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239 LECTURE NOTES. 239 /■ THE LAW SCHOOL. LECTURE NOTES. jThese notes were taken by students from lectures delivered as part of the regular course of - struction in the School. They represent, therefore, no carefully formulated statements of doctrine, but only such informal expressions of opinion as are usually put forward in the class-room. For the form of these notes the lecturers are not responsible.] Wills — Incorporation by Reference. — {From Prof. Gray's Lectures.) — To incorporate in a will a document which is not duly attested, the latter must be so described in the will as to be capable of identification. This identification, as is pointed out in Allen v. Maddock^ will always be to some extent a question of parol evidence ; but the document must be referred to as one th^-n existing ; if there is not such a reference, it is immaterial that there is already in existence a paper which satisfies the description. This latter point is illustrated by Goods of Sunderland^ where the words of the will, according to the construction put upon them by the court, were never meant to describe the particular paper previously executed, but were ambulatory, and intended to cover any paper which the testator might make in the future. Goods of Truro ^ raised the further question, how far the republication of the will by a later valid codicil might have the effect of adding to the will something which was not a part of it when executed, and which was not mentioned in the codicil ; e.g., a memo- randum referred to in the will, but not prepared till after its execution. Sir J. P. Wilde (Lord Penzance) held that a codicil might have this effect. The will, he said, was to be read as if the testator had sat down and reexecuted it at the time of making the codicil ; and if there were in it any words which, speaking from the date of the codicil, would contain a sufficient reference to a document as then existing to incorporate it within the principle of Allen v. Maddock, that docu- ment might be treated as part of the will. The test thus laid down seems open to some criticism. These cases of incorporation by reference present two difficulties which should not be confounded. (i.) The words of the will may be ambulatory, as in Goods of Sunderland, above. This difficulty is apparently a fatal obstacle in the way of incorporating any paper, though it falls within the description ; for it is impossible to show any reference in the will to that particular document. (2.) The paper, though specifically described, — e.g., ** the letter which I mean to write to-morrow," — may not be in existence when the will is made, and therefore be invalid as a testamentary instrument, for lack of due execution. This objection seems to be removed, however, by a good codicil made after the preparation of the memorandum ; for the codicil is properly executed, and the will, republished by the codicil, contains a sufficient reference to this memorandum, wh'ch may therefore be treated as a valid testamentary disposition. The test of Goods of Truro would seem, however, if strictly applied, to lead to a contrary result in the case just put ; for the words of the will, treated as if re- executed at the date of the codicil, will still be found to refer to the 1 II Moo. P. C. 427 ; 4 Gray's Cas. Prop. 198. 2 L. R. I P. & D 198 ; 4 Gray's Cas. Prop. 2/7. 3 L. R. I P. & D. 201 ; 4 Gray's Cas. Prop. 219.