In the Goods of JOHN DUNN.-p. 488. On Motion. The deceased having, between instructions for, and the execution of, his will, delivered to his solicitor a letter of testamentary import to be put with his will; probate thereof decreed, as together with the formal instrument, containing the last will of the deceased. JOHN DUNN, late of Bedford Street, Covent Garden, died on the 22d of April 1827. He left a son, a Major in the Army, and two daughters. On the 7th of February preceding he called at the house of Mr. Ottywell Robinson; and gave him verbal and written instructions for his will: a draft was accordingly prepared, read over to, and approved of by, the deceased. On the 6th of March, the deceased delivered to Mr. Robinson a paper sealed up in the form of a letter and superscribed, "Major Dunn, by favour of O. Robinson Esq. Argyle Street," which he desired might be put with his will. On the 11th of April the deceased executed his will; when it was sealed up, and together with the letter, enclosed in an envelope by Mr. Robinson, in whose possession it remained until the Testator's death; when the same was opened by Mr. Robinson in Major Dunn's presence, who himself read the letter, but without imparting to any one its contents. Major Dunn, the sole executor and residuary legatee under his father's will, proved it on the 13th of October; the letter, however, he did not prove, though it contained bequests of different annuities, which he regularly paid. (a) In the month of December Major Dunn was accidentally killed: he died intestate, leaving a widow and one infant; and on the 9th of January 1828, letters of administration of his effects were granted to the widow, who had since taken administration (with the will annexed) de bonis non of John Dunn, as administratrix of the residuary legatee therein named. Lushington prayed the Court to admit the letter to probate, as a codicil, though of a date anterior to the will. Per Curiam. It clearly was the intention of the deceased that this letter, written prior to, but delivered for the purpose of being put with, the will, should form part of his testamentary disposition. The executor followed its directions without taking probate of it, but that would not be a safe course for his widow who has only a joint interest with her child in the effects of her late husband. I shall therefore revoke the present administration de bonis non, and decree to Mrs. Dunn a de bonis non administration (a) The letter began thus: My dear Son, Bedford Street, 28th Feb. 1827. You will find I have left you my all, pray God send you may make good use of the same; and I trust for my sake you will be kind to my brother and my two sisters, and allow them each twenty pounds per annum during their life. Should Joseph Ramsey my nephew be living in my service when I am no more, do what you can for him. You will find a deed with Mr. Binns wherein I am bound to give Mrs. Limbrey seventy pounds during her life.* • The remainder of the letter was not of testamentary import. with the formal instrument, and also with the letter annexed, as containing together the last will of the deceased. EDWARDS and EDWARDS v. ASTLEY and Others, and v. H. M. Procurator-General. p. 490. The presumption of law, that pencil alterations are deliberative, may be strengthened by circumstances;-such as, that the paper was originally carefully drawn up, and shows the deceased to have been a very precise man, while the alterations are incomplete and inaccurate, rendering the sense imperfect and the meaning doubtful. FITZ-WILLIAM ROSIER was the party in this cause deceased; and the question that arose upon his will was-whether certain pencil alterations were cursory and deliberative, or final. A decree had issued citing Mrs. Astley, as residuary legatee, and also citing different legatees; the decree was further served upon the King's Proctor, as it was alleged that the deceased left no relation. Lushington and Dodson-for the executors, asked probate with all the pencil alterations. Phillimore and Nicholl, contra--for Mr. Rosier--a legatee. JUDGMENT. Sir JOHN NICHOLL. The paper propounded in this case is drawn up with great form and accuracy: each legacy is first expressed in words at length and then carried out into two columns, one specifying the amount of the stock (for the property is almost exclusively stock,) the other-of the annual interest:--each column is cast up at the bottom of the page and carried forward: the pages are numbered and the words " in continuation" written at the top of each--and this plan is pursued throughout the whole instrument. Nothing then can be done with greater care, and the paper on its face exhibits in strong colours the cautious character of the deceased. The will, as appears at the end, was originally intended to have been executed on the ninth of August, but the words "ninth day" are struck through, and the words "twenty-sixth day" substituted. The clauses "witness my hand" and "signed in the presence of each other" appear to have been written at the same time that "the ninth of August" was written: he afterwards signed his name and subjoined his place of abode; and from the appearance of the writing I infer that this was done when he altered the date-viz. on the 26th, though as I have observed, originally proposing to execute it on the 9th--and the conclusion I draw is that when he so formally signed it, not in the presence of any person, he had abandoned his purpose of having witnesses. That he wished the paper to operate in some form or other there is no doubt: indeed the only party claiming under an intestacy-the Crown-offers no opposition to the probate. The real and only question then is, whether the instrument is to operate without--or whether the Court is to pronounce for it with---the pencil alterations. Part of those alterations is proved by the servantTurner-to have been made on the first of September 1827,-the de ceased having died on the fifth. And I see no reason to doubt but that they were all made subsequent to the 26th of August 1826-it seems most highly improbable that they were there at the time of the execution whenever that took place-and certainly there is no proof that they then existed. The conclusion deduced from probability is confirmed by a conversation between the deceased and his intimate friend, Mr. Shepherd, on the 15th of August 1827, in which, speaking of the general contents of the will, he used this expression-"that he had made some alterations which he believed would not be material and that no difficulty could arise from them." Now I think the alterations to which he thus refers on the 15th of August could not be those in pencil; but there are some trifling alterations in ink to which the remark would apply: from being a man of such accuracy he might be under some alarm even respecting these slight erasures; though not material it was natural enough for him to tell Mr. Shepherd that he had made them: but it is quite impossible to conceive that if these pencil alterations, which constitute the whole difficulty of the case, were then made, he should not have anticipated some confusion arising from them. It is not unimportant that, in this conversation with Shepherd, the deceased expresses no dissatisfaction at what he has done-no opinion that his residuary legatee would have too little-but just the contraryhe had left her £10,000 stock-her children £24,000 stock-and he added "there would be some pretty pickings for Mrs. Astley after all;" -so that on the 15th of August he had no thought of diminishing the legacies in order to increase the residue. - The question then is, whether the alterations in pencil were final and decisive, or only deliberative and for further consideration: it must be remembered that they were made by this very accurate man-labouring under an acute and excruciating disorder-"an affection of the bladder of a most extensive nature" (as it is described by the medical man, Glen)-in the most depressed state of body-and within a short period of his dissolution;-that when Glen was first called in, the deceased had symptoms of apoplexy which were only prevented by cupping and other remedies; that the usual effects of this complaint, especially if attended by great pain and exhaustion, are confusion of mind and forgetfulness. All these circumstances tend to support the presumption in favour of the will as originally executed: for prima facie all pencil alterations are deliberative, and for this obvious reason; if they expressed the final intention of the deceased why did he not resort to a more durable material? This presumption in the present case is further strengthened by the fact that there are some alterations in ink, and there was no reason why he should not have employed the same material--he was in his own house--undisturbed-with every convenience at hand-engaged on the paper for four hours-and having it by his side for five hours more: surely if he had made up his mind he would have resorted to ink. This presumption, like all other presumptions, may be still further strengthened by circumstances; for instance, if the interlineations and obliterations have rendered the sense incomplete and the papers unintelligible, it would require pretty decisive evidence to convince the Court that they were intended to be final, more especially by a person of extraordinary accuracy when in health. Here, on the second side, the bequest to Swanton is struck through in such a way as to become unintelligible—not as to the effect, for the legacy would be pretty much the same as originally given, but as to the correctness of the language--it stands thus: the name and title-“The Rev. Francis Swanton" is crossed out; and yet immediately afterwards "the said Rev. Francis Swanton" is twice repeated: when there is no longer any such person; for the name has previously been struck through. Then again at the end of this bequest, the words--" together £600 3 per cent. Reduced Bank Annuities" are crossed out in the same manner: this is not at all intelligible-I cannot see why it was struck through-the whole bears the character of confusion of mind. On the third side, in the legacy to James Rosier, the variation is much more material. In the marginal columns the figures 1000 and 30 are struck through, and 500 and 15 are interlined, while the body, where are the dispositive words, remains unaltered:--to which is the Court to adhere? Here again is something of a wandering and confused mind. In the next clause there is a more extraordinary alteration. £1000 was given by the original dispositive words to each of James Rosier's children, and the sums carried out into the respective columns were 10,000 and 300. The body is now changed by an interlineation to 500 each, while in the margin the figures, instead of being 5,000 and 150, are 500 and 15. This again shows confusion and that he meant to revise--and is uncertain and unintelligible: an accurate man, if he had made up his mind to these alterations, would not have left them in that state. Then in the last clause of that bequest the words" lapse legacy but be equally divided among the survivors"---are struck out, and the clause would now stand---" I desire that the £500 3 per cent. Reduced Bank Annuities shall not be considered as a"---which is perfectly unintelligible and a total want of sense. If any of the parties are dead what is to be done? ---are the legacies to lapse or not? Now originally, as I have said, after he had made the bequests and carried them out into the marginal column, he cast them up at the bottom of each page; but though the particular bequests are here altered, yet the total is not.---All this bears the character of wandering-it is a sort of day-dream-of waking confusion, to which persons in that state are very apt to be subject. Again, on the fourth side, besides that what relates to the money being the separate property of the Misses Edwards, and their sister, Mrs. Paget, during coverture is struck out; an interlineation of a legacy to their Mother occurs---that insertion has more the appearance and stamp of consideration and fixed intention: because at the bottom of the page, in order to include it, he alters the total casting up from 78,000 to 79,000, but even here there is confusion, for where it is separately written at the side the figures are only 79: and moreover he does not add the dividend of this £1000 to the sum total of the interest-it remains £2547, 10, instead of being 2577, 10. Even when he has altered 78 to 79 he does not carry it on to the next page-there the sum still remains 78,000. This shows it was not finished but left incomplete. Again what becomes of the alterations in the former pages-for if they were permanent, the casting up in page 3 should, instead of 71,000, be turned into 61,000; or supposing the latter 500 to have been an error for 5000, then it should have been only 65,500 instead of 71,000-yet the total of that page is suffered to remain 71,000 and to be carried on and included in the next page-even where he changes the casting from 78,000 to 79,000. All this shows either confusion of mind-which from his long illness and the near approach of death might well be the case; or it shows that these were mere passing ideas for further consideration and left in an incomplete and unfinished state, and afterwards abandoned altogether. This construction is further confirmed by what passed on the 4th, the day before his death. Shepherd and Glen had a conversation with himhe mentioned his executors-he told them where his will was: I do not infer from that that he intended it to operate with these alterations-if he had, he would so have expressed himself to Mr. Shepherd-but there was nothing of the sort-no allusion nor reference to them-no wish to finish them-no declaration that he had made and wished them to be acted upon in the state in which they were: "he hoped his testamentary dispositions would be satisfactory to his friends."-Just however as Glen had left the room the deceased recollected himself, and when Shepherd had called him back the deceased said-" he thought he had not left sufficient to his servant Philip Turner-he wished him to have 500/.:”—and he had before, on the 15th of August, mentioned to Shepherd that he intended to give him this increased benefit. If the alterations were not deliberative, and if he had not purposed again to revert to this instrument, he would have made this addition to Turner's legacy when engaged in the paper for four hours on the 1st of September: but he neither does that, nor does he, on the 4th, say one word about the pencil alterations, and therefore it is to be inferred that, incomplete as they are, he had abandoned them altogether, and probably forgotten their existence. This is the legal presumption, and this is the probability of the fact deducible from the circumstances of the case. Upon the whole the paper appears to have been originally drawn up with great care and attention. The Court has every reason to feel certain what the intention was on the 9th of August-finally confirmed when he subscribed it on the 26th of August 1826; but it has no satisfactory information that the changes which in the wanderings of illness-on the 1st of September 1827-he projected, were any thing more than transient and deliberative. The Court therefore pronounces for the paper without the pencil alterations. In the Goods of DONNA MARIA DE VERA MARAVER.-p. 498. On Motion. Probate of the will of a married woman, a native of, and domiciled in, Spain, granted according to the law of Spain, to one of her sons as executor, on affidavits as to the law of Spain, and the identity of the parties. THE deceased, a native of Spain, died at Seville in November, 1820. On the 22d of November, 1815, she executed her last will and testament; and therein, after stating that she had particularly expressed to Don Martin Saravia, her husband, every thing relating to her will (since, "in consequence of her numerous occupations, time did not permit her to ordain her last will and testament so extensively and with such formality as was required)" she gave to him her right power and faculty in the most ample way according to law, either should he die |