*[ 452]

out of his pocket, and wrote down some things with ink, some with a pencil, and though it had no conclusion, but appeared to be a draft which he intended afterwards to finish, (for it was not signed, but had at the end a calculation of his effects, an account of his tea-table, and an order to pay a dividend of stock) yet it was held to be a will. Thus too, in a case where a woman possessed of considerable real and personal property, wrote a letter to an attorney, her friend, giving him an account how she would dispose of the same, and in her ignorant way, added, “please not to put this rigmaroll in till I find it correct—this only by way of memorandum in case I should go off suddenly.". And the testatrix survived the writing of that letter three or four months, but took no further steps therein, Sir George Hay was of opinion, that, under the circumstances, such letter could not operate as the will of the deceased; but on an appeal, the Court of Delegates reversed his sentence.

In Cobbold v. Bowes, a gentleman gave instructions to his attorney to prepare his will for the disposition of his real and personal estate. The will was accordingly prepared, settled by the testator, and engrossed for execution with the usual clauses of attestation. This will was of considerable length, and at the lefthand-corner of each sheet of paper was the word witnesses,' Upon the death of the deceased, the will was found with his name subscribed to each sheet, and, opposite to the seal, on the last sheet, but not witnessed. Dr. Calvert, the then judge of the Prerogative Court, was of opinion, that the deceased, by permitting the clause of attestation to remain, had bound himself down to a formal execution, and, therefore, pronounced against the will; but on appeal, the Court of Delegates reversed such sentence, and thereby rendered the will valid as to personal property.(164)

Similar in effect to the case just stated, was that of Wright v. Walthoe, cited in Limbery v. Mason,(g) where there were three testamentary schedules, whereof one was without date; to the second, the words ' in witness' were subjoined; and the third concluded abruptly; yet, being written by the testator, they were

(g) Comyns, 452.

(164) See these cases more at large in a note by the Reporter to the case of Matthews v. Warner, 4 Vez. jun. 200.

declared to be his will. In the same manner, and about the same time, viz. in the year 1711, in a case of Worlick v. Pollet, before the Delegates, where the testatrix had sent for a person to make her will, and given him instructions for the same, and the will was accordingly drawn, read to, and approved by her, and declared by her to be her last will, and three witnesses were sent for to see her execute, the words signed and sealed being already written, but she died before any other execution, it was held a good will before the Delegates, who affirmed the first sentence which had been reversed upon an appeal.

And again, in a cause of Brown v. Heath, determined in 1721, where a will of real and personal estate was prepared in order to be executed, though there were several blanks in it, and the testator died before execution; yet, it was held a good will of the personal estate, and though more was intended to be done, yet it was adjudged that it should be good for what was done.

*But the later determinations at Doctors Commons, seem tend. * [ 453 ) ing to establish a more discriminative doctrine. It now appears to be agreed, that if a testator leaves an instrument, which, upon the face of it carries evidence of an intention in the framer to perfect it by some further solemnity, which he has died without having superadded, having had afterwards sufficient time, and health, and recollection to complete it, such paper may be inferred not to have been intended to operate as it stood, and the omission to perfect it may ground a presumption of a change of mind in the deceased. Thus, in a late case, where a person had written a paper, purporting to be a disposition of his property, to which a clause of attestation was added, but not filled up, sentence, as I am informed, was pronounced for an intestacy upon an inference, from this omission, of change of intention. And, where another person had sealed the paper propounded for a will, without signing it, a similar determination was given upon a similar ground.

To the same effect was the decision in the case of Griffin v. Griffin,(165) determined at the Commons a very few years ago. Richard Griffin executed a testamentary paper, dated 27th September, 1777. On the 18th of January, 1789, he began a paper,

(165) Cited in Matthews. Warner, 4 Vez. jun. 197, note (a) er vid. ex parte Fearon, 5 Vez. jun. 644.

454] ]

and having written no more than the commencement of what he
meant to do, being called away to dinner, he locked up the pa-
per. On the 27th of the same month he died suddenly, while
sitting on the bench as a justice of the peace. The questions
were, whether this unfinished paper was a revocation of the for
mer paper executed in 1777; or, whether it was to be establish-
`ed substantively, and conjunctively with the former paper. It
was determined, that the unfinished paper could have no effect;
the testator having lived eight days after making it, in health and
capable of business; and not having concluded it, the presump-
tion of law, even if there had been no other paper, would have
been, *that he never meant to finish it; or that it was intended
only as a draft for consideration; and the case was still stronger
as there was an executed paper.

The same doctrine is recognised by Lord Eldon, in the late case of Coles v. Trecothic,() who thus expresses himself on the point: "The observation is just, that as to personal estate, if it appear upon the will, that something more was intended to be done, and the party was not arrested by sickness or death, that Of the prin- is not held a signing of the will." It seems, therefore, to be now ciple on understood, that not every scrap of paper which a man writes in which the Courts act in contemplation of death, making mention of intended dispositions receiving or of his personal property, will be received in the Ecclesiastical rejecting informal paCourt as testamentary; but it must appear, and that from the pers as tespaper itself, and not from extrinsic evidence, that the writer tamentary. intended the paper to operate as it stood when it was written, without contemplating any farther act to be done to give to it its perfection and full authenticity; and this intention, every such paper, if it contains dispositions of personal property prospectively to the decease of the party, will be held to import, unless by its mode of expression, or manner of execution, it discloses a suspended intention in the party framing it.

It seems hardly necessary to say, (the proposition being implied in what has gone before) that the paper must appear to be written with the actual design of disposing after death of the property in question. There must be the animus testandi, which is rendered in the Touchstone,(i) by the expressions of "a mind to dispose a firm resolution and advised determination to make a

testament; for it is," says that book, "the mind, not the words, which doth give life to the testament. Therefore," continues the same author, "if a man rashly, unadvisedly, incidentally, jestingly, or boastingly, and not seriously, write to say, that such a one shall be his executor, or have all his goods, or that he will give to such a one such a thing; this is no testament, nor to be regarded."

*Nuncupative revocations of personal wills, deliberatively made and solemnly executed, were likewise an object of special prohibition by the legislature in this comprehensive statute, which, in the 22d section has enacted, that "no will in writing, concerning any goods or chattels, or personal estate, shall be repealed; nor shall any clause, devise, or bequest therein, be altered or changed, by any words, or will by word of mouth only, except the same be, in the life of the testator, committed to writing, and after the writing thereof read unto the testator, and allowed by him, and proved to be so done by three witnesses at least." A remarkable case(k) which happened in Lord Nottingham's time, has been said to have given rise to this clause. Mr. Cole, at an advanced age, married a young woman, who, during his life, did not conduct herself with propriety. After his death, she set up a nuncupative will, said to be made in extremis, by which the whole estate was given to her, in opposition to a written will made three years before the testator's death, giving 3000l. to charitable uses. The nuncupation was proved by nine witnesses. Upon the appeal to the Delegates, from the sentence of the Prerogative Court in favour of the written will, Mrs. Cole offered to go to a trial at law in a feigned action, submitting to be bound by the result. Upon the trial at the bar of the court of King's Bench, it appeared, that most of the witnesses for the nuncupation were perjured; and that Mrs. Cole was guilty of subornation. After that, she applied for a commission of review; which was refused. And, upon that occasion, Lord Nottingham said, "I hope to see, one day, a law, that no written will shall be revoked but by writing."

Such has since been the fate of revocations in respect to testamentary dispositions of personal property. Positive dispositions by nuncupative testaments are not laid by the statute under the same absolute prohibition, but, as Sir William Blackstone observes,(/) the le

(*) Vide Matthews . Warner, 4 Vez. jun. 196, note (a). (1) Comm 2 vol. 500.

[455]

Of nuncupative wills and

revocations

gislature has provided against frauds in setting up nuncupative wills, by so numerous a train of requisites, that the thing itself has fallen into disuse; and it is hardly ever heard of but in the only instance where favour ought to be shown to it, when the testator is surprised by sudden and violent sickness. The testamentary words must be spoken with an intent to bequeath, and, as the same learned writer observes, not in any loose, idle discourse; for he must require the by-standers to bear witness of such his intention. The will must be made at home, or among his family or friends, unless by unavoidable accident; to prevent impositions from strangers: it must be in his last sickness; for if he recovers, he may alter his dispositions, and has time to make a written will. It must not be proved at too long a distance from the testator's death, lest the words should escape the memory of the witnesses; nor yet too hastily and without notice, lest the family of the testator should be put to inconvenience or surprise. To which we may add, that no such will is available, where the es tate thereby attempted to be bequeathed exceeds the value of 301. By perusing the clause at the head of the chapter, or in the statute at the end of the volume, standing first in the Appendix, the reader will at once be possessed of all that relates to this subject; and, by referring to the 2 Ann. c. 16. he will find it thereOf the qualification of by enacted, that "all such witnesses as are and ought to be allowed witnesses to to be good witnesses upon trials at law, by the laws and customs establish a of this realm, shall be deemed good witnesses to prove any nunnuncupative estament. cupative will, or any thing relating thereto."

And of the degree of evidence.

[457]

It is to be remarked, that the words in this clause are, that "no nuncupative will shall be good that is not proved by the oaths of three witnesses at the least, that were present at the making thereof; whereby the construction is excluded, which, we have seen, has allowed the publication of a written will of lands to be established by the proof of any one of the three subscribing witDr. Shallmer,(m) by will in writing "gave 2001. to the parish of St. Clement Danes; and afterwards, Prew, the reader, coming to pray with him, his wife put him in mind to give 2007. more towards the charges of building their church; at which, though Dr. Shallmer was at first disturbed, yet afterwards he said he would give it, and bid Prew take notice of it; and the next

nesses.

(m) Phillips v. the Parish of St. Clement Danes, 1 Eq. Ca. Abr. 404.