Allen v. Maddock (United Kingdom)

[&?‘I ON A ~ ~ P ~ A r ~ ~U~ THE P ~ ~ ~ O ~ A ~ ~ V ~ COURT OF C A ~ T E ~ ~ ~ l ~ ~ .

~ 0 s ~ ~ ~ E ~ A ~ U E ~ A L ~ ~ ~ , ~ ~ ~ ~ e ~ ~ ~ f ; Sir T ~ O A S ~ E ~ ~ E R T AD DOC^,^

~ e ~ ~ ~ ~ ~ e T ~ ~ JE [Feb. 19, xsssj.

~ncorporation of an imperfectly attwted testamentary paper, intended as a Will,

in a subsequeut duly-attested Codicil.

An unattested paper, which would have been incorporated in an attested Will

or Codicil, executed accordiu~ to the Statute of Frauds, i s now in the Mame

manner incorporated, if the Will or Codicii i s executed a c c o r d ~ n ~ to the

require men^ of the Wills Act, 1 Vict, c. 26, sa. 9 [11 Xoo. P.C. 4551.

Where there is a reference in a duly~xecuted testEt~eIi~ary ~ n s t y u ~ e ~ ~ t , to another

tes ta~entary inst~ument, ~mperfectly executed, but by such terms tis to make it

capable of identi~cation, it i s necessarily a subject for the admiss~on of parol

evidence, and such parol evidence is not excluded by the 1st Vict., c. 26 [ I 1

l f the parol eridence satisP~ctorily prove that, in the existing c i r c u ~ ~ ~ n ~ e ~ ,

there is no doubt as to the i ~ t r u ~ ~ ~ e n t ref rred to, it. is no answer, that by

poss~bility, circ~nistances might have existed in which the ~ n s ~ r u ~ ~ e n t could

not have been ~ d e ~ t ~ ~ e d .

d ~ a r r i e d woman, having power under a s e t t l e ~ ~ e ~ ~ t to make a Will, in the year

1851 made a testamentary instrumelit, in tier own hand-witing, ivhicli she

intended to operate as a Will, but which was not attested according to the

r e q u ~ r e m e n ~ of the 1st Vicb., e. 26, see 9. In 1856, she duly esecuted a

Codicil, which was headed, “ This i s a, Codicil to my last Will and Testa~?e~~t .”

This Codicil conta~ned no reference to the t e s t a ~ e n t a r ~ paper of 1851, which

was not produced a t the time the Codicil was executed, but was found ilt her

death in a trunk in a room in the deceased‘s residence, enclosed in a sealed

envelope, on which was endorsed “ Mrs. Anne Foote’s Wi€l.” The Codicil was

found in a drawer in her bed-room. No other Will or testa~nen~ary paper

was found. Reld ~ a ~ r ~ i n ~ the decree of the Prerogative Court) :

First, that as there was a distinct reference in the Codicil to a ‘‘ laat Will tbnd

Testament,” and as 110 other Will had been Pound, the t e s t a ~ e i ~ t a r ~ paper of

1851 was, by parol ev~dence, ~ u ~ c ~ e n t ~ ~ i d e ~ i e d as the “ last Will ” referred

to by the Codicil of 1856.

Secondly, that, though informally executed, the testamentary paper of 1851 wab

incorporated with, and made valid by, the duly-executed Codicil o f 1556, and

probate granted ta both papers as together containing the last Wilt urrd

Codicil uf the Testatrix.

Moo. P.C. 454,4551.

The question in this appeal WEB, whether by the following words in a Codicil.

made in 1856, “ This is I&$] a Codicil to my last Will and Testament,’’ and the

circumstances of the case, a testamentary paper made in 1851, and ~ntended by the

Testatrix as her Will, but which was informal, not being attested its required by the

Wills Act, 1st Vict., e. 26, s a . 9, was s u ~ c i e n t l ~ referred tx and identi~ed, as to

hecome ~ i ~ c o r p o r ~ t e ~ , and acquire validity from the duly attested Codicil,

The appeal arose out of a cause ~ns t~ tu ted in the Prerogative Court of Cantey-

bury, of proving in solemn form of law the last Will and Testament, with Clodicil

thereto, of Anne Allen (formerly Fmte, widow), the wife of the A ~ p e I ~ ~ ~ t , I r ( ~ n I o t e ~

by the Respondent, one of the executors named in the Will, against the AppelIaiit.

The Will, which was in the hand-writing of the deceased, was dated the 1st of

December, 1861, and was attested by one witne%s only. It wa.s made by the deceased,

while under cover~ure, in virtue of a power c o n ~ e ~ ~ * e d upon her by a s e t t ~ e ~ n e n ~ made

on her ~ a ~ , r i a ~ @ . By this ~ n s t r u ~ ~ e n t the deceased left ~ e ~ u n i i l r ~ legacies to cei-tain

persons of the name of ‘‘ Drew,” her brothers and nephews, and her jewellery to some

* Present : The Right Ron. Dr. ~ u s h i n ~ t o i ~ , the Sight Hon. T. P e ~ ~ ~ b e r t o ~ Leigh,

the Right Hon. Sir Edward Ryan, and the Right‘ Eon. Sir Cresswell Cresswell.

”I_- - - - ~ - - ~ - - - ~ ~ - - - - 1 - - ~ _ _ - I I__ I I ” I -_

757

XI WORE, 4’BS ALLEN 2‘. MADZ>OGX f18581

friends, and appoiiited the Rev. l-l_ Wood, Curate of Christ Church, Bath, and Sir

TIioaas Herbert Naddock, executors.

The Codicil was dated the 13th of Septeniber, 1856, the day previous to the

deceased’s death, and was as follows :-‘‘ This is a Codicil to my last Will and Testa-

ment. I bequeath to my faithful servant, Eliza Baker, now residing with me a t NO.

29, New King Street, in the City of Bath, the sum of one hundred pounds, with as

niuoh of my furniture as in the opinion of niy Executor will be suacient to furnish a

vitting-rooni and a bed-room. This legacy is to be duty free. I bequeath the sum of

one hundred [429] pounds to Nicholas Drew, residing in the City of Worcester,

tailor. I bequeath one hundred pounds to Edward

Drew, of the City of Bristol, Brig~~tsn~itl i . This legacy is to be duty free. I bequeath

my best service of china and my cheffonier to John Taylor, of No. 31, New King

Street, in the City of Bath. I bequeath uiy red cashmere shawl, dark blue silk dress,

aiid toilet glass, to Mary Ann Taylor, of 34, New King Street, in the City of Bath.

I also bequeath to her my black dress cap, half a dozen slips and half a dozen night

gowns.” This Codicil was signed and attested by two witnesses.

The t e s t ~ ~ ; i ~ ~ n t a r y paper of 1861, and the Codicil of 1856, were propounded in an

~ l l e ~ a t i o x ~ given i n b)- the l ~ e s ~ o ~ i d e i ~ t , which pleaded the fact of the settlement made

in the year 1810, on the marriage of the deceased with the Appellant, under which

she wag empowered to dispose of her property by Will, notwithstanding her

coverture ; ttnd alleged that the Will was written by the deceased herself on the day

it bore date, and signed by her in the presence of one Hoare, who attested the sanie.’

That the Codicil was prepared by her directions and instructions, and duly executed

and attested. That since the year 1846, she had lived apart from the Appellant, and

had assumed the name of ‘‘ Fwte,” and from the time of her separation until her

death had been generally known by such uame arid no other. That after separating

herself from the Appellant, she had frequently declared her intention to benefit her

relations and others by her Will, and in alIusion to such Will frequent~y spoke of

the ~ e s p o ~ d e ~ ~ t , with whom she was in the haltit of ~orresponding, as her frienci,

who would manage [&(I] her affairs in case of her death ; that shortly after the date

of the Will, ixr the year 1851, and S u b s ~ u e ~ i ~ I y , she declared she Iiad made her Will,

atid had a ~ p o i n t e ~ the ~ e s p o ~ d e n t an executor thereclf. That the Testatrix, itr

executing the aforesaid Codicil to her Will, meant and intended to confirm and

gire effect thereto, and that by the words, “ This i s a Codicil to my last Will and

Testament,” a p ~ e ~ r i I ~ g written at the ~ ~ e g i I ~ n i ~ ~ ~ of the Codicil, the Testatris meant

and inteuded to refer to her aforesaid Will as being such Will. That the Testatrix,

having been iri a state of ill health for some short time before her death, became

seriously ill on the 8th of September, 1856, and on the following day was attended

at her residence in New King Street, Bath, by Frederick Field, a surgeon, who visited

her daily front thtit time uritil her death, which took place on the 14th of the saxne

iiiorith ; that on the morning of the previous day, the Testatrix, being desirous to

make a Codicil to her Will, spoke to Field 011 the subject, and in direct allusion to

such Will, addressing him, said, ‘‘ I wish you to do something for me in respect to

iiiy Will,” or to that very effect; and Field, having consented to coniply .with her

desire. proposed visiting her again in the course of the same day. That in the

courae of the afternoon of such day he a ~ o r d i n g l y again a ~ t ~ n d e d the Testatrix,

n%en she entered on the subject of her wishes, and stated that she desired to leave

souiething to her servant, and also some other trifling legacies to friends; and

added, ‘‘ I wish to do this by a Codicil to niy Will,” or “ in addition to my Will.”

That froin the dictation of the Testatrix, she being confined to her bed, Field then

proceeded to write the Codicil, and on reaching that part in which the 14311 Testa-

trix dehircd that her servant, Raker, should have as much furniture as her executor

wight deeni sufficient for furnishing a sitting-room and bed-rooyn, he inquired of

the Testatriy who was the executor of her Will; when she immediately replied, ( I Sir

Herbert Maddock,” and at the s&me time said there was another esecutor, but did

riot mention his name, arid added, that Sir Herbert Maddock would tte the acting.

~wrson. That the Codicil, having been completed and executed by the Testatrix,

che Testatrix, on being asked by Field where the Will was deposited, said, “ Oh ! my

Will is in my safe keeping,” and then, by her direction, the Codicil was placed in a

iiiawer in a chest of drawers, in the Testatrix’s bedroom, and locked up therein.

758

This legacy is to be duty free.

ALLEN 2’. ~ A ~ ~ ~ ~ K f18581 XI IOORE, 43%

That on this occasion the Testatrix was very ill, and w m fully itnare that hcr life

was in danger, and that her death might occur in a very short time. That in a~lus i~~r i

thereto, she requested Field i i n~~ed ia t e~y 0x1 her de&h to write to her friend Sir

Thomas Herbert Maddock, her executor, whose a d d ~ e ~ s she n~entioned, aiid iufori r I

him of the event, and she at the sante time d~sected her servant, Baker, to take charge.

of her keys, i n d desired her iiot to give them up to any person, except to Sir ~ ~ ~ Q ~ ~ a b

Nerbert Maddock. That the Testatrix had in her possession, at her sesideiiee iir

Xew King Street, several Indian trunks, two of whicfi, having ail ~ 3 ~ s c r ~ i ~ t ~ o i ~ oi i a

brass plate “ No. 1, Mrs. A. Foote,” and “ No. 2, Mrs. A. Foote,” were exactly sirnilas

in size and appearance, and were always kept locked iii the Testatrix’s ~ e d c h ~ ~ ~ ~ ~ e ~ .

That during the last illness of the ~es ta t r ix , and about a week before her death, the

trunk ~ e a r i n g the inscription “No. 2,” was removed from such ~hamber into a

chamber a d - ~ ~ 3 2 ~ - ~ o ~ r ~ i n g , and coInmun~~at~ng there~yith, and vas so reittoved to

niake room for a sofa for the use of the ~ e s t a t ~ ~ x . That the Testiitrix died OIL the

14th of Septe~n~er , 1856, and i ~ n i e d i ~ t e ~ y a f t e r ~ ~ a r d s Field, in compliance with her

desire, c o ~ ~ ~ ~ u n i c a t e d the fact of her death to Sir Thomas ~ e r ~ r t th ad dock, who

shortly afterwards arrived in Bath and repaired to the Testatrix’s resideitce, and

caused a search to be made for the Will and Codicil. That in a small box in the

Indian trunk, marked No. 2, was found, with other papers, the Will iu ~ ~ ~ e s t ~ o r ~ .

unclosed in a sealed envelope with an endorsenlent, in the h ~ ~ ~ ~ d ~ ~ r i t i y ~ g of the Test>%-

trix, “ Mrs. Anne Foote’s Will and that in a drawer in the chest of d r a ~ ~ e r s , in the

~Jedcha~~iber of the Testatrix, was found the Codicil. That diligent search httd bee?)

iiiade, as well in the Indian trunks, marked NO. 1 and KO. 2, us in all other de-

itositories belonging to the Testatrix, and all due inquiry made in regard to testa-

mentary papers, but that no other paper of a tes ta~ne~~tary charticter of the Testatrii,

save the Will and Codicil aforesaid, had been discovered. Thnt the Testatrix, .idleti

she alluded to her Will, and declared that Sir Thomas Herbert ad doc^ was ail

usecutor thereof, and that such Will Fas in her safe keeping, i ~ ~ e a ~ ~ t and intertded

the WilI found in her Indian trunk, and with the Codicil respective~y, as the lasr

Will and ~%stament and Codicil thereto of the Testatrix.

The Appellant by his personal answers to this allegation, a d ~ ~ ~ t ~ ~ generallv

the facts pleaded, but denied that the deceased intended that the Codicil of 1856, w

to be a Codicil to the ~ ~ ~ e n t ~ r y paper of 1851.

Seven witnesses were e~amined upon the a ~ e g a t ~ o n , [4%3 consisting of Baker,

the servant of the d e c e ~ e d , who e v e evidence ta the fact of the deceased heing

separated from her husband for many years; and that from the + n e of such separ-

ation ahc had dropped the name of her husband, and went by t.he name of “ Foote,”

her fir& husband’s name ; that the deceased had espressed her ~ ~ t ~ ~ i t i o n of I n ~ ~ k i n ~ a

Will and u ~ p o ~ n t ~ n g the Respondent her executor; that the witness saw her writing

the Will of 1851, and that a f~e rw&rd~ the deceased told her she had made a+ %7iil and

appoii~ted the ~espondent her executor, and that she had d e ~ ~ i t e d the Will in LE chest

in her room ; thtbt the chest she ~ l ~ e d to was kept in the room of the deceased until

about a week before her death, when it was moved to the witness’s roo111 ; and she

further deposed to the finding of the Will in that chest, and the Codicil in the drawer&

in the deceased’s room. She also deposed that she knew uf no other Will that the

Testatris had made, except an earlier one which the Testatrix had destr~yed in her

presence iong before the date of the execution of the Will in question. The Respon-

dent himself was also examined as to the fact of the finding of the Will in the &mi.

and that i t was incloged in an ~ n v e l o ~ , with the ~ ~ d o x s e i ~ e n t ‘‘ Mrs, Anne Foote’s

Will,” and also of the finding of the Codicil, and of his acquainta~~ce with the deceased ;

and further he deposed that complete search had been made, but that no otller Will

or Codicil had been found except the papers propounded. Field, the Surgeon in

attendance on the deoeased, who took her i n s t~uc t i~ns for the Codicil, axid

vas m e of the a t ~ e s t i ~ g ~ ~ t n e s s e s to the Codieil, deposed that the de-

ceased, in answer to his quest~on, ‘‘who was her executor^ ans~ered , “ Sir T’tlonia.

Eerbert Xaddwk,” whom she E4341 desired s h d d be written to OD her death, and

his evidence on this point was ~o~~ ,obora t ed by Mr. and Mrs. Taylor, two ottker

vvitriesses; arid he further deposed to the depos~ting the Codicil in the drawer xvhcrp

it was found. Hoare, the attesting witness to the testamentary paper of 1851, proved

the paper p r o ~ ~ n d e d , as the one he had attested. Mrs. Taylor also gave evidence,

khat after the Codicil was signed, the deceased was asked where the Will was, ancI

7%

X I MOORE, 436 ALLEN 80. MADDOCK [I8581

tha% she said in reply, “ tha t is in safe keeping..’J The witnesses mere not- cross-

examined,

On the 9th of July, 1857, the J u d ~ e of the ~ r e r ~ a t ~ v e Court (The Bight Eon. Sir

John Dodson) by his judgment (see case reported, nom. ‘‘ i ~ ~ u ~ ~ ~ e ~ v, Allen,” 1 Deane’s

Ecc, ftep., 3251, held, that a l t~~ough t e Will, of- 1851 was not executed accord~ng to

the r e q ~ i r e ~ ~ ~ e ~ ~ ~ ~ of %he Wills Act, 7th Will. IV. and 1st Vict., c, 26, see. 9, he was

satisfied from the evidence and the place where the Will and Codicil were found, that

the instrument of 1851 was the Will which the Testatrix referred to in the Codicil j

and he decreed probate of the two papers, as together contain~ng the Will of the

Testatrix.

%he present appeal mas brought from this dwree, so far as i t related to tire

testainei~~ary paper of 1851.

Sir Fitz-Roy Kelly, Q.C, and Dr. denner, for the Appel~~nt.-It i s not in d i s p t e

that the paper of 1851, propounded as a Will, being attested by one witucss oniy,

i s iirvaiid by the Wills Act, 7th Will. IV, and 1st Vict., c. 26, sec. 9, and is wnseyuently

i t~o~era t i~ re per se. The Codicil being properly executed, the [4%1 que&lm for

~ e c i s i o ~ ~ is, whether the former i n f o r ~ a ~ ~ t ~ ~ e n ~ r y paper i s rendered caective

and operative by the latter, We submit that the paper of 1851 is not s i i ~ c i e n t ~ y

ide~~ t~f i cd by the Cod~c~l , as to be necessarily incorpor~ted with it, and thus form a

~ o ~ ~ ~ ~ l e ~ e Will. It cannot be succcssfu~Iy conten~ed by the other side, that the

description of “ Th is i s a Codicil to my last Will,” i s a sufficient identi~catiox~ of the

Will of 1851, so as to incorporate it with the Codicil. The contrary was held in

CtwKer v. Y’Ae - ~ ~ ~ ~ ~ ~ i ~ of ~~~1~ ~~~~~~ (4 Moore’s P.C. Cases, 339), Fermris w. The

~~~~~~~~ of ~~e~~~~~~~~ (3 C u r t d s Ecc. ftep. 468). In that case the T e s ~ t o r in a

duly-executed Codicil, ratified and confirmed his Will and “ ~ o d i c ~ l s ~ but there wae

;’n imperfec~ly-executed Codicil as well as others duly executed, and the Court lieid

that the word ‘‘ Codicils ’’ meant duly-execu~d Codicils, and refused probate to the

imperfectly-esecuted Codicil, as an imperfect. Codicil did not satisfy the m e a n ~ ~ g of

the word “ Godicifs,”’ there being dul~-e~ecuted Codicils to answer such reference,

In order to ix~corporate air i~nat~ested tes ta~entary paper in a duly-ex~uted Will

or Codicil it nmst. he so dearly identified that there can be na niistake, Srnare v.

~~~1~~~~~ (6 Yes, 560, 565), ~ ~ ~ ~ ~ ~ ~ V T ~ v. Robins (1 Ad. and Ell. 423), In fhe goods of

$he ~ ~ ~ ~ ~ e . ~ s vf ~~~ ~~~~~~ (3 Curteis’s Ecc. Rep. ti?), In the goods of ~ ~ c ~ ~ n s (3 C u ~ ~ e ~ s ~ s

Ecc. Rep. 601, do^^ v. ~ ~ e ~ ~ o ~ (1 Itobert. Ecc. Rep. 81). It i g not identified by

the description of a ‘‘ Will ” when in fact the paper of 1851 is not a Will. Neither

i s it susceptible of being identified by other means : there is no reference to its date,

nor cmi it be ~ d e ~ t ~ f i e d by any ~ r ~ t e r n a ~ evidmce, @@jJ, or by its conteii~s j or by ir s

~ ~ ~ ~ ~ ~ a t ~ ~ ) K ~ to the Codicil, as i n ~ ~ ~ r ~ ~ ~ g s v. Wood (2 Moore’s P.C. Cases, 355)’ so as

to d ~ s t ~ n ~ u ~ s h i t from other papers of a similar d ~ c r ~ p t i o n , if more than one exis

or were found. Eere there may be otlrer Wills which might answer the descr~ption.

If the t e ~ t a ~ e ~ ~ t a r y paper of 1851 be admitted to probate on the ground that- 110

other paper is produced to satisfy the de$cript io~ in the Codicil, the effect will be to

incorporate the paper of 1851 with the Codicil, and to make it a valid Will, merely

by parol evidence and nut by the effect of the reference contained in the Codicil

itself. N7e submit that pniol evidence cannot be received in order to identify the

paper called ib “ Will.” If the ~ o d i c i l had iden t~ f i~d the paper by describ~ng i t as

~ o n t ~ b ~ ~ ~ i n ~ certain specific bequests, such reference, we admit, would have been

~ ~ ~ c ~ e ~ t to let in the proof. Since the passing of the Wilb Act, 7th Will. IV. and

I a t Vict., c. 26, a Court of Probate cannot admit parol evidence t o supply the wan6 of

formal execution required by the 9th section of that Act. Neither i s parol evidence

a d ~ i s s ~ b l e to show the deceased’s intention to ~ncorporate the paper in question wi&

the Codicil of 1856, for there is no reference in the Codicil sn~cien t ly distinct to

justify t,he Court’s receiving par01 proof. The eEect would be to ~ n c o r ~ r a t e the

paper of 1851, by parol evidence only, and not by the effect of the reference in tile

Codicil itself.

Dr. ~ ~ i ~ l ~ ~ o r ~ , and Dr. Deane, for the ~esponden~ . -~o other ~ s t ~ ~ e n ~ ~ ~ ~

paper has been found than that of 1851. There i s nothing, in fact, to answer E4371

what the Codicil refers to as a “ last will,” except. the imperfect~y attested Will of

1851. pr‘o q u e s ~ i o ~ i s made but that it was in existence when the Codicil was

executed, and reasonable negative proof has been given that no other Will is in

760

ALLEN V. ~~~~~0~~ [l858] XI ~ ~ O ~ ~ , 438

existenee t.0 aiiswer the d e s c r i ~ t ~ o i ~ in tire Codicil. Those requiren~ents of the lax-

having then heen discharged, the sole question arises ; whether the reference i x

s ~ ~ ~ c ~ e n t ~ y dist~nct as to leave no reasonable doubt as to the ~dentity of the testa-

~ ~ ~ e n t a r y p q e r of 1851, being the “last Will” referred to in the Codicil of 1856.

We sulmit that it does, and that the Codicil s u ~ c i e ~ ~ t l ~ refers to the Will of 1851,

so as tQ make it a part of the Codicil, and that being so, though the paper of 1851

is in itself ail i~~iperfectly attested tes ta~entary instrument, such i n s t ~ u ~ e n t i s

~ncorporated in and made a valid Will by the subsequeiit duly-executed Codicil.

Nnbevghain v. Vincen t ( 2 TTes. J. 228), Vi!hin,son v. Adom (2 Ves. and Bea. 422, 445),

Y o e d. WilJicrtt~s v. Bzmizs (1 Cramp. and Mees. 42), Smart v. P~ujen i t (6 ’Ires. 560),

Bavnes v. 6 ~ o w e (I Yes. 485, 497), ~ ~ ~ ~ c ? ~ i n ~ s v. Wood ( 2 Moore’s P.C. Cases, 355), f n

the goods of the Countess of D ~ L T ~ Q ? M (3 Curteis’s Em. Rep. 57)’ Croker v. T h e ~ f f r ~ z ~ ~ s

o# ~ ~ r ~ f o ~ ~ (4 Moore’s P.C. Caws, 3391, ~ ~ g ~ ~ ~ b ~ v. ~n~~~~~~ 14 Notes of Cases, 493).

Upon the seeond point, the admission of parol evidence, we contend, that this is

such a case as to admit. extrinsic evidence to show i ~ ~ t c r ~ t ~ o n of deceased. J a r n ~ a i ~

“ On Wills,” p. 349 (Edit. 1844), W ~ g r a n ~ ’ ~ ‘I Ex-trinsic evidence in aid of the inter-

pretation of Wills,” pp. 7-76 (3rd Edit.), Doe d. ~ e ~ ~ ~ e ~ ~ ~ ~ v. ~ ~ t ~ 7 (1 Nev. and

Man. 576), ~~~~~~e~ v. ~ ~ ~ i ~ ~ e ~ (1 I Jurist, 1 Z I).

E4381 Their Lordships’ judgment vas delivered by

The Right Xon. T. Pemberbn Leigh (July 8, 1858).-0n the 1st of ~ e c e ~ ~ ~ b ~ r ~

1851, Anne, the wife of Joseph E ~ ~ ~ n u e l All n, but mho was separated from her

husband, and who had assumed, and was known by, the name of “ Foote,” drew up

in her owii handwriting, and signed and sealed, a paper of that date, described in

its commeiice~~ei~t as the “last Will and T e s t ~ m e n ~ of me, Anne Foote, of Bath,

which I make and publish for all my wwldly substancc.~’ By this instr~in~ent she

g w e several legacies, and appo~nted e~ec i i t~rs , but made no d ~ s p o s ~ t i o ~ i f the

remainder of her property.

She had a power, under the s e t t ~ e ~ ~ ~ e n t made on her ~ n ~ ~ . r i a ~ e , to make a Will,

but the paper in question was attmted by only one witness, and was, therefore. not

valid.

On the 1Jth of S e p ~ ~ b e r , 1856, being thea on her d e ~ t ~ ~ - b e d , she duly executed

a Codicil, thus headed : “ This is a Codicil of niy last Will and Testanient.” By this

Codicil, she givm her serrant, Eliza Baker, the sum of 3.100, ‘‘ with as much of

iirp furniture as, the opinioiz of my esecutm, will be suEcient to f w n k h a

s ~ ~ ~ i n ~ - r o o ~ ~ ~ and a bed-room.” The Codicil appoints no executor, and c o ~ i ~ ~ ~ ~ ~ no

other reference to the Will.

On her death,

search was made for her t e s t a ~ ~ ~ e i ~ t a r y papers by Sir Thomas ITerbgrt ~ ~ d d o c ~ ~ , who

was one of the executors appo~nted by the paper described as her Will, and to whox~t,

in p~rsuance of the Testatrix’s direction, a letter announcing t,he event had been

sent ~ ~ ~ e d i a t e l ~ upon her death. The CodiciI wtis found in a chest in her E4393

bed-room, and the disputed paper was found in aaother chest which had been,

shortly before her death, removed from her bed-room into an adjoining room,

This paper was inclosed in a sealed envelope, on which are written the words-i‘ MKS.

Anne Foote’s Will,”

On the following day, the 14th of September, the Testatrix died.

No otlrer testamentary paper of any descr~ptio1~ was found.

Under these c i r c u ~ a ~ n c e s ? these two papers have been a d ~ ~ t t ~ tu probate by

the Judge of the Prerogative- Court; and against this decree the present appeal is

Itrouglit RS regards the Will.

The objection relied on is, that there i s no such distinct reference to this paper

in the Codicil, as to enable the Court to receive parol evidence in ordor to identify

it; that it i s not identified by the d e s c r i p t ~ o ~ ~ of a “Will,” for that, in

truth, it is not a Will; that it is not identified either by date or by

anp reference t o its contents, or by a i ~ ~ ~ e ~ a ~ i o n to the ~ o d ~ c i l , so as to

d i s t ~ n ~ u i s h it from other papers of a like descriptior~, if more than one were found ;

arid that to admit this paper to probate on the ground that no other i s produced to

satisfy the de~cr~pt ion, would be to incorporate the Will in the Codicil, merely by

parol evidence, and not by the effect of the reference contained in the Codicil itself.

It becomes necessary to examine, mith some ~inuteness, the rules of law and the

decided cases applicable to this subject.

761

XI ~~~~, w ALLEN 9. ~ A ~ ~ ~ C ~ E18581

Before the “Act for the Amendment of the Laws with respect to Wills,’” 7

Will. IV., and 1 Vict., c. 26, was passed in the year 1831, no formalities oE any kind

being ~iecessary in the execution of a Will or Codicil a@ to personal e&ate, the effect

of i~ well-executed test~mentary ~nstrument upon one not well f440] executed could

hardly conie before iz Court of Probate. But. sueh questions arose very f r ~ u e n t ~ ~

in the Ten~poral Courts, with re-spect to the d~spos~tioK~ of red estate; and the ~ t a t u t ~

alluded to having placed Wills, as to real and p e ~ s o n ~ ~ property, on the same footing,

it should seem that the authorities upon this paint with reepect to real estate, whether

before or since the Statute, in the Courts of Law, are now equally applicable t o the

Court of Probate, with regard to personalty, In considering them, however, it is

necessary tu bear in mind this dist~nction between cases before the Statute, and

su~)se~ucrit cases, aaniely, that, before the Statute, a testamentary paper not executed

so as to afIect real estate, was valid as to personalty~ was really a Will or ~ o d i c i ~ ,

and might, therefore, strictly answer that description in a subsequent reference to

it by that name ; whereas since the Statute came h t o operatioil, no paper not properly

esecuted and attested can, in strictness, be for any purpose a Will or Codicil.

It is necessary also to rei~iember the dis i~nct~on between the a d ~ ~ i s s i b i l ~ t y of

evidence to prove a ~ e s t ~ r n e ~ t ~ r ~ paper, and of evidence to explain its meaning, that‘

direct evidence of intention, declarations of the Testator by word, or in writing,

arid other testimony of a siniiIar character, are admiss~~le, when the %’ill is dis-

puted, but that no sueh evidence can be recoived in order to explain the expressions

which he has used. Still, in con st ruin^ his Will, the Court is entitled, and i s bound,

to place itself in the situation of the Testator with respect to his property, the objects

of his bounty, and every other circumstance material to the construction of the Will,

and for this purpose to receive, if occlzsion require it, parol evidence of those E4411

ciscumstances, and to expound his meaning with reference to them.

In the ce~ebrated treatise of Sir James W i ~ r a n ~ , cited at the Bar, these rules are

stated, discussed, and explained in a manner which has excited the admiration of

every Judge who bas had to consult it. After e o l l ~ t ~ n ~ and stat in^ the effect of the

several authorities, Sir James Wi~sa in sums up (as i t appears to us with perfect

~ c c u r a ~ y ~ the result in these tern=: ‘ I Every claimant under a Will has a right to

require that a Court of con~ructioii, in the esecut~on of its ogce, shail-by means

of extrinsic evidence-place itself in the situation of the Testator, the meaning of

whose ~ a n ~ u a ~ e i t is called upon to declare. It follows that-with the light which

that situatiou alone affords-the Teshtor’s meaning can be d e t ~ r m i n ~ by a Court :

the Court which so dete~mines does, in effect, deolare that the Tes ta t~r has expressed

his intention with certainty, or, in other words, that his Will is free from ambiguity.”

-(Prop. v. par. 96.)

It may be said that, on the present o~casion, the Court of Probate is, to ~ 1 , certain

extent, a Court of construction; for it has to determine what is the meaning of the

seference made by the Testatrix in her Codicil, to her last Will and Testament (the

executor under which is to determine upon one of the gifta in the Codicil), and

whether any, and, if any, what, i n s t r u ~ e n t found at her death i s thereby referred to.

This ~uestion i s one of fact which obviously must be explained, and can only be

explained by parol evidence, At first sight there is no difficulty ; there i s no am-

b i ~ u i t ~ whatever in the e ~ p r e s s i o ~ ~ by which the reference i s made. Parol evidence

must necessarily be received to prove whether there Is or is not in I4421 existence at

the Testatr~x’~ death any such ~ i ~ s t r u ~ e n t ss is referred to by the Codicil, For this

purpose, inquiry must be made and evidence must be offered to show what papers

there were at the date of the Codicil, which could answer the description contained in

the Codicil ; and the Court having by these means placed itstslf in the situation of

tbc Twtatrix, and acquired, as far as possible, all the knowledge which the Testatrix

pcmemd, must say, upon a corisideration of those extrinsic c ~ r c ~ ~ t a n c e s , whether

the paper i s identified or not. If the Will in question had been properly executed,

there can be no doubt that it would have k e n treated as the instrument referyed to

by the Codicil; yet i t must, in that case, have been proved, or assumed, that there wag

no later Will revoking it. T h i s last fact i s one which i s in truth a necessary founda-

tion of the e s t ~ b l i s h ~ ~ e n t of every t e ~ t a ~ ~ e n t a r y paper.

That a description in a Will. may be applied to a subject inaccurately desrriBed

in it, if it should be shown by parol evidence that there is no subject to whic?11 it,

applies with accuracy, can admit of no douht,. *‘ If the description in tho Will is

762

ALLEN 2). ~A~~~~~ [1858] XI XOORE, 443

incorrect, evidence, that a s u b ~ e c ~ h & v i n g suctl i LI, .h marks upon it--exi&s,

must be admissible, that the Court may determine wl,ether such subject, though in-

GorrectIy described in the Will, be that which the Testator intended.’’ (Wigra~’s

“ ~ ~ t r i n s ~ c evidence in aid of the interpretat~on of Wills,” Prop. v, par, 64.)

Is, then, the evidence in this case s u ~ c i e n t o identify the paper propounaea as

the Will 2 No other paper has been found to which the description can appiy;

here i s a paper kept by the Testatrix up to the time af her death in her own posses-

which, according to her view of that paper, i t dow apply with the

st rictmt ace u r acy.

If we are to read the Codicil with the ~ n o w l e d ~ e of what the Testatr~x knew,

name~y, that she had this t m t a ~ e ~ t ~ paper, and that she had no other, can it be

doubted that this is the paper referred to 1

It i s said, however, that this i s merely the effect of parol evideiica; and that

there may he other Wills, and that if there were two there is n o t ~ i n ~ in this Codicil

In, a i s t ~ n ~ u ~ s ~ which was the Will referred to. Unfess there were two, both in?-

perfectly executBd, and both of the same date (not a very probable event), the

question could not arise. As we have already abserved, the e%caey of every

Will, as a last Will, depends upon the fact that^ there is none later. The proof of

this must, in all casea, be negative, and necess&rily of very different weight, some-

times a ~ o u n t i n ~ almost to certainty, as when the Will is made an the deatlr-bed ;

sometimes open to great doubt, as when the Will has been made many years before

the death ; but in every case tGhe Court admitting the instrument to probate, niust

be satisfied that it i s the last Will.

Supposing the paper prop~u~ided as a Will in this case had been executed a fen-

hours before the Codicil, and that, there was positive proof that the Testatrix signed

no other paper until she signed the Codicil, the objection which i s now made would,

in law, be precisely of the same force.

It has not been disputed that, if the Codicil had ~dentified the paper, by daserib-

ing it as containing certain bequests, such reference would have been s u ~ c ~ e n t to

let in, tibe proof, yet in such case the proof would equally depend on the assumption

&at EM41 there was no later Will which conta~I~ed similar bequests.

No doubt the rule of law i s as stated by Lord ELdon in ~ ~ r t v. ~~~~e~~ (6 Ves.

565), that, ‘‘ an jns t ru~ent , properly attested, in order to ~ncorporate another

instrument. not a t t e s ~ d , must describe it so as to be a maii~fest~tion of what the

paper is, which is meant to be i n c ~ ~ o r a ~ d . ” For this purpose it is necessary that

it should be so described as to leave no doubt in the mind of the Judge, in the circum-

stancw as they actuaIly existad and are proved before him, that the paper re€erred

to i s the paper propound^.

In the case of Srnurt v. ea^ [ S Ves. 5661, the Testator by his Will directed

the proceeds of his real estate to be applied to such purposes as he should, by a

prhate letter, which he stated in his Wilt that he intended to leave v.itsh the Abbess

of a Convent named, or her successor, appoint. This Will, ~ c c o r d ~ n ~ to the stat&&

inent of i t in the report, does not seem ne~ssar i ly to have referred to any particular

paper then in existence. The letter which he declared his intention to leave might.

be either one which he had already written or one which fie intended to write. 11%

point of fact the Testator never deposited any letter in the custody me~~tioned in

his Will, but a t his death two papers were found in an envelope, which inclosed

also his Will, one being a letter addressed to his esecutors, and another a

letter addressed to the Abbess in question, both documents bearing date

some months before his Will, and one of then? mentioIiin~ that he had

devised his ~ o r l d l y estate and effects to trustees upon the uses yi~entioned in the

letter. The letter, therefore, in [445] terms, referred io a Will already made, and

could hardly be construed to refer to the will actually produced, which was dated

many months a ~ ~ r w a r d s . Nor had the letter been delivered over t~ the Abbess,

which b r d Eldon, thought, by the terms of the Will, was an essential part of the

condition ta give i t validity. Be, therefore, very naturally asked, if other letters

had been proved, how could these be distingu~shed from them 1 He did not 0x1

that occasion express any doubt that parol evidence might be received, provided the

reference in the Will was to a paper already existing and sufficiently identified.

In a subsequent ease, however, if Lord Eldon’s observ~tions are accurately

reported, he appears to have i n t ~ ~ ~ a t e d sonie doubt whether a paper a ~ ~ t e c e ~ c n t l ~

763

XI ~ O O ~ E , 446 ALLEN 2”. ~ A ~ ~ O C ~ [1858]

existing, and clearly and u n d e ~ i a b ~ y referred to, could he made part of the WBX,

~ ~ ~ ~ 7 ~ 0 ~ v. Adam (1 Ves. and Bea. 445) ; but, if any such doubt was ever thrown

out, later decisions removed it, aad coynpletely e s t a b l ~ s h ~ the rule that, before the

late Wills Act, a paper distinctly referred to by a WilI might be in corpora^ in it.

R reference by a Testator to his last Will, i s a referen= in ita own nature to

one instrument, to the exclusion of all others; if so, the descr~pt~on identifies the

ins t~uineI~t~ It is not like a general reference to Cod~cils, of which there may be

several.

In the I~umerous cases to be found on t

a Codicil duly executed, and which, in effect, i 8 equivalent to a re-execution of the

former i~~strument, i has never been held necessary that tbhe Codicil should refer

to t,lie particular paper containing the Will, so as to distinguish it from all other

T”Vil1s.

[e61 In B w ~ s v. Gi-oit~e (1 Ves. J. 497), Lord Commissioner Eyre observes:--

“The Testator’s a c k i i o w l ~ d ~ e ~ t of kis former Will, ons side red as his Will at

the execution of the Codicil, if not directly expressed in that in&rument, must be

implied from the nature of the i n s t r u ~ e n t itself ; as, by the nature of it, it supposes

a former Will, refers to it, and becomes part of it; and, being attested by .three

w~t~esses , his implied declarati~n and acknowledg~ent seem also to be attested by

three.” It was decided in that case, that the republication of a Will by a Codicil

was not only a recognitio~ of the Will, but bad the eEect of a r ~ e x e c u t i ~ n , so as to

make it speak as from the date of the Codicil, and to give a different n ~ e a n i n ~ to-

R general devise of lands from that which it previously had.

To this doctrine Sir William Grant, though he felt himself obliged to yield to

authority, was much opposed, arid when he had to consider the case of Biirmes v.

Orowt, [1 Yes, Jun. 4971, in the ease of Pigott v. Waller (7 Ves. 118), be urged very

strong reatsons against the principle of that decision but that a Codicil to a Will,

though not referring to it, recognizes a preceding Will, and amounts to a repubIiea-

tion. he does not intimate any doubt. His words are-“ A direct republicatioK1, or

re-execution, is an unequivocal act, making the Will operate precisely as if it was

executed on the dsy of the repub~icatii~n. But a reference to the Will proves only,

that the devisor recognizes the existence of *he Will; which the act of making a

Codicil ~ ~ e c e s s a ~ ~ l y imp ies ; not that he means to give it any new o ~ ~ r a t i o n , or do

niore by speaking of it than he had already done by executing it.” He afterward^

observes, p. I90--The Lords Comm~ssione~s, in Barnes v. CroziIe [I Yes. Jun. 491),

appear to have E4471 determined “ that every Codicil, duly attested, ought to be

held a ~ e p ~ b l i ~ a t ~ o n . Tlirsir opinion seems to be, that. the Codicil was incoi*po~ated

with the Will. The general proposition referred to by Lord Commissioner Eyre,

i s , that the eseoution of a Codicil rjhould in all cases be an implied republication.”

Tn the case of Doe d. ~~~~~~~~~ v. Bvnns (1 Cromp. and Mees, PZ), a Testator

prepared a Will which he did not sigii, and about a f o ~ n i g h t a ~ ~ e r w s r d s uly

executed a Codicil on the same sheet of paper, commencing with these words:

‘‘ Codicil.---I, David Evans, make a Codicil to the foregoing Will ; ” aad it was

held that the Codicil operated to incorporate and establish the Will. Mr. Baron

BayIey in giving judgment, observes, “The Will was written on part of a sheet

of foolscap paper, and the Codicil was written on the same sheet. Now, i f the Codicil

had not referred to the Will, I should have &ought that i t did not set up that in-

s t r u ~ e n ~ ~ ; but i f the Codicil do refer to the Will, then I am o f qinion that it does

set i t up. The Ianguage is, ‘ Codicil-I, David Evans, make a Codicil,’ whicli word

implies an a d d ~ t ~ o ~ i t a former i ~ s ~ r u ~ ~ e n t , I% proceeds, a Codicil to tlie foregoing

TNilI; ’ ” and the learned Judge then observes, “ The Testator, by e ~ e c ~ ~ t ~ n g this

Codicil, appears to me, at that time, in as plain terms as possible, to have set up,

iiot only the Codicil, but the Will.”

In thiR case there was a distinct reference to the p a ~ i c ~ i l a r paper referred to

in such a manner as to exclude all doubt of the i n s t r u ~ e n t intended ; but in tEle case

of ~ ~ ~ e . ~ t v. ~ ~ € ~ ~ e ~ (2 Bingh. 429. 8.C. 3 Bingh. 614), this c i r c u m s t a ~ c ~ was

wanting. On the back of-tbis

Will he wr&e three Codicils, two unattest~d, [&&J and the last attested. The last

Codicil revoked the appoin t~ent of an executor made by the second Codicil, but did

m t otherwise refer either to the Will or Codicil. The Court was of opinion that

‘764

A Testator there made his Will, duly attested.

, ALLEN 2’. MADDOCK 18581 XI MOORE, 449

the last Codicil operated as a republication, not only of the Will and of the secoiLd

Codicil, but also of the first.

It i s true that in both these cases the several writings were all upon the sanie

sheet of paper, but when the d ~ ~ c u l t y arises from an absence of the ceremonies

required by the Statute of Frauds, this circumstance does not seem of much irn-

portance. It, may greatly facilitate the identifica~on-it may make the evidence

more mmlusive, but it can hardly make it more admissible.

Accordingly, i t does not seem to have been thought necessary in subsequent cases.

In the case of G o r h m v. Lord Reay (5 Sim. 274), a Testator made his Will,

dated the 17th of August 1812, duly executed and attested, by which he devised

$10,000 to the Plaintiff, charged on certain estates. He afterwards made a Codicil,

unattested, dated the 8th of April 1814, by which, after reciting that he had sold

the estates so charged, he directed that the legacies should be paid OUL of and

charged on his other real estates. On the 13th of August 1818, he made a second

Codicil, duly executed and attested, by which he confirmed the provisions made by

his Will on the 17th of August 1812, in favour of the Plaintiff, but took no notice

of the Codicil of the 8th of April 1814; yet it was held, that a Codicil being in law

a part of a Will, the second Codicil, by c o n ~ r m i ~ ~ the Will, esta~lished the first

Codicil so as to charge the 2210,000 legacy on the real estates.

In the subsequent [4492 case of Vttertou v.

Rob& (1 Ad. and Ell. 423), which wa8 argued before the Court of Hing’:’s Bench

on a case sent from the Court of Chancery i n 1834, a question of the same kind

arose. In that case the Testator made a Will, dated the 12th of September 1823,

duly executed and attested, and after devising a house in Brompton Terrace to his

daughter, Mrs. Utterton, gave the residue of his real and personal estate to trustees.

By a ~ e m o r a n d u m in pencil in the margin of his Will, dated the 6th of August

1825, signed, but not attested, the Testator recited that he had sold the house given

by the Wit1 to his daughter, and gave her instead of it, B house in P o r t u ~ a l Street.

Ne afterwards sigaed another unattested Codicil, dated the 29th of August 1825,

to the same effect, and afterwards made several Codicils properly executed and

attested, for the purpose of including in the operation of his Will, after-purchased

estates. The last of these Codicils was dated the 5th of February 1830, and was in

these words : -“ I, John Robins, do make this further Codicil to my Will, which bears

date the 12th day of September 1823. I give and devise all real estates and heredita-

ments purchased by me since the date and execution of my said Wili, to the trustees

therein named, their heirs and assigns, to the uses and upon the trusts in my said Will

expressed and declared of and concerning the residue of my real estates.”

The house in Portugal Street had been purchased between the date of the Will

and of the Codicil of the 29th of August 1825, and the question for the consideration

of the Court was, to whom th0 house in PortugaI Street passed ; it being contended

on the part of Mrs. Utterton, that the last Codicil, though [&0] not referring to

any instrument but the Will, operated rn a republication of all the Codicils, whether

attmted or una t tes~d , and that the house in Portugal Street passed to Mrs. IJtterton.

The case of Gordom v. h r d Reay [5 Sim. 27.11 wa8 not cited, and the Court did not

decide whether such Codicil would or would not establish the unattested Codicils not

referred to; though Mr. Baron Parke may be considered to have i~ t imated an

opinion against giving to the Codicil what he terns “that immense efEect iii re-

publication which Mrs. Utterton’s Counsel ascribe to it; ” but the Court held, that

supposing the Codicils in favour of Mrs. Ctterton tQ have been duly attested, the

last Codicil would have revoked them, and devised the estate in q ~ ~ e ~ ~ i o ~ to the

trustees under the Will. The learned Judges had no doubt that any testamentary

paper unattested, sufficiently referred to a duly executed and attested Codicil,

would be established by such Codicil, though the two instruments were not only not

on the same paper, but were not even in the same country.

This is *he result which we collect from the observations which fell from the

Judges in the course of the argument, though they contented themselves with send-

ing a certificate of their opiinjon to the Court of Chancery as to the effect of the

devise, without assigning any reasons.

In t6e case of Radbtwm v, dervis (3 Beav. 450), decided by Lord. Langdale; the

ca~es of Gilest v. ~ ~ ~ ~ a ~ e ~ (2 Ring. 429 : 3 Ring. 6141, Gordm v. Lord Beag [5 Sin).

765

.

m a t case was decided in 1832.

XI IKOORE, 461 ALLEN v, MADDOCK [1858]

2141, and Ctterton v. Robzns [l Ad. and E. 4231, were all cited ; and his Lordship

was of opinion, thak a Codicil d d y executed and attested, though referring only

to the Will, operated to establish and republish all previous Codicils, whether duly

executed or not.

[&1] The Testator there made a Will giving various legacies, and chargilig his

real estates with all legacies thereby given. Ne made many Codicils, some duly

executed and attested, and some not ; and by one of the latter class he gave a legacy

to Mr. Brundrett. His eleventh Codicil was duly executed and attested, and began

in these words : ‘ I This i$ a further Codicil to the last Will and Testament oh me, Sir

Thomas Clarges, Bart., made this 10th day of April 1828.” The Codicil was con-

fined to revoking the appointment of two gentlemen named in the Will as trustees,

and the legacies given to them, and to appointing Brundrett an executor and trustee

in their stead. Lord Langdale held, that the legacy to Brundrett was not charged

on the real estates, because the Codicil did not so charge it, and the Will charged

only the legacies thereby given ; but he was clearly of opinion, that the last Codicil

operated as a republication of ail the preceding Cod~cils, as well as of the Will,

though none of the Codicils were referred to. His language is-“ The object of

the last Codicil, which was duly executed and attested, was to revoke the appointment

of trustecs and executors named in the Will, and the bequests given to these trustees,

axLd to appoint Mr. Brundrett to be executor and trustee; and though, in effect,

it operated as a republ~cation of the Will and former Codicils,~and might have

extended any prior general devise to lands subsequently acquired before the date

of the last Codicil, and have subjected such subsequently acquired lands to a general

charge contained in the q i l l ; yet, considering it as a republication of the Will and

all the preceding Codicils, I do not think the effect is to charge on the land, legacies

which by those Codicils were not so charged.”

[&2] Amon v. Aa;l.olz (3 De Gex. and Snz. 475), before Lord Justice Knight

Biuce, recognizes the rule of law as established in Gordon v. L0p.d Reay E5 Sim. 2741*

arid treats it as not inconsistent with the decision in 17t€es.ton v. Robins [I Ad. and E.

4237; and his Lordship observes “ that it can make nu difference whether the

Codicil be written on the same paper with the %Till, or written at a subsequent

period, or not.”

The cases to which we have referred all turned upon instruments anterior to the

late %Tills Act ; but they show that before that Act, in order to give validity against

real estate to a test~rnentary instrument previously ineffectua~ for the purpose, such

a general reference was suBcient as, when compared with the evidence produced,

would enable the Court to identify the document; that a Codicil would operate as

a republication of the Will, and that a republication of a Will would aniount to a

republiciition of whatever antecedent papers might unsFer th- description of

Codicils, leaving i t to be ascertained by parol evidence what might be the particular

papers a i is~er ing the descriptioi~ of either Will or Codicil.

This doctrine was very much discussed in the case of ~ ~ c ~ ~ ~ g s v. Vuocl, before

the Judicial Cominittee of 1841, reported in 2 Noore’s P.C. Cases, 355; and many

valuable observatio~is bearing upon this question were made by Lord Lgrrdhurst,

though, as the case arose before the Wills Act of 1837, and related only to personal

estate, it hiis not the authority of a decision on the point in controversy.

As to the c ~ t a i n t y of the reference required by the l aw in the incorporating

instrutnent, there does not seen1 to be much distinction, under the Statute of Frrtuds,

betweeri a Will and any other ~nstrui~zerit. {4~3] In either case it is necessary, axtd

it is sufficient, that the description should be such as to enable the Court, when the

cvidence i s produced, to suy what is the instrunlent intended.

111 the case of S/coi*tredc v. C h e e k (I Ad. and Ell. 57), a guarantee in writing

refeiqred to “ the promissory note,” and evidence waa offered of a particular pro-

irtissory note, alleged to be the one in question. It was objected that the writing

did riot sp cify what pro~iissory note was meant; that there might be more than

oix But the opinion of the Court was, that, although if there hrid been more lhall

om, there would huve been difficulty in admitting parole evidence to prove which

irote was meant, yet as only one was proved, and there was no evidence of any other,

the descr~ptio~i was sufficient. Mr. Buron Parke observed, in answer to the argn-

inent that there niight be other notes, “ Even if the note had bee11 fully d:scribed,

766

ALLEN 2'. ~ A I ~ ~ ~ ~ K fl858] XI &for J"

you might say that it was porn3.de there mi& have been another note, 2 ' " f

the contrary should have been shown."

The same doctrine was carried still further by Lord Lyiid~~urst in the case csf

~ ~ g e ~ v. fa^^ (1 Russ. and Myl. 116). A contract in writing was made, rne

of the terms of which related ta the e x ~ u t ~ o n cl.f certain bui1din~, " as per p b

agreed upon." In that case several plans had been drawn out, and d~scussed at

different times, and it was doubt€ul which was the plan meaiit. Lord Lyndhurst,

in a Bill for a specific per€orma~~ce of the coiitract, held, on the author~ty of Clka.tz

v. Cook (1 Soh. and Lef. 22), that parol evidence was admissible to prove which of

the plans was intend:d, but he thought that the evidence [464] was insufficient to

identify the one insisted on, and on that ground dismissed the Bill.

It has been supposed that this case i s open to criticism, on the ground that I he

co~~t rac t did not of necessity refer to any writing, and that to ascertain, by parol

evidence, which, of several docun~e~i t~ , a11 a ~ ~ s w e r i n ~ the descriptio~~, was iiitended,

i s going further than any former case, and is contrary to the opiriion, or inclirra-

tion of the opinion, of the Judges in ' ~ ~ ~ ~ ~ ~ ~ ~ ~ e v. Cheek ( ~ ~ i r a ~ ~ ~ ' s '' Estrin& mi-

dence in aid of the i n t e r ~ r e t a t ~ o ~ i f ~ i ~ s ~ Prop. vii. par. 166, p. 127, ir t note).

For the present purpose it i s quite ~ m ~ a ~ r i a ~ to consider the value of thew

o ~ ~ j ~ t ~ o ~ ~ s . In this c a e it is clear, &at the thing referred to is a ~ r i t ~ ~ ~ g ; that it

i s in ita nature ti single ~ns t ru i i~e i~ t ; and thut only one document is found to a n ~ \ ~ e r

the d ~ s c r i p t ~ o ~ .

The cases of ~ ~ ~ ~ ~ e ~ e v. ~ e e ~ [1 Ad. and E. 573, and ~~~~e~ v, ~ ~ ~ ~ ? f ~ ~ ~ l [Z Russ.

utid My. 1161, are referred to by Lord ~ o t t e n l ~ a ~ n , in Squir-e v. be^^ (1 Myl. Lnd

Cr. M O ) , as only establishing ti principle which he seem to consider as settled, thrtt

when an agreement refers to some other document, the identity of the thing ]*e-

ferred t a may be eertablished by parol evidence.

A reference in s Will may be in such terms as to exclude parol ~ e s ~ i ~ i ~ o i i ~ , a s

where it is to papers not yet written, or where the description is so vague as to be

incapable of being applied to any ~ ~ i s t r u m ~ i ~ t in par t i~ular ;but the a u t l i o r i t i ~ ~

s ern clearly to establish that where there is a reference to t tny written d o c L ~ ~ ~ ~ e ~ ~ t .

described us then existing, in such terrna that it is cspable of king ascertained,

parol evidence is admissible to ascertain it, and the only question [455] then is.

whether thp evidence is sufficient for tlie purpose.

Supposing the evidence to be a d ~ ~ ~ s s i b ~ e as the case would have stood ur~dttr tlie

Statute of Frauds, has the Wills Act of 183'7, altered the general law upon the sui,-

jeotl There are no words in the Act by which any such intention is declared. It

has altered the mode in which the instrun~ent c o n t a ~ n ~ n g the Will is to be executed,

but it lras left untouched, as i t appears to us, the question what papers are to be

held included in the instrument so executed. The Statute of Frauds enacted, that

all devises of lands shall be in writing, and signed by the devisor, or by s~n ie other

person in h i s presericg and by his express d ~ r e c t ~ o ~ s , and shall be attested isnd sub-

scribed in his presence by three or four credible witnesses, or alae they shall he

mid.

The Wilk Act, 7th Will. IV., and 1 Vict., sec. 9, provides, that no Will shall be

idid unIess it be in writing, and signed at the foot or end thereof by the Testator,

or by sowe other pernon in his presence and by his direction, and such signatore

shall be made or acknow~edged by the Testator in the presence of two or more

witnesses presex~~ a t the same time, and such witnesses shall attest and dial1 sub.

scribe the Will in the presence of the Testator, but no form of a t ~ s t a t i o l ~ shall be

necessary.

The ce~enionies ~ecessary to ~uthenticate the ins t ru i~e~i t are altered, but rho

alteration is here made' in the effect to be given to words used irl it. It should seem

that 11 paper which would have been incorporated in tt Will esecuted accordirig t o the

Statute of Frauds must now be incorporated in a Will executed according 'to the

new Act.

[456] In those instances in which the Legislature was of opinion that the cor)-

s ~ r u c ~ ~ o n put by decided cabsea upon the Statute af Frauds, as to the e ~ e c u t ~ o ~ of

Wills, or the rules applied to devises contained in theni, required alteration, pro-

visions for that purpose were introduced into the Act,

The iiicorporation of unatte~ted documents by reference in an attested Will+

767

”+ wCkORE, 4117 ALLEN e. MADDOCK [1858]

_I a subject of very great importance, and had excited much attention, the pro-

priety of which had been sometimes doubted, at least to the extent to which it had

been carried. It can hardly be supposed that if it had been intended to introduce

so great an alteration in the law, it would not have been introduced by express

declaration. But to have introduced any such declaration would have occasioned, in

many cases, great incon~enience and injustice.

The only circumstance of which we are aware from which any colour can be

given to the argument that the Statute had the operation now mggested, is the con-

struction put upon it by this Committee, in Smee v. Bryer (6 Moore’s P.C. Cases,

4041, by which i t was held that the signature must be so affixed at the end of the

Will as to leave no blank space for any interpolation between the end of the Will

and the signature; and it might be said that such a security against fraud could

not be afforded if a paper only referred to in the Will could be admitted as part cf

it, But this construction was found to produce such extensive injustice that, by

the Statute, 15th and 16th Vict., e. 24, the Legislature interfered to alter the law

so established, and this Act passed before the Codicil in this case was executed. It

was not contendod in this- case, nor, as far as we are aware, has it been con-[457]-

tended in any case since the Wills Act of 1837, that no referenee, however distinct,

is now sufficient to incorporate another testam~ntary paper in the paper duly

executed as a Will or Codicil, but the question has always been, what reference in

the valid paper is sufficient to let in evidence to identify the invalid paper.

Upon this point an important distinction has been introduced by the Act., to

which we have already alluded, namely, that whereas before the Act a paper not

duly executed might be a Codicil as to personal .estate, and might, therefore, be

referred to by that description, no such paper can how be properly so designated.

That, with this exception, the Iaw on this subject remains as it was before the

Act, appears from an examination of the authorities, although in deciding on the

question what is or is not a s u ~ c i e n t description to let in evidence, cases of great

nicety are to be found.

In April, 1841, the question now raised came before the Prerogative Court in

Smith’s case (2 Curt. 796). In that case the Testator, in May, 1838, made a Codicil

to his Will, signed but not attested. In August, 1840, he made a further Codicil,

signed and duly attested. This was written on the second side of the paper on

which the former Codicil was written, and the deceased described it as “ a second

Codicil to my last Will and Testament.” Sir Kerbert Jenner Fust decreed probate

of both Codicils, observing: The latter Codicil being duly executed, referring to

the former, is an execution of the former Codicil also.”

In the case of the goods of Sotheron (2 Curt. 831), [468] the same learned Judge

recognized the rule as laid down in Smith’s case [2 Curt. 7961, but held the reference

in the Will not to be sufficient to let in evidence of the paper propounded.

In January, 1843, in the case of Claringbull (3 Notes of Cases, I), Sir Herbert

Jenner Fust again acted on the rule laid down in S m i t ~ ~ s case, referring to it as

the interpretation which this Court has put upon the Statute of Wills.

In the course of the same year he had to determine the important case of Lord

Hertford’s Will (3 Curt. 468). The Testator had there made a Will and twenty-

nine Codicils.

quired no attestation ; others were made after the Act, some of which were attested,

and others not. He

made a further Codicil dated in April, 1839, duly executed and attested, and thereby

declared that he ratified and confirmed his Will and Codicils. The question was

whether the Milan Codicil was thereby established, and it was dNided by Sir Her-

bert Jener Fust that it was not, and upon this principle, tha’t it was not a Codicil;

that it was not distinctly referred to as such; that there were other papers which

were Codicils, and which would satisfy the words of the instrument referring to

them; and that the Court could not, tberefore, extend the words of referellce to ~ $ 1

instrument not answering the description.

In June, 1844, the case on Lord Hertford’s tes ta~entary papers came before the

Judicial Committee by way of appeal from the decision of Sir Herbert Jenner Fust,

and the decision was affirmed (4 Moore’s P.C. Cases, 339). Dr. Lushington, in

delivering the [469] judgment of the Committee, observed very strongly UPOR the

768

Some of the Codicils were made before the Act of 1837, and

One Codicil, made at Milan in October, 1838, was unattested.

ALLEN o. ~~~~~~0~~ [ 18581 XI &ZOOBE, 460

inconven~ence which might result from adn~itt ing papers to probate neither pro-

perly executed nor distinctly identified; but he also relied on the ground of the

j u d ~ ~ e n t i the Court below, namely, that there being no reference to the particuiar

paper, except under a general description of ‘‘ Codicils,” and there being instru-

ments which properly answered the d e ~ r i p t i o n of Codicils, the words could not be

extended to an instrument not properly answering the description.

This was the case mainly relied on by the AppellaK~t in the a r g u ~ e n t before US.

It i s a decision on every grouiid entitled to the utmost respect, and we not only bald

ourselves bound by i t s authority, but entirely assent to ita principle. We can find,

Irowcver, nothing in it: inconsistent with the rule adopted in the cases of Smith [ a

Curt. 1961 and ~ ~ l ~ ~ ~ g ~ ~ ~ [3 N. of C. X I t which applied under the new Act the prin-

ciples adopted under the old.

The question Game again before Sir Herbert Jenner Fust in the case of ~~g~~~

v. go^^^^ (4 Notes of Cases, 493), in 1846. In that case, the Testator made an

unattested Codicil to his PJill; he after~vards made a second, properly attested,

with the mwds, ‘‘ This is another Codicil to my Will.” On his death, these two

Codicils only were found, and Sir Herbert Jenner Fust a d n ~ i t t ~ d them to probate.

The learned Judge observes: ‘‘ I think the circu~stances of this case are sufficient

to disti~iguish it ~ ~ ~ a t e r i a l l y from the ~ a r ~ ~ ~ of ~ ~ f ~ ~ , s case. There is only

one paper here which comes under the description of a Codicil. It- is not, indeed,

a Codicil, because it is not duly executed ; but it is clear that the !&stator ~ n t ~ n d e d

it to be a [&@J Codicil, not only from the paper itself, but from the indorsenie~i~;

and it was attached to the Will by sealing-wax, without a seal. He describes ilie

second paper as ‘ another Codicil,’ evidently referring to what he believes t o be in

existence. I apprehend there are cases in which a Testator has b e q u e ~ t ~ e d p r o ~ e ~ t ~

to his chiIdren, and there being no l e g ~ t i ~ ~ ~ a t ~ c h l d ~ e n to ans~rer the descriptioti,

i~leg~timate have taken, So here, there being no duly-executed Codicil, the wards

may have reference to an ~ ~ e ~ e c u t e d ~odieil .~’ The learned Judge then adverts to

the circumstance that there was a reference in the second Codicil tv a. bequest oon-

taincd in the first, and adverts to it. 8s a not i ~ ~ a t e r ~ a ~ circumstance, but does not

make it the ratio d e c ~ ~ ~ ~ ~ .

The same question again came before the Court in 1849, in &e case of Plielps

(6 Sotee of Gases, 695). There t.ht.he Testator made his Will? duly exeeuted, axid a f k -

wards made a first Codicil on the saane sheet of paper, attested by oiily one witness.

Ne then executed a second Codicil, duly attested, by which he referred % and con-

firmed the Will, but took no notice of the first Codicil. Sir Nierbert denner Fust

held, that the first Codicil was not established hy the second, for the instrument in

question was not a Codicil; and, therefore, the confirmation of the Will did nct

amount to a c o ~ i ~ r ~ ~ a ~ ~ o n of the Codicil.

In the case of E a p e s v. Hiti (7 Notes of Case$, 256), the point once mare arose

in August, 1849. In that case, a Testator made his Will and several Codicils, the

last of wbich only was attested. e last Codicil confir~ied the Will, but said n o t h i r ~ ~

of the Codicils. The question %‘as in truth the same as had arisen in Phi2ps’$ case,

and the same decision 14612 was pronounced. Sir Nesbert Jenner Fust went very

fully into the doctrine, and held, as it seems on the most satisfaGtory grounds, thut

the case was governed by L o ~ d ~ e r t f ~ ~ s ~ there being no reference to anything but

the Will, and the unattested Codicils not being part of it.

These cases, when compared with ~0~~~~ v. Zord Eeay, clearly illustrate the dis-

tinction i~i~roduced by the Wins Act, to which we hape already adverted.

In the case of irzie ~ ~ ~ ~ ~ € ~ s s ~~ ~~~r of ~ e ~ r u ~ e (1 Dean ’s Ecc,. h p . 182), Sir

John ~ o d s o n , from whose decision the present appeal i s brought, followed the deci-

sion of Sir Herbert Jenner Fust in Sotherods case [24 Curt. 8311, but his subsequent

decision in the present case shows that he did not mean to infringe upon the rules

to which we have referred,

The resu l~ of the a u ~ o r i t i e s Both before and since the late Act, appears to be,

that when there is a reference in a du~y-~xeGuted t%stamentary i n ~ r ~ i n ~ e ~ i t to a n o t ~ ~ ~ ~

t e s t a n ~ e n ~ ~ r y instrument by such terms as to make it capable of ~dentification* it

is iiecessari~y a subject for parol evidence, and that when the parol evidence sui%

ciently proves that, in the existing circumstances, there i s no doubt as ta the instru-

P.C. 1x1. 769 a5

XI MOORE, 488 BOIYIVES 2'. CZTY OE' TORONTO 118581

ment, it i s no objection to it that, by possibility, circui~stances might have existed

in which the instrument referred to could uot ham been identified.

As in this case the only question is whether there is sufficient evidenre to i d e n t ~ ~ y

&e paper propoui~ded as the Will, it is not necessary to consider whether ~ I I Y

evidence was received in this case, to which objection might be made. The facts CII

which we rely are, beyond all question, adi~?iss~b~e in vidence, l[46Z] namely, tbat

the paper in question was vritten by the Testatrix, was found locked up in her pes-

session at her death, in a sealed envtlope, on which there was an endorseruent de-

scribing it as her Will; and that after diligent search no other paper hat$ beerr

found miswering the description, and that the only trace of any othixr testanient,aiy

paper in the evidence, is the proof of a11 earlier Will, which the Testatrix destroyed.

Their Lordships, therefore, are of opinion, that the decree con~~la ined of must

be affirmed, and they think that the costa of all parties must conie out of the estate.

They c a n ~ ~ o t property refer to the e ~ t r ~ ~ - j u d i c i a l opinion of any iiidi~,idual, lieu-

ever tminent, :ts an authority for their decision : but it i s satisfactory to them to

observe that (in a work which, though i t professes to be written only for the wi-

learned, may often be consulted by the niost learned with aduantage) Lord Yt.

Leonzbrds trrats as clear, a point which, from i t s extreme i ~ r ~ ~ o r t a n c e , th ir Lord-

ships have thought it advisable to esaniine at 80 great a length. In the '' Handy

Book on property law " (Sixth Ed. 151), we find the following passage:-"So a

Will or Codicil not duly esecuted, may be rendered valid by i i later Codicil duly

executed and referring clearly to it, or in such n manner as to show the inteution.

Therefore, if you were to begin your Codicil, ' This is a Codicil to my last Will,'

and there was only one Will, those words would set up the Will, although not duly

executed." That very learned uutlior then points out the distinction, ahere there

are several Wills and Codicils, and refers to the decision in 1m-d ~ ~ r ~ j ~ r ~ s Caw,

which he understands as we do.

[News' Dig. tit. WILL ; 11. T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ - ~ ~ ~ I ~ ~ ~ ~ R u ~ E T ~ ; h. 3. o ~ ~ ~ c ~ ~ c z i d Wilfii.

S.C. 6 W.R. 825. See h i the Goods of SwiderTad 1866. L.R. 1 P. and D. 200 ;

Anderson v. Andelsort, 1872. L.R. 13 Eq. 385 : In the: Goods of ~~~~~~~~~, 1881.

6 P.D. 32.1

[&a] ON APPEAL FROM THE (TOIJRT O F ERROR ANI) APPEAL OF

T'PPER CANADA.

JOHN ~ ~ O ~ ~ E € 3 W E S , - ~ ~ ~ ~ ~ ~ ~ ~ ; THE CITY O F T O R O ~ T O , - ~ ~ s ~ ~ ~ ~ e : ~ ~ s *

[Feb. 5, 6, 8, arid 15, 18581.

'Hie Mayor and Cor~orat~ior~ f the City of Toi-onto, in Cnnsda, were a~it,horised

by the Canadian Act, 13th and 14th T'ict., c. 84, to issue debentures to a certain

amount, to assist in the construction of The Toronto, Sirncoe, and Lake Huron

{Jnion Railway.

At that period €3. was the Mayor and a niemher d the Finance C o ~ ~ I i i i ~ ~ ~ , and

took a i l active part in passing a bye-law which authorized the issue by the

Corporation of debentures for the coinpletion of the Railway. 13. at that tiiiiu

was engaged in co-par~nersl~~p with If. , and B. and R's firm ~ u ~ c ~ ~ a s c d o t

S. and Co,, contractors for the Kailmay Company, soiiie of the debentures so

issued, which had been assigned t o S. and Co. by the Corporation. B. and his

partner afterwards sold the debentures, and thereby realized a large profit.

This transaction was withod the knowledge of the ~orpora t~o l l . Held (airlll-

ing the decree of tlLe Court of Chancery in Canada), that E). must, in the

circurristanres of his being a iiiember of the Corporatioil, and the nianner ii?

* Present : The Right Woii. The Lord Justice Knight Bruce, the Right Hou. T.

Pemberton Leigh, the Right Eon. Sir Edward Ryan, and the Right Non, The Lord

Justice Turner.

$70

I-- "1____)_1 I _-__--____ --&"