common form to be in the terms stated, but it always appeared to me to be defective. When I was in the habit of drawing conveyances, and wished to settle on a lady property over which she was to have no power of anticipation, I always used to introduce an express proviso that no receipt should be a discharge to the trustees, except a receipt given by the lady for the rents or dividends (according to the nature of the trust property) then actually become due. The proviso to which I have alluded declared, as far as my recollection serves me, that the receipts of the lady, under her own hand, to be given from time to time after the rents or dividends should have actually accrued due, should be, and that no other receipt should be, sufficient discharges to the trustees for the amount of the monies therein expressed to be received. In this case, however, there are no negative words in the receipt clause, and therefore there is nothing to restrict the power which Mrs. Bamford had to dispose of or charge the rents and dividends of the trust property, under the general direction to pay those rents and dividends to her for her separate use." CHAP. LI. Judgment of Sir L. Shad well, V. C. Brown v. Bam The form which the Vice-Chancellor's decision pro- Remarks on nounced to be ineffectual, was formerly in extensive use ford. among conveyancers, but has of late been less generally adopted, rather, it is believed, on account of its prolixity, than from any doubt of its efficacy. The clause, it is admitted, is obnoxious to the condemnatory criticism of the learned Judge, being evidently clumsy and ill-framed. The whole charge against it, however, in regard to the point under consideration is, that it transposes the negative words, which, if placed at the end of the trust for separate use, would unquestionably have applied to the entire preceding trust, and therefore have been effectual; for it cannot be contended that the repetition of the words was A A A 2 CHAP. LI. essential to their efficacy. If the mode in which the restrictive clause was framed is fatal, the effect will be to render nugatory many such provisions, an inconvenience which must certainly be submitted to should sound principles of construction require such a decision; but on this point the writer has ventured to suggest his own doubts. The transposition of clauses, in order to give more complete effect to apparent and indubitable intention is, we have seen, a principle of interpretation which has long been familiar; and seldom, it is conceived, has a more useful occasion occurred for its application than in upholding the form in question (m). It is presumed there would have been no stretch of this principle in holding, that, as the negative words would undoubtedly have been effectual if placed at the end of the trust, they must be considered as actually occupying this place, the intention to create a fetter on alienation being as clear as language (i. e. misplaced language) can render it. It is understood that the decree of the V. C., in Brown v. Bamford, has been appealed from, and that the case now awaits the decision of Lord Lyndhurst. Doctrine of republication under recent statute. III. The doctrine of republication seems likely to come under frequent consideration during a few years hence, in consequence of the enactment 1 Vict. c. 26, s. 34, which provides, that a will executed before the 1st of January, 1838, and re-executed and republished (n), or revived by (m) This form, like many others of the old school of conveyancing, has been rejected by most modern practitioners, on the ground that it employs many words to express a meaning which may be more clear ly conveyed by few. It presents a signal, though not a solitary, instance of the possible failure in perspicuity of clauses framed in the most redundant language. (n) Though the statute has de a codicil, on or since that day, shall, for the purposes of the act, be deemed to have been made at the time at which the same shall be so re-executed, republished, or revived. Whether the codicil does, in point of fact, operate to republish the will, is a question to be ascertained by a reference to the old law; for the recent statute does not appear to have introduced any new principle in regard to republication. The rule, then, it is conceived, must still be, as formerly, that a codicil will operate to republish a will, unless its effect to do so is negatived by the contents of the codicil itself (o). What is to be considered as supplying such negative evidence of intention, is a point to be learnt only by an attentive consideration of the authorities, which will be found to present some rather refined distinctions. This, at least, is clear, that positive intention is not necessary to produce republication. Thus, if a testator having, in the year 1837, made a will, in 1838 makes a codicil expressed in the following simple terms:-" By this codicil to my will, I, A. B., bequeath to C. D. an additional legacy of £50. As witness my hand, this day of 1838." This would be a republication, though the codicil, it will be observed, is wholly silent as to any actual intention on the part of the testator to republish the will. As under the old law, therefore, any general devise in the will would (presuming the will and codicil to be duly attested) have been brought down to the date of the codicil, so as to pass intermediately acquired estates, it follows that, under the new law, the will would be, by the republishing effect of the codicil, brought within the operation of the recent statute, with all its new rules of construction. clared publication not to be necessary, it has retained the term re publication. (0) Ante, Vol. I. p. 175. CHAP. LI. Positive inten tion not neces sary to produce republication. CHAP. LI. v. Waugh examined. It was held, however, recurring to the old law, that where the testator, by a codicil to his will, recited a general devise of his lands in such will, and then revoked the devise as to one of the trustees, and devised the "said lands" to the remaining trustees, he thereby indicated an intention that the devise in his will should not extend beyond the lands devised by the will, (i. e. the lands of which he was seised at the time of its execution), and, consequently, negatived the republishing effect of the codicil, which would have extended the devise in the will to intermediately acquired lands. This point was decided by the case of Bowes v. Bowes (p), which has always been regarded as a Case of Ashley leading authority. The case of Ashley v. Waugh (q), however, went a step (and it is conceived a long step) farther; for Lord Cottenham there considered, that, where a testator in his codicil recited his will as an instrument of a certain date, and then proceeded to revoke the appointment of a trustee in his "said will," and nominated another person to be a trustee of his “said will,” he, by this reference to the particular instrument constituting his will, negatived the republishing effect of the codicil, the words, the "said will," being, in his Lordship's view, equivalent to the words "the said lands" in Bowes v. Bowes. It must be confessed, that the distinction involved in this construction is very refined. It is no other than this; that if a testator makes a codicil to his will, referring to the instrument as his will simply, the codicil has the effect of republishing the will; but that, if he recites the will by reference to its date, and then makes certain alterations in his "said will," republication does not take place. It is submitted, that in each instance the testator's meaning is the same. When he speaks of (p) Ante, Vol. I. p. 177. (9) Ante, Vol. I. p. 179. his will (whether he refers specifically to its date or not), he means the particular instrument constituting the will, and that to make the republishing effect of the codicil depend on such refined criticism, tends to introduce the greatest uncertainty. It is probable that, in order to narrow such an unsatisfactory exception to the doctrine of republication, other distinctions, equally subtle, would be adopted. A difference might possibly be discovered between a codicil which, as in Ashley v. Waugh, throughout refers to the instrument as the "said will," and one which, in some instances, refers to it as the will, and in others as the "said will." It is confidently hoped that the Courts, rejecting all such minute distinctions, will hold, that a codicil operates invariably to republish a will, whether the terms in which such will is referred to be more or less specific, unless the contents of the codicil decisively negative such an intention; and the case of Ashley v. Waugh will be found, it is conceived, not to stand in the way of such a doctrine, for Lord Cottenham merely decided, that, in the state of the authorities, he could not compel a purchaser to take a title depending on the republication; and when we take into consideration the well-known indisposition of the Courts to decide doubtful points of construction incidentally arising in this manner, it is impossible to regard the case as a final adjudication on the doctrine suggested by the very able Judge who decided it. CHAP. LI. republication. Having regard to the extensive consequences which may As to partial now attend the republication of wills, the question will probably sometimes arise, whether a manifestation of intention in a codicil that the will shall not be republished for any given purpose, will prevent the republication for any other purpose. For instance, in such a case as Bowes v. Bowes, the Court sees in the terms of the codicil an indi |