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nesses' names subscribed) is against every testamentary paper not actually executed by the testator; and against every one not so executed, as it is to be inferred, on the face of the paper, that the testator meant to execute it (I). But if the paper be complete in all other respects, that presumption is slight and feeble, and one comparatively easy to be repelled ; as by its being satisfactorily shown that the paper's non-execution may be justly ascribed to some other cause, than any abandonment of the intentions therein how rebutted : expressed (m). Thus the presumption may be rebutted (as in the case of an attestation clause without witnesses) by showing that the execution was prevented by the act of God (n); or that the deceased regarded it as a Will, and meant it to operate in its present state, and without doing any further act in order to give it a testamentary effect (6). Again, if the Will be read to and approved by the deceased, but he is prevented from executing it by the violence of those who are interested against its provisions, the law will consider the Will as executed, although never actually signed (p). References to modern decisions, in which testamentary effect has been given to finished papers, unexecuted, will be found in the note below (q).
(1) Scott r. Rhodes, 1 Phillim. to account for the non-execuiton: 19. Montefiore r. Montefiore, 2 Hoby v. Hoby, 1 Hagg. 146. See Add. 357, 358. Bragg r. Dyer, 3 also Fulleck v. Allinson, 3 Hagg. Hagg. 207. Abbott 1. Peters, 4 527. Hagg. 380. “A disposition of per- (0) Roose v. Mouldsdale, 1 Add. sonal property in the handwriting 131. of the deceased, requires no for- (p) L'Huille r. Wood, 2 Cas. mality to give it effect if none is in- temp. Lee, 22.
So probate was tended by the writer:" By Sir John granted of an unexecuted Will, the Nicholl, in Forbes v. Gordon, 3 intention of the deceased being Phillim. 628. See also the judg- clear, and the due execution of the ment of Lord Eldon, C., in Coles instrument having been prevented ?". Trecothick, 9 Ves, 249.
by sudden incapacity superinduced (m) Montefiore r. Montefiore, 2 by the violent conduct of his wife, Add. 357, 358.
who was interested in thwarting (n) Scott r. Rhodes, 1 Phillim. 20. that intention : Lamkin r. Babb, Masterman v. Maberley, 2 Hagg. 1 Cas. temp. Lee, 1. 247. In a late case it was held that (1) Scott v. Rhodes, 1 Phillim. 12. supervening insanity is sufficient Read v. Phillips, 2 Phillim. 122.
Case of a Will • It should here be observed, that the want of regular exe-
against the Will, where it purports to dispose, not only of
strongest kind, and can only be repelled by very clear
personal estates is so blended that the realty and personalty
Though the instrument be written in another man's hand,
it will operate as a good testament of personal estate (u). Instructions
Thus if a person gives instructions for a Will, and dies for a Will.
before the instrument can be formally executed, the instruc-
Where the in
Thomas v. Wall, 3 Phillim. 23.
(r) In the goods of Herne, 1
(8) Douglas v. Smith, 3 Knapp, 1. Elsden v. Elsden, 4 Hagg. 183. Gillow v. Bourne, ibid. 291. Post,
Pt. 1. Bk. II. Ch. III. $ 11. See also
(0) Tudor v. Tudor, 4 Hagg.
(u) Wentw. c. 1, p. 15, 14th ed.
(x) Carey v. Askew, 2 Bro, C. C. 58. S. C. 1 Cox, 241. Goodman r. Goodman, 2 Cas. temp. Lee, 109. Robinson v. Chamberlayne, 2 Cas.
And even unfinished instructions may be established (y), under the circumstances which will be presently pointed out, when the testamentary effect of unfinished instruments, generally, is considered. Nor is it necessary that the instructions should be given to the drawer by the deceased; for they may be conveyed to him through the medium of a third person ; although the Court, in such a case, would be doubly on its guard (2).
It is, however, essential that the instructions should reduced into writing in the lifetime of the deceased; other. wise it would be a mere nuncupative Will, and then of no effect under the Statute of Frauds (a). Thus in the case of Nathan v. Morse (1), the testator died in the act of dictating instructions to his solicitor, in the presence of a third person, and had proceeded as far as the clause appointing an executor, when he was attacked by the seizure which terminated his existence : Immediately after his death, the third person, on hearing the instructions read over, observed to the solicitor, that he had omitted a legacy which the deceased had directed; upon which the solicitor, recollect. ing the fact, immediately added the legacy: Sir John Nicholl said, he had no doubt in pronouncing the instructions to be the Will of the deceased as far as the appointment of the executor; but that as the last clause was not committed to
temp. Lee, 129. Bowes v. Malpas, ibid. 358. Green v. Skipworth, 1 Phillim. 59. Wood v. Wood, 1 Phillim. 370, and the cases there cited by Sir John Nicholl. Huntington v. Huntington, 2 Phillim. 213. Langmead v. Lewis, 2 Phillim. 326. Sikes v. Snaith, 2 Phillim. 355. Lewis r. Lewis, 3 Phillim. 112. Allen v. Manning, 2 Add. 490, and see n. (a) to that case, 2 Add. 494. In the goods of Bathgate, 1 Hagg. 67. Burrowse. Burrows, 1 Hagg. 109. In the goods of Taylor, 1 Hagg. 641, Masterman v. Maberly, 2 Hagg. 247,
Viner. Abr. Devise (A2) 4. Castle v. Torre, 2 Moore, P. C. C. 133. As to copies of instructions, see Barrow v. Barrow, 2 Cas. temp. Lee, 335.
(y) Devereux v. Bullock, 1 Phillim. 72. Musto v. Sutcliffe, 3 Phillim. 105. Nathan v. Morse, 3 Phillim. 529. Castle v. Torre, 2 Moore, P. C. C. 133, 156.
(2) Lewis 1. Lewis, 3 Phillim. 109; and see Maclae v. Ewing, 1 Hagg. 317.
(a) Sikes 1. Snaith, 2 Phillim. 355. See also Rockell v. Youde, 3 Phillim. 141.
(b) 3 Phillim, 529.
writing during the lifetime of the testator, it could not be established, and must be struck out.
These principles must, a fortiori, apply to holograph, or written instructions for a Will or codicil, where the intentions expressed in such instructions are continued and adhered to, but the execution of the formal instrument prevented by the sudden death of the writer (c).
However, a mere paper of Instructions, even though holograph, and signed, cannot be sustained as testamentary, if there was no sudden death or other act of God to prevent the regular execution of the Will or codicil by the deceased (d).
In a case where the deceased, having an intention to alter his Will, sent for one of his executors, and desired him to draw a codicil, and afterwards on the draft being shown to him, disapproved of several clauses in it, declaring that it was not drawn agreeably to his instructions, and refused to sign it, the judge (Sir G. Lee) was clearly of opinion that he could not pronounce for part of the legacies contained in it, and reject those clauses which the deceased objected to; for there might be other parts which he disliked, besides those he particularly mentioned (e).
If a testament be found in the testator's chest, or safely kept among other writings, which Testament is neither written by the testator, nor by him subscribed, but altogether of another man's hand, this writing shall not prevail as the last Will and Testament of the deceased, unless it be proved that the same was written by the commandment of the testator (f): or unless it may be added) other satisfactory proof be given, that the testator had recognised it distinctly as his Will.
Testament found among testator's muniments.
(c) 2 Moore, P. C. C. 157.
(d) Munro v. Coutts, 1 Dow. Parl. Cas. 437. See also Dingle r'. Dingle, 4 Hagg. 388 : and the observations of Sir H. Jenner, in Torre v. Castle, 1 Curt. 313, 338 ;
and of Bosanquet, J., in 2 Moore, P. C. C. 154, 155.
(e) Machin v. Grindon, 2 Cas. temp. Lee, 406.
(f) Swinb. Pt. 4, s. 28, pl. 10.
Hitherto the subject has been confined to cases of testa. Distinction be
tween an “immentary instruments, which, by reason of their being perfect” and unexecuted or unattested, when the testator appeared, on
testamentary the face of them, to contemplate a signature or attestation, paper. may in some degree be considered as imperfect. But the term “imperfect,” as applied to a testamentary paper, is carefully to be distinguished from the word "unexecuted.” Not every "imperfect” paper is “unexecuted;" nor is every unexecuted” paper “imperfect;” except only in a certain sense of that term (g). For example, a testamentary paper may be finished and complete, looking to the body of the instrument, as purporting to dispose of the testator's whole property, and so on; still, however, if unexecuted, as for instance, by wanting the deceased's signature, it is in a certain sense of the word, though in a certain sense of the word only, an imperfect paper. But the word “imperfect,” when applied technically to instruments of this nature, means that the document is, upon the face of it, manifestly in progress only, and unfinished and incomplete as to the body of the instrument (h). And where a paper is imperfect Rule as to im
perfect papers. in this sense of the word, not only, as in cases of unexecuted papers, must its being unfinished be shown to have been caused by the act of God, or to be justly ascribable to some reason other than any abandonment of intention by the testator, but it must also be clearly proved by the party setting up the instrument, upon a just view of all the facts and circumstances of the case, that the deceased had come to a final resolution in respect to it, as far as it goes (i). Moreover, the presumption of law against such an instrument, instead of being slight, as in the case of a merely unexecuted paper, is very strong and hard to be repelled (k).
(9) Montefiore v. Montefiore, 2 state of maturity at which the inAdd. 357.
strument has arrived: 4 Hagg. 298. (h) Ibid.
In some instances it is so com(1) 2 Add. 358.
pletely a mere memorandum that (h) 2 Add. 358. Reay r. Cowcher, proof of intention cannot be made 2 Hagg. 255. The presumption but by strong extrinsic circumvaries in strength according to the stances. In other cases it is so