J. (After stating the case.) There are cases, where equity will aid the defective execution of a power; relief will be given, in favour of creditors, or of a wife, or children. But this is not one of those cases. The appointment, it is true, is in favour of grand-children. But even supposing, for argument’s sake, that grand-children fall under the same rule as children, there would be no reason for an interposition here; because in default of an appointment, the estate would go to grand-children; so that the equity of the contending parties would be equal. The solemnity of a seal, is. not considered with the same veneration, now, as formerly. Still, this Court has no power to dispense with a seal, where the party creating a power, has required one. The question is, therefore, reduced to a single point, viz. whether this was an appointment under the seal of Mrs. Dupuy. That she intended to make an appointment under her father’s will, is certain; and as that will required a seal, we must suppose that she intended the will, and codicil, to operate as one instrument, because otherwise, the appointment would be invalid. When she wrote the letter, intended for a will, she made no publication of it, but kept it locked up, until nine days after. Then, for the first time, she published it, and had it attested as her will, but not until she had signed and sealed the codicil ; the publication of both, was simultaneous, and may be considered as the same act. Is there any principle of law then, which intervenes, and frustrates the intent of the testatrix ? It is contended, that there is ; that the will, and codicil, are different instruments, and consequently the seal affixed to the latter, can have no effect on the former. Let us exa*112mine this position. There is an intimate connexion between a will and codicil. In the case of Willet v. Sandford, (1 Ves. 187), it is said by Lord Hardwicke, that “ a codicil, made “ after a will, and directed to be annexed thereto, is consi- “ dered, both in our law and in the civil law, (from which “ we borrow ours, with respect to wills) as part of the will?’ and he cites Swinb. in support of this principle. In the present case there is no direction, that the codicil shall be annexed to the will; but I do not conceive that to be material. The nature of the thing requires that it should be annexed to. it, or rather that the codicil should be considered as incorporated with the will. If ever there was a case, in which it must be presumed, that the testatrix intended, as far as law would permit, to incorporate a codicil with a will, it is the present, where the most material part of the will is void, unless the codicil' and will are united. Neither do I think it material, that the two writings are on different papers, for that makes no difference in their natures. The case of Acherly v. Vernon, (Comyn. Rep. 381) is strong on this point. A testator made a will, by which he devised all his lands and estate ; he afterwards purchased other lands, and rents, and then made and executed a codicil, in presence of three witnesses, who subscribed it. There was no express republication of the will, yet it was held by Ld. Ch. Macclesfield, and affirmed in the house of lords, that the will was virtually republished, so that the after purchased real estate would pass by it. ' The codicil was a separate and distinct instrument, made years after the will; but, in the words of Lord Macclesfield, “ both together made but one “ will.” There has been some diversity of opinion, since the case of Acherly v. Vernon, concerning an implied republication of a will, by the act of making a codicil. Some have thought, that if the codicil related to personal estate only, there would not be an implied repuhlication of the will, so as to pass after purchased lands, although the codicil was attested by three witnesses. But the later cases, incline to an implied republication, where there are circumstances from which the intent of the testator may be presumed. The present case falls directly within that principle. It may be fairly presumed, that Mrs. Dupuy knew that her father’s will required her appointment to be under seal; she knew then, that unless the seal of the codicil, operated on the will. *113her appointment was void. It is impossible to imagine a stronger case for presumption of intent. Add to this, the manner of publication; both instruments at the same moment, and I cannot hesitate to consider the two, as making one whole. I am, therefore’, of opinion, that the appointment was good, and consequently the plaintiffs (the other grandchildren), are entitled to nó part of the property in dispute.
Gibson J. concurred.