ADMINISTRATOR GENERAL OF BENGAL Vs. HUGHES

JUDGEMENT

(1.) This is a suit instituted by the Administrator General of Bengal for the construction of the Will of Dr. Henry Wilkin Jones, who died on the 8th July 1909 after having made and published his Will, dated the 14th April 1884 and four codicils dated the 22nd May 1901, 2nd March 1903, 15th December 1906 and 19th December 1908. The will and the first and second codicils were deposited according to the provisions of Section 105, Succession Act. The third codicil was registered, but was not deposited. The fourth codicil was neither registered nor deposited.

(2.) It is contended by the next-of-kin of the testator Thomas Gill Jones that in so far as the fourth codicil was not executed twelve months before the testator s death and deposited within six months in some place provided by law for the safe custody of wills, according to the provisions of Section 105 Succession Act, the will and codicils are entirely inoperative, inasmuch as the will must be taken to have been made on the date of the last codicil. In support of this contention Theobald on Wills, 6th edition page 145 has been quoted, but see Jarman on Wills 6th edition Vol. I. page 206. It is not correct to say that a codicil always operates as if the will was made at the date of the codicil. The codicil, unless it expressly revokes an earlier will or codicil, does not prevent its operation. I am supported in this view by the decision of Lord Campbell in Hopwood v. Hopwood (1859) 7 H. L. Cas. 728, 740, 7 and 8 Vic. Clause 97 Section 16 corresponds with Section 105 of the Succession Act. In considering the English Statute, Barton J. has held that a charitable gilt is not invalidated merely by the fact that the will containing it, is confirmed and republished by a codicil made less than three months before the testator s death In re Moore. Long v. Moore [1907] 1 Ir. Rep. 315. In that case the effect of the codicil was pro tanto to reduce and postpone the charitable gift made in the original will. In this case the fourth codicil is expressly stated as intended to be auxiliary, explanatory and supplementary to the will which was executed on the 14th April 1884, and merely provided for the residence of certain persons therein named, increasing their allowance, after revoking certain legacies, with a direction that the executor was to see that a proper monument was erected for the graves of the testator and of his wife. I am of opinion that the republication of a will does not in all circumstances erase the old date, and certainly did not do so in this particular case. I hold that the will under consideration, as modified by the codicils, is operative.

(3.) The parties to the suit are the Lower Circular Road Baptist Church, the Howrah Baptist Church, the Lall Bazar Baptist Church and the next-of-kin above named. To understand the contentions raised by them it is necessary to state shortly the scheme of the original will and the modifications made by the codicils.