The 22nd section of the act provides that no will or codicil, or any part thereof, which shall have been in any manner revoked, shall be revived otherwise than by the re-execution thereof, or by a codicil executed iu manner required by the act, and showing an intention to revive the same ; and when any will or codicil which shall be partly and afterwards wholly revoked, shall be revived, the revival is not to extend to such parts as had been revoked before the revocation of the whole, unless a contrary intention appear. Under the old law, if a second will or codicil which revoked a former will was afterwards cancelled, the first, if it had been kept undestroyed, was held to be revived. It had previously been determined (4 610) that a subsequent codicil, merely for a particular purpose and con firming the will in other respects, did not amount to a republication of parts of the will revoked by a former codicil. This section extends the doctrine to the case where a will had been first partially and after wards wholly revoked.
Estates or interests in property created by way of executory devise or bequest, that is to say, such as are made expectant on the determi nation of prior estates in the same property, may be, like estates created by way of remainder in a deed, either vested or contingent. So far as depends upon the nature of the limitations themselves, the same rules are in general applicable to executory devises or bequests as to remainders ; but testamentary instruments are not construed with the same strictness as deeds, and in determining the question of vesting or contingency, many considerations, depending on expressions in the will or other circumstances appearing upon the face of it, are admitted as affording presumptions of the intention of the testator. It is im possible here to give any enumeration of the numerous rules which have been laid down on this subject, and which are of course liable to be modified according to the circumstances of each particular case. It may however be observed generally that when a future gift is preceded by a gift of the immediate interest, it is to be presumed that the enjoy ment only is postponed, and that the future gift is vested in interest; whereas when there is no gift of the immediate interest, the contrary presumption obtains : and again, that when the enjoyment of a gift is postponed, not on account of circumstances personal to the object of the gift, but with a view to the circumstances of the estate, the gift is to be presumed vested. With respect to pecuniary legacies, some dis tinctions, borrowed from the civil law, are admitted which have no place as to real estate. One of these distinctions is that where futurity is annexed to the substance of the gift, the vesting is in the mean time suspended : but where the time of payment only is future, the legacy vests immediately. If however the only gift is contained in the direc tion to pay, this case is to be regarded as one in which time is annexed to the substance of the gift. When a future gift of a principal sum is coupled with a gift of the interest in the mean time, a strong presump tion exists in favour of vesting. It is generally considered that a very clear expression of intention must exist in order to postpone the vest ing of residuary bequests, on the ground that intestacy may often be the consequence of holding them to be contingent.
Great changes have been introduced in the law, as to the interpreta tion of wills by the above-mentioned 24th section of the act, which declares that wills are to be construed to speak as if they were executed immediately before the death of the testator, and by the six following clauses. The 25th section enacts that, unless a contrary intention appear on the will, a residuary devise shall include all estates com prised in lapsed and- void devises. This alters the former law, whereby such estates devolved on the heir. The 26th clause enacts that a
general devise of the testator's lands shall include copyhold and lease hold as well as freehold lands, unless a contrary intention appear. This also effects a considerable alteration in the law of devises. Formerly neither copyholds (unless surrendered to the use of the will) nor leaseholds would pass by a general devise of lands or other general words descriptive of real estate, unless the testator had no freehold lands on which the devise might operate. Since the statute of the 55 Geo. III. c. 192, which dispenses with the necessity of surrenders in certain cases, copyholds stood upon nearly the same footing as free holds, in respect to a general devise ; but leaseholds still continued subject to the old rule of law. By the 27th section, unless a contrary intention appear, a general devise of real estate and a general bequest of personal estate are respectively to include estates and property over which the testator has a general power of appointment. It was never considered necessary in the execution of a power of appointing real estate, whether general or special, to refer expressly to the power. It was sufficient if the intention to exercise it appeared from a description of the property in the will or by other means. If the testator had no other lands which answered the description, a general devise would have been a good execution of the power ; but it was otherwise if he had any other lands which would satisfy the terms of the devise. The enactment applies only when the testator has a general power of ap pointment. Where the power is limited or special, it seems that the old rule of construction will still hold. As to personal property the rule was, that there must be some reference to the power, on the somewhat unsatisfactory ground that as any person must be supposed possessed of some personalty, there was enough to make a general bequest operative without reference to the property comprised in the power. With respect to devises, it seems that the old rule must still prevail where the ,power is special or limited. By the 28th section a devise of real estate without words of limitation is, unless a contrary intention appear by the will, to be construed to pass the fee. This clause introduces a very considerable alteration of the old law, under which, in accordance with the doctrine that the heir was not to be dis inherited by implication, it was settled that a devise of lands without words of limitation conferred on the devisee an estate for life only, notwithstanding the appearance of a contrary intention in other parts of the will. The 29th section enacts, that in any devise or bequest of real or personal estate the words " die without issue," " die without leaving issue," or " have no issue," or any other words of the like im port, shall be construed to mean a want or failure of issue at the time of the death, and not an indefinite failure of issue, unless a contrary intention appear ; except in cases where such words mean, if no issue described in a preceding gift shall be born, or if there shall be no issue who shall live to attain the ago or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue. Under the old law, when a testator gave an estate to A and his heirs, and directed that if A died without issue it should go to B, though his meaning in most cases was that B should have it unless A had issue living at the time of his death, the word " issue " was held to comprise descendants of every degree existing at any distance of time, and the consequence was, that where the subject of the devise was real estate, A took an estate tail and acquired the absolute dominion over the pro party, and where it was pereonalty the ulterior disposition to 13 was void for remoteness.