
    Kendall’s Executor and Devisee v. Kendall and Others.
    
    Decided Nov. 30th, 1816.
    i. Wills — Codicil-- Aiter-Acquired Land. — The addition of a Codicil to a Will is not sufficient to operate as a devise of Lands purchased by the Testator between the date of the Will and the date of the Codicil; there being no words in the Codicil indicating such to be the intention of the Testator.
    3. Same — Construction.—what articles are not comprehended in a Request of “Stock, Plantation Utensils, and Household furniture.” '
    See Carnagy and wife v. Woodcock and Mackey, 2 Muni. 234.
    3. Satne — Same—‘•Slock.”—Fattening hogs are not comprehended in a bequest, to one of a Testator’s children, of the Stock belonging to the place whereon he lived.
    John Kendall, by his Will, after bequeathing his slaves to his wife, during her life, directed such of them as, *at the time of her death, should have attained the age of twenty-five years, to be considered as free. The balance he gave to his son Moses and his heirs, “all of whom, and their increase, to be entitled to their freedom as they should severally arrive at the age of twenty-five years.”
    He then devised as follows! — .“I also give to my said Wife, during her life time, the tract of land on which I now reside, exclusive of those parts hereafter devised to my sons Charles and Moses; and, at her death, I give and devise the said Tract of Hand to my son Moses and his heirs. I also give to my said Wife, during her life, a Tract of Hand, which X purchased .of my nephew James Kendall, and also two thirds of the Stock, Plantation Utensils and Household Furniture, belonging to the place whereon I now reside; and, at her death, I give and devise the said Tract of Land to my son Moses and his heirs, together with the said Stock, Plantation Utensils and Household Furniture, likewise the remaining third part of my Stock, Plantation Utensils and Household Furniture.
    The Will contained several other specific devises and bequests, but no residuary clause.
    After making this Will, the Testator purchased four Tracts of Land containing 1089 acres, and two Lots, in the towns of Woodstock and Acquia; three of which Tracts adjoined each other, and one of them adjoined the Tract, on which he lived at the time of making his said Will, and until he died: the fourth tract was several miles distant from all the rest.
    On the day of his death he caused a Codicil to be annexed to the said Will, in these words: — .“I hereby annul and revoke those parts of the within Will, which relate to the liberation of my Negroes. I give and devise to my son Charles, and his heirs forever, forty acres of Land lying on St. George’s run, adjoining the Tract within devised to him, to be laid off, &c. In Testimony whereof, &c.
    Two questions arose upon the construction of this Will: 1st, whether the Tracts of Land, purchased by the Testator between the date of the Will and the date of the Codicil, passed, by the devise above stated, to the Widow for life, and after her death to Moses Kendall; or whether the deceased *died intestate as to those lands: and 2ndly, whether two Stills and a Boiler, four stand tubs full of Cyder, a set of Smith’s Tools and some old Iron, a parcel of Brandy, Hogsheads and Casks, some Leather, a Gun and a few Books, and fifty head of fattening Hogs,” valued, in all, at $555,25, were to be considered as included in the bequest of “Stock, Plantation Utensils, and Household Furniture,” or not.
    Chancellor Taylor was of opinion, that the Testator died intestate as to all the real estate, purchased after the date of the Will; and that the articles above mentioned were not included in the bequest of “Stock, Plantation Utensils, and Household Furniture,” but were to be divided among the distributees generally; and decreed accordingly: from which Decree, Moses -Kendall, the Devisee and Executor appealed.
    Stanard, for the Appellant,
    contended that the annexation of the Codicil was a republication of the Will, and subjected it to the same construction, as if the Will had then been made; and since, at that time, three of the after purchased Tracts, with the original Mansion House Tract formed but one Tract, on which the Testator then resided, they passed by the devise of the Tract on which he resided. In support of this position he cited Acherley v. Vernon, Com. Rep. 381, and Bro. Pari. Cases 107; Gibson v. Mounfort, alias Rodgers, 1 Vez. 489 and Ambl. 93; Heylin v. Heylin, Cowp. 130; and Barnes v. Crow, 1 Ves. jr.' 486. If this result be not produced by force of the republication alone, yet the intention of the Testator, to be inferred from the whole complexion of the Will and Codicil, produces that effect; and, in making this inference, the Court may look, beyond the Will, to parol evidence of the circumstances under which the Codicil was annexed, the then situation of this property, and the Testator’s conception of that situation, 
    
    The case of Strathmore v. Bowes, 7 Term Rep. 478, and 2 Bos. and Pull. 500, may seem to be against me; but critically scanned, it is not so. That case was decided on the constructive intention of the Testator. In this case, all the evidence, not only that, afforded by the Will and Codicil, but the extrinsic evidence of the situation of the property, and the Testator’s conception of that situation, shews his intention *to have been to comprise the lands in question, or, at least, two of the Tracts, (called Knight’s and Hammersley’s,) in this devise. 
    
    Williams contra.
    The clear and fixed rule of law is that, the heir, being the person, on whom the law casts the estate ’till a> plain intent in favour ora certain devisee in a Will, duly executed, be made to appear, he cannot be disinherited by implication.
    It will not be controverted that, if there be two Wills, and a Codicil is afterwards made confirming either, the Will so confirmed will stand. A Testator may, by the wording of a Codicil, make after -purchased lands pass by his Will,  This is always a matter depending on intention. But there are no indications, in the Codicil in this case, of any such intention. It is evident that, when he directed the Codicil to be written, he had not those lands in contemplation. To draw such a conclusion from this Will and Codicil would be to disinherit the heirs by a forced implication.
    
      
       Wills — Codicil—After-Acquired Lends. — In Corr v. Porter, 33 Gratt. 283, Judge Staples, who delivered the opinion oi the court, said: “There are cases in which it lias been held that the codicil was not sucha republication of the will as to pass after-acquired lands, because it plainly appeared that the devise was not intended to include any other lands than those specifically devised by the will. Kendall v. Kendall, 5 Munf. 272. But where the testator in the codicil refers to the will, and gives sufficient demonstration that when making the codicil he considered the will as his will, there a repúblication may be implied. And even though the codicil refers to personal estate only, it may operate as a .republication as to realty, so as to pass after-acquired lands.”
      See further on this subject, monographic note on ‘ wills” appended to Hughes v. Hughes, 2 Munf. 209.
    
    
      
       Founereau v. Poyntz, 1 Bro. Ch. cases, 472, 7 Bac. 342; Douse v. Dennison, 6 Vesey jr. 385; Pulteney v. Lord Darlington. 1 Bro. Ch. cases, 226, 227, Jeacock v. Falkener, Ibid. 295.
    
    
      
       Note. It was proven by depositions, that two of the after purchased tracts of land (Knight’s and Hammersley’s] were under the same inclosure with the former Mansion House Tract, and cornered at the same point; and the same Negroes, Stock, &c. were worked, and used on them; that a third Tract, called Bronaugh’s adjoined the Mansion House Tract, and had been cultivated by the same hands with it, but was afterwards worked by others, under a separate Overseer, and so continued until the Testator’s death. One Witness said, that these three tracts, together with the Mansion House Tract, were considered as one Tract at the Testator’s death: another, that he' (the Witness) considered Bronaugh’s Tract as a separate plantation. —Note in Original Edition.
    
    
      
       Coppin v. Fernyhough, 2 Bro. Ch. cases. 202.
    
   November 30th 1816,

JUDGE BROOKE

pronounced the Court’s opinion, that there is no error in the Decree, which is therefore affirmed.  