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the time of their death they may not be on service, or at sea.

Morrell v. Morrell, 1 Hag. 51; In bonis Leese, 17 Jur. 216 ; see, too, Leman v. Bonsall, 1 Add. 389.

They may make a will by any testamentary paper, whether in their handwriting or not, and whether signed by them or not, provided it can be shown that such paper was intended to take effect as the testator's last will. Friswell v. Moore, 3 Phillim. 135 ; Constable v. Steibel, 1 Hag. 56; Maclae v. Ewing, 1 Hag. 317; Read v. Phillips, 2 Phillim. 122; Masterman v. Maberly, 2 Hag. 235. See Rymer v. Clarkson, 1 Phillim. 22; In bonis Cosser, 1 Rob. 633; Fulleck v. Atkinson, 3 Hag. 527 ; Wood v. Medley, 1 Hag. 661.

The following rules must be understood as relating only to wills of personalty not within the Statute of Frauds or the Wills Act.

A will not found in the testator's possession cannot be Proof of established merely on proof of the testator's handwriting. writing. Machin v. Grindell, 2 Lee, 406; Jameson v. Cooke, 1 Hag. 82; Crisp v. Walpole, 2 Hag. 531 ; Rutherford v. Maule, 4 Hag. 213; Bussell v. Marriott, 1 Curt. 9; Wood v. Goodlake, 2 Curt. 82, 176; 2 Moo. P. C. 354, 436.

A will bearing an execution or attestation clause, but will with unexecuted or unattested, will be presumed not to have

clause, but been finally adopted as the will of the testator. Scott v. not at

tested. Rhodes, 1 Phillim. 19; Abbott v. Peters, 4 Hag. 380; Beaty v. Beaty, 1 Add. 15+; Montefiore v. Montefiore, 2 Add. 357 ; Stewart v. Stewart, 2 Moo. P. C. 193; Bragg v. Dyer, 3 Hag. 207.

Such presumption may be rebutted, if sufficient grounds can be shown for the omission to execute or attest it, such as ill health, or unavoidable accident, or if it appears that it was intended to take effect as the testator's will in the form in which it is found. In bonis Taylor, 1 Hag. 641 ; L'Huille v. Wood, 2 Cas. t. Lee, 22; Lumkin v. Babb, 1


Cas. t. Lee, 1 ; Scott v. Rhodes, 1 Phillim. 12; Musterman
v. Maberly, 2 Hag. 247; Hoby v. Hoby, 1 Hag. 146 ;
Forbes v. Gordon, 3 Phillim. 614; Thomas v. Wall, 3
Phillim. 23; In bonis Lamb, 4 N. of C. 561; Buckle v.
Buckle, 3 Phillim. 323; Allen v. Manning, 2 Add. 490;

Harris v. Bedford, 2 Phillim. 177.
Will in-

Where the will includes property, which can only be cluding fealty. given by a will executed with certain formalities, the same

presumption arises that the will was intended to be executed with such formalities. In bonis Herne, 1 Hag. 222, 226; Douglas v. Smith, 3 Knapp, 1; Elsden v. Elsden, 4 Hag. 183; Gillow v. Burne, 4 Hag. 291; Reynolds v. White, 2 Lee, 214; Reeves v. Glover, 2 Lee, 359.

It seems if the will includes realty, and the gift of the personalty is made dependent on the gift of the realty, probate of the will as regards the personalty would be

refused as well. Tudor v. Tudor, 4 Hag. 199, n. Temporary A A paper intended to be effectual, pending the prepara

tion of a more formal document, will take effect as a will, if no formal document is executed. Popple v. Cunison, 1 Add. 377; Forbes v. Gordon, 3 Phillim. 614; Hattatt v.

Hattatt, 4 Hag. 211. Instruc- Instructions for a will may take effect as a will, if the

testator was prevented by death from executing a formal will. Bone v. Spear, 1 Phillim. 345; Green v. Skipworth, ib. 53; Wood v. Wood, ib. 357; Huntington v. Huntington, 2 ib. 213; Sikes v. Snaith, ib. 351; Must v. Sutcliffe, 3 ib. 104; Nathan v. Morse, ib. 529; Lewis v. Lewis, ib. 109; Allen v. Manning, 2 Add. 490 ; Goodman v. Goodmun, 2 Lee, 109; Robinson v. Chamberlayne, ib. 129; Brown v. Farrant, ib. 418; Burrows v. Burrows, 1 Hag. 109.

Where an interval intervenes between the preparation of instructions for a will and the death of the testator,


tions for will.

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the instructions will take effect as a will only upon evidence that the testator adhered to them down to his death. Bone v. Spear, 1 Phillim. 345; Devereux v. Bullock, ib. 60, 72; Sandford v. Vaughan, ib. 48; In bonis Herne, 1 Hag. 222; Barwick v. Mullings, 2 Hag. 225; Mitchell v. Mitchell, ib. 74; Dingle v. Dingle, 4 ib. 388 ; Reuy v. Cowcher, 2 ib. 249; Antrobus v. Nepean, 1 Add. 399; Monroe v. Coutts, 1 Dow. 437; Matthews v. Warner, 4 Ves. 186; Torre v. Castle, 2 Moo. P. C. 133. An unexecuted paper, containing only a partial disposi- Partial

disposition of the testator's property, will not take effect as a will, tion. unless it be shown to contain the final intention of the testator as far as it goes. Montefiore v. Montefiore, 2 Add. 354; Cundy v. Medley, 1 Hag. 140; Maclae v. Ewing, ib. 317; In bonis Wenlock, ib. 551; In bonis Robinson, ib. 643; Devereux v. Bullock, 1 Phillim. 60; Sandford v. Vaughan, ib. 48; Theakston v. Marson, 4 Hag. 290; Bayle v. Mayne, 3 Phillim. 504,

Alterations in the will of a soldier, which was made Alterawhile on actual military service, will be presumed to have been made during the continuance of such service. In bonis Tweedale, 3 P. & D. 204. A charge of legacies on real estate contained in a will Charge of

legacies on duly executed to affect realty will include legacies given realty. by a subsequent unattested will when the testator is one of the persons competent to dispose of his personalty by such will. Buckeridge v. Ingram, 2 Ves. J. 652; Sheddon v. Gulrich, 8 Ves. 481; Wilkinson v. Adam, 1 V. & B. 445; Swift v. Vush, 2 Kee. 20; see Rose v. Cunynghame, 12 Ves. 29.

Legacies charged upon real estate as an auxiliary fund may be revoked by a subsequent valid will, though not executed so as to affect realty. Brudenell v. Boughton, 2 Atk. : 68; A.-G. v. Ward, 3 Ves. 327.

Legacies charged only upon real estate cannot be re


and birth of children.

voked by a subsequent valid will not executed so as to affect realty. Beckett v. Harden, 4 Mau. & S. 1; Locke v. James, 11 M. & W. 901; see Mortimer v. West, 2 Sim. 274; Fitzgerald v. Field, 1 Russ. 428.

Legacies given out of a mixed fund of realty and personalty can be revoked by a valid will not executed to affect realty only so far as they are payable out of the personalty. Stocker v. Harbin, 3 B. 479.

A valid will of personalty not executed to affect realty may dispose of any portion of the personalty free from legacies, though the effect may be to increase a charge of legacies on realty contained in a prior will effectually dis

posing of real estate. Coxe v. Bassett, 3 Ves. 155. Revoca- The marriage of a privileged testator or the birth of a tion by marriage child subsequent to the date of the will will not alone

revoke the will. Doe v. Barford, 4 M. & S. 10; Wellington v. Wellington, 4 Burr. 2171 ; Wells v. Wilson, 5 T. R.

5 52, note; Jackson v. Hurlock, Amb. 495.

But the birth of children alone after the date of the will affords a presumption against the will. Johnston v. Johnston, 1 Phillim. 447.

A privileged will is revoked by the subsequent marriage of the testator and the birth of children, unless the wife and children are provided for by the will or by a previous settlement. Overbury v. Overbury, 2 Stow, 242; see 1 Phillim. 479; Kenebel v. Scrafton, 2 East, 530; Doe

v. Lancashire, 5 T. R. 49 (posthumous child). Marriage The same rule applies to the case of a widower who of

marries a second time and has children, though the will may be in favour of children by the first marriage. Christopher v. Christopher, Dick. 145; Holloway v. Clarke, 1 Phillim. 339; Walker v. Walker, 2 Curt. 854.

It appears to be unsettled whether the birth of children by a first wife after the date of the will and marriage to a second wife revokes the will. Gibbons v. Caunt, 4 Ves. 848. The will is not revoked where it does not dispose of all the testator's estate. See Kenebel v. Scrafton, 2 East, 541; Murston v. Roe d. Foc, 8 Ad. & E. 57; Bruly v. Cubitt, Dougl. 40; Doe v. Edlin, + A. & P. 587. Provision made for the wife alone by a settlement or Provision

for wife. by the will itself will not prevent its revocation. Marston v. Roe d. Fox, 8 A. & E. 14; 2 Nev. & P. 504.

Provision by a settlement subsequent to the will will not prevent revocation. Israell v. Rodon, 2 Moo. P. C. 51; see Talbot v. Talbot, 1 Hag. 705; Ec parte Ilchester, 7 Ves. 348; Johnson v. Wells, 2 Hag. 561 ; In bonis Cudy wold, 1 Sw. & T. 34.

The will is not revoked where such revocation would not benefit the afterborn children. Sheath v. York, 1 V. & B. 390.

The fact that the wife and children predecease the testator will not revive the revoked will. Helyar v. Helyar, 1 Phillim. 413; Sullivan v. Sullivan, ib. 343; Emerson v. Boville, ib. 342, overruling Wright v. Netherwood, 2 Salk. 593, n., 2 Phillim. 266, n.

In the case of privileged wills it seems clear that a will, though revoked by marriage and birth of children, may be set up again by evidence of intention to adhere to it, such wills being free from the operation of the Statute of Frauds and Wills Act. See Marston v. Roe, 8 A. & E. 14; Gibbens v. Cross, 2 Add. 455; Fox v. Marston, 1 Curt. 494; Israell v. Rodon, 2 Moo, P. C. 51; Matson v. Magrath, 1 Rob. 680; Tupster v. Holtzappfell, 5 N. of C. 554.

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