But the Court must be on its guard against being led into any undue indulgence in the exercise of its power in this respect: a power so rarely called into action, that it was hardly known to exist until so declared by a recent decision of a higher tribunal. It was to be considered, whether the opposing parties in this case had done nothing more than what they could not possibly avoid; but he apprehended that they had. Affidavits as to the particular circumstances of the case might have been filed, with proxies of consent from the next of kin, which would have been sufficient for the probate's passing in common form: but the parties had thought fit, for their own satisfaction, to put the executor to the proof of the will in a more solemn form; they had certainly the right of doing so, but then it was to be exercised on their part, at their own expense. There was yet another consideration, that though the parties were in a humble sphere of life, yet they had, under the will, a fand, out of which their expenses might very well be paid: there was a legacy of 1000l. 3 per cent. consols. bequeathed amongst four of them; so that to accede to the present application, would be, in effect, to condemn the residuary legatee in costs. The will was, therefore, pronounced for, and the application for eosts rejected, leaving it to each party to pay their own costs.

PREROGATIVE COURT, DOCTORS'

COMMONS.

Chalmers v. Catherwood and Others. This was a question upon the

admissibility of an allegation pleading two testamentary papers as codicils to the will of William Looker, formerly of Great Carter-lane, Doctors' Commons, but late of Islington, and belonging to the Excise-office, deceased.

The deceased had duly executed his will, dated 18th of July, 1807, and by it disposed of his property amongst his family, to the exclusion only of his eldest son, Henry William Looker.

The first codicil, dated 20th of April, 1810, was merely a recog nition of his having in his will intentionally omitted the name of his eldest son, and, in compliance with the vulgar notion, gave him one shilling lest he should dispute the will. To this codicil there was a clause of attestation, but no witnesses.

The second codicil purported to express an intention of making several alterations in the will, the principal one of which was, to leave the testator's daughter 100l. per annum, and his house and furniture for life, stated his being described of two different places of residence in his different stocks at the Bank, which would render it necessary to specify both when the alterations should be made, and concluded with various other memoranda as to the power of trustees, the mode of substituting others for such as might die, the amount and particulars of this stock, &c. This Codicil was without date, but signed by the deceased.

The 3d codicil consisted of some memoranda in pencil, on the back of the 1st, to the same effect as those on the 2d; and there were also some other papers or meme

rand

randa, (one of which was taken out of the deceased's pocket-book) expressive of an intention of making similar alterations in the will. The allegation now offered in support of those papers pleaded the contents of the will as far as regarded the exclusion of the eldest son, and the bequest of an annuity of 921. with certain parts of the furniture to the daughter during life, the deceased's signature to the first codicil, and handwriting of the whole of the second, and his having kept them in his desk at the Excise office, until within a short time of his death, when he brought the will and first codicil home, and they were afterwards found in a chest of drawers, sealed up in an envelope, and the second . codicil loose in his desk. It also pleaded several parole declarations of the testator to the effect of the alterations in favour of his daughter, and his general capacity until his death, which was occasioned by his being run over by a carriage on the 24th November, 1814.

The admission of this allegation was opposed on the ground that the circumstances detailed in it were not sufficient to rebut the presumption of law arising from the appearance and import of the papers themselves, that they were merely memoranda and sketches of alterations to be subsequently made in his will, and never intended by the deceased to operate in their present imperfect form.

Sir John Nicholl observed, that the general principles upon which unexecuted papers brought before the Court were to be considered, were too well known to require detail. It was sufficient to say, that the presumption of law was

always against them, and that it must be shewn, in the present case, that the deceased had made up his mind to the revocation of the will which they purported to revoke. He then described the nature and purport of the papers, and of the allegation in support of them, which, he observed, stated but little in explanation of them; and it was, therefore, evident, that the case must depend principally upon the appearance and nature of the papers themselves. The will was a very formal one, and had all the appearance of having been drawn up by some professed man. The deceased must, there fore, have been well aware of the modes in which a testamentary disposition should be drawn. The first codicil, being of no legal effect, would be sufficiently disposed of under the general rule of law, which presumes every unfinished paper not to be intended to operate. The second codicil was a mere draft or sketch of one to be prepared, if subsequently approved of; and the third, written in pepcil on the back of the first, was evidently a mere memorandum. He inclined therefore to the view of them taken by the counsel in objection, and considering them as wholly inoperative, established the will, but pronounced against the codicils, and rejected the allegation.

Higgin and Harrison, v. Harrison.-This was a similar question upon the validity of a testamentary paper, pleaded as a codicil to the will of William Parke, Esq. formerly of the Hermitage-house, Jamaica, but late of Gower-street, Bedford-square.

The

The deceased had, whilst in Jamaica, duly executed his will, appointing his brother, Charles Parke, Esq. and John Higgin and George Harrison, Esqrs. executors and guardians of his children.

He afterwards came to England, and resided in Gower-street, Bedford-square, where he died suddenly, being found dead in his bed on the morning of the 27th of April, 1813. Search being made by the executors, they, in the drawer of a book-case, found a marble covered book with a piece of paper round it, fastened by wafers, on opening which, they found it to contain in the deceased's handwriting a copy of the will in Jamaica. Eleven other papers were found in the same drawer, three of them tied up with the copy of the will, and the rest loose. These papers being all in a very informal and imperfect state, and several of them operating to the prejudice of three of the defendant's children, who were minors, the executors deemed it necessary to take the opinion of the Court upon their validity.

An allegation was, therefore, now offered on the part of Samuel Baldwin Harrison, Esq. the executor named in one of them, plead ing the circumstances before stated, with the addition of certain declarations of the deceased to Mr. Harrison, to the effect of the alterations which the papers alluded to, but which he delayed, first, until he had seen his professional advisers, and afterwards until the arrival of a friend from Jamaica, which never occurred.

The same objections were urged to those papers as in the last case;

and Sir John Nicholl was of a similar opinion as to their being merely memoranda, contemplative of some future testamentary disposition, but never intended to operate in their present form. He therefore pronounced against them, rejected the allegation, and granted the probate of the will only.

Hendy and Hendy, by their Guardians, v. Hendy and Others.-This was a proceeding relative to the validity of the will of Thomas Hendy, late of the Haymarket, deceased, which was propounded on the part of Thomas and Charlotte Hendy, minors, two illegitimate children of the deceased, and the residuary legatees named in it, and opposed by William Hendy, the deceased's brother. The widow and the other brothers and sisters were also cited to become parties to the proceedings, but did not appear.

It appeared, that the deceased was a master carman in the Haymarket. He died on the 11th of January, 1814, leaving a widow, from whom he had been separated for many years, and several relations. He had also two illegitimate children, who resided with him, and possessed a considerable portion of his regard and affection, one of whom is since dead. He had repeatedly declared his intention of providing for them by will to Mr. John Darbon, of Kingstreet, Marylebone, and other friends of his; and accordingly, some time in August, 1813, made his will, in his own handwriting, appointing Mr. Darbon to be executor, and giving him all his property,

property, in trust for the two children, with the exception of two guineas to himself for a ring, and a legacy of 201. to his wife. About the latter end of August, being very ill, he sent for Mr. Darbon, and upon his entering the room, took the will from a small drawer or desk, and delivered it to him, saying; "I will be obliged to you to take care of this instrument, which is my will, and put it in your iron chest, for in case of my death my drawers might be ransacked." It was enclosed in an envelope, sealed with a masonic seal, and addressed, to "Mr. John Darbon, wine-cooper, Marylebone-street, Golden-square. The Will of Thomas Hendy." Mr. Darbon accordingly deposited it in his iron safe, where it remained until the deceased's death. On the morning afterwards (12th of January) Mr. William Hendy, the brother, having called upon Mr. Darbon, he returned the call, taking with him the will, and a letter he had received from the deceased in the November between the making of the will and his death, to this effect:-" Mr. Dar"bon, I have seen my brother, "William Hendy, with whom I "have had a great deal of talk "respecting the two children. I "would wish you to take him by "the hand, he being a man of "business, and having more time "to spare than you, and he and "his wife will take the children "under their care. This, I beg, "in case of my dying. I remain,

your's, sincerely, Thomas Hen"dy." Mr. Darbon read this letter and the will to Mr. William Hendy, who expressed great dissatisfaction at thein, and, pretend

He

ing that he did not rightly understand them, desired that they might be read again, which, whilst Mr. Darbon was doing, he suddenly snatched them from him, and refused to return them; observing, with an oath, that “ra"ther than return them, he would "suffer himself to be hanged.” Mr. Darbon returned home, and whilst the contents of the will and the letter were fresh in his memory, reduced them into writing, and these papers were exhibited properly verified on oath. then went with a police officer to Mr. Hendy's, who denied all knowledge of the will and letter. He was taken before the Magistrates at Marlborough-street, but persisting in his denial, was bound over to answer for the assault at the Quarter Sessions. He had afterwards several interviews with Mr. Darbon, in the course of which he acknowledged that he had destroyed the papers, expressed the greatest contrition for his offence, and intimated his intention of destroying himself. Mr. Darbon represented to him the dreadful nature of such a crime, but in vain, for a few days afterwards he threw himself into the Thames, having previously made an ineffectual attempt upon his life with a pistol. The rest of the evidence went principally to prove that the will had been in existence, by persons who had seen it in the possession of Mr. Darbon, sealed and endorsed in the manner described, and that the deceased had often expressed himself in terms confirmatory of it and its contents.

Nothing was offered in opposition, and

Sir John Nicholl, alluding to the

the leading circumstances of the case, was of opinion that they were fully proved, and he had therefore no hesitation in pronouncing for the validity of the substance of the will, as contained in the affidavit of the children's guardian. He also observed that Mr. Darbon had acted in a manner highly creditable to himself in taking the active part he had to obtain justice for the children under circumstances certainly of some difficulty.

Shadwell and Shadwell v. Shadwell. This was a question on the admission of an allegation, pleading certain alterations in the will of Lancelot Shadwell, Esq. late of Lincoln's Inn, and Upper Gowerstreet, Bedford-square.

It appeared that the deceased was an eminent conveyancer, and died on the 1st January last, possessed of various estates and of personal property to the amount of about 23,000l. He left a widow and thirteen children, seven by his former wife, and six by the last. He had, on the 5th of February, 1802, duly made his will, attested by three witnesses. Several alterations, however, had since taken place in his family circumstances. Four children had been born, two of whom are now living his eldest daughter had married against his wishes: two of his sons had died abroad, and the nature of his property was much altered. He had in consequence repeatedly expressed his intention of altering his will, particularly on account of his daughter's marriage; and one day when at his country house at Plaistow,

said he was going to town for that purpose, and on his return said he had made the alterations he intended. After his death one of the wills of Feb. 5, 1803, was found in a closet of which he kept the key, amongst other papers of importance, with several alterations on it in the deceased's handwriting, such as the striking through the amount of some of the legacies, and the names of some of the children, and substituting others, and confirming another will he had made, merely relating to some trust property in his name at the Bank.

The admission of the allegation pleading these facts, was opposed, on the ground that they were not sufficient to repel the presumption, that the alterations were deliberative merely, and not intended to operate by the deceased; and in support of this argument, the counsel relied much on the circumstance of the deceased being the eminent conveyancer he was, in consequence of which, as they contended, he must have been so alive to the consequences of having his will in so imperfect a state, as to render it very improbable that he shouid do so if he really meant the alterations upon it to take effect.

Sir John Nicholl thought a very different inference was to be drawn from the professional knowledge of the deceased. He knew very well that mere verbal alterations would be sufficient as to any bequests of personal property; and it was very likely that he who was so much engaged with the business of others should (without meaning to cast any reflection on the memory