23. The general proposition, already stated, that an unattested paper, to become part of the will, must be so referred to, that there shall be no doubt of its identity, was distinctly recognized in a very late case.39

circumstances might have existed, in which the instrument could not have been identified.

In Greves in re supra, where the testatrix had executed a will, but not in due form, and subsequently made a codicil, which was properly attested, headed, "This is a codicil to my last will and testament," but which referred to the informal will in no other manner, the same not being present at the time of executing the codicil; the will being found at the testatrix's residence, in a trunk after her decease, in a sealed envelope, indorsed, "Mrs. Anne Foot's will," that being the testatrix's name; the codicil being found in a drawer in her bedroom, and no other will or testamentary paper being found, it was held, that as there was a distinct reference in the codicil to a "last will and testament," and no other had been found, this was sufficiently identified as being the one referred to in the codicil, and although informally executed, it was made part of the codicil by incorporation, and entitled to probate, but the court will not extend this rule beyond the doctrine of Allen v. Maddock, supra.

Where a will refers to a deed of settlement for the manner of the devise taking effect, and the trustees of the settlement decline to allow the deed to go into the Probate Court for registry, probate of the will may be granted without reference to the deed, by the consent of those propounding the will. Dundas in re, 9 Jur. N. s. 360. The court will not compel the trustees to bring in the deed, ib. We think the court should do that where it is important to the interest of parties claiming under the will. In another case, where the will referred to a settlement, for the trusts upon which certain leaseholds were devised, the court granted probate, without requiring the settlement to be embodied in the will, upon an affidavit being filed, giving the date, and describing the settlement. Lansdowne in re, 32 L. J. Prob. 121.

The practice in the American Probate Courts, seems to be not to require an extraneous paper, referred to in a will, to be produced and made part of the probate at the time the will is proved. But the English courts, where it can be done, without bringing other interests in peril, do require the paper to form part of the probate, and to remain on file in the office. We do not regard it as essential to the validity of that portion of the testamentary act, depending upon the extraneous paper, that it should be made part of the probate, since the pa

"Dickinson v. Stidolph, 11 C. B. N. s. 341.

24. The mode of proof of wills, and the character of the evidence which is admissible to impeach, or countervail the testimony of the subscribing witnesses and others, is very extensively discussed in a late case in New Jersey. It is there held, that the testimony of the subscribing witnesses to the due execution of the will, must prevail, unless impeached, and should not be disregarded, upon proof of the simple improbability of their statement. And where positive proof is attempted to be overcome by negative testimony, the latter should be so complete as to exclude every link in the chain of the former. upon an issue whether a will is genuine or forged, the circumstances attending its production, and the declarations of the person having the custody of the instrument, during the time of such custody, and especially at the time it was produced for probate, manifesting a design to present it as a genuine will, are admissible, and competent evidence, not upon the ground that

And

per becomes a portion of the will by incorporation, and may be proved before any tribunal, where the rights under it come in question; but the English practice seems to us the safer and better one, and we should expect it would ultimately be adopted here. See Re Smith, 2 Curteis, 796; Re Dickins, 3 Curt. 60. A mere reference to an annulled will, in connection with the declaration that the testator made no bequest to certain persons, the annulled will containing no bequest to them, but a declaration that they would otherwise be well provided for, and if they were not, he was sure his wife would share her all with them, creates no trust in their favor, and need not be included in the probate. Ouchterlony in re, 32 L. J. Rob. 140. A list of articles referred to in the will, as thereafter to be executed, and which is found attached to the codicil of the will, in the handwriting of the testatrix, but not signed by her, cannot be admitted to probate. Warner in re, 10 W. R. 566. And where a codicil refers to two memorandums, and only one is found, that must operate upon the presumption that the testator destroyed the others animo revocandi, and if not, that the will should be carried into effect as far as it can be. Dickinson v. Stidolph, 11 C. B. N. s. 341.

40 Boylan v. Meeker, 4 Dutcher, 274. It was also decided in this case, upon another subject, already discussed, that sanity, being the normal state of the mind, is presumed to exist, unless the contrary be shown; but where insanity is once shown to exist, its continuance is presumed, until the contrary be shown. Ante, § 5, pl. 15, n. 21 et seq.

the custodian is a subscribing witness to the instrument, but as part of the res gestæ, and indispensable to show the history of the paper.

25. But it is here held to be the settled law, both in Westminister Hall, and in the American states, that the declarations of a subscribing witness to the will, who is not examined at the trial, and which are not part of the res gestæ, cannot be received to impeach the attestation and due execution of the instrument, and especially is this so when the proof of the attestation by such witness is not offered in the case for the purpose of establishing the will.

41

26. Wills under a power, must be executed with the same formalities, and receive the same construction, as any other class of wills.42 And such wills require to be proved the same as any other will. And where it is to operate upon personalty alone, the courts of equity do not allow it to be set up until it has been admitted to probate in the proper court of pro

"Stobarth v. Dryden, 1 M. & W. 615. In this case the question arose upon proof of a deed, which bore the attestation of two witnesses, one of whom was dead, and the other denied all recollection of having attested the deed, and doubted the genuineness of his own and the grantor's signature. The handwriting of the grantor and of the deceased witness was then proved, and it appeared that the sum secured was written over an erasure. It was held that the grantor could not give evidence of the declarations of the deceased witness, tending to show that he had forged or fraudulently altered the deed. This question is carefully considered by Nelson, Ch. J., in Losee v. Losee, 2 Hill, 609, and the conclusion reached, that where proof of the attestation of a deceased subscribing witness is relied upon, evidence of the bad character of such witness is admissible, for the purpose of rebutting the presumption of the due execution of the instrument, arising from the attestation of the witness. And this view is favored by some other American cases. Crouse v. Meller, 10 S. & R. 155; Gardenshire v. Parks, 2 Yerger, 23; Vandyke v. Thompson, 1 Harring. 109. But the case of Baxter v. Abbott, 7 Gray, 71, seems to bear in the opposite direction.

12 Duke of Marlborough v. Lord Godolphin, 2 Ves. Sen. 76; Southby v. Stonehouse, id. 610; Van Wert v. Benedict, 1 Bradf. Sur. Rep. 114.

bate.43 And in the proof of such wills, it is common to require the production of the instrument creating the power.1

44

SECTION VII.

THE TESTATOR CANNOT CREATE A POWER BY WILL TO BE THEREAFTER EXECUTED BY HIMSELF; BUT THE WILL MAY MAKE LEGACIES, GIVEN BY CODICIL, A CHARGE UPON REAL ESTATE.

1. Distinction between reference to existing paper, and one thereafter to be made.

2. Any instrument to come into operation after death, is testamentary.

3. One may create a charge upon real estate for payment of future legacies.

4. The identification of the legatee may depend upon future events.

5. The avails of real estate can, ordinarily, only pass by will, duly attested.

6. The testator may dispose of personal estate by will unattested, although relatively affecting real estate.

7. He may revoke legacies in a similar manner.

8. But where a sum is given exclusively out of real estate, it cannot be so revoked. 9. And where a sum of money is made a charge upon both real and personal estate, and is revoked by an unattested instrument, it has been held still in force, as to the real estate, and apportioned accordingly.

10. But the testator may, by an informal instrument, withdraw his personalty from a joint charge, on real and personal estate.

11. These questions have become practically obsolete under the recent English

statutes.

12. Legacies cannot be made dependent upon future memoranda.

13. The distinction is between giving a legacy, before charged on land, and giving the avails of the land.

§ 22. 1. There seems to be no analogy between cases where an existing paper, extrinsic from the will, is referred to by the testator, for the purpose of making clear his present disposition of his estate; and those cases where the testator attempts to

"Jones v. Jones, 3 Mer. 161; Douglas v. Cooper, 3 Myl. & K. 378; Stevens v. Bagwill, 15 Vesey, 139, 153; Van Wert v. Benedict, 1 Bradf. Sur. Rep. 114. #Re Monday, 1 Curteis, 590; Allen v. Bradshaw, 1 Curt. 110.

1

Habergham v. Vincent, 2 Vesey, Jr., 204. Reference may be made in a will to another document for purposes of description, but there can be no valid disposition

reserve to himself a power of altering, or completing, the disposition of his estate, thereafter, as he may find agreeable to his feelings, with reference to future contingencies. In the former case, the paper is nothing more than an extraneous fact, resorted to for the purpose of identifying the present will of the testator, as expressed in his formally executed testament; neither more nor less than the resort to a deed, to identify an estate, or to monuments, to fix its boundaries. But in the other case, if the future instrument were to be recognized, as part of the will, although informally executed, it would be a direct evasion of the statute.

2. Hence, where the testator, by a duly attested will,1 devised his land to trustees, upon trust to convey to such persons, and for such estates, as he should, by deed or will, attested by two witnesses, appoint, and the testator thereafter executed an instrument, attested by two witnesses, which he called a deed poll, thereby defining a series of limitations in addition to those named in the will: It was decided, after thorough argument and great consideration, that an instrument, in any form, whether a deed poll, or indenture, if the obvious purpose of such deed, or instrument, is not to take effect until after the death of the person making it, shall operate as a will, and that deed and will cannot unite.

3. But there seems to be no question, that one may by will create a charge upon his real estate, as to both debts and legacies, not then in existence, provided they be, either the one or the other, thereafter, legally created. But one cannot, by will,

except in the will, and a will cannot reserve the power to give by an instrument not executed as a will. Surrogate in Thompson v. Quimby, 2 Bradf. Sur. Rep. 449; Langdon v. Astor's Exrs., 16 N. Y. App. 9. But a provision that advancements, and beneficial provisions for persons and purposes, provided for in the will, "if charged in my book of account, shall be deemed so much on account of the provision in my will or codicils, in favor of such persons or purposes," is valid; and gifts actually made in the testator's lifetime, and so charged, will be deemed advancements. Langdon v. Astor's Exrs. supra.