testator be a domiciled Englishman, the effect of the foreign tongue employed can only be looked at in order to ascertain what are the equivalent expressions in English (t). Pencil Will, or alterations in Will. Where a Will is written or prepared by a party in his own favour : SECTION V. Of the Materials with which a Will may be Written, and of the Person who may be the Writer: and herewith of a Will prepared by a Legatee. There are scarcely any restrictions in the Ecclesiastical Law, with respect to the materials on which, or by which, a testamentary document may be executed (u). Thus a Will or Codicil, or any part thereof, may be made or altered in pencil as well as in ink (v). But when the question is, whether the testator intended the paper as a final declaration of his mind, and as testamentary, or whether it was merely preparatory to a more formal disposition, the material with which it is written becomes a most important circumstance (w). And it has been held that the general presumption and probability are, that where alterations in pencil only are made, they are deliberative; where in ink, they are final and absolute (x). By the civil law, if a person wrote a Will in his own favour, the instrument was rendered void (y). That rule has not been adopted in its full extent by the law of England, which only holds that where the person who prepares the instrument or conducts its execution, is himself benefited by its See as to a Will in a foreign lan- (t) Reynolds v. Kortright, 18 (u) Swinb. Pt. 4, s. 25. pl. 2. dispositions, this circumstance creates a presumption against the act, and renders necessary very clear proof of volition and capacity as well as of a knowledge by the testator of the contents of the instrument (z): Nor does the Ecclesiastical Law of this realm determine that the act is absolutely void, even though the person making the Will in his own favour is the agent and attorney of the testator; but the suspicion is thereby, for obvious reasons, greatly increased (a). This doctrine has lately been fully considered by the Lords of the Judicial Committee of the Privy Council, in the case of Barry v. Butlin (b): And it should seem that the terms, in which the rule above stated has been laid down, require some qualification. In delivering the judgment of their Lordships in that case, Parke, B., made the following observations: "The rules of law, according to which cases of this nature are to be decided, do not admit of any dispute, so far as they are necessary to the determination of the present appeal, and have been acquiesced in on both sides. These rules are two; the first is, that the onus probandi lies upon the party propounding a Will, who must satisfy the conscience of the Court that the instrument propounded is the last Will of a free and capable testator; the second is, that if a party writes or prepares a Will, under which he takes a benefit, that is a circumstance which ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of (z) Paske v. Ollat, 2 Phillim. 324. Ingram v. Wyatt, 1 Hagg. 391. Barton v. Robins, 3 Phillim. 456. note. But it must not be understood that the rule is that direct evidence that the testator knew the contents is necessary: circumstantial evidence may be sufficient for this purpose: Raworth v. Marriott, 1 M. & K. 643. As to the nature and extent of the scrutiny which ought to be instituted into cases of this description, see the learned note of Dr. Philli VOL. I. more, 1 Cas. temp. Lee, 238, and (a) 4 Hagg. 391. Wheeler v. (b) Privy Council, Dec. 24, 1838. H when he is the agent and at torney of the testator. the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper does express the true Will of the deceased. These principles, to the extent that I have stated, are well established: The former is undisputed; the latter is laid down by Sir John Nicholl, in substance, in Paske v. Ollat ; Ingram v. Wyatt; and Billinghurst v. Vickers; and is stated by that very learned and experienced judge to have been handed down to him by his predecessors; and this tribunal has sanctioned and acted upon it in a recent case, that of Baker v. Batt (c). Their Lordships are fully sensible of the wisdom of this rule, and of the importance of its practical application on all occasions. At the same time, they think it fit to observe, especially as there has been some discussion upon this point towards the close of this inquiry, that some of the expressions reported to have been used by Sir John Nicholl, in laying down this doctrine, appear to them to be somewhat equivocal, and capable of leading into error in the investigation and decision of questions of this nature. It is said that, where the party benefited prepares the Will, 'the presumption and onus probandi is against the instrument, and the proof must go not merely to the act of signing, but to the knowledge of the contents of the paper;' and that, 'where the capacity is doubtful, there must be proof of instructions or reading over.' If by these expressions the learned judge meant merely to say, that there are cases of Wills prepared by a legatee so pregnant with suspicion, that they ought to be pronounced against in the absence of evidence in support of them extending to clear proof of actual knowledge of the contents by the supposed testator, and that the instructions proceeding from him, or the reading over the instrument by or to him, are the most satisfactory evidence of such knowledge, we fully concur in the proposition so understood. In all probability, the learned judge intended no more than this. But if the words used are to be construed strictly; if it is intended to be stated, as a rule (c) 2 Moore, P. C. C. 317. See also Hitchins v. Wood, ibid. 355. 436. of law, that, in every case in which the party preparing the Will derives a benefit under it, the onus probandi is shifted, and that not only a certain measure, but a particular species of proof is thereupon required from the party propounding the Will; we feel bound to say that we conceive the doctrine to be incorrect. The strict meaning of the term 'onus probandi' is this; that if no evidence is given by the party on whom the burthen is cast, the issue must be found against him. In all cases, this onus is imposed on the party propounding a Will; it is in general discharged by proof of capacity, and the fact of execution, from which the knowledge of and assent to the contents of the instrument are presumed: and it cannot be, that the simple fact of the party who prepared the Will being himself a legatee, is, in every case and under all circumstances, to create a contrary presumption, and to call upon the Court to pronounce against the Will, unless additional evidence is produced to prove knowledge of its contents by the deceased. A single instance, of not unfrequent occurrence, will test the truth of this proposition:-A man of acknowledged competence and habits of business, worth 100,000l., leaves the bulk of that property to his family, and a legacy of 10l. or 50l. to his confidential attorney, who prepared his Will: Would this fact throw the burden of proof of actual cognizance by the testator of the contents of the Will on the party propounding it, so that, if such proof were not supplied, the Will would be pronounced against? The answer is obvious-it would not. All that can be truly said is, that if a person, whether attorney or not, prepares a Will with a legacy to himself, it is at most a suspicious circumstance, of more or less weight according to the facts of each particular case; in some of no weight at all, as in the case suggested; varying according to the circumstances, for instance the quantum of the legacy, and the proportion it bears to the property disposed of, and numerous other contingencies; but in no case amounting to more than a circumstance of suspicion, demanding the vigilant care and circumspection of the Court in investigating the case, and calling upon it not to grant probate without full and entire satisfaction that the instrument did express the real intentions of the deceased. Nor can it be necessary that in all such cases, even if the testator's capacity is doubtful, the precise species of evidence of the deceased's knowledge of the Will is to be in the shape of instructions for or reading over the instrument; they form, no doubt, the most satisfactory, but they are not the only satisfactory description of proof by which the cognizance of the contents of the Will may be brought home to the deceased. The Court would naturally look for such evidence; in some cases it might be impossible to establish a Will without it; but it has no right in every case to require it. I have said thus much upon the rules of law applicable to this case, with the concurrence of all their Lordships who heard the argument, not particularly with a view to the decision of this case, but in order to prevent any misconception upon a subject of so great practical importance. At the same time, their Lordships wish it to be distinctly understood, that, entirely acquiescing in the propriety of the rule so qualified and explained, they should be extremely sorry if anything which has fallen from them should have the effect of impeding its full operation." In the subsequent case of Durling v. Loveland (d), Sir H. Jenner Fust, referring to these passages in the judgment of Mr. Baron Parke, observed that he acceded to every one of the doctrines and principles there laid down, but that he was not aware that the Prerogative Court had ever acted on any other or different (e). (d) Prerog. March 19, 1839. 2 Curt. 225, 227. (e) See also Durnell v. Corfield, 1 Robert. 63, per Dr. Lushington (sitting for Sir H. Jenner Fust). Accord. The doctrine laid down as above, in Barry v. Butler, has been recognised and acted on in many subsequent cases: See Jones v. Goodrich, 5 Moo. P. C. 16. Mitchell v. Thomas, 6 Moo. P. C. 137, S. C. 5 Notes of Cas. 600. Browning v. Budd. 6 Moo. P. C. 430. Greville v. Tylee, 7 Moo. P. C. 320. |