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![handle is hein.slavery/ssactsengr0669 and id is 1 raw text is: SHANLEY V. HARVEY
testator. In the present case the share of Mary Cheslyn [125] has been revoked, and the
codicil makes no new disposition of it.
Mr. Sewell and Mr. Wilbraham for the defendants. The testator having appointed
three residuary legatees, and afterwards revoked one of them, it is the same as if that
one had never been named. It is an established rule that a codicil confirming a will is a
republication, and the will and codicil make but one instrument; it therefore becomes
the same as if the will was written over again and re-executed with the alterations
in the codicil. Acherley v. Vernon, Com. Rep. 381. Potter v. Potter (1 Ves. sen. 437).
Here the codicil having confirmed the will, it is the same as if the testator had said that
his two sons should be residuary legatees of his whole personal estate. By the will the
testator meant to dispose of his whole estate, and the codicil shews no alteration of that
intention ; on the contrary, though it makes an alteration in the objects, yet it confirms
the intention to dispose of the whole, and not to die intestate as to any part of his estate.
The interest of the £500 3 per cent. annuities was given by the testator to his daughter
in lieu of her share of the residue, and yet by the construction contended for, if she
had survived the testator, she would have had both the interest of the £500 and a part
of that very third of the residue in lieu of which it was given, and which the codicil
had taken from her.
The Lord Chancellor. The testator has made no new devise by the codicil of the
share which he has revoked from his daughter Mary, and therefore the sons can have no
greater interest than they had by the original will. I must, therefore, declare, that the
clear residue of the testator's personal estate, not specifically bequeathed, must be
divided into three equal parts.(1) (Reg. Lib. A. 1761, fol. 180.)
(1) This decree was affirmed in the House of Lords, 9th February 1763, 3 Bro. P. C.
Ed. Toml. 246.
Serjeant Hill to his MS. report of this case has added the following note. Qu.
if this determination be right for it is clearly settled that a codicil confirming a will is a
republication of it, Com. 381; MS. in 8 Vin. 163-4-5-6, and the effect of a republica-
tion is this, that it is the same as if the will was written over again and re-executed with
the alterations in the codicil, and whatever the words of the will as it then stands are
sufficient to pass, will pass by it; for the will, as altered and new modelled by the codicil,
makes but one will, and are considered as written at the time of the codicil. The
learned Serjeant makes a similar qu. in his copy of Viner, which is in Lincoln's Inn
library. The Editor has not been able to discover any subsequent case which at all
resembles it.
[126] SHANLEY V. HARVEY. March 15, 1762.
Bill by the administrator of the deceased for an account of personal estate given by her
as a donatio causa mortis to a negro who had been brought to England as a slave,
dismissed with costs.-S. C. cit. Harg. argument in the Negro Case.
This was a bill brought by Edward Shanley, esquire, as administrator of Margaret
Hamilton, deceased (Note: This fact is not stated in Mr. Hargrave's note of the case,
in which the plaintiff's claim is represented as being solely founded on the circumstance
of his being Harvey's master), against Joseph Harvey, a negro, and two persons of the
name of Gossop and Thorpe, his trustees, and Francis Shanley, one of the next of kin,
for an account of part of her personal estate under the following circumstances.
The plaintiff had twelve years before brought over the defendant, Harvey, as his
slave, then only eight or nine [1271 years old, and presented him to his niece, Margaret
Hamilton, who had him baptized, and changed his name.
On the 9th of July 1752, being then very ill, she, about an hour before her death,
directed Harvey to take out a purse, which was in her dressing-case drawer, and delivered
it to him, saying, Here, take this, there is £700 or £800 in bank notes, and some more
in money, but I cannot directly tell what, but it is all for you, to make you happy : make
haste, put it in your pocket, tell nobody, and pay the butcher's bill. He then knelt
down and thanked her. She said, God bless you, make a good use of it.
The Attorney-General and Mr. Hoskins for the plaintiff. Mr. Sewell and Mr. Perrott
for the defendant Harvey.
The Lord Chancellor. As soon as a man sets foot on English ground he is free : a
negro may maintain an action against his master for ill usage, and may have a Habeas
844
2 EDEN, 125.](ViewImageLocal?handle=hein.slavery/ssactsengr0669&div=1&collection=&method=preview&ext=.png&size=3)