Opinion
(June Term, 1849.)
Adding a codicil to a will is a repudiation, and the codicil brings the will to it and makes it a will from the date of the codicil.
CAUSE removed from the Court of Equity of CASWELL, at Fall Term, 1848.
Norwood for plaintiffs.
J. H. Bryan and T. B. Venable for defendants.
On 30 January, 1827, Stephen Oliver made his will, in which the residuary clause is as follows: "If there should be any remaining, after paying the moneys that I am security for him for, as for the balance of my estate, my desire is that it shall be equally divided among the whole of my children during their natural lives. But my will is that if either of them die without a lawful heir, the whole of the property loaned them by me be returned for an equal division among the rest of the children." By a codicil written on the same sheet of paper, and dated 28 May, 1828, he says: "My will is that when any of my children (56) shall have children that are lawfully begotten, then and in that case the property I have loaned them shall be theirs in fee simple, to dispose of as they please."
The testator died, leaving eight sons, who were his only children, and leaving a considerable number of slaves, which formed a part of the residue of his estate and were divided among the children.
In 1847 the testator's son Robert died without a child, leaving twelve slaves, devised under his father's will. He made a will bequeathing the slaves to the defendants, who are two of his brothers.
The plaintiffs, who are the other children of Stephen Oliver, and the representatives of Reuben, a son, who died leaving children, insist that, by the will of their father, Robert took but a life estate, and as he died without having a child, the slaves, by the limitation over, are to be divided among the children.
The defendants insist that Robert had an absolute estate, and claim the slaves under his will.
Whatever might have been the construction of the residuary clause, had it stood upon the original publication in 1827, it is put beyond doubt by the republication in May, 1828, by the codicil of that date. For, by the republication, the will is made to speak and operate from that time. The act of 1827, ch. 7, had then gone into effect, and gave efficacy to the limitation over. Whatever doubt was once entertained, it is now unquestionably settled that adding a codicil is a republication, and the codicil brings the will to it, and makes it a will (57) from the date of the codicil. Much more must it have that operation in putting a benignant sense on the words of the will, so as to make its provisions, in reference to personal property, take effect.
Therefore, it must be declared that upon the death of Robert Oliver without having had a child, the slaves allotted to him, and their increase, under the will of his father, belonged to his surviving brothers and the present representatives of Reuben, who died leaving children. There must be a decree for a division accordingly, and for an account of the property since the death of Robert.
PER CURIAM. Decree accordingly.