TESTAMENTARY CAUSES.

Prerogative Court, Doctors' Commons.-Slack and Others, by their Guardian, v. Slack.-This was a proceeding relative to the will of Thomas Cartwright Slack, Esq. late of Gravel-lane, Aldgate, London, and of Kentish-town, Middlesex, deceased.

The deceased was burnt in his house at Kentish-town on the 23d of November last, and died, leaving a widow and six children, minors. He was possessed of personal property to the amount of about 16,000l. and a small freehold estate valued at about 1,500l.; and being a freeman of London, his widow would be entitled to four-ninths of the personal property in case of intestacy. Ilis will, made in August 1814, was burnt with him; but the contents of it, as stated in an affidavit of one of the guardians of the children, were propounded by him and the other guardians on their behalf, as the residuary legatecs named in it, and opposed, merely for the purpose of obtaining the decision of the Court, by Mrs. Jane Hester Slack, the widow. The contents of the will, as stated in the affidavit, were to this effect:-The deceased gave to his brother, Joseph Albin Slack, Esq. the carriages and horses he might possess at his death: to his wife

all the rest of his property for her life, and at her death to his chilren, in such proportions as she should appoint; but in default of such appointment, then amongst them equally; and he appointed his wife, his brother, and his brother-in-law, the Rev. Thomas White, executors of his will, and trustees and guardians for his children, with power to apply a portion of their shares of his property towards their advancement in the world.

It appeared from the evidence in support of the will, that the deceased had ever expressed his intention to die testate, and had arranged with his brother-in-law, the Rev. Thomas White, that they should be each other's executors. He had great confidence in his brother, Joseph Albin Slack, Esq. who deposed, that upon one of their meetings to arrange the affairs of their deceased father, in the latter part of July, or beginning of August 1814, the deceased requested him to make an appointment for their next meeting at his the deceased's house, as he wanted, he said, to speak to him about making his will. Mr. J. Slack left town for Scotland on the 8th of August, but a day or two previously he went to the deceased's house, and at night, when the family had retired to bed, and they were left alone, the deceased

they left the case to the candid consideration of the Court.

Sir John Nicholl remarked, that the principles upon which the case must depend had been properly stated on the one side, and not controverted on the other. It was perfectly competent to parties to prove the contents of a will which had been destroyed, whether the destruction had occurred in the life-time of the testator or afterwards, provided it had happened without his knowledge or concurrence: where an accident thus intervened, and the act of God alone prevented the completion of a person's intentions, the Court could not but be anxious to supply the defect, and prevent the ill consequences which would otherwise accrue to innocent parties, and, in looking to the proof in such a case, must be satisfied if it should amount to a reasonable probability. He then stated the circumstances of the case, and remarked that it was clear the deceased intended to die testate, and to appoint his wife, brother, and brother-in-law, his executors.— The disposition he had made by the will he had drawn up was fully evidenced by his declaration to his brother, to whom he read it, and who deposed that he had, as he was likely to have, a perfect recollection of the contents. He consulted his brother, and some alterations were suggested and made; but the deceased's declaration, that he would copy it over, and then put his name to it, was a complete and final approbation of the instrument, and showed that his mind was made up and decided with respect to it. There was therefore a strong presump

tion in favour of it, unless repelled by evidence of his subsequent conduct. Upon that point, however, the evidence corroborated the opinion, that he did not abandon but adhered to the will; that he completed it by his signature, and then sealed it up in an envelope. It had been said that there was no direct proof that he did copy it, as he said he would; but there was every reasonable evidence that he did in some way or other complete it. His conversation with his wife, when he held up the sealed paper, and said it was his will, and the only will he should ever make, was conclusive upon this point, and left no reason to doubt that the paper he then held up did contain the will; and the fact of its being sealed showed that it had been completed, and was a perfect instrument. His subsequent conversation with his wife, a day or two before his death, in which, speaking of his will, he said that it was done, and he should never alter it, was a further confirmation of the instrument itself, and of the fixed state of the intentions which had led him to make it. It had been said that his declaration in the course of this conversation, that he had left his property to his wife, did not confirm the contents of the will as propounded, as it appeared from them that she had only a life-interest in the whole property, with a power of apportioning it amongst the children at her death. This was, however, as near an absolute interest as possible, and a conformity, in substance at least, to the deceased's declaration; and his directing the property to be equally divided, in case his wife

left

left no disposition of it, showed his intention of providing against all possible events. It was therefore proved, not only that the deceased had duly made his will, but that he would never alter it; and, under all the circumstances of the case, the Court was satisfied that the disposition he had thereby made of his property was, in substance, that which was stated in the contents propounded: those contents were short, simple, and easy to be remembered; and the disposition altogether was a very natural one, and not very different from what the law would have done, had he died intestate. The Court therefore pronounced for the contents of the will as stated in the schedule annexed to Mr. Robinson's affidavit.

Deffell v. Johnson and Johnson. This was a proceeding for the purpose of obtaining the decision of the Court on the validity of the testamentary papers of the late James Johnson, Esq. of Wimpolestreet, formerly his Majesty's Attorney-general in South Carolina. Mr. Johnson, it appeared, had made a will, regularly executed in Jamaica, in the year 1793, in contemplation, as was suggested, of his then returning to England. By this will he bequeathed his property among his then children, his wife having a separate provision under her marriage-settlement. Subsequently to the making of this will Mr. Johnson had returned to this country, and had had four children born, and his property had increased from 30,000l. to 200,0001. Another paper was also submitted to the notice of the Court, which was found within some blotting paper leaves on

which the deceased used to write in his scrutoire. It purported to contain some testamentary dispositions of the deceased, and was written by him on the back of a printed letter, which was dated the 6th July 1814. The death of Mr. Johnson happened about 12 months after that time, and was occasioned by an apoplexy. By this latter paper certain specific legacies, for which blanks were left, appeared to have been intended to be given to some of the deceased's children; the residue was to be divided equally among them, and executors were appointed. The paper broke off abruptly, and was not signed by the deceased, nor dated.

Dr. Swabey and Dr. Jenner, in support of the first will, argued from these circumstances against the sufficiency of this latter paper to revoke it. It was scarcely possible to describe a more imperfect paper. It purported to devise real property, and was not executed nor attested; and the particulars left to be supplied in it were of the most important nature. There were no declarations of the deceased as to his testamentary intention which might tend to confirm it; and all that could be collected with reference to the time of its being written was, that it must have been some time after the 6th of July 1814, which was nearly a twelvemonth before Mr. Johnson's death. It must therefore be regarded as containing merely memoranda of the deceased for his future consideration, which he afterwards abandoned, and not as containing his final testamentary intentions, which he was prevented from carrying into effect by the act of God.

Dr.

Dr. Burnaby, in support of the latter paper, contended, that from the material alteration of the deceased's circumstances by the birth of four other children, and the great increase of his property, it could not be supposed that he intended the first will to operate, which was made to provide against the contingencies of a voyage he was contemplating from Jamaica to England. He had accordingly proceeded to make a new will, which was found after his death between the leaves of blotting paper in his scrutoire-a situation in which it was not probable that he would have suffered such a paper to remain for a considerable time. By this paper it appeared, that the deceased had not made up his mind with respect to certain specific legacies; but the disposition of the residue and the appointment of executors were complete. The deceased died suddenly of an apoplexy; and, under all the circumstances, it was to be presumed that he was thereby alone prevented from completing this paper, which he had left in his scrutoire for that purpose, and which therefore must be considered as containing his will to the extent expressed in it.

Sir John Nicholl observed, that the question in this case was, whether the latter paper could be shown to be an operative instrument? Under the will of 1793 the children subsequently born could not take any benefit. The wife, it was said, was provided for by her marriage settlement; but that circumstance did not appear in these proceedings. This was a very distressing case, but the general rule of law by

which testamentary dispositions are protected could not be relaxed on account of cases of individual distress. The subsequent birth of children, and the great increase of the deceased's property, in this case did not amount to a legal re. vocation of his will. It was pleaded that this will was made by the deceased in consequence of his then contemplating his return to England; but there was no clause in it by which its operation was made to depend on that or any other contingency. The deceased must have been aware of the existence of this will, and, being a gentleman of legal education and habits, could not be supposed to have been ignorant of its operation. The learned judge then expressed his opinion that the latter will was not such a paper as could receive the sanction of that court as an operative instrument. Adverting to its various imperfections, he proceeded to state, that the presumption of law was against such papers; and it was incumbent on those who supported them to adduce some strong extrinsic circumstances for that purpose. It might be possible to do so, if the deceased were struck with death in writing such a paper, or if there were confirmatory declarations; but if there were nothing to show that the deceased was prevented from completing it, the paper could not operate. In this case all that was shown was, that the paper was written on the back of a printed letter, dated July 6, 1814, about a year before the deceased's death, and found in his scrutoire. The printed letter was a summons to attend the Directors of the West