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Chap. IX. what alterations were made before execution, the Court

could not give effect to any of them.(a)

In Re White(b) the will of the deceased was written on the first and third pages of several sheets of note-paper, the sheets being stitched together in the form of a book. At the foot of one of the written pages were the following words: “I leave the whole of my property to the following religious societies, viz., ... to be divided in equal shares amongst them.”

At the top of the opposite page, which was otherwise blank, were the names of certain societies. The surviving attesting witness could not state that the names were there when the will was executed. It was held that the names so written must be considered as interlineations, and as there was no evidence that they were inserted before execution the probate must issue without

them. Rebuttal of The presumption of law, that obliterations and alterapresumption.

tions in a will since the Wills Act were made after execution, may be rebutted by evidence showing that it was

highly probable that they were made before execution.(e) Declaration of Thus, declarations by a testator before the execution of

his will that he intended to make provision for the person in whose favour alterations are made, are admissible in

testator.

(a) Williams v. Ashton, 1 J. & H. 115.

In one case, where the attesting witnesses could not swear whether an added paragraph was written before or after the execution of a will, probate was decreed of the will as it stood, but this decision was merely on motion; no

cited, and there was no opposition, Re Swindin, 1 Rob. 192 ; see, however, Re Cadge, L. R. 1 P. & D. 543; Re Birt, L. R. 2 P. & D. 214.

(6) 6 Jur. (N. S.) 808; 30 L J. P. & M. 55. (c) Keigwin v. Keigwin, 7 Jur.

appear to have been

3 Curt. 607; Re Jacob, 1 No. Cas. 401.

840;

cases

evidence as tending to show that the alteration was made Chap. IX. before execution. (a) So, where the deceased executed a will and codicil, the latter referring to the former by its date, and the name of the executor appointed by the will was written on an erasure; the Court admitted the declaration of the testator as to the person he had appointed executor, made before the execution of the codicil, and granted probate of the will and codicil to such executor. (b) At one time the rule was, that declarations made after the will was executed were not admissible.(e) But in the recent case of Sugden v. Lord St. Leonards(d) the Court of Appeal decided that declarations as to the contents of his will, made by a testator after execution, were admissible. And upon the same principle declarations as to alterations would be admissible to prove when an alteration was made. Where some trifling alterations or interlineations ap- Evidence of

expert. peared on the face of a holograph will, and there was no evidence whether they were written before or after the execution, except the affidavit of an expert, that in his opinion they were written at the same time as the rest of the will; on that evidence the Court admitted them to probate. (e) And where a will in the testator's handwriting con- Testator in

actual military tained material alterations, about the making of which service. (a) Doe v. Palmer, 16 Q. B. tions of intention, Re Keen, L.

Re Foley, 25 L. T. 311 ; R. 3 P. & D. 105, and ante p. Johnson v. Lyford, L. R. 1 P. & 381. D. 546; Re Ripley, 1 Sw. & Tr. (c) See cases supra, note (a). 68; Staines v. Stewart, 2 Sw. (d) W. N. (1876) 114. & Tr. 320; Quick v. Quick, 3 (e) Re Hindmarsh, L. R. 1 Sw. & Tr. 442.

P. & D. 307; see also Re Cadge, (6) Re Sykes, L. R. 3 P. & D.

ib. 543. 26; see further as to declara

747;

Chap. IX. no information could be obtained, and such will was

signed by the testator whilst as a soldier he was employed in actual military service, it was presumed that the alterations were made during the continuance of such service

and they were included in the probate. (a) Sheet interpo- If a will is written on several sheets of paper and these lated.

are bound together, the legal presumption is that they were so bound together at the time of execution and attestation. Where, therefore, the testatrix substituted for an original sheet in her will one in her own handwriting, it was held that in the absence of evidence the reasonable presumption was that the substitution was made before

execution. (6) Alterations

Where alterations are made in a will and there is & when codicil. duly-executed codicil to the will which does not notice

the alterations, the primâ facie presumption is that they were made after the codicil was executed.(c) But where the testator said in a codicil to his will that it was his wish that interlineations made in the will might stand as part thereof if in his own handwriting, it was held that such interlineations might be admitted to probate. (d) And where unattested alterations appeared in a will without extrinsic evidence as to whether made before or after execution, and a codicil bore date two years after that of the will, the Court upon internal evidence decreed probate with the alterations as made at least before the execution of the codicil.(e)

(a) Re Tweedale, L. R. 3 P. 1165; Christmas v. Whinyates, & D. 204.

3 Sw. & Tr. 81.
(b) Re Countess of Morton, (d) Re Mills, 11 Jur. 1070;
13 Jur. 1108; and see Rees v. see also Re Parker, 27 L. T. 18;
Rees, L, R. 3 P. & D. 84.

Re Mogg. 1 No. Cas. 325; Re
(c) Lushington v. Onslow, 6 Wyatt, 2 Sw. & Tr. 494.
No. Cas. 183; 12 Jur. 465; (e) Re Bradley, 5 No. Cas.
Rowley v. Merlin, 6 Jur. (N. S.) 187.

Where a testator has made a new will, and attempts to CHAP. IX. revoke the former on the supposition that the new will is Dependent

relative valid, and it appears that the new will is not in fact valid; revocation. then, as the intended revocation depends on the effectual substitution of the new will, the former one cannot be considered to have been revoked.

In ex parte The Earl of Ilchester (a) Lord Alvanley said that the rule to be gathered from the cases on this subject was, that where it was evident that the testator, though using the means of revocation, could not intend it for any other purpose than to give effect to another disposition, though if it had been a mere revocation it would have had effect, yet, the object being only to make way for another disposition, if the instrument cannot have that effect it shall not be a revocation.(6)

Thus, where a testator, after making a second will, which was not duly executed, cancelled the former, it was held that this was not a revocation, because it was not an in dependent act, but done to accompany or in way of affirmation of the second will, from an opinion that the second will had actually revoked the first.(c) It makes no difference that the latter will is in favour of another person.(d)

Where a testator, having duly executed a will written on eight sheets of paper, to each of which his seal was

(a) 7 Ves. 372.

Powell on Devises, 600; see (6) See this passage cited, S. C. 1 P. Wms. 343; Prec. Dickinson v. Stidolph, 11 C. B. Ch. 459; 2 Vern. 743; 1 Eq. (N. S.) 360 ; Re Middleton, 3 Cas. Abr. 407. Sw. & Tr. 585; and see further (d) See Ex parte Earl of for instances of dependent re- Ilchester, 7 Ves. 379, per Sir lative revocation, Re Cockayne, Wm. Grant, and the recent Deane, 177; Powell v. Powell, case of Dancer v. Crabb, L. R. L. R. 1 P. & D. 209.

3 P. & D. 98. (c) Onions v. Tyrer, cit. 1

Chap. IX.

affixed, gave instructions for a new will, which he signed and then commenced to tear off the seals from the old will, but ceased on being told that the new one had not yet been perfected to pass lands, and died before the new will was completed, it was held that the old will had not been revoked. (a) In Hide v. Mason(b) the testator made his will, and executed two duplicates, and made B and C (since deceased) executors, and one of the duplicates was delivered to B. About three weeks before the testator's death he made several alterations and obliterations with his own hand in the duplicate remaining in his own custody, making a new devise of his real estate, and a new residuary legatee, and a new executor, entirely striking out the names of the first devisees, residuary legatee, and executors, and altered several of the former legacies, and inserted or interlined new legacies, and soon after wrote another will with his own hand, agreeable in a great measure, but not altogether, to the will or duplicate so altered, with conclusion in these words, “In witness whereof I the said testator have to each sheet set my hand, and to the top where the sheets are fixed together my hand and seal, and to the last thereof my hand and seal, and to a duplicate of the same tenor and date, this

day of 1730.” But there was no signing or fixing together. Testator soon after began to write another will, word for word with the last, so far as it went, but went no further than devising his lands. Testator lived six days after, and was in good health,

(a) Hyde v. Hyde, 1 Eq. Cas. Comyn Rep. 451 ; cited in Abr. 409; 3 Chan. Rep. 155. Goodright v. Glazier, 4 Burr.

(b) 3 Eq. Cas. Abr. 776 ; 2515; S. C. nom. Calany r. Vin. Abr. Devise (R. 2) pl. 17; Hyde, 1 Cas. temp. Lee, 423 S. C. nom. Limbery v. Mason, (n) a.

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