fective by his death, Addams moved the Court to rescind it, and to grant the administration, upon the original process, to Edward Law, the surviving universal legatee. He cited the case of Maidman v. All Persons in general, 1 Phill. 51, as analogous.

Per Curiam.

By granting this motion, the Court only waves the mere form of citing the next of kin; and it does not, under the circumstances, and the property being small, consider a new process necessary. The administration may pass. Motion granted.

CONSTABLE v. STEIBEL and EMANUEL.-p. 56.

Hand-writing and finding are sufficient to support a codicil confirming a legacy under a will; which codicil came out of the custody of, and was propounded by, the person solely benefited under it; who had been sworn executor of the will and one codicil four months before producing this paper, and the validity of whose legacy under the will was, at the time, a question depending in the Court of Chancery.

In the Courts of Probate it is almost a settled principle not to pronounce for disputed papers on evidence of hand-writing alone. Evidence to the genuineness, not of a mere signature, but of a holograph of some length, is more cogent and weighty than evidence of a contrary tendency.

EDWARD EMANUEL, the deceased in this cause, a bachelor of the age of 25 years, died at Paris, on the 18th of March, 1825, of a wound inflicted by himself on the 16th of the same month. By his will, written with his own hand, and dated the 6th of July, 1824, he gave, among other legacies, the sum of 2000l. to Robert Constable; and appointed him, Sigismund Steibel, Samuel Steibel, and Henry Emanuel, his brother, executors. The latter he also made residuary legatee. The deceased likewise prepared and wrote a codicil, bearing date the 12th or 13th of March, 1825. Of this will and codicil Robert Constable and Samuel Steibel were sworn executors on the 12th of July following, but the probate did not issue until the 9th of September. In November of the same year, a bill in Chancery was filed against the acting executors (by Joel Emanuel, the father of the residuary legatee, who was a minor,) to compel them to account for the 2000l. bequeathed to Constable, on the ground that the legacy was void, in consequence of his being a subscribing witness to the will. Subsequent to the filing of this bill, Constable produced a paper in the following terms: "13th March, 1825.

"I request Mr. Constable to pay my debts in France. His salary and 351. to be paid independent of the 20007, I bequeath him. "EDWARD EMANUEL."

In December, 1825, a decree issued, from the Prerogative Court of Canterbury, at the instance of Constable, citing his co-acting executor to take probate of this paper as a codicil to the deceased's will; and in Hilary Term, 1826, a further decree to see proceedings issued against Henry Emanuel, one other of the executors, and the residuary legatee. An appearance was given, by separate proctors, for both the parties cited: the paper was then propounded, on behalf of Constable, as a further codicil to the will of the deceased, and asserted to be all in his own

hand-writing: allegations were admitted in support of, and opposition to, this paper; and, upon the evidence taken on both sides,

Lushington and Addams, for Constable, contended, that the weight of evidence was in favour of the genuineness of the hand-writing; that the account of the finding was natural and satisfactory; that the contents were probable; and that fabrication was highly improbable.

Jenner and Pickard, for the residuary legatee, argued that the time of producing the paper, and its date-on the very day on which the deceased and Constable had a serious quarrel, were very suspicious; that the finding was not inconsistent with fraud, as the box had been for some time in Constable's power; that the evidence to the hand-writing was contradictory and inconclusive: that the Court, therefore, would pronounce that Constable, on whom the onus probandi lay, had failed in proof.

Dodson, on behalf of Steibel, submitted to the judgment of the Court. JUDGMENT.

Sir JOHN NICHOLL.

This case lies in a narrow compass, and is not attended with any particular difficulty. It has lost much of the importance which it possessed in its earlier stages, since I understand a Court of Equity has put the same construction on the statute, the 25th Geo. II. c. 5., as this Court had previously done; having decided that, in a will disposing only of personalty, a legacy to an attesting witness is not void by that statute. (a)

The question arises on a paper propounded as a second codicil to the will of Edward Emanuel. The will and first codicil are not contested: they are all in the deceased's hand-writing; the will is dated on the 6th of July, 1824, just before he went abroad; by this will he gives a legacy of 2000l. to Robert Constable, who had been a classical tutor in the deceased's family; and he appoints him an executor in conjunction with Samuel and Sigismund Steibel, and his own brother Henry, to whom he also bequeaths the residue. In July, 1825, probate was taken of this will, and the first codicil, by Robert Constable and Samuel Steibel, a power being reserved to the two other executors. The effects were sworn under 14,000l.; and I am informed that they do not exceed 13,000l. This probate did not pass the seal till the September following. In the month of November, of the same year, proceedings were instituted in the Court of Chancery, by the father of the residuary legatee, to obtain a decision of that Court as to the effect of the statute, the 25th Geo. II., upon the legacy to Mr. Constable, and, as I have already observed, it was there held that the statute does not apply to wills of personalty only.(b) In the mean time the codicil in dispute was propounded by Constable, who stated that it was all in the hand-writing of the deceased: it is in these words:

"13th March, 1825. "I request Mr. Constable to pay my debts in France. His salary and 351. to be paid independent of the 20007. I bequeath him. "EDWARD EMANUEL." The last clause of this paper is now of no importance; and, to the salary,

(a) See the case of Brett v. Brett, 3 Add. 210. On the 21st of May, 1827, that decision was affirmed by the High Court of Delegates, after hearing Counsel for the Appellant only.

(6) Emanuel v. Constable, Rolls, 26 June, 1827. [3 Russ. Rep. 436.]

Constable would, of course, be entitled, unless there was something to show that it had been paid. The only effect, then, of this codicil is to recognize the debt for the money alleged to have been advanced. Now that such a sum was due, is not at all improbable; because it appears from the evidence that the deceased was obliged, on the morning he left Montmorency, to borrow twenty francs; and, from the papers in the cause, it seems that he must have been occasionally in want of money, although he had a letter of credit upon the cashier of Rothschild's banking-house at Paris. This sum of 35l. is, however, the whole matter in dispute; and the question is, whether this paper is genuine or fabricated -whether it is the hand-writing of the deceased, or a forgery. It is true that the burthen of proof, to show that the paper is genuine, lies upon Constable, the party setting it up; and though the acknowledgment of a debt of 351. advanced as a loan, would be no sufficient object to induce the fabrication of such a document, yet as it also recognises the legacy of 20007. under the will, that recognition might have been supposed of far greater importance. Is Mr. Constable, then, guilty of a forgery of this instrument, and to be condemned in the costs of these proceedings? for that is almost the only question to which this case is reduced: the Court would, certainly, require pretty strong proof before it would arrive at that conclusion.

The first evidence, in support of the genuineness. of the paper, refers to the hand-writing. Here are several witnesses (so many, indeed, that it will be unnecessary to advert to the evidence of Hamilton,) intimately acquainted with the hand-writing of the deceased, who depose that, in their opinion, the paper was written by the deceased; and this affirmative evidence is, not to a mere subscription, which may be more easily and exactly imitated, but to a holograph of three lines: the witnesses, therefore, are more able to pronounce decidedly, upon such a paper, than if called upon to speak to a few letters composing a signature. This evidence then is, if evidence of hand-writing can be, of considerable weight. But the inclination, amounting almost to a settled principle, of this Court-founded perhaps on the facility with which hand-writing may be imitated-has been not to pronounce for a disputed paper on proof of hand-writing alone, but to require some corroborating circumstances. These are peculiarly necessary in the present case, where there is much conflicting evidence on this point; for there are a great number of witnesses, also well acquainted with the hand-writing of the deceased, who speak to their belief, that the paper is a forgery, being, in their opinion, unlike his ordinary character. These witnesses are not to be laid entirely out of consideration; but I never can think that evidence of dissimilitude is equally cogent, and weighty, with evidence of similitude, and for this reason-that it requires great skill so to imitate handwriting, especially for several lines, as to deceive persons well acquainted with the original character; and who are not very likely to form an erroneous opinion, if, on carefully inspecting such a paper, they are satisfied that it is genuine. On the other hand, dissimilitude may be occasioned by a variety of circumstances-by the state of the health, and spirits, of the writer-by his materials-by his position-by his hurry, or care circumstances which deserve still more consideration when witnesses rest their opinion on a fancied dissimilarity of individual letBut the reasons given by this class of witnesses frequently shake their testimony; and we also know that when persons come prepared to VOL. III.

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speak in favour of a preconceived opinion, their evidence must be received with some degree of caution. Here, when the witnesses descend into particulars, their reasons are so trivial-so unsupported by the exhibits in the cause, and so discrepant from each other, that I think if they had not been swayed by prepossessions, they would hardly have ventured to arrive at the conclusion, that the paper in question was not of the hand-writing of the deceased.

A comparison of hand-writing is also resorted to; and, for that purpose, two engravers, on the part of the residuary legatees, are produced; but it is well known that men of this employment, from their habit of attending to the exact form of every letter, when engaged to make fac similes, are so alive to the least dissimilitude, that any little difference would strike them as of importance. Here moreover they do not agrée.One engraver is confident that the codicil is not of the hand-writing of the deceased; while the other says, that he cannot venture to form an opinion, and that there is not such a difference as would justify him in asserting, that the paper in question was not written by the same person who wrote the will. Consistently with the cautious reserve of this last witness, a gentleman from the Bank deposes, that he sees nothing of a feigned hand in the instrument; but that, on the contrary, the likeness is so exact, that it would have passed a power of attorney. These are among the persons generally produced in this Court, to speak to feigned hand-writing. I have also looked into the answers of the party opposing this paper; and I do not find that they much vary the result of this portion of the evidence. Mr. Emanuel, the guardian of the minor, and father of the deceased, has so strong an impression, that he swears to his belief, that no part of the codicil is in the deceased's hand-writing; but Mr. Steibel, one of the acting executors, will not go so far," he cannot form a belief or disbelief, whether the subscription to the codicil is of the proper subscription of the deceased." There is no testimony that carries this branch of the case further; and if I were bound to pause here, and to form an opinion whether this paper is in the hand-writing of the deceased, I would say that the evidence in favour of it so far preponderates, that I should be disposed to pronounce the codicil genuine.

But there is another point for my consideration, viz., the history of the paper itself, and of the finding. How was it produced? The first witness, on this part of the case, is Sophia Killen, a young girl, servant to Constable, the party in the cause. Constable's sister is also stated to have been present at the finding; but she is dead. Killen's account is to this effect-that when Constable returned from France, he brought two trunks and a box. The box was corded, and deposited in a back garret where she slept; that, one day in the beginning of August, 1825, she brought it down, by Constable's directions, into the parlour: it was then uncorded [there was, at this time, no question about the will] and opened; and was found to contain some articles of dress, a map, a dressing-box, and three books; that Constable took the books, from one of which the paper in dispute dropped; that he took it up and said, "how particular poor Emanuel was;" [a very natural observation for him to have made] that he gave it to his sister, who apparently read, and afterwards laid it upon the table.

This is the substance of the evidence that applies to the finding of this paper; and it has been asked, why did not Constable produce it at the time of this alleged discovery; but it was not found till after Steibel and

The

himself had been sworn executors; and he does not seem to have been aware that it was a document of any importance. His legacy under the will was not then contested; he could, therefore, have had no inducement, at that time, to fabricate such an instrument; and if it be a fabrication, and the finding were precontrived, it was a very cunningly devised method. This, however, is not, to my mind, the legal result of this part of the evidence. It is not at all improbable that he wrote it previous to the quarrel which is spoken to on the Sunday morning; for it is in evidence that he was, on that day, in a state of considerable excitement, and the contents of the paper itself point to an apparent contemplation of the fatal act by which he terminated his existence. French ladies, at whose house the deceased was lodging, describe his agitation of mind on the day preceding his sudden departure for Paris; that he did not eat his dinner; that he exhibited much restlessness; and, on the following morning, came down stairs very early, looked pale, and was hurried in his manner; that he borrowed twenty francs of the daughter of the landlady, and then quitted the house.-It appears too, that Constable was surprised at this conduct, and in the course of the same morning, went to Paris in search of him-but without success; that he returned to Montmorency, and remained there two or three days, when having defrayed every expense, and repaid the twenty francs borrowed by Emanuel, he went back to Paris, where he discovered what had happened. After this, he remained at Paris above a month, during which time, Madame Le Duc, in whose charge he had left a box at Montmorency, forwarded it to him; and there is nothing in her evidence, nor in the, evidence of her daughter, which would justify the conclusion that there were no books in the box at the time it was packed up, and sent to Paris.

If this paper, then, was not written by the deceased, when was it fabricated? It is perfectly improbable, that it was fabricated at Paris; besides, the case set up on the part of Mr. Emanuel, is-that the paper was fabricated, and prepared to meet the question raised on the will; and unless I can induce myself to believe that Killen, the maid-servant, has perjured herself, it seems impossible for me to pronounce that it was forged subsequent to the agitation of that question. And looking at the whole history of the transaction, there appears no improbability that the deceased should write this paper, when he intended to commit the act that led to his death: the fair inference is, I think, the other way.

Then it is said, it was not likely that Constable should have lent him 351.; but why should he not have been competent to have advanced this sum? It is not probable that he should have quitted England without any funds of his own; and the deceased would rather, in my opinion, resort occasionally to his friend and guardian, or companion (whichever he might be), than constantly apply to the clerk at Rothschild's: nor is it extraordinary that he should remember the debt arising from this loan, and provide for the payment. The declaration to the surgeon, Mr. King, that he had been scandalized by his bosom friend-made subsequent to that act which, of itself, affords the strongest presumption of a diseased mind, can be but of little weight; and the hurried exclamation of Constable to Madame Delamere, when in a state of great anxiety, only shows that he but too truly foreboded the consequences of the morbid irritability of his friend. Besides, any reference to their dispute by one or the other, at that time, can have no bearing on the case, if, as I think not improbable, the paper was written previous to the quarrel.