or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same," it being held thereunder that the cancellation or destruction of the revoking will cannot revive the previous will.143

In this country the view of the English ecclesiastical courts, that the question of revival is one purely of intention, has occasionally been adopted,144 with the presumption, it seems, in the absence of evidence, against a revival in such a case.145 In a few jurisdictions, however, the view is taken that the revocation of the subsequent will ipso facto revives the earlier one;146 and in some this view is applied to cases in which the second will revoked the first will merely by reason of inconsistency therewith, and not by an express statement to that effect.147 In one state, at least, the rule which prevails by statute in England has been adopted, in the absence of any local statute on the subject.148

There are, in many states, statutory provisions on this subject, it being sometimes provided, as in England, that a will once revoked can be revived only by a re-execution. thereof, or by a codicil duly executed, while in others the canceling, destruction, or revocation of the second will does not revive the first will, unless such intent appear in the

148 1 Jarman, Wills, § 126; 1 Williams, Executors (9th Ed.) 163. 144 Pickens v. Davis, 134 Mass. 252, 4 Gray's Cas. 444; In re Gould's Will, 72 Vt. 316; McClure v. McClure, 86 Tenn. 173. See Bohanon v. Walcot, 1 How. (Miss.) 336; Randall v. Beatty, 31 N. J. Eq. 643.

148 Pickens v. Davis, 134 Mass. 252, 4 Gray's Cas. 444. See 15 Harv. Law Rev. 142.

146 Taylor v. Taylor, 2 Nott & McC. (S. C.) 482; Peck's Appeal from Probate, 50 Conn. 562; Flintham v. Bradford, 10 Pa. St. 82.

147 Scott v. Fink, 45 Mich. 241; Cheever v. North, 106 Mich. 390; Colvin v. Warford, 20 Md. 357. See Hawes v. Nicholas, 72 Tex 481; Peck's Appeal from Probate, 50 Conn. 562.

148 Harwell v. Lively, 30 Ga. 315.

terms of the revocation, or the first will be duly repub lished.149

$ 420. Republication.

A will may be republished so as to give the words of the will the same effect as if the will had been originally executed at the time of such republication,—that is, so as to make it "speak" as of that time.150 Under the law as it

formerly existed in England, restricting the operation of a devise of lands to such lands as were owned by the testator at the time of execution of the will, and in those states in this country where the same rule still prevails, the effect of a republication is important, as it brings lands acquired between the date of execution and of republication within the operation of a general devise.1 But since the general change of the law in this respect, the doctrine of republication has lost much of its importance, and it calls for consideration now chiefly in connection with the possibility of giv ing effect to a will originally invalid, or which has been revoked.152

151

The republication may consist of a re-execution of the instrument with the same formalities as are necessary in the case of an absolutely new will. Accordingly, while, previous to the Statute of Frauds, it might be by means of an oral

149 1 Stimson's Am. St. Law, §§ 2678, 2679.

The destruction of a codicil reviving a former revoked will has been decided not to have the effect of rendering the revival inoperative, if there was no intention that it should have that effect. James v. Shrimpton, 1 Prob. Div. 431, 4 Gray's Cas. 443.

150 1 Jarman, Wills, 159; Williams, Executors (9th Ed.) 170. 151 Beckford v. Parnecott, Cro. Eliz. 493, 4 Gray's Cas. 419; Barnes v. Crow, 4 Brown Ch. 2, 4 Gray's Cas. 421.

152 See Burge v. Hamilton, 72 Ga. 568; Brown v. Riggin, 94 Ill. 560; Walton's Estate, 194 Pa. St. 528; McCurdy v. Neall, 42 N. J. Eq. 333; Skinner v. American Bible Soc., 92 Wis. 209.

declaration even in the case of land,158 since that time signing and attestation are necessary.154 The making and execution of a codicil to a will has likewise the effect, in the absence of any appearance of a contrary intention, of a repub lication of the will, and it is immaterial whether the codicil expressly so provides, or whether it is actually annexed to the will.155 In the absence of an expression of a contrary intention, the republication of a will, whether by re-execu tion, or by the making of a codicil, is of the will as changed by any pre-existing codicils, they being in effect a part of the will.158 The mere fact that the will is referred to by its original date does not take the case out of the rule.157

163 Beckford v. Parnecott, Cro. Eliz. 493, 4 Gray's Cas. 419. 154 Jackson v. Potter, 9 Johns. (N. Y.) 312; Love v. Johnston, 34 N. C. 355, 1 Woerner, Administration, § 56.

156 1 Williams, Executors (9th Ed.) 164; Barnes v. Crow, 4 Brown Ch. 2, 4 Gray's Cas. 421; Van Alstyne v. Van Alstyne, 28 N. Y. 375; In re Murfield's Will, 74 Iowa, 479; Hobart v. Hobart, 154 Ill. 610; Pope v. Pope, 95 Ga. 87; McCurdy v. Neall, 42 N. J. Eq. 333.

1561 Williams, Executors (9th Ed.) 171; Crosbie v. MacDoual, 4 Ves. 610, 4 Gray's Cas. 426.

157 Green v. Tribe, 9 Ch. Div. 231, 4 Gray's Cas. 428.

(970)

The dedication of land for public use involves a declaration by the owner, by either word or act, of an intention that the land shall be thereafter used by the public, and to that extent it divests the rights of the owner of the land. By statute, occasionally, a dedication made in a particular manner vests in the public, not a right of user only, but the ownership of the land.

The dedication must usually be accepted in order to impose any liability upon the municipality as the representative of the public, and, by some decisions, in order to render the dedication irrevocable. Such an acceptance will, in some cases, be presumed from user by the public.

421. The nature of dedication.

A highway may be created by the dedication of land for highway purposes by the owner thereof, this being in effect a declaration, by word or act, of his intention that the land shall be used by the public for highway purposes.1 Land may likewise be dedicated for use as a park, common, or square. It has also been decided in this country that land

1 Angell, Highways, § 132 et seq.; Elliott, Roads & S. c. 5. Baker v. Johnston, 21 Mich. 319; City of Cincinnati v. White's Lessee, 6 Pet. (U. S.) 431, 4 Gray's Cas. 799; Abbott v. Inhabitants of Cottage City, 143 Mass. 521, 58 Am. Rep. 143; Com. v. Rush,

may be dedicated for use by the public as a wharf or landing place, as a cemetery, or for school purposes.5

In some jurisdictions in this country the common-law theory of dedication has been greatly extended by decisions that land may be dedicated, not only for use by the public, but for use by a small portion of the public belonging to a particular class, this being presumably due to a desire to uphold gifts which otherwise would fail for want of a sufficient conveyance. Thus, gifts for charitable and religious purposes, though merely oral, have been supported on the theory of dedication.

14 Pa. St. 186; State v. Trask, 6 Vt. 355, 27 Am. Dec. 554; Rhodes v. Town of Brightwood, 145 Ind. 21.

City of Napa v. Howland, 87 Cal. 84; Village of Mankato v. Willard, 13 Minn. 13 (Gil. 1), 97 Am. Dec. 208; Portland & W. V. R. Co. v. City of Portland, 14 Or. 188, 58 Am. Rep. 299; Penny Pot Landing v. City of Philadelphia, 16 Pa. St. 79; City of Pittsburg v. Epping-Carpenter Co., 194 Pa. St. 318; Gardiner v. Tisdale, 2 Wis. 153, 60 Am. Dec. 407. Contra, Pearsall v. Post, 20 Wend. (N. Y.) 111; Post v. Pearsall, 22 Wend. (N. Y.) 425; Thomas v. Flord, 63 Md. 346, 52 Am. Rep. 513; Horn v. People, 26 Mich. 221; O'Neill v. Annett, 27 N. J. Law, 290, 72 Am. Dec. 364.

• Davidson v. Reed, 111 Ill. 167, 53 Am. Rep. 613; Hunter v. Trustees of Sandy Hill, 6 Hill (N. Y.) 407; Hagaman v. Dittmar, 24 Kan. 42; Pierce v. Spafford, 53 Vt. 394; Mowry v. City of Prov. idence, 10 R. I. 52.

Carpenteria School Dist. v. Heath, 56 Cal. 478; Chapman v. Floyd, 68 Ga. 455; Klinkener v. School Directors of McKeesport, 11 Pa. St. 444; Board of Education of Incorporated Village of Van Wert v. Edson, 18 Ohio St. 221; Board of Regents for Normal School Dist. No. 3 v. Painter, 102 Mo. 464.

• Beatty v. Kurtz, 2 Pet. (U. S.) 566, 3 Gray's Cas. 794; City of Hannibal v. Draper, 15 Mo. 634; Atkinson v. Bell, 18 Tex. 474; Williams v. First Presbyterian Soc. in Cincinnati, 1 Ohio St. 478. Compare Home for Care of the Inebriate v. City & County of San Francisco, 119 Cal. 534; Trustees of Methodist Episcopal Church of Hoboken v. City of Hoboken, 33 N. J. Law, 13, 97 Am. Dec. 696.

But the courts have refused to support a dedication for railroad purposes in favor of a private corporation. Lake Erie & W. R