dispositions of his property which are unknown by reason of the testamentary paper which contained them not being forthcoming.(a) CHAP. VIII. When paper presumed to written before referred to have been Where the identity of the paper cannot be disputed, and the will refers to it as being in existence, it will be presumed, in the absence of evidence to the contrary, that the paper was written before the will was made. will. Thus, lists of plate signed by the testatrix, but not attested, and written on the same sheet of paper with the will which referred to them as in existence, the will and schedules being in the handwriting of the testatrix, were admitted to probate, although no evidence could be obtained to show whether the lists were written at the time of execution. (b) The fact that the paper is described in the will as "a memorandum made or to be made," (c) or as "a list which it is my intention to annex to orleave with this my will," (d) is strong evidence for the presumption that the paper was not then in existence. (e) In Re Hunt, (ƒ) Sir J. Dodson held that if the testator makes a codicil to his will after the paper sought to be incorporated is written, it may be incorporated, as the effect of making a codicil is to republish the will, and make it speak from the date of the codicil. The authorities on this point were discussed by Wilde, J., in Re Lady Truro,(g) where his Lordship (a) Dickinson v. Stidolph, 11 C. B. (N. S.) 341. (b) Re Ash, Deane, 181; and see Re Hunt, 2 Rob. 622; Re Willmott, 1 Sw. & Tr. 36. (c) Re Skair, 5 No. Cas. 57. (d) Re Astell, 5 No. Cas. 489; Ollive v. Weale, ib. 486. (e) See also Re Hakewill, Deane, 14; 2 Jur. (N. S.) 168; (g) L. R. 1 P. & D. 201. CHAP. VIII. said: "The Court cannot according to the authorities give greater or less effect to a codicil than this: to treat its execution as if the testator had at the same time sat down and re-executed his will. Looked at in that light, the following rule would appear to be the consequence : where the will, if treated as executed on the date of the codicil, and read as if speaking at that date, contains language which within the principle of Allen v. Maddock (a) would operate as an incorporation of the document to which it refers, testamentary effect may be given to such document. But when this is not the case, the mere fact of unexecuted papers having been written or signed between the date of the will and that of the codicil, will not suffice to add such papers to the will by force of republication, or to make that testamentary which would not have been so if the will had been originally executed at the latter date." Not necessary that papers referred to should be included in probate. It does not follow that because papers are incorporated they must be included in the probate. The law on this point was thus stated by Dr. Lushington in Sheldon v. Sheldon: (b) "The title to probate depends upon the clearness and sufficiency of the words of incorporation, the necessity of taking probate will depend upon the validity or invalidity of the instrument to be incorporated. For instance, if a man by will or codicil simply ratifies a deed valid per se, no one could be compelled to take probate of that deed, but the title to probate remains the same; if he ratifies an instrument inoperative or invalid per se then the title and the necessity co-exist. If a party refers to a valid deed, and directs that his property should be settled on similar trusts, then there is a title to probate, and if there be litigation there is also (a) 11 Moo. P. C. 427. (b) 1 Rob. 89. necessity; for I have yet to learn how a court of law CHAP. VIII. could give effect to such will, unless the instrument referred to formed part of the probate." (a) In one case where the will of the testatrix referred to the will of her husband, which was of very great length, probate was permitted to pass with extracts from the husband's will accompanied with an affidavit that the extracts were all that had reference to the wife's will. (b) Where the instrument referred to was a deed in the hands of trustees who refused to part with it, probate was granted of the will alone. (c) The Court has a discretionary power as to whether it will, or will not, order a document referred to to be embodied in the probate. (d) Formerly if an attesting witness to a will had any Credibility of interest, however remote or minute, in the subject matter of the will, the whole will was considered to be invalid. (e) It was found that this rule led to great inconvenience, and accordingly by the statute 25 Geo. II. c. 6, it was provided, (f) that if any person should attest the exe- To a devisee cution of any will or codicil which should be made after devise void; (a) The last remark is most important, as showing that declarations of trust of personal property should never, where it can be avoided, be made by reference to any other instrument, but always be contained in the will itself; otherwise the instrument referred to, or a copy of it, must be included in the probate. 1 Jarm. on Wills, 3rd ed. 86; and see Re Pewtner, 4 No. Cas. 479; Re Dickins, 3 Curt. 60; 1 No. Cas. 398; Re Darby, 4 No. Cas. 427. (b) Re Countess of Limerick, 2 Rob. 313; and see Re Marquis of Lansdowne, 3 Sw. & Tr. 194. (c) Re Battersbee, 2 Rob. 439; and see also Re Dundas, 32 L. J. P. & M. 165; Re Sibthorpe, L. R. 1 P. & D. 106. (d) See cases referred to in (e) See 1 Jarm, on Wills, witnesses. attesting, CHAP. VIII. the 24th of June, 1752, to whom any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate, other than and except charges on lands, tenements, or hereditaments for payment of any debt or debts, should be thereby given or made, such devise, legacy, estate, interest, gift, or appointment should, so far only as concerned such person attesting the execution of such will or codicil, or any person claiming under him, be utterly null and void; and such person should be admitted as a witness to the execu tion of such will or codicil within the intent of the said act, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will or codicil. but admitted to prove the will. Creditor attesting admitted a witness. By the second section of the same act it was provided that in case by any will or codicil already made or thereafter to be made any lands, tenements, or hereditaments were or should be charged with any debt or debts, and any creditor whose debt was so charged had attested, or should attest the execution of such will or codicil, every such creditor notwithstanding such charge should be admitted as a witness to the execution of such will or codicil, within the intent of the said act. Under this act and the Statute of Frauds, it was decided that a trustee or executor taking no beneficial interest under the will was a good attesting witness. (a) Sir W. Grant held that the act 25 Geo. ii. c. 6, extended to all wills, and therefore that a legacy given by a will of mere personalty to a person who was a subscribing (a) Anon. 1 Mod. 107; Lowe v. Jolliffe, 1 W. Bl. 365; Goodtitle v. Welford, 1 Doug. 140; Bettison v. Bromley, 12 East, 270; Phipps v. Pitcher, 6 Taunt. 290; 2 Marsh, 20; 1 Mad. 144; Goss v. Tracey, 1 P. Wms. 290; Croft v. Pyke, 3 P. Wms. 180. witness was void. (a) But in Brett v. Brett, (b) Sir J. CHAP. VIII. Nicholl held that the statute in question was limited in point of true construction to wills and codicils of real estate, though it extended in terms to all wills and codicils whatsoever, and that therefore a legacy to a subscribing witness to a mere will or codicil of personalty was a good legacy. (c) And the statute makes void a devise to an attesting witness of a will of real estate, although there are three other attesting witnesses to the will. (d) Where estates are devised by will to which the devisee is not a witness, and subsequently he witnesses a codicil ratifying and confirming the will, his title to the property devised by the will is not affected by reason of his being an attesting witness to the codicil. (e) The law relating to the credibility of witnesses is now regulated by the Wills Act. (f) By the fourteenth section of that act it is provided that if any person who shall attest the execution of a will shall at the time of the execution thereof or at any time afterwards be incompetent to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid. Will not void by incompetency of witness. The fifteenth section provides that if any person shall Gifts to an attesting attest the execution of any will, to whom, or to whose witness to be wife or husband, any beneficial devise, legacy, estate, (a) Lees v. Summersgill, 17 Ves. 508. (b) 3 Add. 210; 1 Hagg. 58 n. (c) And see Emmanuel v. Constable, 3 Russ. 437; Foster v. Banbury, 3 Sim. 40; Doe v. Danvers, 7 East, 299; Hatfield v. Thorp, 5 B. & Ald. 589; Jillard A A v. Edgar, 3 De G. & Sm. 502. (d) Doe v. Mills, 1 Mood. & Rob. 288; upon this point the law is the same under the Wills Act; see Wigan v. Rowland, 11 Hare, 157. (e) Denne v. Wood, 4 L. J. (0. S.) 57. (f)1 Vict, c. 26. void. |