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they left the case to the candid consideration of the Court.

Sir John Nicholl remarked, that the principles upon which the case must depend had been properly stated on the one side, and not controverted on the other. It was perfectly competent to parties to prove the contents of a will which had been destroyed, whether the destruction had occurred in the life-time of the testator or afterwards, provided it had happened without his knowledge or concurrence: where an accident thus intervened, and the act of God alone prevented the completion of a person's intentions, the Court could not but be anxious to supply the defect, and prevent the ill consequences which would otherwise accrue to innocent parties, and, in looking to the proof in such a case, must be satisfied if it should amount to a reasonable probability. He then stated the circumstances of the case, and remarked that it was clear the deceased intended to die testate, and to appoint his wife, brother, and brother-in-law, his executors.— The disposition he had made by the will he had drawn up was fully evidenced by his declaration to his brother, to whom he read it, and who deposed that he had, as he was likely to have, a perfect recollection of the contents. He consulted his brother, and some alterations were suggested and made; but the deceased's declaration, that he would copy it over, and then put his name to it, was a complete and final approbation of the instrument, and showed that his mind was made up and decided with respect to it. There was therefore a strong presump

tion in favour of it, unless repelled by evidence of his subsequent conduct. Upon that point, however, the evidence corroborated the opinion, that he did not abandon but adhered to the will; that he completed it by his signature, and then sealed it up in an envelope. It had been said that there was no direct proof that he did copy it, as he said he would; but there was every reasonable evidence that he did in some way or other complete it. His conversation with his wife, when he held up the sealed paper, and said it was his will, and the only will he should ever make, was conclusive upon this point, and left no reason to doubt that the paper he then held up did contain the will; and the fact of its being sealed showed that it had been completed, and was a perfect instrument. His subsequent conversation with his wife, a day or two before his death, in which, speaking of his will, he said that it was done, and he should never alter it, was a further confirmation of the instrument itself, and of the fixed state of the intentions which had led him to make it. It had been said that his declaration in the course of this conversation, that he had left his property to his wife, did not confirm the contents of the will as propounded, as it appeared from them that she had only a life-interest in the whole property, with a power of apportioning it amongst the children at her death. This was, however, as near an absolute interest as possible, and a conformity, in substance at least, to the deceased's declaration; and his directing the property to be equally divided, in case his wife

left

left no disposition of it, showed his intention of providing against all possible events. It was therefore proved, not only that the deceased had duly made his will, but that he would never alter it; and, under all the circumstances of the case, the Court was satisfied that the disposition he had thereby made of his property was, in substance, that which was stated in the contents propounded: those contents were short, simple, and easy to be remembered; and the disposition altogether was a very natural one, and not very different from what the law would have done, had he died intestate. The Court therefore pronounced for the contents of the will as stated in the schedule annexed to Mr. Robinson's affidavit.

Deffell v. Johnson and Johnson.This was a proceeding for the purpose of obtaining the decision of the Court on the validity of the testamentary papers of the late James Johnson, Esq. of Wimpolestreet, formerly his Majesty's Attorney-general in South Carolina. Mr. Johnson, it appeared, had made a will, regularly executed in Jamaica, in the year 1793, in contemplation, as was suggested, of his then returning to England. By this will he bequeathed his property among his then children, his wife having a separate provision under her marriage-settlement. Subsequently to the making of this will Mr. Johnson had returned to this country, and had had four children born, and his property had increased from 30,000l. to 200,0001. Another paper was also submitted to the notice of the Court, which was found within some blotting paper leaves on

which the deceased used to write in his scrutoire. It purported to contain some testamentary dispositions of the deceased, and was written by him on the back of a printed letter, which was dated the 6th July 1814. The death of Mr. Johnson happened about 12 months after that time, and was occasioned by an apoplexy. By this latter paper certain specific legacies, for which blanks were left, appeared to have been intended to be given to some of the deceased's children; the residue was to be divided equally among them, and executors were appointed. The paper broke off abruptly, and was not signed by the deceased, nor dated.

Dr. Swabey and Dr. Jenner, in support of the first will, argued from these circumstances against the sufficiency of this latter paper to revoke it. It was scarcely possible to describe a more imperfect paper. It purported to devise real property, and was not executed nor attested; and the particulars left to be supplied in it were of the most important nature. There were no declarations of the deceased as to his testamentary intention which might tend to confirm it; and all that could be collected with reference to the time of its being written was, that it must have been some time after the 6th of July 1814, which was nearly a twelvemonth before Mr. Johnson's death. It must therefore be regarded as containing merely memoranda of the deceased for his future consideration, which he afterwards abandoned, and not as containing his final testamentary intentions, which he was prevented from carrying into effect by the act of God.

Dr.

Dr. Burnaby, in support of the latter paper, contended, that from the material alteration of the deceased's circumstances by the birth of four other children, and the great increase of his property, it could not be supposed that he intended the first will to operate, which was made to provide against the contingencies of a voyage he was contemplating from Jamaica to England. He had accordingly proceeded to make a new will, which was found after his death between the leaves of blotting paper in his scrutoire-a situation in which it was not probable that he would have suffered such a paper to remain for a considerable time. By this paper it appeared, that the deceased had not made up his mind with respect to certain specific legacies; but the disposition of the residue and the appointment of executors were complete. The deceased died suddenly of an apoplexy; and, under all the circumstances, it was to be presumed that he was thereby alone prevented from completing this paper, which he had left in his scrutoire for that purpose, and which therefore must be considered as containing his will to the extent expressed in it.

Sir John Nicholl observed, that the question in this case was, whether the latter paper could he shown to be an operative instrument? Under the will of 1793 the children subsequently born could not take any benefit. The wife, it was said, was provided for by her marriage settlement; but that circumstance did not appear in these proceedings. This was a very distressing case, but the general rule of law by

which testamentary dispositions are protected could not be relaxed on account of cases of individual distress. The subsequent birth of children, and the great increase of the deceased's property, in this case did not amount to a legal revocation of his will. It was pleaded that this will was made by the deceased in consequence of his then contemplating his return to England; but there was no clause in it by which its operation was made to depend on that or any other contingency. The deceased must have been aware of the existence of this will, and, being a gentleman of legal education and habits, could not be supposed to have been ignorant of its operation. The learned judge then expressed his opinion that the latter will was not such a paper as could receive the sanction of that court as an operative instrument. Adverting to its various imperfections, he proceeded to state, that the presumption of law was against such papers; and it was incumbent on those who supported them to adduce some strong extrinsic circumstances for that purpose. It might be possible to do so, if the deceased were struck with death in writing such a paper, or if there were confirmatory declarations; but if there were nothing to show that the deceased was prevented from completing it, the paper could not operate. In this case all that was shown was, that the paper was written on the back of a printed letter, dated July 6, 1814, about a year before the deceased's death, and found in his scrutoire. The printed letter was a summons to attend the Directors of the West

India Docks-a paper which it was not probable the deceased should long keep by him; and it did not, therefore, appear that the document in question was written shortly before his death. Conjecture upon such a subject was not sufficient, and there was nothing else in this case. The paper appeared to contain merely the first thoughts of the deceased for future deliberation. There were no testamentary declarations, nor any thing which the law requires; and as it was not sufficient to dispose of his property, it could not revoke his former will. Under these circumstances, although they might form a strong claim upon the equity and humanity of the residuary legatee, the court felt itself bound to reject the allegation pleading the latter will.

Arches Court, Doctors' Commons. -Sturges v. Paterson.-This was a cause of legacy brought by Mr. James Sturges, the nephew and a legatee named in the will of Mr. Joshua Sturges, late of the Haymarket, victualler, deceased, against the executor, Mr. Simon Paterson.

The words of the bequest were these, "To my nephew James Sturges my watch and gun, and likewise a book of manuscript receipts marked with the letter R." The will was dated August 12, 1813, and the testator died a few days afterwards, possessed of four watches; viz. a gold repeating watch, valued at about 601. which he had taken in part payment of a debt, a silver watch which had originally belonged to his brother Luke, a pinchbeck watch, and an old silver watch; and the ques

tion was, which of these watches the deceased meant to give by the bequest stated. The executor contended, that it was the silver watch, formerly belonging to Luke Sturges, and accordingly tendered that watch, with the gun and book of manuscripts; but the legatee contended that it was the gold one, and therefore refused to accept the tender of the silver

one.

From the evidence of the legatee it appeared, that the deceased became possessed of the gold watch about a twelvemonth before his death, and from that time, including of course the period of the will being made, constantly wore it until his death, and one of the witnesses stated that the deceased told him he meant to leave it to a nephew of his.

From the evidence for the executor it appeared, that the deceased became possessed of his brother's watch at his death, in the latter end of 1807, and from that time usually wore it. In a draft of his will which he made in January, 1811, he gave a legacy to his nephew in these words, "I will to my nephew, James Sturges aforesaid, at my decease, the sum of my gun, my late brother Luke's watch, and a book of manuscript receipts, marked with the letter" R." but in April, 1812, he became possessed of the gold watch, by taking it in exchange for a debt, at 50 guineas, which was below its value. He wore it for some little time, but considering it too valuable a watch for him to wear, he offered it to Mr. Kirk, a watch-maker, to dispose of for him for 60 guineas, and offered him five guineas for

.

his trouble if he could find a purchaser. Mr. Kirk not being able to dispose of it, it was returned to the deceased, who then offered it to Mr. Paterson, the executor, for 50 guineas, in part of a debt he owed him. Mr. Paterson had it on trial for three months, but then returned it, thinking that it did not keep good time. The deceased then sent it, in December 1812, to the maker, Mr. Highfield, of Oxford, to be regulated, who did not return it till the 7th of August, 1813, at which time the deceased was confined to his bed by the illness of which he afterwards died. It was, therefore, deposited in a drawer, but the deceased was very particular in giving directions for its being carefully wound up, &c. He always wore it, except when it was sent to be regulated, when he resumed the use of his brother Luke's silver watch, and had that in use when he was taken ill, and afterwards when he made his will, but the gold one had been then returned to him. He always seemed desirous to dispose of the gold one, and at one time said, a person gone to Ireland had got it on trial, and he hoped he should get rid of it;" and at another time that he had sent it to be regulated, in hopes that when perfect he might get rid of it, as it was too high priced for him."

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Dr. Jenner, for the legatee, ocntended that the deceased brother Luke's watch was the best watch he had when he made his will in 1811, and this was the watch he then intended to leave to his nephew, with the other articles and a sum of money. But having subsequently acquired a

more valuable one, it was most probable the expression "my watch," referred to that, as the sum of money was then omitted. It was true the deceased had at one time the intention of selling this watch, but this intention was not known to his friends, and he even declared to one of them that he meant to give it to his nephew. It was evident the words of the bequest could only apply to the gold watch, or his brother Luke's: the gold watch was the one he most usually wore, and on which he set the highest value, and the expression my watch," was therefore most likely to relate to that. In his former will he had designated the silver watch as his brother Luke's, but had not so designated it in the latter, and therefore could not mean the same watch he did then, and if not the same, then the gold one could be the only one meant. He trusted therefore the Court would award the gold one to his client, with

costs.

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Dr. Swabey and Dr. Lushington for the executor, argued that the bequest being ambiguous, not in terms but from facts, would ad.nit of the production of evidence to interpret the contents, that the onus of producing this evidence, and of shewing to the Court that the deceased clearly intended the gold watch was upon the legatee, because he was the party making that allegation, and consequently bound to prove it, and was to be considered in the light of a creditor, bound to make out his claim. By law, the executor was the party most favoured, and, therefore, if, after all the explanation given, the matter

should

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