passages in his will and shall so effectually accomplish his CHAP. IX. purpose that those passages cannot be made out on the face of the instrument itself, it shall be a revocation as good and valid as if done according to the stricter forms mentioned in the act. (a) The Court will not in the first instance take upon itself to decide whether the words obliterated can or cannot be made out; if it be asserted in an allegation that they are capable of being distinguished on the face of the will, the Court will refer such an allegation to proof, and then pronounce its judgment according to the testimony which may be offered at the hearing. (b) Where the testator evidently did not mean to revoke his will, but to substitute a different legacy for the one already given, and the original nature or amount is so erased as not to be apparent on the face of the will, then if the substituted legacy cannot take effect by reason of defective attestation, parol evidence is admissible to show what was the nature or amount of the original legacy. (c) And so, where the name of a legatee (d) or of an executor is erased, parol evidence is admissible to show what the name originally was, and it will be restored, if the Court is satisfied that the testator only revoked the first bequest on the supposition that he had effectually substituted a new legatee. (e) If the erased parts cannot be deciphered (a) Townley v. Watson, 3 No. Cas. 17; 3 Curt. 761; Re Horsford, L. R. 3 P. & D. 211. (b) Townley v. Watson, 3 Curt. 769. (c) Brooke v. Kent, 3 Moo. P. C. C. 334; 1 No. Cas. 99; Soar v. Dolman, 3 Curt. 121; 6 Jur. 512; Re Reeve, 13 Jur. 370. 419. (d) Short v. Smith, 4 East, (e) Re Parr, 6 Jur. (N. S.) 56; probate will be granted of the will with those parts erased in blank. (a) Where a gift in a will has been struck out, and it is proved that the testator has given money in his lifetime to the legatee, the fact of the will being altered by the testator is admissible as evidence to show that the legacy was satisfied. (b) Where a fac-simile probate is granted of a will, which has had lines drawn across it, "with the several alterations, interlineations, and erasures appearing therein," the will must be taken to have been executed after the lines were drawn, and it will be presumed that the testator meant that the legacies given in the part crossed out were not to take effect. (c) Unattested alterations in the handwriting of the testator in a will made before the Wills Act came into operation, will, in the absence of any evidence as to the date, be presumed to have been made before the act came into operation. (d) In one case, where the testator died in 1839, an unattested codicil without date was pronounced for, the No. Cas. 188, the Court re- (a) Re Ibbetson, 2 Curt. 337; (b) Twining v. Powell, 2 Coll. 262. (c) Gann v. Gregory, 3 D. M. G. 777; Shea v. Boschetti, 18 Beav. 321; 18 Jur. 614; 23 L. J. Ch. 652; see further as to probate in fac-simile, Re Kendall, 4 No. Cas. 317; Re Smith, 3 Sw. & Tr. 589. (d) Re Pennington, 1 No. Cas. 399; Wynn v. Heveningham, 1 Coll. 630; Re Streaker, 28 L. J. P. & M. 50; Banks v. Thornton, 11 Hare, 180. case being bare of facts and there being nothing to show that the codicil was signed after the Wills Act came into operation. (a) And where a will duly executed before the passing of the Wills Act, and remaining in the testator's custody after the passing of the Act, was found with his signature crossed out, the Court, in the absence of evidence as to the date when the act of crossing out was done, refused to presume that it was before 1838, and therefore pronounced for the will. (b) Where a will has been drawn with blanks left, e. g. for the names of legatees and the amount of the legacies, which blanks are afterwards filled up, but there is no evidence to show when, the presumption is that they were filled in before execution. (c) In Birch v. Birch (d) a testator gave directions that his will should be prepared with blanks for the amount of the legacies, which was done, and the will was found after his death regularly executed, in an envelope (the seals of which had been twice broken), with the amount of the legacies filled up in his own handwriting in black ink, and other insertions in red ink (there being no evidence when either was done), a list or schedule of legacies corresponding with those in the will being found in the same envelope. It was held that the will was entitled to probate with some of the insertions only, namely, those in black ink. The mere circumstance of the amount, or the name of the legatee, being inserted in different ink, and in a different handwriting, does not alone constitute an (a) Pechell v. Jenkinson, 2 Curt. 273. (b) Benson v. Benson, L. R. 2 P. & D. 172. (c) 1 Jarm. 3rd ed. 134-5. (d) 6 No. Cas. 581; 1 Rob. 675; see however, Re Bacon, 3 No. Cas. 645. CHAP. IX. Blanks, when presumed to have been filled up. CHAP. IX. Execution of alterations. Evidence as to alterations. obliteration, interlineation, or other alteration within the meaning of the statute, nor does any presumption arise against a will being duly executed as it appears. (a) Where a testator made some alterations in a dulyexecuted will, and he and the attesting witnesses traced their former signatures with a dry pen, and the attesting witnesses placed their initials opposite each of the alterations, the Court refused to regard the initials in the margin as evidence that the alterations had been duly executed and attested, and declined to grant probate of the will with the alterations.(b) In Re Treeby(c) the testator in the beginning of his will disposed of certain houses in trust for the benefit of his children. The words of the description of one of such houses were struck through by a pen, and the deceased's signature, but not those of the witnesses, was placed near such alteration. At the end of the will a clause was interlined, by which the testator bequeathed the same house to his trustees for the sole benefit of his wife. Under the signatures of the deceased and the witnesses at the termination of the will a memorandum was added to the effect that the above words were struck out for the benefit of the testator's wife. This memorandum was signed by the deceased and attested by the witnesses. It was held that the memorandum referred to both alterations, the obliteration and interlineation, and that the will so altered should be admitted to probate. Where erasures, alterations, and interlineations appear on the face of a will, there should be an affidavit & S. 132. (a) Greville v. Tylee, 7 Moo. P. C. C. 320. (b) Re Cunningham, 1 Searle (c) L. R. 3 P. & D. 242. from all the witnesses, or the absence of an affidavit of a witness should be accounted for. (a) Where a will is made before the first of January, 1838, the effect of any obliterations or alterations made after that date must be considered with reference to the provisions of the Wills Act.(b) Where there are obliterations and alterations in a will CHAP. IX. Obliterations, made before, after, 1st January, 1838. &c., in will but altered Presumption. alterations as to when made in will Act. made since the Wills Act, and there is no direct evidence to show when they were made, the primâ facie presump- since Wills tion of law, it is now settled after some conflict of authority, (c) is, that they were made after the execution of the will. (d) The onus is cast upon the party who seeks to derive an advantage from an alteration in a will to adduce some evidence from which a jury might infer that the alteration was made before the will was executed. (e) Where a testatrix told the witnesses at the time of attestation that she had made alterations in her will, but did not allow them to see what the alterations were, it was held that in the absence of any means to determine (a) Re Townsend, 5 No. Cas. 146. (b) Hobbs v. Knight, 1 Curt. 768; Re Livcock, ib. 906; Brooke v. Kent, 3 Moo. P. C. C. 334; 1 No. Cas. 93; Andrews v. Turner, 3 Q, B. 177; Croker v. Marquis of Hertford, 4 Moo. P. C. C. 356; Walker v. Armstrong, 21 Beav. 305, on app. 4 W. R. 770. (c) Re Stow, 4 No. Cas. 477; Burgoyne v. Showler, 1 Rob. 13; 3 No. Cas. 101; Re Saumarez, 3 No. Cas. 208 n. (d) Cooper v. Bockett, 4 No. (e) Doe v. Palmer, 16 Q. B. |