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that they had not returned into the possession of the Chap. IX. deceased or been destroyed at his request. Probate was therefore granted of the copies, limited until such time as the originals were produced.(a)

So also the presumption may be rebutted by proof that the will was destroyed without the testator's privity or consent, or that he had no opportunity of destroying it.(b) Such proof will be approached by the Court with jealousy and distrust.(c) A missing will may, in certain cases, on proof of its Missing will

when admitted contents be admitted to probate.(d) The law is the to probate. same where a wife having power to dispose of property by will makes her will, and afterwards destroys it under the compulsion of the husband.(e) So where a will and codicil were torn into pieces by the testator's eldest son, after the death of the testator, and the greater number of the pieces were saved, the Court, with the assistance of parol evidence, being able to ascertain the contents of the will and codicil, decreed probate. (f)

Where the Court was satisfied on the evidence that the defendant who had taken out letters of administration had possessed himself of the will, after the death of the testator, and had suppressed or destroyed it, letters of administration with the will annexed as contained in a draft were granted to the residuary legatee.(9) In Brown v.

(a) And see Re Langtry, 1 (e) Williams v. Baker, 1 Wms. N. R. 194,

Exors. 7th ed. 158. (6) Lillie v. Lillie, 3 Hagg. (f) Foster v. Foster, 1 Add. 184; Wargent v. Hollings, 4 462; see also Knight v. Cook, 1 Hagg. 249.

Cas. temp. Lee, 413; Haines v. (c) Moore v. Whitehouse, 3 Haines, 1 Vern. 441. Sw. & Tr. 567.

(9) Podmore v. Whatton, 3 (d) Trevelyan v. Trevelyan, 1 Sw. & Tr. 449; and see Finch Phillim. 149.

v. Finch, L. R. 1 P. & D. 371.


Chap. IX.

When probate of lost will granted on motion,

Brown, (a) a perfectly executed will was found in the pos-
session of the deceased, and it was set aside by proof of
a second will, which was not to be found and the existence
of which was proved by the oath of one witness only, no
draft or copy of it being produced, and the contents
being proved from memory by the same witness. This
case was very strongly disapproved of by Wilde, J., in
Wharram v. Wharram,(b) where his Lordship said that
he doubted if the operation of the Wills Act had been
sufficiently considered in Brown v. Brown, and other
cases where a will had been proved by parol.(c)

As a general rule the Court requires the draft or copy
of a lost or destroyed will to be propounded before ad-
mitting it to probate, but where satisfactory evidence
was given of the contents of a destroyed will, of its due
execution, of its existence at the time of the testator's
death, and of its subsequent destruction, the persons
interested under it, and the persons in whose custody it
was, not being in any way to blame for such destruc-
tion, the Court, with the consent of the only persons
interested in the event of an intestacy, granted probate
of a draft on motion.(d)

Where a will has been lost, and evidence of its contents is supplied by the production of a draft, and of the parol testimony of persons who had read the will, the parol evidence must be placed side by side with the draft, and out of them the Court will extract the contents of the will to be proved.(e)

Evidence to prove contents of will.


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Chap. IX.

The declarations of an alleged testator, whether before or after the making of his will, are admissible as secondary evidence of its contents.(a) Where a will and codicil (the drafts of which were Declarations of

testator admisproduced) were proved to have been left by the attorney sible. who drew them with the testator after execution, but were not forthcoming after his death, declarations of the testator to various members of his family down to a few days before his death expressive of his satisfaction at having settled his affairs, and intimating that his will was left with his attorney, were held to have been properly admitted to rebut the presumption that the will and codicil had been destroyed by the testator animo revocandi.(6)

Where alterations or cancellations are made in a will Deliberative in pencil, they may be final or deliberative, but the primâ pencil marks. facie presumption is that they are deliberative, and not final; it is a question of evidence as to whether the testator intended them to be final or not. If final, they may be admitted to probate, but the Court requires to be well assured that they are so.(c) In Mence v. Mence(d) a residuary bequest was considered to be cancelled by striking through with a pencil all the disposing part, leaving only the general description, with pencil notes in the margin, indicating alterations and a different disposition of certain articles.(e)


(a) Sugden v. Lord St. Leo. mrds, W. N. (1876) 114, overruling Quick v. Quick, 3 Sw. & Tr. 442; see further as to the evidence required, Burls v. Burls, L. R. 1 P. & D. 472.

(6) Whitely v. king, 17 C. B. (N. S.) 756; Saunders v. Saunders, 6 No. Cas. 518.

(c) Parkin v. Bainbridge, 3
Phillimore, 321 ; Ravenscroft v.
Hunter, 2 Hagg. 68; Lavender
V. Adams, 1 Add. 403; Edwards
v. Astley, 1 Hagg. 490 ; Hawkes
v. Hawkes, ib. 321 ; Re Rolls, 2
Add. 316.

(d) 18 Ves. 348.
(e) See

the remarks of

Partial obli


CHAP. IX. Where, in cases under the Statute of Frauds, the

testator strikes a pen through parts of his will only, the teration under clauses which are struck through are alone revoked, and

the will remains in force as to the parts which are untouched. (a) It is not necessary that the whole clause intended to be revoked should be obliterated, it is enough if the devisee's name is struck out. (6) In Swinton v. Bailey (c) a devise was made to A to hold to her "her heirs and assigns for ever," and the words “her heirs and assigns for ever” had been struck through with a pen, but the obliteration so made was not attested. It was held that the act of the testator was a revocation by obliteration of a devise or any clause thereof within the meaning of the sixth section of the Statute of Frauds, and that the estate in fee had been cut down to an estate for life only. Where the legatee's name was repeated several times in the will, and the testator drew a pen through the name in some places only, the bequests were held not to be revoked, the description of the legatee not being altered.(d) In Grantly v. Garthwaite, (e) the testator, by a will dated the 22nd of November, 1796, and by a codicil dated the 2nd of June, 1808, both of which were duly executed and attested, devised certain real estates, and afterwards made an unattested will dated the 25th of September, 1812, which contained a

Wigram, V.C., on this case, in
Francis v. Groves, 5 Hare, 48.

(a) Swinb. Pt. 7, s. 16, pl. 4;
Sutton v. Sutton, Cowp. 812 ;
Humphreys v. Taylor, 5 Bac.
Abr. tit. Wills, G.

Hyde v. Mason, ib. 540; Scruby
v. Fordham, 1 Add. 78; Lar-
kins r. Larkins, 3 Bos. & P.

16; Short F. Smith, 4 East, 419; Dickinson v. Stidolph, 11 C. B. (N. S.) 36.

(b) Mence v. Mence, 18 Ves. 350.

(C) 24 W. R. 561.

(d) Martins v. Gardinet, 8 Sim. 73.

(e) 2 Russ. 90.


different disposition of the saine lands, and at his death Chap. IX. all these three instruments, the two wills and the codicil to the first will, were found wrapped up in one piece of paper. The unattested will was contained in an envelope on which was endorsed “the last will and testament of John Douce Garthwaite dated the 25th September, 1812.” The envelope containing this will was, along

” with the former will and codicil, inclosed in another envelope, on which was the following endorsement in the testator's own handwriting :

“The last will &c. twenty-fifth Septr. 1812 The last will and testament of codieit

Superseded by the of

above John Douce Garthwaite.

25th April, 1812.” The question was whether the writing and erasure on the envelope amounted to a revocation of the will of 1796, and Lord Eldon held that there was not such a writing as would revoke the first will. Again, if part of one sheet of a will consisting of Partial

destruction. several sheets be torn off or cut through, the other sheets, together with the signature, attestation, and so forth, remaining in their original state, this will only revoke the part actually so cut or torn, and will not enure to a revocation of the whole will. (a) The Wills Act, (6) provides that" no obliteration, in- Obliterations

and alterations terlineation, or other alteration made in any will after under Wills the execution thereof shall be valid or have any effect, executed as

Act must be except in so far as the words or effect of the will before will. such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is

(a) Scruby v. Fordham, 1 Hagg. 552. Add. 78; Roberts v. Round, 3 (6) 1 Vict. c. 26, s. 21.

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