In Markwick v. Taylor (e) a deed of gift from one of all his estates, to take effect after death, was held to be testamentary, and administration with the deed annexed was decreed.

In Corp v. Corp, (ƒ) a paper, styled a deed of gift, and containing testamentary expressions, was held to operate as a will.

In Thorold v. Thorold, (g) a paper, called a deed of gift, not bearing a stamp, and to operate after death, was held to be testamentary.

In Rigden v. Vallier, (h) a deed by which property was granted among children, to take effect after payment of funeral expenses, was held to be entitled to probate.

In Hickson v. Witham and others, (i) a writing, purporting to be an indenture, but declared by the party to be his last will and testament, and by which he gave several legacies, and made two executors, was decreed to be a good will.

So it has been held, that the assignment of a bond by indorsement, (k) receipts for stock, and bills indorsed, "for Mrs. Sabine;"() letters, (m) marriage articles, (n) promissory notes, and notes payable to executors to evade legacy duty; (0) Scotch settlements in the form of a contract, to take place on the death of one of the contracting parties, (p) unexecuted bonds, (q) paper reciting and confirming marriage articles, (r) a "memorandum," (s) deed poll,(t) and checks on bankers,(u) are admissible to probate.

(e) Prerog. 1722, cited by Sir John Nicholl in Thorold v. Thorold, ut sup.

(f) Prerog. 1793, cited by Sir John Nicholl, in Thorold v. Thorold, ut sup. (g) 1 Phil. 1.

(h) 2 Ves. Sen. 252; S. C. 3 Atk. 731.

(i) Fin. Rep. 195. S. C. 1 Ch. Cas. 248; Vin. Abr. tit. "Devise," (A. 2.) pl. 5.

(k) Musgrare v. Down, cited by Sir John Nicholl, in Masterman v. Maberley, 2 Hagg. 247.

(1) Sabine v. Goate, ib.

(m) Drybutter v. Hodges, ib.; Manly v. Lakin, 1 Hagg. 130; In the goods of Dunn, ib. 488; Denny v. Barton, 2. Phil. 575; Habberfield v. Browning, cited in Matthews v. Warner, 4 Ves. Jun. 200; Cobbold v. Baas, ib.

(n) Marnell v. Walton, cited by Sir John Nicholl, in Masterman v. Maberly, 2 Hagg. 247.

(0) Maree v. Shute, ib.

(p) Hog v. Lashley, cited by Sir John Nicholl, in Thorold v. Thorold, 1 Phil. 11; S. C. 3 Hagg. 415, n.

(q) Masterman v. Maberly, 2 Hagg. 235.

(r) Walton v. IValton, 14 Ves 318.

(s) Dime v. Munday, 1 Sid 362.

(t) Habergham v. Vincent. 2 Ves. Jun. 204, 231; Rigden v. Vallier,

2 Ves. Sen. 255, 258.

(u) Bartholomew v. Henley, 3 Phill. 317.

If a will refers expressly to another instrument already written, and there is no doubt of the identity, such instrument, when necessary, will be considered as part of the will, and be construed as if incorporated in it. (v) And here we may remark, that cases have occurred where a clause, introduced by fraud, has been expunged; where omitted by error, supplied. But in all cases of this kind, two circumstances must occur: 1, an ambiguity on the face of the executed instrument itself; and 2, the means of obtaining clear and indisputable proof, that the insertion or omission of the clause was contrary to the intention of the testator. (x)

Whenever a paper is manifestly imperfect and unfinished, the legal presumption is, that the deceased had not finally made up his mind then to dispose of his property, and consequently such a paper is not entitled to probate. (y) This presumption, however, may be rebutted by extrinsic evidence, accounting for its state, by showing either that the deceased was prevented from completing, or that he had abandoned the intention of finishing it, meaning, that it should operate in that very form, without any further act. (3)

Accordingly, it is held, that if the paper propounded is unfinished, yet if it can be proved that it contains the final (a) intentions of the deceased, and that the finishing was prevented by inevitable necessity, or the act of God, it will be admitted to probate. (b)

(v) Metham v. Duke of Devonshire, 1 P. Wms. 529; 2 Ves. Jun. 228; Molineux v. Molineux, Cro. Jac. 145; Vin. Abr. tit. "Devise," (A. 3.) Lord Lansdown's Case, 10 Mod. 99.

(x) Travers and Edgell v. Miller, 3 Add. 226; Bayldon v. Bayldon, ib. 232; Fawcett v. Jones, 3 Phill. 434; Draper v. Hitch, 1 Hagg. 674, 677; Harrison v. Stone, 2 Hagg. 537, 550; Shadbolt v. Waugh and others, 3 Hagg. 570; Blackwood v. Damer, cited in 3 Phil. 458; S. C. 3 Add. 239.

(y) Satterthwaite v. Satterthwaite, 3 Phil. 1, Ib. 628, 409; Cundy v. Medley, 1 Hagg. 140; Jameson v. Cook, ib. 82; ib. 253.

(2) Per Sir John Nicholl, in Wood v. Medley, I Hagg. 670; Finncane v. Gayfrere, 3 Phil. 409; Forbes v. Gordon, ib. 628.

(a)" At one period, before the law and its principles were correctly settled, an unfinished paper, coupled with sudden death, would have been established, even though a considerable interval had elapsed between the writing of the paper and the death of the testator; but it is now clearly settled, that in respect to an unfinished paper, though followed by sudden death, the interval must be accounted for; and it must be shown that the testator adhered to the intention, but was prevented from finishing it." Per Sir John Nicholl, in Johnson v. Johnson, 1 Phil. 494, 495.

(b) Forbes v. Gordon, 3 Phil. 614; Musto v. Sutcliffe, ib. 105; Lewis v. Lewis, ib. 109; Thomas v. Wall and others, ib. 23; Scott v. Rhodes, 1 Phil. 12; Huntington v. Huntington, 2 Phil. 213; Jameson v. Cooke, 1 Hagg. 82;

Again: If the paper propounded is unfinished, yet, if it can be proved that it contains the final intentions of the deceased, and that he had abandoned the intention of finishing it, meaning that it should operate in its existing state, it will be admitted to probate. (c)

Acting on the same principles, the Court has held that, in order to obtain probate in common form, of an unfinished paper, there must be, first, affidavits stating such a case as, if proved by depositions, would establish the paper; and, secondly, consent, implied or express, from all parties interested. (d)

Where there is a regular will, and another paper begun, as a new will, which the testator has been prevented, by the act of God, from completing, the two papers may be taken together as the will of the deceased, and operation, pro tanto, be given to the latter paper, (e) provided the proof of final intention is clear. (ƒ)

In Goldwyn and Aspenwall v. Coppell, (g) there was a will regularly executed in Jamaica. The deceased gave instructions for an entire new will; before he had disposed of the residue he became incapable:-the Court pronounced for the two papers, as containing together the will.

In Harley v. Bagshaw, (h) three papers falling under the

Worlich v. Pollett, cited in Com. Rep. 452; Smith v. Ashton, Vin. Abr. tit. "Devise," (A. 2.) pl. 4; S. C. Chan. Cases, 265; Fin. Rep. 273.

(c) Friswell v. Moore, 3 Phil. 135, 3 Phil. 5; Bone and Newsam v. Spear, 1 Phil. 345; Billinghurst v. Vickers, 1 Phil. 187; Harris v. Bedford, 2 Phil. 177; Dickenson v. Dickenson, 2 Phil. 173; Read v. Phillips, 2 Phil. 123; Buckle v. Buckle, 3 Phil. 323; Habberfield v. Browning, cited in Matthews v. Warner, 4 Ves. Jun. 200; Cobbold v. Baas, ib.

(d) In the goods of Herne, 1 Hagg. 225,-of Hurrill, ib. 253,-of Taylor, ib. 641,-of Robinson, ib. 643,-of Thomas, ib. 695,-of Edmonds, ib. 698,-of Wenlock, ib. 555; In the goods of Tolcher, 3 Add. 16; In the goods of Adams, 3 Hagg. 258.

(e) "If this principle," observes Sir John Nicholl," was rightly understood in other courts, there would seldom be much question about cumulative legacies; for, where a paper is codicillary, and two legacies are given to the same person, they are cumulative. Where instructions are pronounced for, as containing together a will, that is, where there is a complete will, and an instrument, intended as the inception of a new will, but not completed, the latter legacy supersedes and revokes the former, and is substituted in the place of it." 2 Phil. 312.

(f) Per Sir John Nicholl, 2 Phil. 35; Harley v. Bagshaw, 2 Phil. 48; Goldwyn and Aspenwall v. Coppell, cited by Sir John Nicholl, in Harley v. Bagshaw, 2 Phil. 51; Ingram v. Strong, and Roberts v. Lawrence, 2 Phil. 294, 312.

(g) Ut sup.

(h) 2 Phil. 48.

same principle were pronounced for as containing, together, the will of the deceased.

What are the circumstances which will raise a legal presumption that the paper is deliberative only? and what sufficient to rebut such a presumption when raised, and to establish a final and absolute intention?-are questions that frequently occasion much embarrassment.

In Ravenscroft v. Hunter and others, (i) there were alterations in ink, in the margin and body of the will, made with care, and conformable to long-entertained and lately-expressed intentions, and the Court held, that the will so altered, contained the testator's final intentions, and was entitled to probate. In this case, observed Sir John Nicholl, "the alterations might be in some measure deliberative, as to form; for the testator might intend to effect his purpose more regularly by a codicil, and through an attorney, but not as to the disposition, since upon that he had made up his mind, and considered, meant, and thought, the paper would operate as now altered."

If alterations are made in pencil only, the general presumption is, that they are deliberative; but when in ink, they are considered final and absolute: and when they are of both sorts, the presumption as to each is stronger. (k) Presumptions of this kind, like all other presumptions, may be strengthened by circumstances. Thus, if the interlineations and obliterations have rendered the sense incomplete, and the paper unintelligible, the natural and legal inference is, that they were not intended to be final; and this inference is still more forcible, if the alterations were made by one distinguished for habits of accuracy. (1)

:

Again In Reay v. Cowcher, (m) it was held, that when a codicil, disposing of realty as well as personalty, is signed only by initials, and unattested, and with many interlineations, the presumption is that it is deliberative.

Many other cases might be adduced in illustration. (n) “The

(m) 2 Hagg. 249.

(n) See Satterthwaite v. Satterthwaite, 3 Phil. 1; Forbes v. Gordon 3 Phil. 614; Buckle v. Buckle, 3 Phil. 323; Parkin v. Bainbridge, 3 Phil. 321; Thomas v. Wall, 3 Phil. 23; Harris v. Bedford, 2 Phil, 177; Dick

66 ac

legal principles as to imperfect testamentary papers of every description vary much,' observes Sir John Nicholl, (0) cording to the stage of maturity at which those papers have arrived. The presumption of law, indeed, is against every testamentary paper not actually executed by the testator; and so executed, as it is to be inferred, on the face of the paper, that the testator meant to execute. But if the paper be complete in all other respects, that presumption is slight and feeble, and one comparatively easily repelled. For intentions, sub modo at least, need not be proved in the case; that is, the Court will presume the testator's intentions to be as expressed in such a paper, on its being satisfactorily shown that its not being executed may be justly ascribed to some other cause, and not to any abandonment of those intentions, so expressed, on his, the testator's part. But, when a paper is unfinished, as well as unexecuted, (especially when it is just begun, and containing a few clauses or bequests,) not only must its being unfinished and unexecuted be accounted for, as above, but it must also be proved, (for the Court will not presume it,) to express the testator's intention, in order to repel the legal presumption against its validity. It must be clearly made to appear, upon a just view of all the facts and circumstances of the case, that the deceased had come to a final resolution in respect to it, as far as it goes; so that, by establishing it, even in such its imperfect state, the Court will give effect to, and not thwart or defeat the testator's real wishes and intentions, in respect to the property which it purports to bequeath, in order to entitle such a paper to probate, in any case, in my judgment."(p)

It is a well established principle, that a paper, not written in the presence of, nor read over to, or by the testator, may yet be established upon clear proof that it was written in his lifetime, (q) and was drawn up conformably to his instructions,

enson v. Dickenson, 2 Phil. 173; Read v. Phillips, 2 Phil. 122; Paske ▼. Ollat, 2 Phil. 323.

(0) Montefiore v. Montefiore, 2 Add. 357, 358.

(p) Per Sir John Nicholl, in 2 Add. 357, 358.

(q)" There is no case that I am aware of, in which a bequest has been established, that has not been reduced into writing in the lifetime of the testator. The Court has gone the greatest possible length, when it has pronounced for instructions which have been reduced into writing during the lifetime of the deceased, but which have not been read over to him; and I cannot agree in the construction attempted to be put on the Statute of Frauds, that this would be a will by word of mouth."-Sir John Nicholl, in Rockell v. Youde, 3 Phil. 145.