CHAP. VIII. the testamentary instrument any prior writing, whether such prior writing be attested or not, and if the incorporation is made in such a manner that the Court can find out from the properly attested instrument what is the prior instrument intended to be referred to, then the prior instrument becomes a part of the testamentary instrument to all intents and purposes." (a) The rule of evidence upon which such document is admitted is, that if there is in a will a latent ambiguity it may be explained by parol evidence, or by extrinsic documents when it is unambiguous; although reference is made to another instrument, nothing can be imported by way of reference into the will from that or any other extrinsic document, unless it is clear and indisputable that the proposed document in all respects satisfies the description of the will, and that it can be none other than the very document intended by the testator. (b) In Dillon v. Harris (c) the testator referred in his will to a certain paper in the handwriting of one of the devisees, which the testator said he had put into the hands of his trustees and executors. They denied that any such paper had been put into their hands. After the testator's death a paper answering to the description in the will was found among his papers, but it was held that the document could not be incorporated with the will, as the devisee might have written several papers; and although there was proof that the paper at the time when it was written and signed was in the possession of the testator, there was no proof that it was in his possession at the date of the will. (d) (a) Burton v. Newbery, L. R. 1 Ch. Div. 238, per Jessel, M. R. (b) Dillon v. Harris, 4 Bligh (N. R.) 358, per Ld, Brougham. (c) Supra. (d) See Dr. Lushington's ob And it is immaterial that the document proposed to CHAP. VIII. be incorporated is invalid (a) or voidable.(b) document It must be distinctly proved that the document pro- Identity of posed to be incorporated is the actual document referred must be proved. to, and also that it was in existence before the will was made.(c) But the principle of Allen v. Maddock will not be extended. (d) Such a general reference is sufficient as, when compared with the evidence produced, will enable the Court to identify the document. (e) But incorporation will not be allowed when the identity of the document cannot be proved "beyond all doubt." (f) Thus, where the testator executed a will on the first side of a sheet of paper, leaving his property after his wife's death to be divided in manner thereinafter named among his nine children, and on the second and third sides of the sheet there was a list of absolute devises and bequests to his children, not signed by the testator, but the writer of the will and of the list deposed that the list was written by him at the dictation of the deceased, and read over to him before the execution of the will, but the attesting witnesses only servations on this case in Sheldon v. Sheldon, 1 Rob. 87; 3 No. Cas. 255; 8 Jur. 878. (a) Re Smart, 4 No. Cas. 39; Swete v. Pidsley, 6 No. Cas. 189; Re Willesford, 3 Curt. 77; Re Bosanquet, 14 Jur. 964. (b) Stump v. Gaby, 2 D. M. G. 623. (c) Allen v. Maddock, 11 Moo. P. C. 427; Re Greves, 1 Sw. & Tr. 250; 28 L. J. P. & M. 18; Wood v. Goodlake, 1 No. Cas. 144; Re Willesford, 1 No. Cas. 404; 3 Curt. 77; (d) Re Greves, 1 Sw. & Tr. (e) Allen v. Maddock, 11 Moo. P. C. C. 427; Re Greves, 1 Sw. & Tr. 250; 28 L. J. P. & M. 18. (f) Smart v. Prujean, 6 Ves. 565; Collier v. Langbeare, 1 No. Cas. 369; Re Edwards, 6 No. Cas. 306. CHAP. VIII. saw the first side, it was held that the intrinsic and parol evidence before the Court was not sufficient to justify it in granting probate of the list on motion. (a) So where the deceased in 1866 executed a will, and a few days afterwards a paper, which he called " Directions to his executors," to form a part of his will and in 1868 he executed a fresh will revoking all former wills and codicils, in which he expressed a wish that the goods and chattels in and about the rooms he should occupy at the time of his decease should be disposed of according to the written directions left by him and affixed to his will, and no paper was found affixed to his will, but the abovementioned codicil, which in many respects answered to the written directions described in the will, was found in his private room, it was held that it could not be included in the probate. (b) Acting on the foregoing principles, the Court has allowed the will of another person, (c) the revoked will of another person, (d) a deed, (e) a former will made by the testator,(ƒ) a list of plate written on the same sheet as the will,(g) and a schedule to a catalogue of books (h) to be incorporated. (a) Re Brewis, 3 Sw. & Tr. 473; 10 Jur. (N. S.) 593; 33 L. J. P. & M. 124. (b) Re Gill, L. R. 2 P. & D. 6; see also Dickenson v. Stidolph, 11 C. B. (N. S.) 341; Van Straubenzee v. Monk, 3 Sw. & Tr. 6; 32 L. J. P. & M. 21; Re Sunderland, L. R. 1 P. & D. 198. (c) Re Darby, 4 No. Cas. 427; 10 Jur. 164. (d) Re Countess of Durham, 3 Curt. 57; 1 No. Cas. 365; 6 Jur. 176. (e) Re Dickins, 3 Curt. 60; 1 No. Cas. 398; Be Pewtner, 4 No. Cas. 479. (f) Re Duff, 4 No. Cas. 474; Jorden v. Jorden, 2 No. Cas. 388; but see Re Sinclair, 3 Curt. 746. (g) Re Ash, Deane, 181; but see Re Warner, 10 W. R. 566. (h) Re Bacon, 4 No. Cas. 645; and see Re Stewart, 3 Sw. & Tr. 192. In Re Kelly, (a) a letter signed by the deceased, but CHAP. VIII. not attested, containing testamentary directions to the persons to whom it was addressed, and a paper regularly executed by him and attested, referring to "the executors nominated in his will," being the same persons named in the letter, this former paper not having been produced to the witnesses nor annexed to the letter (though both were found together sealed up in the deceased's repositories), were admitted to probate as the will and codicil of the deceased. Where the deceased executed a will in India which was deposited in a bank in that country, and subsequently in this country he executed a codicil to his will, which contained the following clause: "Of which will I, along with the codicil thereto, execute a copy, and homologate and confirm the same in all particulars, except in so far as altered or revoked by this codicil;" and at the time of the execution of the codicil the deceased produced a paper which he informed the witnesses was a copy of his will; it was held that the copy so produced was incorporated in the codicil. (b) If a testator describes a deed in his will, and then pro- Use of words "ratify and ceeds to "ratify and confirm" it, that will be sufficient confirm." to incorporate the deed with the will. (c) If alterations appear in a document which is duly Alterations. referred to by the testator, and no evidence is given as to whether they were made before or after execution of the will, they will be excluded from probate. (d) (a) 5 No. Cas. 510. (b) Re Mercer, L. R. 2 P. & D. 91. (c) Sheldon v. Sheldon, 1 Rob. 88; Stump v. Gaby, 2 D. M. G. 623; Re Harris, L. R. 2 (d) Swete v. Pidsley, 6 No. CHAP. VIII. Parol evidence is admissible to identify the paper Parol evidence referred to, when the terms of reference in the will are is admissible reference. to identify the not sufficiently precise.(a) In Allen v. Maddock(b) it was held that an unattested will was incorporated in a duly executed codicil, which was headed, "This is a codicil to my last will and testament,” no other will having been found.(c) Two instruments referred to, but only one forthcoming. But parol evidence cannot be received of a testator's intentions unless the paper writing which has been duly executed contains language distinctly referring to some paper or another.(d) So if the will does not describe the instrument sought to be incorporated as then existing, parol evidence is inadmissible to prove that fact, and the instrument will be excluded from probate.(e) Where a testamentary instrument refers to two memorandums, and only one is found, effect must be given to that which is found, for either the ordinary presumption must prevail that the missing paper was destroyed by the testator animo revocandi, or the principle must be applied that the apparent testamentary intentions of a testator are not to be disappointed, merely because he made other (a) Allen v. Maddock, 11 Moo. (b) Supra. (c) And see Wood v. Goodlake, 1 No. Cas. 144; Anderson v. Anderson, L. R. 13 Eq. 381; Re M'Cabe, 2 Sw. & Tr. 478; Van Straubenzee v. Monk, 3 Sw. & Tr. 6; 32 L. J. P. & M. 21. It would seem that the fore going cases have overruled Re Sotheran, 1 No. Cas. 73; 2 Curt. 831. (d) Allen v. Maddock, 11 Moo. P. C. C. 427; Van Strau benzee v. Monk, 3 Sw. & Tr. 6; 32 L. J. P. & M. 21; Re Luke, 34 L. J. P. & M. 105. (e) Re Sunderland, L. R. 1 P. & D. 198; and see Re Dallow, ib. 189. |