell, one half of the negroes on Belvidere Plantation. To Margaret C. Spann, so many as will complete the forty given her by the will. To Sarah J. 0. Moore, so many as will complete her number of forty. To Hermoine Moore, so many as will complete her number of forty, considering the five thousand dollars given by the testator in his lifetime, 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 Eludd, so many as will make her number of forty complete, considering the five thousand dollars agreed by Mr. Eludd 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 complement in like manner. And in case there should not be so many negroes as the legacies amount to, 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 the other moiety equally between the widow and her daughters.
    
      It is also ordered, that an inquiry he had as to the horses 'bequeathed specifically by the testator, 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 inquired 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.
    The 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, Eanny the seamstress, Lenn the fifer, Bess the house-maid, Roller the house-servant, Lucy the washer, Sharper the weaver, Henry the gardener, Betty the child of Eanny, 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 dairy-woman, Judy and her children, Ten ah and Ned, Aphna and her children Sampson and Rolla, 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 mon'ey, amounting to thirty thousand dollars, ($30,000,) be the same more or less, to her and her own proper 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 in the sixtieth year of the Independence of the United States of America.
    James B. RichaedsoN. [l.s.]
    
      “ Signed, sealed, pronounced, and declared to be my act and deed, in the presence of
    
      W. H. B. BichardsoN.
    E. C. BichardsoN.
    J. J. Moore.”
    From tbe decree of Chancellor Harper, the defendants, John. E. 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.
    2d. 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.
    
      Wm. Rice, solicitor for the defendants.
    From the decree of Chancellor Harper, the defendant, John I. Moore and Hermoine 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. Hermoine Moore.
    2d. Because the testamentary paper of 9th November, 1885, is not a codicil to, or a republication 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.
    5th. Because the decision is in other respects erroneous and contrary to law.
    
      Petigru and 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 republication 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 vs. Vernon, and the Attorney General vs. Downing; between which, notwithstanding what is said in Crow vs. 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 republication by “ express speech or word that it shall stand as bis will.” It also supposes that there may be a republication by annexing the codicil; which Lord Hardwicke, in Gibson vs. 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 republication. 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 bis then present intention that it shall operate and have effect as bis will. This seems nearly equivalent to an express republication. 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 be 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 consistent effect to bis 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 Ms dissatisfaction at the departure from this ancient rule.

Not being a republication in this case, all the witnesses to it are competent as of a will of personal estate. Even if there were an express republication, 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, though not for the land; so, by parity of reason, if one 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 time of execution.

Though it might not be necessary to the decision of the case, we think it proper to say that we perceive no ground on which we would be justified in declaring the Statute 25th Geo. 2, 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 anything to reasoning of the decree, to show that the paper of the 9th of November, 1835, must be regarded as testamentary and as a.codicil; it is contended, however, that the words “revoking and dis-annulling .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 literal 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 of his estate in favor of his wife. What can we reasonably suppose the intention of the testator in using 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 bis will, where be made a competent disposition of bis estate, be revokes all wills, “ heretofore made.” Is this difference of phraseology to have 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 affirmed.  