nigh *Holden, in the county of York, labourer, 107. of good and lawful money of Great Britain: but, if my said brother [*515 Robert should die before my decease, then my will is that 57. of the last-bequeathed 107. legacy shall devolve and be given to my nephew Robert Andrew, the son of my brother Thomas Andrew, of Snitterby, in the county of Lincoln, hereinafter mentioned, and the other 57., the other part of the said 107. above bequeathed to my brother Robert Andrew, I give, devise, and bequeath to my nephew Robert Andrew, the son of my brother Richard Andrew, of Snitterby, in the county of Lincoln, hereinafter mentioned, provided my said brother Robert should die before my decease. Item: I give, devise, and bequeath to Ann Andrew, daughter of my brother George Andrew, late of Gosberton, in the county of Lincoln, deceased, one shilling. Item: I give, devise, and bequeath to my brother Richard Andrew, of Snitterby, in the county of Lincoln aforesaid, all that house, yard, garden, lands, and appurtenances thereunto belonging, and which I now hold under lease of the demesnes of Lincoln Cathedral at and under the rent of 2s. 6d., payable yearly, To have and to hold the said reversionary, with the lease and profit arising therefrom, unto him my said brother Richard during his natural life and the natural life of Jane the wife of the said Richard Andrew; and, at the decease of both of them, whichever may be the longer liver, my will is, that then that the said house, yard, garden, and appurtenances, on which said premises my said brother Richard now liveth, together with the lease and profits arising therefrom, I give, devise, and bequeath to my nephew James, the son of my brother Thomas Andrew, of Snitterby aforesaid. Item: I give, devise, and bequeath to Sarah Marshal, of Snitterby, in the county of Lincoln aforesaid, widow, my sister, 17. Item: I give, devise, and bequeath to William Marshal, son of the aforesaid Sarah Marshal, now a servant, 57. of good and [*516 lawful money of Great Britain; but, if he the said William Marshal should die before my decease, that then the aforesaid legacy of 51. shall be given to his sister Mary Marshal. Item: I give, devise, and bequeath to Francis Andrew, of Friskney, grazier, one shilling. Item: I give, devise, and bequeath to James Legard, now of Kirton (otherwise James Andrew), son of Elizabeth Legard, late of Friskney aforesaid, all those three messuages or tenements, and two acres of land, be the same more or less, lying and being in the parish of Coningsby, abutting on the Witham Bank south, and north on the Wilmore Fenn, and now in the several tenures of William Moore, John Motley, and other under-tenants, during his natural life, and from thence to pass to heir and heirs for ever, without any power to sell, mortgage, or convey for longer than each heir may for his or her own natural life. But if the said James Legard (otherwise Andrew) should die without issue, I then give, devise, and bequeath the said three messuages or tenements and two acres of land, be the same more or less, lying and being in Coningsby aforesaid, to my nephew James Andrew, son of Thomas Andrew, of Snitterby aforesaid, To have and to hold the same during his natural life, and from thence to pass to his heir and heirs for ever, without any power to sell, mortgage, or convey for longer than each heir may for his or her own natural life. And I also appoint Robert Walker, of Friskney, grazier, to be executor in

trust for the said James Legard (otherwise Andrew), to act with power as he shall deem most proper. The rest, residue, and remainder of my estate, with my goods and chattels, plate, and whatsoever and wheresoever to me appertaining or belonging, I give, devise, *517] *and bequeath to my brother Thomas Andrew, of Snitterby aforesaid, whom I constitute and appoint whole and sole executor of this my last will and testament, he paying my just debts, legacies, and funeral expenses."

This will was produced from the Consistory Court of Lincoln. The plaintiff claimed as heir at law of the devisee in remainder. The witnesses were,-Thomas Cousins, John Marfoot, and Thomas Adkins.

Upon the death of the testator, James Legard, the tenant for life, entered into possession of the premises in question, and continued therein until his death (intestate and without issue) in 1857.

The defendant claimed under a subsequent supposed will of James Andrew, dated the 4th of June, 1788, which, it appeared, was found by the housekeeper of James Legard, after his death, in a box with the probate of the first will and other papers, and was handed by her to John Marshall, who was the heir at law of the devisee in remainder in the second will mentioned, and who was the real defendant in this cause. The second will was as follows:

"I, James Andrews of Fostney, otherwise Friskney, in the county of Lincoln, being of sound mind, memory, and understanding, do make, ordain, constitute, and appoint this my last will and testament in manner and form following, viz., Imprimis, I give, devise, and bequeath to James Ledger, the son of Elizabeth Ledger, of Friskney aforesaid, all that messuage, tenement, and boot-yard, situate, lying, and being at Snitterby, in the county of Lincoln aforesaid, and which I now hold under lease of the executors in trust of the Cathedral Church of Lincoln, To have and to hold the same with proper renew ances thereof, unto him the said James Ledger, with full power hereby to sell out or otherways at any time to dispose of the same: but, if the said James Ledger should die without issue, not having

*518] disposed of the said lease, that then my will is, the said lease, with proper renewances, shall devolve to and become the right of James Andrews, the son of Thomas Andrews, of Snitterby, in the county of Lincoln aforesaid. Item: I give, devise, and bequeath to James Ledger, of Friskney, in the county of Lincoln aforesaid, and now boarded at Kirton, nigh Boston, all those three messuages or tene ments, with each and every of their appurtenances, situate, lying, and being at Coningsby, in the county of Lincoln aforesaid, and now in the several tenures of John Motley, Thomas Sands, and Thomas Blackbourne, To have and to hold the same to him the said James Ledger aforesaid, and to his heirs, for ever. And my will further is, that the aforesaid three tenements lying and being in Coningsby afore said shall not be sold or by any means otherways disposed of until the said James Ledger shall have issue born in wedlock. And provided the said James Ledger should die without issue, then my will is that the afore-mentioned three tenements lying and being in Coningsby aforesaid, with their appurtenances, shall devolve to and become William Marshall's (the son of my sister Sarah Marshall, of Snitterby, in the county of Lincoln aforesaid), and to his heirs for

ever. Item: I give, devise, and bequeath to my brother John Andrews, of Brig, in the county of Lincoln, one shilling. Item: I give, devise, and bequeath to my brother Joseph Andrews, of Snitterby aforesaid, one shilling. Item: I give, devise, and bequeath to my brother Robert Andrews, in the parish of Gould and county of York, one shilling. Item: I give, devise, and bequeath to my niece Ann Andrews, of Gosberton, in the county of Lincoln aforesaid, one shilling. Item: I give, devise, and bequeath to my brother Richard Andrews, of Snitterby aforesaid, one shilling. Item: I give, devise, #and bequeath to my sister Sarah Marshall, of Snitterby afore[*519 said, one shilling. Item: I give, devise, and bequeath to my brother Francis Andrews, of Friskney aforesaid, one shilling. Item: I give, devise, and bequeath to my brother Thomas Andrews, of Snitterby aforesaid, one shilling: the last eight legacies of one shilling each to be paid to each of the legatees by my executor in trust hereafter mentioned immediately after my decease. And I do hereby constitute, nominate, and appoint Mr. Robert Walker, of Friskney, my executor in trust for the said James Ledger, and to receive the rents and profits of the aforesaid devised lands for the use of the said James Ledger until he shall arrive at twenty-one years of age: and provided the said Mr. Robert Walker should die before the said James Ledger shall attain the age of twenty-one years, then I hereby authorize and appoint Mr. John Walker executor in trust, with full power to act as aforesaid. The rest, residue, and remainder of my estate, both real and personal, with my goods and chattels, plate, jewels, notes, bonds, arrears of rent, lands, and tenements, whatsoever and wheresoever, to me appertaining or belonging, I give, devise, and bequeath to James Ledger, of Friskney aforesaid, whom I do hereby constitute, nominate, and appoint whole and sole executor of this my last will and testament, declaring, ratifying, and confirming this and no other to be my last will and testament."

The witnesses to this will were, Thomas Cousins, Samuel Dickens, and Robert Pasmidge.

On the part of the plaintiff, it was objected that this second will did not come from such a place of custody as afforded any presumption of its genuineness, and therefore did not come within the rule in favour of instruments of ancient date; that, upon the face of it, independently of the improbability of James Legard *having (without [*520 any apparent motive) so long concealed a genuine document, it teemed with suspicion; and that its appearance,--the seal, formed by turning down a portion of the paper over a wafer, having evidently been torn off,-indicated, that, if a genuine will, the testator had intended to destroy it.

For the defendant it was insisted that there was nothing in its appearance, or in the place where it was found, to impeach the genuineness of the second will.

The Lord Chief Baron, in the course of his summing up, told the jury that the will of 1788 ought to have been proved in such a manner as not to leave any doubt of its genuineness upon their minds, and that they might infer from the lapse of time that the testator had intended to recall it, and treated it as a nullity, or that he had given it to his son (James Legard) in order that he might destroy it.

The jury having returned a verdict for the plaintiff,

Mellor, Q. C., for the defendant, in Michaelmas Term, 1861, obtained a rule nisi for a new trial, "on the ground that the Lord Chief Baron misdirected the jury in leaving as a question of intention to them whether the second will was intended to be acted upon or intended to be revoked, or that the lapse of time amounted to a revocation,” and also on the ground that the verdict was against the weight of evidence. He referred to Doe d. Reed v. Harris, 6 Ad. & E. 209 (E. C. L. R. vol. 33), 1 N. & P. 405 (E. C. L. R. vol. 36), and Marston v. Roe d. Fox, 8 Ad. & E. 14, 56 (E. C. L. R. vol. 35), 2 N. & P. 504.

Hayes, Serjt., and Beasley, in Hilary Term last, showed cause.-Upon the whole of the summing up, fairly looked at, the substantial question left was, whether the second will was a genuine document. It *521] was the duty of Legard, as executor, to prove it, if genuine; and his interest also, seeing that under that will he would have taken the leasehold as well as the freehold. The proper place of custody for such a document would have been the Consistory Court of Lincoln. [BYLES, J.-It is not necessary that the place of deposit should be the best and most proper, to make it receivable.] In The Bishop of Meath v. The Marquis of Winchester, 4 Clark & F. 445, 539, 3 N. C. 183, 200 (E. C. L. R. 32), 3 Scott 561, 578 (E. C. L. R. vol. 36), where this matter underwent much discussion, Tindal, C. J., in delivering the unanimous opinion of the Judges, says, "The result of the evidence upon the bill of exceptions, we think, is this, that these documents were found in a place in which, and under the care of persons with whom, papers of Bishop Dopping might naturally and reasonably be expected to be found; and that is precisely the custody which gives authenticity to documents found within it; for, it is not necessary that they should be found in the best and most proper place of deposit. If documents continue in such custody, there never would be any question as to their authenticity: but it is when documents are found in other than the proper place of deposit that the investigation commences, whether it was reasonable and natural, under the circumstances in the particular case, to expect that they should have been in the place where they are actually found; for, it is obvi ous, that, whilst there can be only one place of deposit strictly and absolutely proper, there may be various and many that are reasonable and probable, though differing in degree, some being more so, some less; and in those cases the proposition to be determined, is, whether the actual custody is so reasonably and probably to be accounted for that it impresses the mind with the conviction that the instrument found in such custody must be genuine. That such is the *5221 character and description of the custody which is held suffi ciently genuine to render a document admissible, appears from all the cases."(a) Amongst other facts which the learned Judge observed upon, was, the different spelling of the testator's name in the two documents, the final s appearing only in the second will. [WILLIAMS, J.-Shakspeare's name is spelt in three different ways in that which is his undoubted will.] The question really intended to be submitted

(a) The cases referred to were,-Lygon v. Strutt, 2 Anstr. 601, Swinnerton v. The Marquis of Stafford, 3 Taunt. 91, Bullen v. Michel, 2 Price 399, 4 Dow 297, 321, Jones v. Waller, 3 Gwill. 847, Bertie v. Beaumont, 2 Price 303, and Michell v. Rabbetts, cited 3 Taunt. 91.

to the jury, was, whether or not the second will was a genuine document. [WILLIAMS, J.-Suppose the jury declined to consider whether the will was genuine or not? The learned Chief Baron suggested to them that it might have been given to James Legard to destroy. They have not found that the testator did any act which amounted to a revocation.]

Macaulay, Q. C., and Field, in support of the rule, were stopped by the Court.

WILLIAMS, J.-I am of opinion that there must be a new trial in this case. The summing up leaves no doubt upon my mind that the jury could hardly fail to understand, that, if abandoned by the testator, the will was to be treated as a nullity; and still more, if they thought the testator had given it to his son for the purpose of destroying it. It is quite possible that the jury may have taken the law to be so. That is manifestly a mistaken view. I do not understand the Lord Chief Baron to have laid that down in a deliberate manner. But he certainly did say that which was *calculated to induce the [*523 jury to believe that to be the law. And, as the existence of two wills having so many points of resemblance was a puzzle to them, they probably adopted that as a ready mode of getting over the difficulty. It is clear that a man cannot simply abandon a will, without more. Even before the Statute of Frauds,(a) a will could not be cancelled without the testator's demonstrating in some way that he intended to revoke it: Swinburne on Wills 990. But, with regard to wills made after the Statute of Frauds, it is clear that a man cannot revoke his will even by manifesting in the strongest way his intention. that it shall no longer operate, unless he pursues one of the modes pointed out by the 6th section. There is no pretence for saying that anything of that sort was proved or found here. I give no opinion whether, if the jury had been asked whether or not the tearing off the seal was done by the testator animo cancellandi, and they had answered in the affirmative, that would have amounted to a revocation; for, it is manifest that the opinion of the jury never was asked as to whether the mutilation of the document was the act of the testator, or whether he intended to revoke the will. *Clearly, therefore, the cause must go down again. As to the As to the general [*524 law upon the subject, Doe d. Reed v. Harris, 6 Ad. & E. 209 (E. C. L. R. vol. 33), 1 N. & P. 405 (E. C. L. R. vol. 36), is a very strong case. It was there held, that a will of freehold is not legally revoked, if the testator, intending to destroy it, throws it on the fire, and another person snatches it off, a corner of the envelope only being burnt; even though such person (a devisee under the will) afterwards, being urged by the testator to give up the will, promises to burn it, and pretends to have done so. There was no proof of burning there, and no evi

(a) The 6th section of the 29 Car. 2, c. 3, enacts that "no devise in writing of lands, tenements, or hereditaments, nor any clause thereof, shall be revocable otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing, or obliterating the same by the testator himself, or in his presence and by his directions and consent: but all devises and bequests of lands and tenements shall remain and continue in force until the same be burnt, cancelled, torn, or obliterated by the testator, or his directions, in manner aforesaid, or unless the same be altered by some other will or codicil in writing, or other writing of the devisor, signed in the presence of three or four witnesses, declaring the same; any former law or usage to the contrary notwithstanding."