Hale v. Tokelove. will of 1842 be not in existence. I think the revocation must stand, though the revival be inoperative; and for this reason, that the intention to confirm the will of 1842 is wholly irrespective of the will of 1845. It is not the case of revoking one instrument consequent and dependent upon the setting up of another. I cannot extract from the codicil of 1846, or even from the res gestæ, an intention that the will of 1845 should prevail if the will of 1842 could not be upheld. The confirmation of the will of 1842 is, I think, a revocation of the will of 1845, whether the will of 1842 be in existence or not. There is, however, still another question remaining behind, and one by no means easy of solution. There is still in existence the draft of the will of 1842. I will presume, for the purpose of fully discussing this case, that it is found that the draft is in conformity with the will itself. It may be doubtful whether it will be for the interest of any one to propound that draft. The bequest to the children of Mrs. Day may or may not be revoked by the codicil of 1846; on that point I give no opinion. But supposing that the draft was propounded, could the court decree probate of such draft? I am not called upon, in considering the admissibility of this allegation, to dispose of that question, and any thing I may now say could not be binding upon the court if that draft were propounded. Perhaps the wisest course would be to maintain silence on that point, which is one, I conceive, of no small difficulty. But looking at the amount of property at stake, I will hazard an opinion, but not a judgment; for, should the draft be propounded, I should hold myself at full liberty to pronounce a decision contrary to my present opinion, if convinced by argument I ought to do so. In whatever way I view this question, it certainly presents to my mind the gravest difficulties, and I most unwillingly encounter them, and only with a hope of saving the parties expense and delay. How stands the case upon the allegation, and according to my construction of the codicil of January, 1846 ? That codicil purports to revive a will destroyed animo revocandi. Of that will probate is impossible. Can I decree probate of the draft? What would be the case if such a will had been accidentally lost, or destroyed sine animo revocandi, I say nothing, for it is not this case. This is the case, according to the plea, of a will destroyed animo revocandi, yet purported to be revived by a codicil; in other words, it is a revival or republication of what is not in existence. Can I decree probate of its draft? I am inclined to think not, for the draft is an unexecuted paper, and not specifically adverted to or recognized by the codicil. I must not be bound by this opinion if further proceedings are had. It is a question, as I believe, primæ impressionis, and of infinite difficulty, and I should be quite ready to change my opinion upon argument, or if facts could be pleaded altering this view of the case. I must reject this allegation, so far as it propounds the will of June, 1845. My present impression is, that the codicils of 1846 are alone entitled to probate. The costs must come out of the estate. Bryan & another v. White. Consistory Court. BRYAN & another v. WHITE.1 August 9, 1850. 1 Vict. c. 26, s. 9- Form of Attestation- Subscribing Witnesses. W. S. died on the 25th of August, leaving two wills, of the 23d and 24th of that month, of a totally different tenor. The will of the 24th had no words of attestation, the subscribing witnesses having merely signed their names: Held, first, that the evidence in the case rebutted the presumptions arising against the latter from the improbability of the two wills on two successive days, and other circumstances. Secondly, that the subscription of the witnesses without any words of attestation was a sufficient compliance with the 1 Vict. c. 26, s. 9. WILLIAM STOKES, the deceased in this cause, was an illegitimate child, born in December, 1791, at the General Lying-in Hospital, in the parish of Paddington, and was afterwards admitted into the workhouse of the parish of St. George, Hanover Square, the overseers of which parish in 1802 apprenticed him, with a fee of 5l., to a chimney sweeper, and for many years before and up to the time of his death he gained his livelihood by carrying messages, cleaning knives and windows, and other occupations, having his usual post, when unemployed, in Gilbert Street, Oxford Street, and by extremely parsimonious habits, he acquired property amounting to about 1000%. He died of bronchitis on the 25th August, leaving two wills, of the 23d and 24th of the same month. The will of the 23d was written and prepared by William Bryan, and after providing for his funeral, and testamentary expenses, and burial at Kensal Green, gave his money," which will be found in a trunk in the room which I now inhabit," to his executors, upon trust to pay 1007. to Joseph Bryan, 50l. to the wife of Joseph Bryan, 100l. to William Ayling and his wife, 50l. to E., Elizabeth, and S. Cottrell, 50l. to William White, 50l. to his godson, Thomas Walters, 501. each to A. Holder, H. Fletcher, and A. Burrows, 30l. to- Pratt, and the residue to the overseers of the parish of St. George, Hanover Square, for the purchase of bread and coal, to be distributed on every 24th December, among the deserving poor of the parish; and he appointed Mr. J. Firm and H. Billiter executors. This will was executed by a mark. It was propounded on behalf of J. Bryan and E. Cottrell, as legatees. The will of the 24th was prepared by the solicitor and in the house of George White, upon instructions given by the deceased himself; and after providing for payment of his debts, &c., proceeded: "I direct a stone, with this inscription, to be placed by my executors, 'Here lies the body of W. S., born 1789, at Watford, Herts. Died ———. ' At foot a stone, at a cemetery, to be kept in good order two or three years at least." He then gave 501. each to Lawton and A. Holder, and the residue to Robert White, whom, with Thomas 1 14 Jur. 919. Bryan & another v. White. Henson, he named executors. This will was signed by the deceased with his name, "Stokes, +" The witnesses, the solicitor, and Thomas Henson merely subscribed it, and there was no attestation clause of any kind. It was propounded on behalf of Robert White. Sir J. Dodson, Q. A., and Bayford, in support of the will of the 24th, submitted that the evidence of the subscribing witnesses proved the due execution, and that of the surgeon who attended the deceased the capacity. Addams, in support of the will of the 23d, relied upon the great improbability arising from a second will, of a totally different tenor, being executed on the very day after the execution of the former will; the suspicion which the preparation of the will by the solicitor, and in the house of the residuary legatee, threw upon the whole transac tion; the fact that the will of the 24th purported to have been signed by the deceased, whilst it was in evidence that the deceased could not write; and that the words "born at Watford, Herts," could not have been used by the deceased, who knew, and always admitted, that he was born at Paddington. He then contended, that some form of attestation was necessary, although the words of the 1 Vict. c. 26, s. 9, were, that "no form of attestation shall be necessary." That must mean no peculiar form, but still some words showing the presence and attestation of the witnesses were required; the mere subscription of the witnesses did not satisfy the statute. The reply was, by the direction of the court, confined to the last point. The words of the statute are, that the witness "shall attest and shall subscribe," and that "no form of attestation shall be necessary," the latter being in the negative. Then what the statute requires is, attestation as a mental act, subscription as a manual act; the witness is to subscribe in token that he has attested. Attestation without subscription, or subscription without attestation, will not be sufficient; but directly you have both, the clause dispensing with a form of attestation comes into effect. Supposing the words "that the witness shall attest," and nothing further, the witness might come and give his evidence, and that oral testimony would be enough. But the statute requires subscription; then if the witness subscribes, he has complied with the statute. But if the argument on the other side is good for any thing, it will go to this that there must be one and the same settled form in all cases; for there is no distinction between no clause and an informal clause. DR. LUSHINGTON. Mr. Registrar, has any doubt been entertained in the registry, in cases where an attestation clause was wanting, whether the will was entitled to probate on the affidavit of the subscribing witnesses, stating the will to have been duly executed? [Registrar. None, sir.] The point which has just been raised is, no doubt, of considerable importance, and if I entertained any doubt upon the subject, I should Bryan & another v. White. take time before I delivered my opinion; but as in my judgment a will signed by the testator, and subscribed and attested by two witnesses, may be valid, notwithstanding there may be no attestation clause, I am desirous of expressing my opinion at once, as it might be productive of mischief if it were supposed that the court had any hesitation upon the matter. The construction which Dr. Addams puts upon the last words in the 9th section of the statute is, that the words "no form of attestation shall be necessary" mean, not that there shall be no form at all, but no peculiar form. The effect of that would be, that there might be forms, not importing all the requisites of the statute, but deficient in one or another respect, about which doubts would constantly be raised, and we should come at last to the question whether any form, except some one particular form, was sufficient. But I apprehend the true intention of the legislature was to have the essence of execution, a signing in the presence of the witnesses, and to add as little as possible to formality, in order to prevent litigation. It is said the witnesses shall attest and shall subscribe; and I am asked what is meant by attest? The meaning is, that the witnesses shall be present, and shall see the signature of the testator. In Hudson v. Parker, 1 Robert. 26, it was manifest that the witnesses did not see the signature, and there was no proof that the signature was on the paper at the time. The next and the principal question in the case is, whether the will of the 24th August is the valid will of the testator; and that question must resolve itself into this, whether the subscribing witnesses have or have not been guilty of perjury, for it is not a case of deficit probatio, in which the court can say that the witnesses have merely exaggerated the facts, or that the testator was not in a fit state of mind. The evidence of the solicitor who prepared and attested the will is false, or the paper is good. What are the circumstances which should induce the court to disbelieve the evidence? The deceased was an illegitimate child, who, by saving and otherwise, accumulated a considerable sum of money for his situation. He appears to have been shrewd and cunning, had little or no education, but was fully capable of protecting himself. He was a job porter, employed in going upon messages, beating carpets, and other jobs, and lived in a cellar in a street near Grosvenor Square. He died of a complaint in his throat, at the age of fifty-eight, on the 25th of August in last year, and the wills before the court are dated on the 23d and 24th of the same month. What was his state of mind on these three days? The surgeon who attended him says he was of obtuse intellect, and below par; but other persons who knew him say there was no deficiency of intellect; and the surgeon himself says that he was on the 25th as perfect in his mind as ever he was; and it is clear from the whole evidence that he was on the 24th as competent as ever, and his faculties as alive, to the making a will, which, from what had taken place on the day before, was no novelty to him. He was on terms of friendship with several persons, from whom he had received kindnesses, but it does not appear to me that Bryan & another v. White. there was any one in particular who had a superior claim upon him, and I doubt whether he ever intended giving his property to one person rather than another; for what debt of gratitude could he have to the parish of St. George, who had laid out 51. for him in binding him to a chimney sweeper? And yet, by the will of the 23d, after giving various legacies, he leaves the residue to the overseers of the parish of St. George, having no notion of any one else to whom he could bequeath it. The will of the 23d of August was written by Mr. Bryan, whose father and mother take 150l. under it, but I see no reason for saying that there was any thing like a fraudulent proceeding in any part of that transaction; and on the very next day another will is made, against which I see no very great improbability, beyond that which arises from the making one will on one day and another on the following day. Certainly, where a will has been made many years, and from time to time fresh wills of the same tenor are made, there the change of disposition, by a new will made on a sudden, may give rise to some doubt; or if in this case the property had been given by the will of the 24th to persons who had not equal claims upon the testator with those who were to take under the will of the 23d; but here there is no such great improbability. White, the residuary legatee in this latter will, stands on the same footing with respect to the testator as any of the other legatees. True, he may have used his influence in procuring that will; but the mere exercise of the influence which one friend has over another, without fraud, will never vitiate a duly executed instrument. To come to the act itself. The solicitor who drew the will is the solicitor of the residuary legatee-a circumstance which would excite the vigilance of the court, but is not sufficient alone to raise suspicion. It is not necessary to repeat his evidence, but it is to this effect: that having been spoken to by White, he saw the testator, and, having taken the very proper precaution of sending White away, took his instructions, when the tes tator, having given him the names of two legatees to the amount of 501. each, whose names never would have occurred to the solicitor if the will were a forgery, told him he intended the residue for White. It is surprising that he should have named none 1 of the legatees under the will of the 23d. He may have changed his mind, but the court is not bound to inquire into the reasons or the causes of the alteration. Great stress has been laid upon the words "born 1789, at Watford, Herts;" and it is said the deceased never could have directed them to be used, because he knew he was born in Paddington. And certainly one witness says that the deceased used to tell him he was born in Paddington; another witness, however, deposes that the deceased said he was born at St. Alban's, which is in Hertfordshire. But, however the case may be, I cannot attach any fraud to the use of those words; for what possible purpose of fraud could they have been inserted to answer? If it were a question of capacity, some slight ground for argument might be found in these words; but even 1 A. Holder took 50%. under both wills. |