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bills indorsed "for A. B.” (t), an indorsement on a note “I give this note to C. D.” (u), promissory notes, and notes payable by executors to evade the legacy duty (c) have been held to be testamentary. So a memorandum in a paper in the following words, " The above named bonds were restored by A., and are placed in the hands of B. in trust for the use of C. after my decease," was held to be testamentary, notwithstanding a delivery of the bonds had taken place, and in the donor's last illness (w). And it must be further observed, that it is not necessary Principles on
which instrufor the validity of a testamentary instrument, that the tes. ments not purtator should intend to perform, or be aware that he had porting to be
testamentary performed a testamentary act (x): for it is settled law, that may be ad
mitted to proif the paper contains a disposition of the property to be bate : made after death, though it were meant to operate as a settlement or a deed of gift, or a bond; though such paper were not intended to be a Will or other testamentary instrument, but an instrument of a different shape; yet if it cannot operate in the latter, it may nevertheless operate in the former character (y).
But no case has gone the length of deciding, that because an instrument cannot operate in the form given to it, it must operate as a Will ; The true principle to be deduced from the authorities appears to be, that, that if there is proof,
1784, cited by the judge in 2 Hagg. 247.
(1) Sabine v. Goate and Church, 1782 ; cited by the judge in 2 Hagg. 247.
(u) Chaworth v. Beech, 4 Ves. 565.
(0) Maxee v. Shute, H. T. 1799, cited by the judge in 2 Hagg. 247. Longstaff v. Rennison, 1 Drew. 28. Gough v. Findon, 7 Exch. 48. See further, as to conveyances for the purpose of evading the legacy duty post, Pt. III. Bk. v. Ch. II.
(w) Tapley v. Kent, 1 Robert. 400.
(2) Bartholomew v. Henley, 3 Phillim. 318.
(y) By Sir John Nicholl in Masterman v. Maberly, 2 Hagg. 247. In the goods of Montgomery, 5 Notes of Cas. 99. In these cases the instrument was intended by the deceased to be operative, though not in a testamentary way. But a Will, though formally executed as a Will, will not be valid if there were no animus testandi; and therefore it may be shown in evidence, that it was written in jest, or without any intention of making an operative Will : Nichollsv. Nicholls,
either in the paper itself, or from clear evidence dehors (2) first, that it was the intention of the writer of the paper to convey the benefits by the instrument which would be conveyed by it if considered as a Will; secondly, that death was the event that was to give effect to it; then, whatever may be its form, it may be admitted to probate as testamentary (a). And there seems to be this distinction in the consideration of papers which are in their terms dispositive, and those which are of an equivocal character; that the first will be entitled to probate, unless they are proved not to have been written animo testandi; whilst, in the latter, the animus must be proved by the party claiming under them (b).
If a testator by a subsequent paper say, he has bequeathed by a former instrument that which he has not bequeathed, the subsequent paper would, it should seem, be admitted to probate, as being a declaration of his Will at the time he
made it, to dispose by the Will (c). they must But it is essentially requisite that the instrument should depend on the be made to depend upon the event of death, as necessary to death of the maker for con- consummate it; for where a paper directs a benefit to be summation.
conferred inter vivos, without reference, expressly or im
2 Phillim. 180. See also Trevelyan 2 Robert. 292, where Sir H. Jenner
Ferrard, 1 Curt. 100. Coventry v. (2) If the instrument be equi- Williams, 3 Curt. 790, 791. vocal or silent, it may be proved (c) Druce v. Denison, 6 Ves. 397, by extrinsic circumstances to have in the judgment of Lord Eldon, been intended to operate as a tes- C. Bibin v. Walker, Ambl. 661. tamentary disposition: 3 Hagg. Godolph. Pt. 3, ch. 3, s. 3. Jordan 221. Coventry v. Williams, 3 Curt, v. Fortescue, 10 Beav. 259. But see 787, 790, 791. Jones v. Nicholay, Frederick v. Hall, 1 Ves. jun. 396.
pliedly, to the death of the party conferring it, it cannot be established as testamentary (d).
The Ecclesiastical Courts do not confine the testamentary Several instrudisposition to a single instrument: but they will consider ferent natures several, of different natures and forms, as constituting may constitute
altogether a altogether the Will of the deceased (e).
The Language of a Wil.
The rules of the Ecclesiastical Court are not more scru- Language of a
testamentary pulous with respect to the language, than the nature, of instruments which they allow to operate as testamentary. It is not held necessary that the directions contained in them, how property should be disposed of in the event of death, should be in direct and imperative terms : wishes and requests have been deemed sufficient (f). It has already
(d) Glynn v.'Oglander, 2 Hagg. perty in favour of another, the re428. The King's Proctor v. Daines, commendation, request, or wish, 3 Hagg. 218. Shingler v. Pem- is held imperative and to create berton, 4 Hagg. 359. See also a trust. (See the cases cited, in Tompson v. Browne, 3 M. & K. 32. | Knight v. Knight, 3 Beav. 148, Fletcher v. Fletcher, 4 Hare, 67. and Knight v. Boughton, 11 Cl.
(e) Sandford v. Vaughan, 1 Phil- & Fin. 513.) But this rule does lim. 39, 128. Harley v. Bagshaw, not apply, where it appears clearly 2 Phillim. 48. Masterman v. Ma- from the context that the first berly, 2 Hagg. 235. Beauchamp taker is intended to have a discret. Lord Hardwicke, 5 Ves. 280. tionary power to withdraw any part 8 Vin. Abr. Devise, (A. 3.) Hitch- of the fund from the object of the ings v. Wood, 2 Moore, P. C. C. wish or request, or that he is in 355. In the goods of Luffman, any way to have an option to con5 Notes of Cas. 183. Foley v. trol or defeat the desire expressed : Vernon, 7 Notes of Cas. 119. Wynne v. Hawkins, 1 Bro. C. C.
(1) Passmore v. Passmore, 1 Phil- 179. Malim v. Keighley, 2 Ves. lim. 218, in Sir J. Nicholl's judg- jun. 333. 3 Beav. 173, 174. 11 ment. Generally speaking, when Cl. & Fin. 551, 552. See further property is given absolutely to any on this subject, Young v. Martin, person, and the same person is by 2 Y. & Coll. C. C. 582. Corporathe giver“ recommended," tion of Gloucester v. Wood, 3 Hare, “entreated,” or “requested,” or 131. Knott v. Cottee, 2 Phill. Ch. “ wished” to dispose of that pro- C. 192. White r. Briggs, 15 Sim.
appeared that instructions for a Will may be as operative as a Will itself (g): and that a Will made by interrogatories is valid (h). So, although if a paper be superscribed “Heads of a Will, &c.” or, “Plan of a Will,” the inference would be from this, that it was a paper from which it was intended that a more formal Will should be drawn out (i), yet in a case where such an instrument was dated, and signed, and indorsed “Intended Will,” and alterations in it afterwards made in a formal manner, and the deceased declared, upon being taken ill, “that he had written the heads of his Will, and signed it, and that it would do very well ; ” the paper was established as a Will (k).
In Hattatt v. Hattatt (1), an entry in an account-book, containing a full disposition of the property, and the appointment of an executor, dated eight months before the testatrix's death (which was sudden), subscribed, and carefully preserved, was pronounced for, and probate decreed, though containing these words, “I intend this as a sketch of my Will, which I intend making on my return home."
In Torre v. Castle (m), the question was, where a document was entitled to probate as a part of the testamentary dispositions of Lord Scarborough: It was all in the handwriting of the deceased, and was subscribed by him, and dated 11th of Oct. 1834: At the commencement it was described to be "head of instructions to my solicitor, J. Lee, to add to my Will the codicil following:" It went on to state what the contents of the codicil were to be : There
33. Constable v. Bull, 3 De G. & Sm. 411. Williams v. Williams, 1 Sim. N. S. 358. Briggs v. Penny, 3 Mac. & G. 546. Corporation of Gloucester v. Osborn, 1 H. of L. 272. Huskisson v. Bridge, 4 De G. & Sm. 245. Green v. Marsden, 1 Drew. 646. Palmer v. Simmonds, 2 Drew. 221. Reeves v. Baker, 18 Beay.372.
(9) See ante, p. 62, 63; and Habberfield v. Browning, 4 Ves. 200, note, where the instructions
were sent in a letter, and the letter established as a Will.
(h) Swinb. Pt. 2, s. 25, pl. 9. Green v. Skipworth, 1 Phillim. 53; but see Cranvel v. Saunders, Cro. Jac. 497.
(i) 1 Phillim. 350.
(k) Bone v. Spear, 1 Phillim. 345. See also the cases collected post, Pt. 1. Bk. iv. Ch. III. S v.
(1) 4 Hagg. 211.
were initials for several of the legatees, with the words "&c. &c.” in many parts of it: But it concluded in these words, “this is my last Will and testament, Scarborough," and was endorsed “Mem". to J. Lee-Will-Oct. 11, 1834 :” Sir H. Jenner Fust pronounced for the validity of this paper, and decreed probate thereof, being satisfied by parol evidence and the circumstances of the case, that the deceased intended the paper to have full operation, in case any thing should happen to him before he had an opportunity of going or before it was convenient to him to go to Mr. Lee for the purpose of having a more formal instrument prepared (n). And on appeal to the Privy Council, the Judicial Committee affirmed this decision (o). But it should be remarked, that the paper, in this case, was not regarded as amounting to an actual testamentary disposition, and entitled to probate proprio vigore, but as instructions, fixed and final, containing the settled intentions of the writer, up to the last moments of his life, and only prevented from being formally carried into execution by his own sudden death (p).
It should be observed, that in these cases, where the character of the paper is upon the face of it equivocal, the case is opened to the admission of parol evidence of the testator's intention, as to whether he meant the instrument as memoranda for a future disposition, or to execute it as a final Will (q). This subject will be found more fully considered in a subsequent part of this Treatise (r).
It is immaterial in what language a Will is written, whether in Latin, French, or any other tongue (8). If the
(n) See also Popple v. Cunison, 1 Add. 377; and Barwick v. Mullings, 2 Hagg. 225, where a paper commencing, “This is a memorandum of my intended Will,” was admitted to probate. See also Price v. Scott, 1 Cas. temp. Lee, 12.
() Castle v. Torre, 2 Moore, P. C. C. 133.
(P) 2 Moore, P. C. C. 175. See
ante, p. 62-64.
(9) Mathews v. Warner, 4 Ves. 186. 5 Ves. 23. Mitchell v. Mitchell, 2 Hagg. 74. Coppin v. Dillon, 4 Hagg. 361. Salmon v. Hays, 4 Hagg. 382. Torre v. Castle, 2 Moore, P. C. C. 154, per Bosanquet, J. Ante, p. 92, note (z).
(r) Post, Pt. 1. Bk. iv.CH.III. v. (8) Swinb. Pt. 4, s. 25, pl. 3.