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Decisions of the Superior Courts of New South Wales, 1788-1899

Doe dem. Riley v. Campbell and Walker (1828) NSW Sel Cas (Dowling) 967; [1829] NSWSupC 62

succession, interpretation of will - primogeniture - intestacy


Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ,, 29 and 30 September 1829

Source: Dowling, Proceedings of the Supreme Court, Vol. 26, Archives Office of New South Wales, 2/3209[1 ]

[p. 69] Tuesday 29th Sept 1829

In Banco

Present  Forbes C.J.

 Stephen J

Dowling J.


This case was argued a second time this day by Wentworth for the Plf & Dr Wardell for the Deft.  The same permits were made as on the previous agreement.  See Ante vol 22. p. 152. & Ante vol. 23. p. 9. & 143.[2 ]

c.a.v.[3 ]

[p. 70]After several motions of Court (Forbes C.J. having left to go to Council) is adjourned till tomorrow.


[p. 71][John Doe on the demise of Edward Riley v Robert Campbell and William Walker]

[(a) Forbes C.J. being detained at the Legislative Council until near 12 o'clock, Stephen J & I went into Court, and I delivered judgment, he concurring in my view of the case. - Forbes C.J. had previously made up his mind upon the case in favour of the Defts.  When he came into Court he announced that fact.]

Dowling J.  This case has been twice argued with great learning and ability on both sides, once before His Honor the Chief Justice and myself on the 30th June last, and the second time before the whole Court yesterday.  I confess that, individually speaking, I feel great satisfaction in the circumstance of the case having undergone a second discussion, for although my mind was at first impressed with some doubt and difficulty as to the true construction to be put upon the will & codicil set forth in the case, all doubt and difficulty are now removed by the second argument.

The substantial question raised in this case is whether the father of the lessor of the Plaintiff Edward Riley died intestate as to the freehold premises for which this ejectment is brought, and of which he was seised at the time of his decease.

[p. 72] I am of opinion he did not die intestate as to his real property & that the freehold premises in question pass to the executors under the codicil, and consequently a verdicts must be entered for the Defts.

In both the arguments on this case two main propositions were brought under consideration, first, as to the effect of a codicil in operating as a republication of a prexisting will; and secondly as to the construction to be put upon the will in question assuming that by operation of the codicil the will was to be construed as if it bore even date with the codicil.

On the first argument it was distinctly admitted on both sides that a codicil operates as a republication of a prior will, that both taken together are to be considered as but one will, and that the Court were at liberty to look at the will in question, and construe as if it were in fact made & published on the 7th February 1824, the time the codicil bears date.

This concession was in some degree retracted on the second argument by the learned counsel [p. 73] for the plf, on the authority of Bowes v Bowes 2 Bos & Pull 500. where it had been decided that the effect of codicil upon a will of making it speak as to the existing property of the testator, may be restrained by the manner in which the codicil is expressed; for in that case the codicil after reciting the devise by the will, revoked the same as to two of the trustees, and then devised the said lands & c, & it was adjudged that lands purchased between the will and codicil would not pass.-  If it had been made manifest that the codicil in this case was, from the manner in which it is expressed, calculated to affect or restrain the will in its general scope & operation I should have yielded to the argument arising from the authority of that case; but I do not find anything in the codicil which can prevent its operating upon the property of the testator existing at the time of his decease.

I think, however, that after the current of authorities upon this subject, I think it is now too late to dispute that a codicil executed and attested by three witnesses operates as a republication [p. 74] of a will, & that both thereby become one will.  This position was first established by Lord Mansfield in Acherly v Vernon 5 Comyus Reports 381.  It was next confirmed by Lord Hardwicke in Gibson v Lord Mountfort 1 Ves.492.3. where his Lordship says, "that in Acherly v Vernon it was the opinion of the judges that the codicil was incorporated with the will, which made it a republication; thence deducing this general proposition, that every codicil executed according to the statute of frauds, to whatsoever part of the property it may relate operates as a republication of the will.  It was admitted for the [?] heir, said his Lordship, that though it is a codicil only to a personal estate, yet if there is a general clause of conformation of the will, that will makes the codicil, duly executed a republication of the will.  But, said his Lordship, this being admitted, every codicil becomes a republication, if it is executed by those witnesses, though it relates only to personal estate; for a codicil is undoubtedly a farther part of the last will, whether it be said so or not."

[p. 75] In the case of Barnes v Crowe 7 vess. 486 the case of Acherly v. Vernon was set up as the great authority on the subject to the full extent of the doctrine ascribed to it by Lord Hardwicke in Gibson v Mountfort.  In the case of Pigott v Walker 7 vess. 98. Sir William Grant submitted to the authority of Acherley v Vernon as that case was understood by Sir Hardwicke in Gibson v Mountfort & by Lord Commissioner Eyre in Barnes v Crowe, but certainly not without expressing some disapprobation of the reasonings on which that authority was supported.  At the same time however, for the convenience of adhering to settled rules & former decisions he was disposed to hold the codicil a republication.

I agree, that although a codicil properly executed makes the will speak (as it is expected) at the date after codicil, yet the will must have words clearly applicable to the intermediate acquisitions, or if council have the effect of passing them.  For instance, if it had a specific [p. 76] reference to attiring when it was first published, but subsequently withdrawn, the republication by a codicil will not make it operate upon another subject, which has come by substitution with the place of the thing so withdrawn, though precisely similar in its account & quality.

I take the proper understanding of the doctrine to be this, that the codicil, if executed to act upon the subject, brings down the will to its own date, makes it speak as if it were made at that time; but that still it is made to speak only its own sense; & if it had any particular view to any particular object or purpose, which ceased to exist during the interval, between the will & codicil, the codicil will not, from the accidental aptitude of the words to another subject create or acquiesced since the will, have any operation upon that which was certainly out of the original [p. 77] view of the testator.  In construing a will so republished, I agree it must be evidenced what the words of the will at the time of the republication imported.  Their sense cannot be enlarged; but their operation may, if time or accident had increased the amount or number of the particulars comprised within the compass of its expressions.

Taking it therefore to be perfectly clear, that the codicil in this case being executed [?] to the statute of Frauds & perjuries, operates as a republication of the will, drawing the will down to its own date.

The second, which is in fact the true question, is, whether the will so republished can be construed so as to pass the real estate to the testators executors & trustees.

It was very properly conceded in the argument for the lessor of the plf. that the intention of the testator should be the polar star in arriving at a satisfactory construction of the will, & that we [p. 78] are bound to give effect to the intention of the testator where it can be plainly ascertained.

The general rules upon this subject are too well settled to be now questioned.  In 1 Tilv. Bl. 377 it is said wills shall be so construed as far as consistently may be, so as to preserve estates in the intended channel of descent.  The intent of the testator is to be the rule of construction, if the words will bear it out; Brownsword v Edwards 2 ves. 248.  Loose, general & doubtful words may be rejected as surplusage, where they oppose a plain precedent devise, or the broad manifest intent of the testator.  Hob. 65. 6 Mod. 112.  Effect ought to be given, if possible, to the whole will, and the intention should be collected from all the parts of it to avoid repugnancy.  Leonard 229. 2 Buls. 178.  Gittens v Steele Swainst. 28.; and a codicil is to be considered as part of it.  Gray v Minethorpe 3 vess. 105.  Such indeed is the respect due to intention that a construction may be made to support it, when plain upon the [p. 79] whole will, even against strict pragmatical rules.  11 vess. 148.  General words will be considered to render the whole will consistent, but every word ought to have effect if possible so as it consist with the general intention, which if manifest, must control the construction.  Blanford v Blanford Roll. Rep. 319.  Constantine v. Constantine 6 vess. 10.  The safest course is to abide by the words, unless upon the whole will there is something amounting almost to demonstration to shew that the plain meaning of the words is not the meaning of the testator.  Brooke v De Vandes 9 vess. 205. Stanwick v. Norton 7 vess. 391.  General words are not to be restrained, unless the Court sees abundant reason to conclude that the testator meant to use them in a restrained sense.  This is the general rule laid down by Ld. Mansfield in Goodlittle v Paul 2 Burr. 1089.  Wherever words have an obvious construction, they are not to be rejected upon a [p. 80] suspicion that the testator did not know what he meant by them Miller v Slater 8 vess. 295.  If words admit of a two-fold construction, the rule is to adopt that which may tend to make good the instrument, & to effectuate rather than frustrate the intention; & if words are rejected or supplied by construction it must always be in support of the intent.  The intention of a testator is not to fail, because it cannot take effect to the full extent; but it is to work as far as it can.  Atkinson v Hutchinson 3 P.Wms. 259.

Having thus referred to the general rules applicable to the construction of wills in support of the testaor's intention, we are now to consider 1st whether the will & codicil taken together shew an intention of devising the property in question; & secondly whether there are words sufficient to effectuate the intention.

[p. 81] First as to the testator's intention.  I think the devising or bequeathing clause abundantly shews that the testator did not intend to die intestate as to any of his property.  He gives to his executors upon trust ``All the estate & prosperity of whatever nature & wherever situate which may belong to me at the time of my decease."  This is a perspective disposition of such property as he may happen to die possessed of.  By the legal effect of the codicil in bringing down the will to its own date, the will must operate upon such property as he does in fact die possessed of, if there be words sufficient to effectuate the intention thus manifested.

It is clear that he had it not in contemplation to favour his eldest son more than any other object of his bounty, for he mentions him expressly by name, as one of the persons who is to have an equal proportion of his property, with his mother in law, his own brother, [p. 82] and his brothers & sisters of the half blood.  The whole plain of the will shews that his intention was to dispose of the whole of such property as he should die possessed of, 1st. to his wife, his two sons by a former marriage, and the children, if any, of his second marriage, share & share alike.  2ndly.  In failure of these objects of his family, to his parents for their joint & separate lives; and 3rd. from on after the decease of his parents respectively, over, to his two sisters share & share alike.  Had he contemplated any particular favour to his oldest son, it is probable that some intention to that effect would have been expressed.  It is clear, however that no such intention is manifested.  On the contrary the presumption of any peculiar favour to him is negatived by his being again mentioned in the codicil by name as having a share in the first class of the Royal Provident [p. 83] Society.  All the persons provided for have an equal & natural claim upon his bounty, his wife & children, in the first place, his parents in the second, & his sisters in the third.  These are the classes of persons who are successively to take a beneficial interest in his bounty.  It cannot be supposed that a person in his situation & circumstances of life, could have any ambition to endow his eldest son with his freehold property to support family name & wealth at the expense of other equally natural claimants on his affection & consideration.  The whole scope & frame of the will negatives any intention of that kind.  It is founded in a spirit of equal justice & impartiality, & consistently with those amiable impulses which distinguish a good husband, a good father, a good son & a good brother.  Even if these were words insufficient to effectuate his manifest intention, it would be the duty of the Court to strain hard to [p. 84] carry his design into operation.  The common expression in the book, that an heir shall not be disinherited except by express words or necessary implication is incorrect; the proper terms of the rule are, that the intent of the testator ought to appear plainly in the will itself, otherwise the heir shall not be disinherited Moore v Houseman Willes 141.; and where there is no ambiguity, it has long ago been laid by great authority, that a devise is as much favoured as an heir allow.  I Mod. 13. 2 Vernon. 340.

Seeing that the manifested intention of the testator is to dispose of all his estate & property in the manner pointed out in the will, then the real consideration is, whether the will is framed in such apt terms as will enable the Court to effectuate the intention.  It is admitted that [p. 85] the word Estate per se is a [?] general [?] & will embrace the realty as well as the personalty but it is said that for want of technical words of inheritance, in this will it must be restrained to personalty.  I however regard these as the more mechanical parts of the will which the Court is bound to supply, where the intent is plain & manifest.  If the testator really intended to devise his real estate by his will the Court will supply the machinery necessary to carry the intention into effect.

I think no sound argument can be devised from the fact that at the time the testator made his will he was not possessed of any real property.  It is clear that he contemplated the possibility of his having real property at the time of his decease else why use the comprehensive terms found in the will; & only have it executed & affected by those witnesses to satisfy the statute of [p. 86] frauds.  Again, why so cautiously does he have his codicil executed in like manner.  A will & codicil of personalty require no witnesses at all.  We must assume & intend that he supposed he had thereby done everything to dispose of all his property both real & personal.  The silence of his codicil with respect to his subsequently acquired real property, is in my judgement a strong confirmation of what his mind intention were in the original frame of his will, more especially when he particularly mentions the fact of his two sons Edward & George having each a share in the first class of the Royal Provident Society.  This must be taken as [?] that these persons were possessed of these shares in addition to which they would be entitled to receive under the will.

[p. 87] Without going more intimately into the case, I am of opinion that this will being to be construed as if it bore even date with the codicil, there is a plain and manifest intent of devising the whole of his state whether freehold or personal in the manner pointed out in the will, & that the terms of the will are sufficient to effectuate such intention.

For these reasons I think judgement must be given to the Defts.

Forbes C.J. & Stephen J. concurred in my opinion & delivered the above as the opinion of the whole court.




[1 ] Part of the judgment of this case is also in Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462, p. 235.  The Select Cases version commences with the following summary, apparently written by Dowling' J. (pp 235-237):

" Testator by will executed to pass real Estates gave "all the estate and property of what ever nature and heresoever situate which might belong to him at the time of his decease," to his executors, in trust 1st to pay and assign the same to his wife, two sons of a former marriage & the children if any of his second marriage, share and share alike 2nd to lay out and invest the whole of his Estate in public securities and pay the Interest to his Father & Mother during their joint and several lives and 3rd. after the decease of his parents to pay and assign the principal to his two sisters share and share alike.  At the time of making the will he was possessed of no real property.  He afterwards acquired a real Estate, and then made and published a Codicil attested by 3 witnesses, and expressly recognizing his wife and appointing new executors held first that the Codicil attested by 3 witnesses & expressly his will and appointing new executors  Held first that the codicil & will were to be read together; & 2nd that under the Codicil the real Estate passed to the user of the will although it contained no words of inheritance."

The Australian, 2 October 1829, reported this case as follows:

"The three Judges having taken their seats in banco, Mr. Wentworth engaged the attention of the Court for upwards of two hours, in his usually able manner, during a series of arguments relating to a certain codicil attached to the Will of Edward Riley, Esquire, deceased, contending that was a new publication of the Will of the Testator.

"Doctor Wardell, on the opposite side, held the codicil to be only a memorandum annexed to, and not a new publication of the Will.

"The arguments of both the learned Gentlemen engrossed the attention of  the Court for four hours, and was left for decision to a future day.

"Mr. Chief Justice Forbes having risen to attend the Council, the Court adjourned to ten o'clock next day,


"when the three Judges being again in banco, - with relation to the above matter, the Court expressed itself of opinion, that Mr. Riley did not die intestate as to his real property - that it was evidently not the intention of the testator to favor his eldest son, but equally to distribute his property share and share alike among his offspring - that it was not likely either, testator should have intended to endow his eldest son with the whole of his freehold property, in order to perpetuate the family name - and on the whole, that it was evidently the testator's intention to bequeath the entire of his property, real and personal, as expressed by his will, which was sufficient to carry such object into effect - and finally, that the verdict on a former occasion was erroneous."

[2 ] These references are to the full collection of 248 notebooks of Dowling J.  They are collected in the Archives Office of New South Wales as "Proceedings of the Supreme Court of New South Wales 1828-40", reference 2/3184-396, 2/3400-33.

[3 ] Curia advisari vult: the court wishes to be advised, or wishes to consider its decision.  This means that the judgment was not delivered immediately.

Published by the Division of Law, Macquarie University