part being filled with the appointment of the trustees; that the testator not being a man of education, wished to have the aid of Atkinson, merely as to style and orthography; but that he signed in a clear strong hand, and wrote in the date in words at length. It was admitted that the writing by a legatee is always a circumstance proper to awaken the vigilance of a Court, as to the necessary proof of execution and capacity, but that at Common Law if these be proved, the party setting up the will has discharged his burthen of proof; and it was denied that the cases cited, had shewn any different rule to prevail in the Ecclesiastical Courts; that indeed the fullest proof of execution and capacity must give way to positive proofs of fraud; but that the burthen of proving fraud lies strongly on the party suggesting it; that what is said of the 30001. is merely loose inference, from words not technically used, and in a transaction not clearly before the Court; that at all events there is nothing to show that the testator himself did not consider this sum as an ultimate gift, and that it would be contrary to all justice to build upon a vague conjecture a charge of fraud so deeply involving the character of a person who, upon the evidence, stands high in point of respectability. That even if it were necessary to corroborate the proof of execution and capacity, by specific proof of knowledge of the contents of this codicil, the case supplied such corroboration; for it was in evidence that the testator was fully aware of having appointed the trustees of the cha

rities, which was done by this codicil; and it would be absurd to say that he had a sufficient capacity to understand the lower half of a paper lying open before him, and not to understand the upper half, when he executed the whole as his will in the most deliberate and formal manner.

After the arguments on both sides had been fully gone through, the Court adjourned for a week, and reassembled on Wednesday last, when, after remaining four hours in deliberation, they declared as before, that they were satisfied of the validity of the will, and all the codicils except the third, but being equally divided on that they gave no judgment.

Doe, dem. Barford v. White.Mr. Serjeant Blossett moved for a new trial of this ejectment before Mr.J.Heath, at the last Cambridge Assizes, on the ground that the birth of a child after the death of the husband, the wife being then four months pregnant, unknown to herself and her husband, operated as a revocation of the husband's will. The rule of law is, that marriage and the birth of a child impliedly revoke a bachelor's will; but in the case of Shepherd v. Shepherd, in the Prerogative Court, it was held by Dr. Hay, that a married man's will shall not be set aside by the birth of children. In the case of Doe v. Lancashire, 5 T. R. 49, it was held that marriage and the birth of a posthumous child amount to an implied revocation of a will of lands made before marriage; but in that case the pregnancy was known to the husband.

The court sanctioned the opin

ion of Mr. J. Heath, that this was no revocation of the will; this was a step beyond Doe v. Lancashire; and it would have been better if the law had held only that marriage should operate as an implied revocation of a will; that was such an alteration of the relations of a man, as might reasonably be supposed, to revoke his will; but there would be no end to revoking it upon the birth of every new child: besides, a husband might intentionally suffer his will to stand, from a suspicion that the child with which his wife was pregnant was not his. And Lord Ellenborough mentioned an instance of a sailor who, having early in life left his whole estate to a woman of very ordinary rank, went abroad and married a lady of fortune, and at last died possessed of a very large estate, which went to the woman in whose favour he had first made his will, notwithstanding he had acquired the greater part of it by marriage.

Taylor and others v. DiplockThis was a question as to a grant of administration of the effects of Job Taylor, late staff or quartermaster-serjeant in the Royal Artillery, deceased. He had made his will, appointing his wife, Lucy Taylor, sole executrix, and sole residuary legatee. Having been for some time in Portugal on foreign service, he was returning with her on board the Queen transport, when the vessel, in Falmouth harbour, struck upon a rock, owing to the violence of the weather, and sunk almost immediately afterwards. Nearly 300 persons on board perished, and

amongst them Taylor and his wife.

Taylor died possessed of property to the amount of about 4000l. and a bill in Chancery was filed by the next of kin of the wife against those of the husband, to ascertain who was entitled to this property, but the proceedings were at a stand for want of a personal representative of the husband. band. Both parties, therefore, applied to the court for letters of administration generally, or that the court would suspend granting them to either party during the dependence of the Chancery suit, and in the mean time grant to a nominee an administration limited to the purpose of substantiating the proceedings in that suit. This latter prayer was, however, abandoned, on understanding that the court could not grant a limited administration where a general one might be granted, and was applied for; and the present question, therefore, was, to whom the general administration should be granted,-whether to the next of kin of the husband as dying intestate, his wife not having survived, so as to become entitled under his will, or to the representatives of the wife as his residuary legatee, she having survived so as to become entitled in that character.

It appeared, from the affidavits exhibited on both sides, that at the time the accident happened, Lucy Taylor was below in the cabin, and her husband on deck. The water was rushing in fast, and he offered large sums to any one who would go below and save her; but finding none would venture, he descended himself, and the vessel immediately afterwards

went

went to pieces. The bodies of Taylor and his wife were found close together, and it further appeared that she was a woman of a very robust constitution, and in the habit of enduring great fatigue by her management of the officers' mess, as well as that of a great many of the soldiers, whilst he was rather sickly, and had been latterly much afflicted with an asthma.

It was contended on the part of the husband's next of kin, that by the principles of the Roman civil law, which had been adopted into the law of this country, and were in fact the only principles governing a case of this kind, it was laid down that where two persons perished together in a common calamity, and it became a question which of the two was the survivor, the presumption of law should always be in favour of the person possessing the more robust constitution and greater strength, as being thereby the better fitted to struggle with the difficulties of his situation, and resist for a longer time the operation of death. Thus where the father and son shall perish together, the presumption of survivorship is in favour of the son, if above the age of puberty, but of the father if under; the same as to a mother and daughter; and as to husband and wife, the presumption is in favour of the husband. This, however, like all other legal presumptions, was liable to be repelled by evidence to the contrary; but in this case it was contended, from the situation of the wife at the time the accident happened, it was most probable that she had perished before her husband descended to her VOL. LVI.

rescue. Upon both grounds, therefore, of principle, and of fact, the court must conclude, that the husband was the survivor, and accordingly grant the administration to the next of kin.

On the part of the wife's next of kin, it was contended, that the presumption of law alluded to was only applicable to cases where parties perish together, in such a manner as to preclude the possibility of obtaining any evidence as to which of them was the survivor. Where, however, evidence as to that fact was produced, as in the present case, the case must be decided upon that evidence only. Here it appeared that the parties had perished by the same accident, and their bodies were afterwards found together, and that the common course of nature had, in this instance, been inverted by the wife being the more strong and robust of the two. The court must, therefore, necessarily conclude that she was the survivor, and accordingly grant the administration of her husband's effects to her representatives.

Sir JOHN NICHOLL observed, that this case presented itself for decision under very singular circumstances. He recapitulated them, and observed, that the question as to the administration had not been gone into; but that with respect to the general administration, the counsel had argued upon the legal presumption of survivorship, and whether or not that presumption was sufficiently repelled by the facts in evidence. He agreed in the doctrine that had been laid down, of the presumption being in favour of the husband, but it was a necessary T

preli

preliminary question upon whom the burthen of proof rested. The administration to the husband being the point in issue, his next of kin had prima facie the first right to it; but there being a residuary legatee, this right became superseded. The parties claiming under this latter character were not residuary legatees themselves specifically, but merely derivatively fom one who was. They were, therefore, one step further removed from the property. The presumption of law was certainly always in favour of the heir at law with regard to freehold, and equally so of the next of kin with regard to personal property; the statute of distribution disposing of an intestate's property amongst his next relatives, solely upon the presumption that such was his intention, unless the contrary should be expressed. It was therefore incumbent upon the representatives of the wife, in this case, to prove her survivorship, as the party in whom the property vested, and from whom, in consequence, they derived their claim to it. He then entered into an examination of the facts in evidence, and was of opinion, that they were insuflicient to repel the presumption of the husband's having survived the wife, which the court was bound to assume from the circumstance of their having been overwhelmed by one common calamity, and perished together; observing in particular, that though the wife might be very active and laborious in her domestic duties, yet the nàtural timidity of her sex might prevent exertion in the moment of danger, whilst the husband,

on the other hand, though abouring under the bodily affliction of an asthma, might still retain his manly firmness in resisting impending destruction, particularly as, from his situation in life, he must have often faced death in various shapes. He was therefore in no degree satisfied by the proofs in the cause that the wife survived the husband, and should therefore decree the administration to his next of kin. In thus deciding the law, however, he did not mean to affirm positively which of the two was the survivor, but merely that there was not sufficient proof that it was the wife, to repel the presumption of law that it was the husband. The administration was accordingly granted to the husband's next of kin.

The Attorney-General v. Mills and Freeman. This was the second ar gument before the Lord Chancellor in this case, which came before his Lordship in appeal from his Honour the Master of the Rolls. The point in argument was this: a testator devised the residue of all his effects for the purposes of promoting the propagation of the Gospel in foreign parts, and in England, for bringing up clergymen as missionaries, and such other charitable purposes as he should thereafter by any codicil appoint. No such appointment, however, was made; and, therefore, the question was, whether, by the ancient rules of law, the Crown could supply the appointment, by nominating some other charity to participate with the two which the testator had specified, so as to exclude his next of kin. His Honour pronounced

a decree