« AnteriorContinuar »
of the deceased, and operation pro tanto be given to the latter paper, provided the proof of final intention were clear; but it would not wholly revoke the former paper (c). Thus in Goldwyn and Aspenwall v. Coppell (d), there was a Will regularly executed in Jamaica : The deceased gave instructions for an entire new Will; before he disposed of the residue he became incapable: The Court pronounced for the two papers, as containing together the Will. This had been the constant doctrine of the Ecclesiastical Court: Where instructions were finished, they were not revoked by an unfinished paper, except as far as it went; the law presumed, , that the testator would have adhered to the remainder (e). And this continues to be the law with respect to papers made before January 1, 1838.
In these cases, it may be observed, that the unfinished instrument is not looked upon in the Ecclesiastical Court as a codicil, to be taken in addition to the Will, but revocative as far as it goes, and to be taken in conjunction with the Will. “ If this principle,” said Sir John Nicholl, in Ingram v. Strong (f), "was rightly understood in other Courts, there . would seldom be much question about cumulative legacies; for where a paper is codicillary, and two legacies are given to the same person, they are cumulative : where instructions are pronounced for, as containing together a Will (g), that is,
(c) Carstairs v. Pottle, 2 Phil- of due execution, have been adlim. 35. Reeves v. Glover, 2 Cas. mitted to probate. (See Henfrey temp. Lee. 270.
1'. Henfrey, 4 Moore, P. C. C. 29, (d) Cited by Sir John Nicholl, 35. Accord.) Such an admission iu Harley v. Bagshaw, 2 Phillim.51. would indeed be contrary to the
(c) 2 Phillim. 51, 52. See also principle on which two papers are Masterman v. Maberly, 2 Hagg. incorporated for the purpose of pro236. It is however necessary here bate, riz. in order that the prior to recur to the distinction between
paper may supply imperfections in " unfinished” and “ unexecuted” the disposition of the latter. Where Wills : see ante, p. 65: for it the subsequent paper is merely coshould seem that there is no in- dicillary, then no difliculty arises : stance, where two papers, both 2 Hagg. 236. complete as to the disposition of (5) 2 Phillim. 312. personalty, and where the only (9) See ante, p. 93. defect of the second paper is want
where there is a complete Will, and an instrument intended as an inception of a new Will, but not completed, the latter legacy supersedes and revokes the former, and is substituted in the place of it" (h).
Accordingly in Brine v. Ferrier (i), a testator, by his Will, gave all his property to his wife, absolutely: By a subsequent incomplete testamentary paper, he gave all his property to his wife and two other persons, in trust to sell and pay the interest of the proceeds to his wife for her life, and, after her decease, to dispose of the principal to the purposes after mentioned: The testator then gave several legacies and annuities, and directed that, after the death and failure of issue of one of the annuitants, the annuity should be paid to his residuary legatee, but he did not name any : In another testamentary paper, the testator gave legacies and annuities to the legatees and annuitants named in the former paper, and also to other persons: Probate of the Will and testamentary papers, as containing together the testator's Will, was granted to his widow: And Sir L. Shadwell held, that the three papers formed together the testator's Will; that the bequest to his wife in the first paper was not revoked, except so far as it was necessary to provide for the legacies and annuities; and that the legacies given by the second and third papers, were single and not cumulative.
Where there is a regularly executed paper disposing both Case of a regu. of real and personal estate, and an unexecuted paper of later Will of realty
larly executed date, in which the disposition of real and personal estates is and personalty, blended, so that the realty and personalty are dependent on quent unexeeach other (as where the testator gives real property to A., because he has given personal property to B.), the Court will not grant probate of such unexecuted paper; for it would defeat the intention and be injustice to give effect to the one disposition, unless it could be given to the other : But where it is clearly shown that the testator has finally
and a subse
(h) See also 4 Hagg. 198, per Curiam. Walsh v. Gladstone, 1 Phill. C. C. 294. Kidd v. North,
2 Phill. C. C. 91. And post, Pt. III. Bk. III, Ch. II. § VII. (*) 7 Sim. 549.
made up his mind, and that the execution of the latter instrument was prevented by the act of God, and the devise of the realty is perfectly independent of the disposition of the personalty, the Court will give effect to the unexecuted Will, in order to carry the deceased's intention pro tanto into effect (1).
In Elsden v. Elsden (1), a testator, having executed his Will disposing of realty and personalty, and duly attested, subsequently wrote, signed, and dated a paper complete in disposition, but unattested, having the appearance of a draft, and spoken of in a memorandum subjoined, as intended to be settled and transcribed by his attorney, but “if he should have no opportunity, to be acted upon if it could be done fairly; if not, the former will to be resorted to:" the testator having had the opportunity of completing such paper, which, if admitted to probate, would have been inoperative totally as to the realty, and partially as to the personalty, it was held that he must be presumed to have abandoned it, and to have reverted to the regular Will.
Again, in Gillow v. Bourne (m), the deceased, in 1812, regularly executed a Will, and, in 1818, two codicils, to carry real estate; he, in February, 1828, gave instructions for a new Will, disposing both of real and personal estate ; the Will was prepared for execution, read over to him, and altered; the sheets altered, recopied, and the Will again read over, after an interval of some days; the deceased postponed the execution, and in March the Will was again read over to him ; pencil alterations of slight importance
; were then made ; on the 14th of November, 1829, further alterations were alluded to; the deceased said he would call and “finish" it on the 19th ; he died suddenly on the 17th : The Court refused probate of this instrument, holding final intention not proved.
(?:) Tudor r. Tudor, 4 Hagg. Douglas r. Smith, 3 Kvapp, 1, 199, note (a). See also Reynolds ante, p. 62. r. White, 2 Cas. temp. Lee, 214, (1) 4 Hagg. 183. Reeves
V. Glover, ibid. 359. (m) 4 Hagg. 192.
law against an
It must be observed, that the strong presumption of law Presumption of is always adverse to an unfinished instrument materially unfinished inaltering and controlling a Will deliberately framed, regularly strument con:
deli executed, recently approved, and supported by previous and berate Will. uniform dispositive acts; and this presumption is stronger in proportion to the less perfect state of, and the small progress made in, such instrument: To establish such a paper, there must be the fullest proof of capacity, volition, final intention, and interruption by the act of God (n).
Will or codicil
will not revoke
It has already appeared that a cancellation of a Will, A subsequent under an erroneous assumption of facts, may not operate as a nade under the revocation (o): Upon the same principle, if a man, by a
impulse of a subsequent Will or codicil, make a disposition different from tion of fact, a former one, under a false impression, the impulse of which a former one. is the foundation of his wish to change his former intent, such an act will be considered only as effecting a contingent presumptive revocation, depending on the existence or nonexistence of that fact (p). As if one having previously devised to A., afterwards by another Will, without destroying the first, or by codicil, devise to B., stating her to be his wife, so that it may be understood that he intended her to be benefitted in that character only, and it turn out that she was married before, and had a husband living, neither of which facts were in the devisor's knowledge (9); such devise or codicil will not operate as a revocation of the former Will, because it depends on a contingency which fails (r). It has been said, that care must be taken to distinguish between cases, where the testator acts under a false impression, originating from a deceit practised upon him, and those where, although the reason which he gives for his subsequent devise is false, yet no deceit is practised on him (s). But there seem to be no grounds for any such distinction. Thus,
(1) Blewitt u. Blewitt, 4 Hags. 410.
(0) Ante, p. 128, et seq.
a husband, under circumstances of
(1) 1 Powell on Dev. 524.
where a testator gave legacies to the grandchildren of his sister, and afterwards, by a codicil, revoked the legacies, giving as a reason, that the legatees were dead; upon its being proved that the fact of their death was not true, Lord Loughborough held, that the legacies were not revoked, on the ground that the cause of the revocation was false ; and said, whether it was by misinformation or mistake was perfectly indifferent (t). So in a modern case in the Prerogative Court (u), the deceased, supposing his Will, appointing his wife sole executrix and universal legatee for life, to be lost, made, in Peru, a nuncupative Will (not in conformity with the Statute of Frauds) with a general revocation clause, and appointing two executors, and his wife universal legatee, absolutely: The executors renounced, and she took probate of that Will in Peru: The former Will being found (of which fact he was ignorant at the time of his death), probate thereof, at the wife's prayer, was granted to her; and Sir John Nicholl observed, that it was unnecessary to decide the question (about which there might be some doubt), whether the Statute of Frauds would apply to the nuncupative Will made in Peru; because it appeared that the deceased did not intend to revoke the former Will ; but supposing it to be lost, and being unwilling to die intestate, he made the nuncupative Will. Accordingly, in Doe v. Evans (x), where a testatrix by her Will devised all her estate to L. E. for life, and to his sons and daughters successively, in strict tail, and L. E. and his only son died in the lifetime of the testatrix, but he left a daughter E. E., of whose birth she knew nothing, and she thereupon made a codicil, in which she recited her former Will, and that L. E. had died without leaving any issue, and then devised over : It was held, that, as this codicil was made in ignorance of the existence of E. E., it was only a conditional revocation (y).
() Campbell t. French, 3 Ves. 322.
(u) In the goods of Moresby, 1 Hagg. 378.
(x) 10 A. & E. 228. 2 Per. & Day, 378.
(y) Some time after making the codicil, the testatrix was made acquainted with the existence of E. E., but made no further testamentary disposition : It was held,