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decided by Sir Herbert Jenner Fust that it was not, and upon this principle, that it was not a codicil; that it was not distinctly referred to as such; that there were other papers which were codicils, and which would satisfy the words of the instrument referring to them; and that the court could not, therefore, extend the words of reference to an instrument not answering the description.

In June, 1844, the case on Lord Hertford's testamentary papers came before the Judicial Committee by way of appeal from the decision of Sir Herbert Jenner Fust, and the decision was affirmed (4 Moore's P. C. Cases, 339). Dr. Lushington, in delivering the judgment of the Committee, observed very strongly upon the inconvenience which might result from admitting papers to probate neither properly executed nor distinctly identified; but he also relied on the ground of the judgment in the court below, namely, that there being no reference to the particular paper, except under a general description of "codicils," and there being instruments which properly answered the description of codicils, the words could not be extended to an instrument not properly answering the description.

This was the case mainly relied on by the appellant in the argument before us. It is a decision on every ground entitled to the utmost respect, and we not only hold ourselves bound by its authority, but entirely assent to its principle. We can find, however, nothing in it inconsistent with the rule adopted in the cases of Smith and Claringbull, which applied under the new Act the principles adopted under the old.

The question came again before Sir Herbert Jenner Fust in the case of Ingoldby v. Ingoldby, 4 Notes of Cases, 493, in 1846. In that case, the testator made an unattested codicil to his will; he afterwards made a second, properly attested, with the words, "This is another codicil to my will." On his death, these two codicils only were found, and Sir Herbert Jenner Fust admitted them to probate. The learned judge observes: "I think the circumstances of this case are sufficient to distinguish it materially from the Marquis of Hertford's Case. There is only one paper here which comes under the description of a codicil. It is not, indeed, a codicil, because it is not duly executed; but it is clear that the testator intended it to be a codicil, not only from the paper itself, but from the indorsement; and it was attached to the will by sealing-wax, without a seal. He describes the second paper as ‘another codicil,' evidently referring to what he believes to be in existence. I apprehend there are cases in which a testator has bequeathed property to his children, and there being no legitimate children to answer the description, illegitimate have taken. So here, there being no duly executed codicil, the words may have reference to an unexecuted codicil." The learned judge then adverts to the circumstance that there was a reference in the second codicil to a bequest contained in the first, and adverts to it as a not immaterial circumstance, but does not make it the ratio decidendi.

The same question again came before the court in 1849, in the Case of Phelps, 6 Notes of Cases, 695. There the testator made his will, duly executed, and afterwards made a first codicil on the same sheet of paper, attested by only one witness. He then executed a second codicil, duly attested, by which he referred to and confirmed the will, but took no notice of the first codicil. Sir Herbert Jenner Fust held, that the first codicil was not established by the second, for the instrument in question was not a codicil; and, therefore, the confirmation of the will did not amount to a confirmation of the codicil.

In the case of Haynes v. Hill, 7 Notes of Cases, 256, the point once more arose in August, 1849. In that case, a testator made his will and several codicils, the last of which only was attested. The last codicil confirmed the will, but said nothing of the codicils. The question was in truth the same as had arisen in Phelps's Case, and the same decision was pronounced. Sir Herbert Jenner Fust went very fully into the doctrine, and held, as it seems on the most satisfactory grounds, that the case was governed by Lord Hertford's, there being no reference to anything but the will, and the unattested codicils not being part of it.

These cases, when compared with Gordon v. Lord Reay, clearly illustrate the distinction introduced by the Wills Act, to which we have already adverted.

In the Case of the Countess Dowager of Pembroke, 1 Deane's Ecc. Rep. 182, Sir John Dodson, from whose decision the present appeal is brought, followed the decision of Sir Herbert Jenner Fust in Sotheron's Case, but his subsequent decision in the present case shows that he did not mean to infringe upon the rules to which we have referred.

The result of the authorities both before and since the late Act, appears to be, that when there is a reference in a duly executed testamentary instrument to another testamentary instrument by such terms as to make it capable of identification, it is necessarily a subject for parol evidence, and that when the parol evidence sufficiently proves that, in the existing circumstances, there is no doubt as to the instrument, it is no objection to it that, by possibility, circumstances might have existed in which the instrument referred to could not have been identified.

As in this case the only question is whether there is sufficient evidence to identify the paper propounded as the will, it is not necessary to consider whether any evidence was received in this case, to which objection might be made. The facts on which we rely are, beyond all question, admissible in evidence, namely, that the paper in question was written by the testatrix, was found locked up in her possession at her death, in a sealed envelope, on which there was an indorsement describing it as her will; and that after diligent search no other paper has been found answering the description, and that the only trace of any other testamentary paper in the evidence, is the proof of an earlier will, which the testatrix destroyed.

Their Lordships, therefore, are of opinion, that the decree complained of must be affirmed, and they think that the costs of all parties must come out of the estate. They cannot properly refer to the extrajudicial opinion of any individual, however eminent, as an authority for their decision; but it is satisfactory to them to observe that (in a work which, though it professes to be written only for the unlearned, may often be consulted by the most learned with advantage) Lord St. Leonards treats as clear, a point which, from its extreme importance, their Lordships have thought it advisable to examine at so great a length. In the "Handy Book on Property Law" (sixth ed. 151), we find the following passage: "So a will or codicil not duly executed, may be rendered valid by a later codicil duly executed and referring clearly to it, or in such a manner as to show the intention. Therefore, if you were to begin your codicil,This is a codicil to my last will,' and there was only one will, those words would set up the will, although not duly executed." That very learned author then points out the distinction, where there are several wills and codicils, and refers to the decision in Lord Hertford's Case, which he understands as we do. Sir Fitz-Roy Kelly, Q. C., and Dr. Jenner, for the appellant. Dr. Phillimore and Dr. Deane, for the respondent.1

GOODS OF ALMOSNINO.

COURT OF PROBATE. 1859.

[Reported 1 Sw. & Tr. 508.]

In this case the testatrix died on the 31st of December, 1858. On a table in her room was found an envelope, which had been sealed, but the seal was broken, directed to Mr. Azuelos, No. 62, Bishopsgate Street Without. Within this was another envelope, sealed and directed "For Mr. Azuelos, No. 62, Bishopsgate Street Without. I wish him to open this letter immediately I am dead, or, if he should not be in London at the time of my death, it must be delivered to Mr. S. Almosnino, No. 11, Bevis Marks, City."

On the inner envelope was also written, "I confirm the contents written in the enclosed document, in the presence of Richard Morse and Sarah Praeger, this 29th day of December, 1858.

“A. ALMOSNINO,

"RICHARD MORSE, 8, Charing Cross. "SARAH PRAEGER, 25, Esher Street, Upper Kennington Lane."

1 Cf. Goods of Greves, 1 Sw. & Tr. 250 (1858); Goods of Dallow, L. R. 1 P. & D. 189 (1866); Singleton v. Tomlinson, 3 Ap. Cas. 404 (1878). The case of Goods of Sotheron, 2 Curt. 831 (1841), must be considered as overruled.

Inside this envelope, when opened, was found a paper in the deceased's handwriting, commencing thus:

"MY DEAR NEPHEW, You will be doing me a charity if you will comply with my last wishes; I always found you very kind, and I hope you will not refuse my last request," etc. The paper proceeded to give directions as to her funeral, and the disposition of her property; it was signed by her, but not attested; and mentioned no executor. From the affidavit of Judah Azuelos, it appeared that he was nephew of deceased's husband, and was in the habit of visiting the deceased, who had frequently mentioned to him a paper containing instructions to be attended to after her death, and addressed to him; that on the 29th of December, 1858, he told her that such a paper ought to be signed by two witnesses, when the deceased sent for Morse, and signed the memorandum of confirmation written by Morse on the inside envelope; that the paper writing and the addresses on the envelopes were in the deceased's handwriting; that the seal on the inner envelope remained unbroken when the memorandum was written (the deceased objecting to have it opened), and that the same seal was found unbroken after her death when the inner envelope was cut open.

Richard Morse, at whose house the deceased lodged, deposed that he went into her room on the 29th of December, 1858, at Mr. Azuelos' request, and wrote the memorandum on the inner envelope, which was signed by the deceased in his presence, and that of Sarah Praeger, and that they then attested it; he gave the same account of the condition of the envelopes and seals as Azuelos did, which was confirmed by S. Almosnino, who, after deceased's death, had cut open the inner envelope.

Mr. Dowdeswell moved the court to decree probate of the paper writing and of the inner envelope, as together containing the will of the deceased, to Judah Azuelos, as executor according to the tenor. Parol evidence is admissible for the purpose of showing that the paper writing was the document referred to by the memorandum.

SIR C. CRESSWELL. Is there any case in which a paper has been held to be incorporated, by reference, with one duly signed and attested, where there was no description whatever of the paper supposed to be referred to? It seems to me to differ from most of the cases cited in Allen v. Maddock, 11 Moore, P. C. 427; the deceased does not call it a will or testamentary paper, or in any way describe it; the words are simply, "I confirm the contents written in the enclosed document." Cur. adv. vult.

SIR C. CRESSWELL. In this case application was made for probate of a paper under rather singular circumstances. The deceased wrote a paper giving directions for the disposition of her property after her decease, and apparently not wishing any one to know the contents, she enclosed it in an envelope on the outside of which, in consequence of a suggestion that any paper to be acted upon after her death ought to be

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