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they left the case to the candid tion in favour of it, unless repellconsideration of the Court. ed by evidence of bis subsequent
Sir John Nicholl remarked, conduct. Upon that point, howthat the principles upon which ever, the evidence corroborated the case must depend had been the opinion, that he did not abanproperly stated on the one side, don but adhered to the will; that and not controverted on the other. he completed it by his signature, It was perfectly competent to par- and then sealed it up in an ties to prove the contents of a will velope. It had been said that which had been destroyed, whe- there was no direct proof that he ther the destruction had occurred did copy it, as he said he would ; in the life-time of the testator or but there was every reasonable afterwards, provided it had hap- evidence that he did in some way pened without his knowledge or or other complete it. His conconcurrence : where an accident versation with his wife, when he thus intervened, and the act of held up the sealed paper, and said God alone prevented the comple- it was his will, and the only will » tion of a person's intentions, the he should ever make, was concluCourt could not but be anxious to sive upon this point, and left no supply the defect, and prevent the reason to doubt that the paper he ill
consequences which would then held up did contain the will ; otherwise accrue to innocent par- and the fact of its being sealed ties, and, in looking to the proof showed that it had been complein such a case, must be satisfied ted, and was a perfect instrument. if it should amount to a reason His subsequent conversation with able probability He then stated his wife, a day or two before his the circumstances of the case, and death, in which, speaking of his remarked that it was clear the de- will, he said that it was done, and ceased intended to die testate, and he should never alter it, was a to appoint his wife, brother, and further confirmation of the instrubrother-in-law, his executors.- ment itself, and of the fixed state The disposition he had made by of the intentions which had led the will he had drawn up was ful- him to make it. It had been said ly evidenced by his declaration to that his declaration in the course his brother, to whom he read it, of this conversation, that he had and who deposed that he had, as left his property to his wife, did he was likely to have, a perfect re not confirm the contents of the collection of the contents. He will as propounded, as it appearconsulted his brother, and some ed from them that she had only a alterations were suggested and life-interest in the whole property, made ; but the deceased's declara- with a power of apportioning it tion, that he would copy it over, amongst the children at her death. and then put his name to it, was This was, however, as near an aba complete and final approbation solute interest as possible, and a of the instrument, and showed conformity, in substance at least, that his mind was made up and to the deceased's declaration ; and decided with respect to it. There his directing the property to be was therefore a strong presump- equally divided, in case his wife
left no disposition of it, showed which the deceased used to write his intention of providing against in his scrutoire. It purported to all possible events. It was there. contain some testamentary dispofore proved, not only that the de- sitions of the deceased, and was ceased had duly made his will, but written by him on the back of a that he would never alter it; and, printed letter, which was dated under all the circumstances of the the 6th July 1914. The death of case, the Court was satisfied that Mr. Johnson happened about 12 the disposition he had thereby months after that time, and was made of his property was, in sub- occasioned by an apoplexy. By stance, that which was stated in this latter paper certain specific the contents propounded : those legacies, for which blanks were contents were short, simple, and left, appeared to have been ineasy to be remembered; and the tended to be given to some of the disposition altogether was a very deceased's children ; the residue natural one, and not very different was to be divided equally among from what the law would have them, and executors were appointdone, had he died intestate. The ed. The paper broke off abruptly, Court therefore pronounced for and was not signed by the deceasthe contents of the will as stated ed, nor dated. in the schedule annexed to Mr. Dr. Swabey and Dr. Jenner, Robinson's affidavit.
in support of the first will, argued
from these circumstances against Deffell v. Johnson and Johnson. the sufficiency of this latter paper This was a proceeding for the to revoke it. It was scarcely pospurpose of obtaining the decision sible to describe a more imperof the Court on the validity of the fect paper. It purported to detestamentary papers of the late vise real property, and was not James Johnson, Esq.of Wimpole- executed nor attested ; and the street, formerly his Majesty's At- particulars left to be supplied in torney-general in South Carolina. it were of the most importMr. Johnson, it appeared, had ant nature. There were no demade a will, regularly executed clarations of the deceased as to in Jamaica, in the year 1793, in his testamentary intention which contemplation, as was suggested, might tend to confirm it; and all of his then returning to England. that could be collected with referBy this will he bequeathed his ence to the time of its being writproperty among his then children, ten was, that it must have been îis wife having a separate pro some time after the 6th of July vision under her marriage-settle- 1814, which was nearly a twelvement. Subsequently to the making month before Mr.Johnson's death. of this will Mr. Johnson had re It must therefore be regarded as turned to this country, and had had containing merely memoranda of four children born, and his proper- the deceased for his future conty had increased from 30,0001. to sideration, which he afterwards 200,0001. Another paper was abandoned, and not as containing also submitted to the notice of the his final testamentary intentions, Court, which was found within which he was prevented from carsome blotting paper leaves on rying into effect by the act of God.
Dr. Burnaby, in support of the which testamentary dispositions latter paper, contended, that from are ptotected could not be relaxed the material alteration of the de on account of cases of individual ceased's circumstances by the distress. The subsequent birth birth of four other children, and of children, and the great increase the great increase of his property, of the deceased's property, in this it could not be supposed that he case did not amount to a legal re. intended the first will to operate, vocation of his will.
It was which was made to provide against pleaded that this will was made the contingencies of a voyage he by the deceased in consequence of was contemplating from Jamaica his then contemplating his return to England. He had accordingly to England; but there was no proceeded to make a new will, clause in it by which its operawhich was found after his death tion was made to depend on that between the leaves of blotting or any other contingency. The paper in his scrútoire-a situation deceased must have been aware in which it was not probable that of the existence of this will, and, he would have suffered such a being a gentleman of legal edupaper to remain for a consider cation and habits, could not be able time. By this paper it ap- supposed to have been ignorant peared, that the deceased had not of its operation. The learned made up his mind with respect to judge then expressed his opinion certain specific legacies ; but the that the latter will was not such a disposition of the residue and the paper as could receive the sancappointment of executors tion of that court as an operative complete. The deceased died sud- instrument. Adverting to its vadenly of an apoplexy; and, under rivus imperfections, he proceeded all the circumstances, it was to be to state, that the presumption of presumed that he was thereby law was against such papers ; and alone prevented from completing it was incumbent on those who this paper, which he had left in supported them to adduce some his scrutoire for that purpose, and strong extrinsic circumstances for which therefore must be consi- that purpose. It might be posdered as containing his will to the sible to do so, if the deceased extent expressed in it.
were struck with death in writing Sir John Nicholl observed, such a paper, or if there were that the question in this case was, confirmatory declarations ; but if whether the latter paper could he there were nothing to show that shown to be an operative instru- the deceased was prevented from ment? Under the will of 1793 completing it, the paper could not the children subsequently born operate. In this case all that was could not take any benefit. The shown was, that the paper was wife, it was said, was pro- written on the back of a printed vided for by her marriage settle- letter, dated July 6, 1914, about ment; but that circumstance did a year before the deceased's death, not appear in these proceedings. and found in his scrutoire. The This was a very distressing case, printed letter was summons to but the general rule of law by attend the Directors of the West
India Docks-a paper which it tion was, which of these watches was not probable the deceased the deceased meant to give by the should long keep by him; and it bequest stated. The executor did not, therefore, appear that the contended, that it was the silver document in question was written watch, formerly belonging to shortly before his death. Conjec- Luke Sturges, and accordingly ture upon such a subject was not tendered that watch, with the gun sufficient, and there was nothing and book of manuscripts ; but the else in this case. The paper ap- legatee contended that it was the peared to contain merely the first gold one, and therefore refused thoughts of the deceased for fu to accept the tender of the silver ture deliberation.
There were no testamentary declarations, nor From the evidence of the legaany thing which the law requires ; tee it appeared, that the deceased and as it was not sufficient to dise became possessed of the gold pose of his property, it could not watch about a twelvemonth berevoke his former will. Under fore his death, and from that these circumstances, although time, including of course the pethey might form a strong claim riod of the will being made, conupon the equity and humanity of stantly wore it until his death, and the residuary legatee, the court one of the witnesses stated that felt itself bound to reject the alle- the deceased told him he meant to gation pleading the latter will.
leave it to a nephew of his.
From the evidence for the exeArches Court, Doctors' Commons. cutor it appeared, that the de-Sturges v. Paterson.-This was ceased became possessed of his a cause of legacy brought by Mr. brother's watch at his death, in James Sturges, the nephew and a the latter end of 1907, and from legatee named in the will of Mr. that time usually wore it. In a Joshua Sturges, late of the Hay- draft of his will which he made market, victualler, deceased, in January, 1811, he gave a legaagainst the executor, Mr. Simon cy to his nephew in these words, Paterson.
“I will to my nephew, James The words of the bequest were Sturges aforesaid, at my decease, these, To my nephew James
the sum of
my gun, my late Sturges my watch and gun, and brother Luke's watch, and a book likewise a book of manuscript re- of manuscript receipts, marked ceipts marked with the letter R." with the letter“ R." but in April, The will was dated August 12, 1812, he became possessed of the 1913, and the testator died a few gold watch, by taking it in exdays afterwards, possessed of four change for a debt, at 50 guineas, watches ; viz. a gold repeating which was below its value. He watch, valued at about 601. which wore it for some little time, but he had taken in part payment of considering it too valuable a watch a debt, a silver watch which had for him to wear, he offered it to originally belonged to his brother Mr. Kirk, a watch-maker, to disLuke, a pinchbeck watch, and an pose of for him for 60 guineas, old silver watch ; and the quese and offered him five guincas for
his trouble if he could find a pur- more valuable one, it was most chaser. Mr. Kirk not being able probable the expression “my to dispose of it, it was returned watch,” referred to that, as the to the deceased, who then offered sum of money was then omitted. it to Mr. Paterson, the executor, It was true the deceased had at for 50 guineas, in part of a debt one time the intention of selling he owed him. Mr. Paterson had this watch, but this intention was it on trial for three months, but not known to his friends, and he then returned it, thinking that it even declared to one of them that did not keep good time. The de- he meant to give it to his nephew. ceased then sent it, in December It was evident the words of the 1812, to the maker, Mr. High- bequest could only apply to the field, of Oxford, to be regulated, gold watch, or his brother Luke's: who did not return it till the 7th the gold watch was the one he of August, 1813, at which time most usually wore, and on which the deceased was confined to his he set the highest value, and the bed by the illness of which he af- expressions my
atch," was terwards died. It was, therefore, therefore most likely to relate to deposited in a drawer, but the de- that. In his former will he had ceased was very particular in giv- designated the silver watch as his ing directions for its being care brother Luke's, but had not so fully wound up, &c. He always designated it in the latter, and wore it, except when it was sent therefore could not mean the same to be regulated, when he resumed watch he did then, and if not the the use of his brother Luke's sil- same, then the gold one could be ver watch, and had that in use, the only one meant. He trusted when he was taken ill, and after- therefore the Court would award wards when he made his will, but the gold one to his client, with the gold one had been then re costs. turned to him. He always seem Dr. Swabey and Dr. Lushinged desirous to dispose of the gold ton for the executor, argued that one, and at one time said, the bequest being ambiguous, not person gone to Ireland had got it in terms but from facts, would on trial, and he hoped he should adenit of the production of eviget rid of it;" and at another dence to interpret the contents, time “that he had sent it to be that the onus of producing this regulated, in hopes that when evidence, and of shewing to the perfect he might get rid of it, as Court that the deceased clearly init was too high priced for hiin." tended the gold watch was upon
Dr. Jenner, for the legatee, the legatee, because he was the ocntended that the deceased bro- party making that allegation, and ther Luke's watch was the best consequently bound to prove it, watch he had when he made his and was to be considered in the will in 1811, and this was the light of a creditor, bound to make watch he then intended to leave out his claim. By law, the exeto his nephew, with the other ar cutor was the party most favourticles and a sum of money. But ed, and, therefore, if, after all the having subsequently acquired a explanation given, the matter