made on or after January, 1838," says Sir E. V. Williams (1 Wm. Ex'rs, 345, 6th Ed.), "it is plain that by reason of the provisions of the Statute 1 Vict. c. 26, the whole of every testamentary disposition must be in writing and attested pursuant to the act. Whence it follows that the court has no power to correct omissions or mistakes by reference to the instructions in any case to which that statute extends." This disposes of the numerous cases, which were cited in argument, of dates anterior to 1. Vict. c. 26; and with regard to wills to which that statute is applicable, it has not been suggested that the court can admit to probate any words not contained in some duly attested testamentary document, however cogent the evidence may be, from oral or written instructions, that they were intended to be part of the will. But it was contended on behalf of the plaintiffs that the true view of the nature of the mistake in the draft and copy as executed is not that the words "and personal" were omitted, but that the word "real" was inserted, and that the will ought to be made to read "all the residue and remainder of my estate." I have already stated my grounds for holding that the error was one of omission, but there are further special reasons why I cannot expunge the word "real" from the residuary clause. There are undoubtedly numerous cases which establish that this court may decree probate of a part only of a properly attested instrument purporting to be a will. It is not necessary to do more than refer to the authorities collected in the case of Fawcett v. Jones, 3 Phillim. 434, which, though relating to wills before the Statute 1 Vict. c. 26, are on this head applicable to wills of a later date. And in the case of Allen v. McPherson, 1 H. L. C., at p. 209, Lord Lyndhurst said, "It is perfectly clear that the Ecclesiastical Court may admit part of an instrument to probate, and refuse it as to the rest." Lord Campbell (1 H. L. C., at page 233) in the same case says, "It is quite clear that the Ecclesiastical Court had jurisdiction to refuse probate of that part of the codicil which affects the appellant, because, giving credit to the facts stated, that part of the codicil was not the will of the testator; he was imposed upon, and probate of that part of the codicil ought to have been refused." In that case fraud was the ground on which it was sought to expunge a part of a codicil; but In the Goods of Duane, 2 Sw. & Tr. 590, Sir C. Cresswell applied the same reasoning to a case of simple mistake. There the words which were rejected were part of a printed form, and ought to have been struck out as inconsistent with the instructions given by the testator; they were not read by or to the testator, but the person who prepared the will omitted to strike them out. Sir C. Cresswell, after referring to Allen v. McPherson, said: "I can see no difference in principle between that case and the present one, where a clause for which the deceased gave no instructions, and which was not read over to him, formed per incuriam part of the document signed by the deceased."

The facts of that case distinguish it in an essential manner from the present. There an entire clause of which the testator was altogether

ignorant was introduced by accident, and it was contrary to the intention of the person who drew the will that the clause should be in it. In the present case the testator intended that a clause disposing of the residue of his personalty should be in the will, but he left it to another person to choose the language by which his intention should be carried into effect, and he read and adopted as his own the language so chosen., Inappropriate language having been used, the court is asked to remedy the mistake, not by rejecting words of which the testator is proved to have been ignorant, but by modifying the language used by the draftsman, and adopted by the testator, so as to make it express the supposed intention of the testator. This is, in fact, to make a new will. The theory of the plaintiffs, is that the testator had his personalty only in his mind, when he gave instructions for the residuary clause, because he had no realty undisposed of. If so, the proper mode of carrying out the instructions would have been to say, "the residue of my personal estate;" and in that case the error consists in having substituted the word "real" for "personal." Upon this hypothesis the court is asked to strike out the word "real," not because the clause would then be in the form the testator intended, but because it would in its transformed shape substantially carry out the testator's wish. It is also to be observed, that not only the form, but probably the effect would be different; for a bequest of the residue of the testator's estate would, according to the modern decisions, include the realty, unless the context clearly excluded it: Jarm. on Wills, c. 22; The Mayor and Corporation of Hamilton v. Hodsdon, 6 Moore, P. C. 76.

Such a mode of dealing with wills would lead to the most dangerous consequences; for it would convert the Court of Probate into a court' of construction of a very peculiar kind, whose duty it would be to shape the will into conformity with the supposed intentions of the testator. In very many of the cases which come before the courts of law and equity, as to the proper construction of wills, the intention of the deceased is supposed to be seen, but the question is whether the language used expresses the intention. If the process now sought to be applied to this will were to be adopted, the Court of Probate will in future be asked, first to ascertain by extrinsic evidence what the testator's intention was, and then to expunge such words or phrases, as, being removed, will leave a residuum, carrying out the intention of the testator in the particular case, though different in form, and possibly in legal effect, from that which the testator or his advisers intended. If I felt myself at liberty to adopt such a course, I should think that the best amendment of the will would be to leave the word "residue" by itself in the residuary clause as it is in the memorandum of instructions. But it is obvious that, though this might give effect to the testa- ! tor's wishes in this instance, it would be by an accident; for the word "residue," taken with the context of the will, might have had a different effect to that which it has in connection with the context of the instructions; but, for the reasons I have given, I entirely repudiate

this mode of altering the language of a testamentary instrument, and I am, therefore, of opinion that whether the error which has undoubtedly crept into the will be one of omission or insertion, it is equally beyond the jurisdiction of this court to correct it.

I have thus far considered the case, apart from the decision of Lord Penzance in Guardhouse v. Blackburn, Law Rep. 1 P. & D. 109, but I must add that it appears to me that that is an authority directly decisive of this case in favor of the defendants. It was there established to the satisfaction of the court that specific words had been inserted by the attorney who drew the codicil by mistake, and without instructions. Yet the learned judge held that as the contents of the codicil had been brought to the knowledge of a competent testatrix, the execution of the instrument must be deemed conclusive evidence that she approved as well as knew the contents. If I did not agree in the reasons given by Lord Penzance for his decision, it would be my duty to follow it in a similar case; but I must add, that I entirely adopt my predecessor's very lucid exposition of the rules by which this court ought to be governed with reference to the rejection of the whole or part of a duly executed testamentary document.

The conclusion I have arrived at makes it unnecessary that I should express a positive opinion on the effect which the execution of the codicil would have had on the will, if I had thought that the word "real" ought to be expunged from the residuary clause, but I am strongly inclined to think that it would have made no difference, and that the codicil must be held to confirm only that which was the true will of the testator. For these reasons I pronounce for the will in its present form.**

40 "After much consideration, the following propositions commend themselves to the court as rules which, since the statute [the Wills Act] ought to govern Ats action in respect of a duly executed paper: First, that before à paper so executed is entitled to probate, the court must be satisfied that the testator knew and approved of the contents at the time he signed it. Secondly, that except in certain cases, where suspicion attaches to the document, the fact of the testator's execution is sufficient proof that he knew and approved the contents. Thirdly, that although the testator knew and approved the contents, the paper may still be rejected, on proof establishing, beyond all possibility of mistake, that he did not intend the paper to operate as a will. Fourthly, that although the testator did know and approve the contents, the paper may be refused probate, if it be proved that any fraud has been purposely practiced on the testator in obtaining his execution thereof. Fifthly, that subject to this last preceding proposition, the fact that the will has been duly read over to a capable testator on the occasion of its execution, or that its contents have been brought to his notice in any other way, should, when coupled with his execution thereof, be held conclusive evidence that he approved as well as knew the Contents thereof. Sixthly, that the above rules apply equally to a portion of the will as to the whole." Sir J. P. Wilde, in Guardhouse v. Blackburn, L. R. 1 P. & D. 109, 116 (1866).

76

The testator in giving instructions to his soliciter for the drawing of his will, instructed the soliciter alltof his shares in a certain company should go to his nephews. The soliciter sede a written memorandum of this instruction & forwarded it to a conveyancing counsel in London; who thehough some tinexplained inadvertance, wrote instead of all my shares", "forty shares"

It appeared that the will was never read over to the testator, and he believed that the will read as he had directed.

HELD: That the word "forty" should be

strek out, as not being approved by the T. Hrter v Herter distinguished on the ground that there the 1. read over the will and approved it.

some acciuem not accounted for, counsel aucta mo the urait will

the word "forty" before "shares." Though the solicitor saw this, it never attracted his attention, and he never realized the effect the word "forty" would have on the disposition of the shares made by the testator. The jury have arrived at the conclusion that what the solicitor said on this subject was correct-that he never informed the testator in any way that the word "forty" had been introduced; and it was 65

*****ABSTRACT***** end and molnigo ne In re Goods of Boehm

The Ta had given Instructions that his will should provide a legacy of 10,000L apiece for his 2 daughters Georgiana Boehm, and Florence Boehmm. Through a mistake, the conveyancer, wrote the name Georgiana Boehm twice, and omitted any legacy for Florence Boeham at all. An epitome of the will was prepared for the convenience of the T, and in it the legacies were provided for as he had intended. THe T. never read the will.

QUES: Should the word "georgiana" be stricken out, so that the provision will read "to Georgiana Boehm, and )Boehm, 10,000

apbece?

HELD: (1)Decisions like that in Harter arter offer no obstacle here, because in those cases the will was read over by the T...here the T did not read the will, but an epitome, which gave the clause as he had intended it, and not as it appeared in the will. (L. F. Suppose had given it as it appeared in will?)

(2) The difficulty here is that the striking out of the word Georgiana will not leave the will as the T had intended. Where a whole clause is inserted without authority, there is no difficulty, because theiking out the clause will leave the will exactly as it was intended. But here the will is left in a wa that the testator never contemplated. However, the court felt that it would not be an unwarranted extension of the law to strike out words where the effect is to leave the rest ambiguous, or insensible. The court intimated

Yet the learned judge held that as the contents of the codici nad veel brought to the knowledge of a competent testatrix, the execution of the instrument must be deemed conclusive evidence that she approved as well as knew the contents. If I did not agree in the reasons given by Lord Penzance for his decision, it would be my duty to follow it in a similar case; but I must add, that I entirely adopt my predecessor's very lucid exposition of the rules by which this court ought to be gov

an opinion that the court, on const uction, might with what was left arrive at tha result that would exactly carry out the intention of the T (L F...through the application of the

'equivocation" exception to the P. E. rule.)