had to proceed to the consideration of the question whether or not the legal presumption was sufficiently repelled by the evidence in the case. He then entered into a recapitulation of the family history of the deceased, and stated the terms of the "brief statement" of the 10th of March, preceding the deceased's death. This paper, he observed, established three material points, 1st, That the deceased up to that time entertained the intention of providing for Miss Price, as the fixed purpose of his mind. 2dly, That he did not consider his relations as having any claim upon his testamentary bounty. And, 3dly, that the mode by which he then purposed to make the provision for Miss Price was by an annuity or life interest only. His property was about 40001. certainly not an excessive sum for such a provision, and it was not even suggested by the opposite party that there was any alteration in his affection for the young lady down to the time of his death. What, then, was the case they must set up as against this will? They were reduced to the dilemma either of admitting that the will in question is the only one by which he meant to make the intended provision, which would wholly destroy their case; or of asserting, in direct contradiction to all the evidence of the deceased's intentions, that he destroyed this will, intending not to provide for her at all. In March then, it was clear, he meant to provide for her by annuity; but in June he made a will, giving her all his property absolutely. It was not necessary for VOL. LVII.

the Court to inquire into his motives for this change in the amount of the benefit conferred, still less to sit in judgment upon the propriety of the act itself. He had a right, in this respect, to follow the dictates of his own feelings. His motives, however, appeared to have been misrepresented by the world, and Miss Price fell under its censure. This affected her health; and in the opinion of the deceased, as expressed in his letters to his family, gave her additional claims upon him. It was but justice to the family to observe that they were not forward thus to impeach the purity of his motives, but conducted themselves towards Miss Price with great liberality. One person only, Mr. Marston, ventured to suggest to the deceased, the construction the world put upon his acquaintance with this lady, and urged him to break it off; but he invariably refused, saying, he did not care for the opinion of the world, and it was certainly but justice to his memory to say, that there did not appear the least foundation to suppose that any improper intimacy subsisted between them. Her behaviour to him was that of an affectionate daughter, paying the most unremitting attention to his health and comfort, even to the injury of her own. It was the ordinary course of human feeling to magnify attentions shewn in the decline of life. The gratitude becomes stronger as the want of such attentions beomes greater, and it was therefore very natural that the deceased should latterly determine to make his testament

ary bounty to her more considerable. The extracts from the diary contemporaneous with the will, formed the strongest picture the Court could have of the deceased's feelings and intentions, and manifested the greatest improbability that he should destroy the will with the intention of leaving her wholly unprovided for; and the endorsement on the will addressed to her was a strong confirmation of his adherence to it, even to the extent of a desire to put it out of his power to revoke it. He continued to express the sentiments of regard he entertained for her down to his death; recognised by the expression of "all, all is your's" even in his dying moments; and by making the copy of it, and depositing it amongst her letters, took the greatest precaution to prevent the possibility of his intentions being defeated. The book left open in his study did not of itself shew an intention of making a new will sufficiently to destroy the effect of the evidence alluded to. The will, indeed, might still be found, as it very commonly happens that persons from excessive precaution place things so securely that they know not afterwards where to find them themselves. The deceased died at Worthing, and his papers were afterwards brought to town. The will might, therefore, have been lost or mislaid in the confusion of the removal; for as to its having been intentionally destroyed, there was no foundation for such a supposition. Mr. Marston, against whom it was levelled from the circumstance of the deceased hav

ing expressed a wish that he should not have the search and collecting of his papers, (no doubt on account of his considering him from the conversation they had had rather inimical to the interests of Miss Price) had in his evidence satisfactorily acquitted himself from such an insinuation.— Upon the whole of the case, therefore, the Court was impressed with a strong moral conviction, after the most careful consideration, that the presumption of law was sufficiently repelled by the circumstance in evidence, and that the deceased did not destroy the will, but died with the impression on his mind, that it would operate afterwards, and that he had taken sufficient means to ensure its having that effect. The validity of the will was accordingly pronounced, and a probate decreed of the copy in short-hand and translation, limited until the original shall be found, and brought into the registry.

The counsel for Mr. Worthington then moved, that the Court would direct his costs to be paid out of the estate, on the ground of the deceased having by his conduct led his relations to believe that his testamentary disposition would be to a very different effect; and thereby under the circumstance of the original not having been found, imposed upon them the necessity of investigating the matter by the present proceeding.

Sir John Nicholl observed, that the case had not been conducted in such a manner as to show the opposition to have been compulsory on the part of Mr. Worthington. It was only under very ex

traordinary

traordinary circumstances that the Court could direct costs to be paid out of an estate. Under all the circumstances of the case, had the letters which Mr. Worthington thought necessary to introduce been merely annexed to the interrogatories on the cross-examination of Miss Price's witnesses, the Court might have recommended, though it would not then have gone the length of directing the costs to be paid; but as Mr. W. had gone on to plead them with other matter, and examined fresh witnesses in support of that plea, certainly the present prayer for costs could not be acceded to. Miss Price would exercise her own discretion voluntarily to pay them.

Yapp v. Sanders and Others. This was a proceeding relative to the validity of the will of the late Mr. Robert Morgan, late of Camden-street, Islington, deceased.

The will was dated the 5th of October, 1805, and, after giving several specified legacies, bequeathed the residue of his property to a Mrs. Greenough, who resided with him in the capacity of house-keeper, and appointed Mr. Thomas Longford, of Islington, and William Yapp, esq. Lombard-street, executors. The will had, however, been subsequently torn by the deceased, but the pieces were preserved, and it was now propounded, on the part of Mr. Yapp, on the ground that the deceased, at the time of tearing it, was not in a state of mind to know the nature of the act he was committing, and it was opposed by four cousins of the deceased, claiming as his next relations.

It appeared from the evidence' in support of the will, that the deceased had been a haberdasher, but had retired from business to lodgings in Camden-street, Islington. He had called at the office of Messrs. Creswell and Adams, in Doctors Commons, and given instructions for the will, which was accordingly prepared, and on the following day, being the 5th Oct. 1805, he called and executed it. He then took it away with him, deposited it in a bureau in his sitting room, and subsequently made some memoranda on the back of it relative to his funeral, the nature of his property, &c. He was also proved to have entertained a great regard for his house-keeper, Mrs. Greenough, not only for her attentions to himself, but also on account of her having been an intimate friend of his deceased sister. In September 1809, he experienced a paralytic attack, which deprived him of the use of his right side, and affected his speech, and mental faculties. From this time his health gradually declined, and his mental eapacity declined with it, until he was at length reduced to a state of the greatest imbecility, both of body and mind. In this state, on the 6th of June, 1810, having been wheeled in his chair from his bed room into his sitting room, and there accidentally opened his bureau, he took out his will and tore it to pieces, and at the same time threw down some bank notes, one of which was afterwards found within side the fender by the fireplace. Mrs. Greenough coming in, and observing what he had been doing, apprized him of it, but he replied only by a childish S2

Jaugh,

laugh, and soon afterwards burst into tears. Mrs. Greenough communicated the circumstance to some other persons in the house, by whose advice a medical gentleman in the neighbourhood was sent for, and they jointly interrogated the deceased; but to all their questions, though opposite and contradictory, he answered by the same vacant affirmative; and by the general tenor of his conduct completely convinced them of his incapacity. The pieces of the will were then sealed up in an envelope, and preserved in their exact mutilated state, until after the deceased's death, which happened in the month of November, 1813.

No evidence was adduced in contradiction to this, on the part of the next of kin, whose Counsel admitted the sufficiency of the proof to sustain the case of the supporters of the will. They contended, however, that the circumstances of the case were such as not only to justify, but absolutely to call for a solemn investigation before the Court, to satisfy its judicial conscience in giving operation to an instrument presenting itself to notice under such, at least, equivocal circumstances. They trusted, therefore, that the next of kin would be protected in this necessary act of duty, by the Court's directing their costs to be paid out of the estate.

Sir J. Nicholl recapitulated the circumstances of the case, and observed that the act of tearing was, certainly of itself, a revocation of the will, but then it was said to have been done by the deceased when in a state of mind uncon

scious of what he did. The law was clear, that the same degree of capacity was necessary to revoke as to make a will, and the question in the present case was therefore reduced to one fact, whether the deceased was or was not at the time in the state of mind that had been described. He then alluded to the evidence of four of the witnesses upon this point, and observed that they concluded with stating their full conviction of the deceased's incapacity; but they stated the facts upon which they came to that conclusion, and upon the examination of those facts, the Court could not but think that they had come to it rightly. This impression was confirmed by the opposing parties having given no plea to resist the effect of this evidence, and by the evidence of the same witnesses upon their cross-examination.— The will itself contained expressions of the deceased's regard for the person he had made his residuary legatee, for her kindness and attentions to his deceased sister. These attentions, it appeared, were continued to himself down to the very time of his death, and produced, as their natural consequences, the regard which he had often expressed for her. The result of the evidence was, therefore, such as not only to justify, but to make it the duty of Counsel to take the course they had, in admitting its sufficiency for the establishment of the will, by repelling the presumption of its having been torn Animo Cancellandi. An application was, however, made for costs, and made certainly in very conciliatory terms.

But