queaths the bulk of his fortune to her: it is a mere codicillary alteration, and it is extraordinary that it was not done by a codicil only. The destruction, then, of this latter document bears the inference that he merely meant to revoke the legacy, and then to revert to the former disposition exclusively in favour of his wife. That he considered both wills revoked, and purposed to die intestate, is, on reference to the acts done, in no degree, to my judgment, the correct view of the probable intention, nor the prima facie presumption. I should, therefore, be much disposed to hold, on considering the papers alone, and if no corroborating circumstances were adduced, that the will of November 1824, had revived. But it is admitted, that all such cases are questions of intention to be inferred from circumstances, and that extrinsic evidence is let in. It is hardly possible but that some facts, bearing upon that question, must exist; or that a case should ever arise resting only on the legal presumption. If it could be shown that he intended to revoke this will, and to die intestate, there is no rule of law that excludes such proof; nor, on the other hand, would a party be precluded from showing that, by the destruction of the latter will, the deceased proposed to re-establish the former. Accordingly, in this case, both parties have gone into evidence of intention, and the result of that evidence leaves no doubt upon my mind, that Lord Kirkcudbright believed and intended that the former will should remain valid.

It is true, that unhappy differences arose between the deceased and his wife, occasioned-not by unfounded jealousy, and violence of temper, on her part-but by profligate and insulting adultery, on his part, with his own servant, in his own house. But, notwithstanding these differences, and quarrels, he makes his will in November 1824, giving his whole property to his wife; and, though he tells his solicitor that he will delay the execution in terrorem-to induce Lady Kirkcudbright to acquiesce in his adultery-I cannot attach much importance to this fact as spoken to by Mr. Squire, since he does execute it, himself carrying it to a tradesman's, and getting witnesses to attest it. There was, therefore, a deliberate and decided intention to give his property to his wife; and the fresh will is as slight a departure as can be, from the original one. It appears also, that, with his propensity for other women, still he was much attached to Lady Kirkcudbright, even when he quitted her society; for, though in May, 1825, because she would not patiently submit to this adulterous intercourse being carried on in his own house, he actually separates himself (a), and goes off to London

(a) On the 4th Session of Michaelmas Term, 1827, an allegation was tendered on the part of Lord Kirkcudbright, pleading, that in the course of 1825, the deceased gave his solicitor instructions to draw up regular articles of separation between himself and Lady Kirkcudbright: the Court, however, rejected the allegation upon the following grounds:

Per Curiam.

In this cause four allegations have been already given in, and publication would have passed on the first session of this term, if it had not been stopped by the as sertion of the present allegation. In this advanced stage of the cause, the Court would not admit a plea unless it were sworn that the facts intended to be alleged were, not only noviter perventa to the knowledge of the party, but that he was advised that they were material and important to his case. The affidavit, brought in to induce me to admit this allegation, is deficient in this latter point; nor does the Court wonder at the omission, when it looks at the history as detailed in the pleadings and papers already before the Court.

After stating the facts as detailed in the judgment, the Court proceeded:

with his cook-maid, and lives with her for two years, from lodging to lodging; yet he writes affectionate letters to his wife; sends her the newspapers; speaks of her most tenderly; pays her many little attentions; occasionally even goes down to Southampton to visit her; writes with a power of attorney to his friend Rudd, who manages his affairs, expressing his wishes for the comfort of his wife-" her convenience and comfort constitute the principal anxiety of his heart:" at last he gets tired, or sick, of his scandalous life, and becomes anxious for a reconciliation, and to return home. Under these feelings he makes a strange proposition-(for he is proved to be very eccentric though clever) that he should again cohabit with his wife; and bring back this very servant, under a solemn promise of having no further connexion with her: but, on his lady very properly rejecting that proposal-and, if he had any good sense, or feeling, he must have acquiesced in the moral tone of mind that rejected such an insulting offer he gives it up; says, he likes her the better for it; and, at length, on Good Friday, April the thirteenth, 1827, he returns to his home, and to his wife. He was then in extremely ill health, suffering under an attack of inflammation in the chest. On his arrival, he was very kindly received. Sargant's account of her quarrelling with him after dinner, and, again, the next day, and of her neglecting him, is so inconsistent with the other evidence as to be entitled to no credit. She attended him to the warm bath that evening, and paid him all possible attention. It so happens that Rudd saw them there together:

"She was, he says, assisting him to undress when he, the deponent, went in. The deceased observed to him, that he was glad he was come home, and addressed Lady Kirkcudbright in a kind and familiar manOn that occasion, therefore, this witness perceived no want of cordiality between them. On the following day she was equally attentive and affectionate-she pressed Mr. Maul, the surgeon-who had some reluctance from the course of life Lord Kirkcudbright had pursued to attend him. On the Sunday, in Maul's presence, the deceased expressed his gratitude to her in these terms:

"He was afraid he should not live long enough to make her amends for the kindness she had shown him;" and Maul adds, "that the expressions struck him as singular, for he, the deceased, was not accustomed to acknowledge attentions from any one:"-and the next morning he was found dead in his bed. Here, then, is the fact of this return home and the renewal of conjugal kindness, in support of the conclusion drawn from the nature and contents of the papers.

In respect to these wills, the deceased had, in 1824, deposited his iron chest and writings with Rudd; and, in 1825, the will-the subject of the present suit was also sent to Rudd by a servant, in a packet sealed

That differences did exist in the spring of 1825, there is no doubt;—that Lord Kirkcudbright actually withdrew from his wife, and cohabited with Bicknell, and that he made a will giving her 500l., but in all other respects confirming his former will, admit of no question; after these facts are established, that articles of separation were prepared, but subsequently abandoned, cannot weigh a feather, nor carry the case one step further. It cannot be worth while again to open the suit in order to introduce matter of such extremely trivial importance. I shall probably consult Lord Kirkcudbright's interest in not allowing this plea to go to proof; but, whether this be so or not, it is my duty to the other party to reject it; and I reject it accordingly, and decree publication to pass. Allegation rejected.

with Lord Kirkcudbright's arms. was sent by the deceased, or by Lady Kirkcudbright; but the deceased There is no direct proof whether it was at Southampton at the time, or had only just left it; and it was more. likely to have been sent by him, as Rudd was his own confidential agent. It is not probable that it was sent without his privity, notwithstanding the declarations of Lady Kirckudbright to the Eames', supposing those declarations to have been accurately recollected; still less probable is it, that he was ignorant of its existence in an uncancelled state-indeed it is proved that he was always aware of its existence, because he told Squire that if it had been in his custody, he would have destroyed it; and the very case set up admits this; for it is averred that he wished to obtain possession of that paper in order to cancel it, but that his wife would not deliver it up. This fact of his knowledge is most material.

It is said that there were declarations made by him when he executed the second will, that he would have destroyed it; but, first, no reliance can be placed on his declarations; and, secondly, the question is not what he intended when he executed, but when he destroyed the second will, knowing the first to be in existence. Counsel however have argued, that if he had destroyed it, it could not have been revived-but is it clear that he would, in that case, have destroyed the second will, without executing a new one; or, knowing of the existence of the former will and wishing it not to take effect, can there be any reason to doubt that he would have executed a short revocatory instrument, either making a new disposition or declaring that he meant his property to go according to law. Now in regard to the revival of the latter will, continued affection alone would perhaps not be sufficient, but instead of this the evidence is, that he declared his brother and sister should never have any of his property; that he was saving all he could to make his wife comfortable, as he told Eyton, and, more particularly, his friend Ross, who thus deposes:

"He often heard deceased declare that he meant to leave the whole of his property to Lady Kirkcudbright: he used to say that his brother and sister should never be a shilling the better for him, but that my Lady (as he sometimes called Lady Kirkcudbright) should have the whole: upon one occasion, in the latter part of November, 1825, the deceased, alluding to the deponent's having recently sent her ladyship some wine by his order, observed, that he hoped it was of the best sort, as it was for her own drinking,' and he also, upon the same occasion, spoke of the manner in which he had endeavoured to secure his property to her as hereinafter deposed.'

Now the way in which he does hereafter depose, is on the ninth article:

"That in all his communications with the deceased [and he was very intimate with him], both in June, 1825, and in November following, the deceased's general manner of speaking of his connection with Charlotte Bicknell was such as to indicate regret, not at the intercourse itself, but only as being the means of keeping him in a state of separation from Lady Kirkcudbright; and he always understood from the deceased, that it was his intention such connection should not deprive Lady Kirkcudbright of any of the advantages he intended her to have under the will, which he spoke of having made as before deposed:"-that is, the will of November, 1825.

VOL. III.

19

In a further part of his deposition Ross says:

6

"Bicknell was present, when the deceased, speaking to deponent, observed, in consideration of Charlotte's good conduct and kind treatment, I have settled 500l. upon her; she knows it to be the case, because she has seen the instrument duly prepared by a legal man,' or to that effect: deponent observed, he thought the deceased had behaved very handsomely,' and Charlotte Bicknell acquiesced in some manner, in what he said. She afterwards left the room, and then deponent inquired, how he had settled the said 5007.?' The deceased replied, you don't take me to be such a fool; it's all fudge; I merely said so to please the girl, and prevent her from relaxing in her attentions to me; I had a paper prepared by a legal man to give it the air of reality, and make her mind satisfied.' He then gave deponent to understand that he either had destroyed, or intended to destroy the paper he had just been speaking of, which, he said, had until then, remained in his own possession; and he added that he should give Charlotte ten pounds or guineas when he had done with her, and that, as he had given her a great many clothes, and kept her very well, he thought she would be very well paid."

These are the deceased's own declarations, and his own account of the will of 1825. Why, if it was made with this view, did he get it back from the bankers, if he had not intended to destroy it? Why should he not have left it there? These declarations, coupled with the facts, show that he only executed it "to please the girl, and prevent her from relaxing in her attentions." But this is not all; for he also tells his old schoolfellow, Cole, three weeks before he went home, that "as soon as he got to Southampton he would make a codicil in the deponent's favour; that his will was at Southampton, in the possession of Lady Kirkcudbright; but that if he had it then with him, he would have got Mr. Weymouth, his solicitor in town, to have made the codicil at once." He once, previously, observed to the deponent, "that he should take care to leave every thing to Lady Kircudbright, and that, whatever he might give to others, he would not injure her; but, thank God, he had something to spare for an old friend, when he was gone.

Now, whether he would have made this codicil or not, is not the question; but here is the fact, that he knew the will was at Southampton. It further appears that, for some time before he went back to Southampton, he was tired of his life with Charlotte Bicknell, and declared "he should leave her with her friends, and only give her a few pounds," which, possibly, he may have done when he parted with her. After, then, stating this evidence, it seems to me quite impossible to believe that he considered this will as revoked, or that he meant, or supposed himself to be intestate; or to doubt that he intended this will to operate. I, therefore, pronounce for it, and in so doing, I think that I do not interfere with any principles recognized by this Court.

Costs were prayed by Phillimore-but the Court said, that it was not, on the whole, a case for costs, as it was necessary to bring the question before the Court, though the allegation, ripping up the old quarrels, was rather uncalled for.

In the Goods of DELICIA AIRD.—p. 336.

On Motion.

A person, appointed limited executor in a will, may be appointed general executor in a codicil by implication, and without express words.

THE deceased was a spinster; and by her last will, after giving to Donald John Macpherson M'Leod, son of Major-General John M'Leod, of the 78th regiment, the sum of 2,1227. 11s. 6d. new four per cents, to be at his sole and absolute control at the age of sixteen years, and a vested right at her decease, and also all her plate, linen, books, and furniture to be vested, and at his own control in manner aforesaid (a)—thus proceeded:

"I appoint the said Major-General M'Leod executor of this my will for the purposes herein-before-mentioned, and make no present disposal of any other property I may be entitled to." Signed, sealed, &c. on the 24th of January, 1828.

This will was written upon the first side of a sheet of foolscap paper; and, on the second side, was a codicil of the same date, of which the following is a copy:

"I, the within named Delicia Aird, declare this to be a codicil to my will bearing date this day, and" [after bequeathing a legacy of twenty guineas each to two servants] "all the residue of my personal property give to the within named Donald John Macpherson M'Leod to and for his own use, to be vested and at his own control at the same time, and in like manner as the bequests in his favour in my will contained." In witness, &c.

The residuary legatee, it appeared, was of the age of eight years; and the residue consisted of about 3007.

The King's Advocate now moved for a grant of probate of the will and codicil to General M'Leod, as executor.

Per Curiam.

The Court was of opinion that the residue being bequeathed to the son, “in like manner as the bequests in his favour in the will contained,” came to him subject to the executorship of his father, and therefore granted the motion.

Motion granted.

(a) No other property was left under the will.

GREEN, by her Guardian, v. PROCTOR and NEWY.-p. 337.

A legatee-under a former will, who, after a long acquiescence, calls in probate of and contests a latter will, setting up a case of incapacity and undue influence, which is disproved-will be condemned in costs from the time of giving in an allegation.

Semble, a next of kin-a fortiori a legatee under a former will-contesting a will, under circumstances manifestly vexatious, may be condemned in the whole costs.