CHAP. VIII. description of "a codicil," both codicils were entitled to probate. (a) Duly executed codicil referring to in formal will or codicil. If a duly executed codicil refers to a will or codicil which is informal, such will or codicil will be rendered valid. (b) In Allen v. Maddock (c) the testatrix made a will which was not duly executed. Afterwards she duly executed a codicil which was headed, "This is a codicil to my last will and testament." No other will was found, and it was held by the Privy Council (d) that the informally executed will was incorporated with and made valid by the duly-executed codicil, and probate was granted to both papers, Lord Kingsdown saying: "The result of the authorities both before and since the late act appears to be, that when there is a reference in a duly-executed testamentary instrument to another testamentary instrument by such terms as to make it capable of identification, it is necessarily a subject for parol evidence, and that when the parol evidence sufficiently proves that in the existing circumstances there is no doubt as to the instrument, it is no objection to it that, by possibility, circumstances might have existed in which the instrument referred to could not have been identified." The fact that all the documents are written on the same piece of paper renders it easier to prove that the testator intended that they should be taken together, but it is not conclusive evidence that such was his intention.(e) (a) Ingoldby v. Ingoldby, 4 No. Cas. 493. (b) Re Smith, 2 Cur. 796; and see Re Hutton, 5 No. Cas. 598; Re Phelps, 6 No. Cas. 695; Re Willmott, 1 Sw. & Tr. 36; Re Drummond, 2 Sw. & Tr. 8. (e) Re Smith, 2 Cur. 796; Re Terrible, 1 Sw. & Tr. 140; Second codicil not referring to unattested first codicil. Where there is a duly-attested will, and an unattested CHAP. VIII. codicil, and a second codicil which is duly attested, but which does not refer to the first codicil, but merely to the will, the first codicil will not be entitled to probate. (a) Where a testator duly executed a will and five codicils, and the first of the codicils, dated the 25th of March, 1848, commenced, "This is the second codicil to the will of A," and ended "In all other respects I confirm my said will, save only so far as the same is unrevoked by my first codicil thereto, and I do hereby confirm the said codicil;" it did not appear that the testator had executed any codicil to his will prior to this one, described as the second codicil to his will; but his solicitor, after the date of the will, and before the date of this codicil, forwarded to him for his perusal a draft codicil, which, when he prepared this codicil, he erroneously concluded had been executed, and therefore described it as a second codicil, and the draft codicil was, after the testator's death, found tied up in a parcel containing the will and five executed codicils; it was held that the draft codicil was not sufficiently identified as the paper intended to be referred to by the deceased in his first executed codicil, and could not be admitted to probate. (b) Where a will appears to be duly executed and there is a complete attestation clause, the presumption omnia rite esse acta applies, and is not rebutted by the defective memory of the attesting witnesses. Where the attesta Re Warrender, 2 L. T. 317; Re (a) Re Hutton, 5 No. Cas. 598; Re Phelps, 6 No. Cas. 695; Re Willmott, 1 Sw. & Tr. 36; Haynes v. Hill, 7 No. Cas. 256; and see the judgment of (b) Re Allnutt, 3 Sw. & Tr. Presumption of due execu tion. CHAP. VIII. tion clause is incomplete the presumption also applies, but with less force. Thus, in the absence of evidence to the contrary, due execution and attestation has been presumed where the witnesses were dead, (a) abroad, (b) or not forthcoming, (c) and where the witnesses, though admitting that their signatures were genuine, refused to make an affidavit as to the mode of execution.(d) Probate has been granted when the witnesses deposed to facts which, if true, would show that the requirements of the statute had not been complied with, but circumstances proved that their recollection could not be relied upon. (e) Thus, where the attesting witnesses to a will, duly executed on the face of it, did not recollect having seen the testator's signature to the will when they subscribed their names as witnesses, the Court held that it was at liberty to judge from the circumstances of the case whether it was probable that the testator's name was on the will or not at the time of the attestation.(f) Positive affirmance by the witnesses as to the require (a) Hands v. James, Comyn. 531; Croft v. Pawlett, 8 Vin. Ab. 128, pl. 4; 2 Str. 1109; Burgoyne v. Showler, 1 Rob. 5; Trott v. Trott, 29 L. J. P. & M. 156; 6 Jur. (N. S.) 760; Trott v. Skidmore, 2 Sw. & Tr. 12; Re Frere, 8 Jur. (N. S.) 494. (b) Re Johnson, 2 Curt. 341; Re Seagram, 3 No. Cas. 437; Platel v. Stert, 2 L. T. 210. (c) Re Luffman, 5 No. Cas. 183; Re Dickson, 6 No. Cas. 278. (d) Re Mustow, 4 No. Cas. 289; Re Rees, 34 L. J. P. & M. 56. (e) Leech v. Bates, 6 No. Cas. 699; Burgoyne v. Showler, 1 Rob. 5; Lloyd v. Roberts, 12 Moo. P. C. 158. (f) Gwillim v. Gwillim, 3 Sw. & Tr. 200; Searle & S. 26; 29 L. J. P. & M. 31; and see Vinnicombe v. Butler, 3 Sw. & Tr. 580: 10 Jur. (N. S.) 1109: 13 W. R. 392; Re Huckvale, L R. 1 P. & D. 375; Wright v. Rogers, L. R. 1 P. & D. 678; Beckett v. Howe, L. R. 2 P. & D. 5; but see Re Swinford, R. 1 P. & D. 630. L. ments of the statute having been complied with is not CHAP. VIII. necessary, but if the will appears to have been properly executed the Court may, on a consideration of the surrounding circumstances, presume that it was in fact properly executed. (a) Defective memory alone in the witnesses will not justify the Court in pronouncing against a will on the face of it duly executed.(b) But the evidence of illiterate witnesses will be received with great caution.(c) Where two witnesses deposed after the lapse of a year and a half, one positively the other not positively, that the testator had signed after they did, probate was granted on the evidence of another witness who deposed that the testator signed before the witnesses. (d) So probate was granted where the witness deposing to a due execution was examined shortly after the will was made, the other not for a year and a half after; (e) also where one witness was discredited.(f) The fact that the will on the face of it appears to have been duly attested,(g) or that the testator had experience in the (a) Blake v. Knight, 3 Curt. 547; Cooper v. Bockett, ib. 649; 4 No. Cas. 685; 4 Moo. P. C. 419; Keating v. Brooks, 4 No. Cas. 253; Gregory v. Queen's Proctor, 4 No. Cas. 620; Farmer v. Brock, Deane, 187; 2 Jur. (N.S.) 670; Burgoyne v. Showler, 1 Rob. 5; Re Leach, 6 No. Cas. 92. (b) Thomson v. Hall, 2 Rob. 427; 16 Jur. 1144; Vinnicombe v. Butler, 3 Sw. & Tr. 580; 10 Jur. (N. S.) 1109; 13 W. R. 392; Wright v. Rogers, L. R. 1 P. & D. 678. (c) Cooper v. Bockett, 4 Moo. P. C. C. 419. (d) Bayliss v. Sayer, 3 No. 151. (g) Cregreen v. Willoughby, CHAP. VIII. execution of wills, (a) is strong evidence in favour of the requirements of the statute having been complied with. The Court has presumed due execution from the surrounding circumstances even when the witnesses have not had any recollection as to the circumstances of the execution, (b) where one witness was dead and the surviving witness deposed "according to the best of his recollection and belief," (c) and where one witness negatived due execution, and the other could remember nothing of the matter. (d) If upon the face of a will, to which there is no attes tation clause, there is the signature of the testator and of the witnesses, the presumption is that the will was duly executed, even though the witnesses are not certain as to the facts.(e) But where the witnesses positively depose to facts which prove that the will was not properly executed, and there are no circumstances on which the Court can found a presumption that the memory of the witnesses is infirm on the subject, probate will not be granted. (f) Thus, where the two subscribing witnesses to a will deposed that it was not signed in their presence, and that they did not subscribe in the presence of each (a) Lloyd v. Roberts, 12 Moo. P. C. 158; Blake v. Knight, 3 Curt. 562; Brenchley v. Still, 2 Rob. 162. (b) Re Attridge, 6 No. Cas. 597; Foot v. Stanton, Deane, 19; 2 Jur. (N. S.) 380; Re Holgate, 1 Sw. & Tr. 261; 5 Jur. (N. S.) 251; 29 L. J. P. & M. 161; Gwillim v. Gwillim, Searle & S. 26; 3 Sw. & Tr. 200; 29 L. J. P. & M. 31; Re Rees, 34 L. J. P. & M. 56. (c) Re Noyes, 4 No. Cas. 284. (d) Shield v. Shield, 4 No. Cas. 647. (e) Burgoyne v. Showler, 1 Rob. 5; Re Ayling, 1 Curt. 913; Re Hare, 3 Curt. 54; Re Thomas, 1 Sw. & Tr. 255; 28 L. J. P. & M. 33; Divett v. Ware, 30 L. T. 175. (f) Noding v. Alliston, 14 Jur. 904; Pennant v. Kingscote, 3 Curt. 642; Burgoyne v. Showler, 1 Rob. 5. |