part of his residue; but if such knowledge be not necessary, as it certainly is not, to give validity to the devise, the absence of it, though so manifested, cannot destroy the operation of the general intent of passing all the residue of his property;" and again, at p. 339, "In considering gifts of residue, whether of real or personal estate, it is not necessary to ascertain whether the testator had any particular property in contemplation at the moment. Indeed, such gifts may be introduced to guard against a testator having overlooked some property or interest in the gifts particularly described." This view of the facts leads me to a conclusion which is decisive of the case. I think it is not in the power of the court to supply words accidentally omitted from a will. The Wills Act (1 Vict. c. 26, § 9) admits of no qualification. "No will shall be valid unless it shall be in writing, and executed in manner hereinafter mentioned," that is, by a duly attested signature. In the present case there is no testamentary disposition of the residue of the personalty of the deceased fulfilling the requirements of the Act, and the intention of the deceased, however clearly it may appear in the unattested instructions, cannot be given effect to. "With respect to wills made on or after January, 1838," says Sir E. V. Williams (1 Wm. Exors. 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. M'Pherson, 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 p. 233) in the same case says, "It is quite clear that the Ecclesi

astical 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. M'Pherson, 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, ch. 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 testator'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. & M. 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.

Dr. Spinks, Q. C., and Dr. Tristram, appeared for the plaintiffs. Inderwick and Mellor appeared for the respective defendants.1

1 "When an instrument purporting to be the will of the deceased person has been executed by the deceased in the proper manner, but it is sufficiently proved that though

MARTHA OSWALD, of Beccles, Suffolk, widow, deceased, died on the 21st of March, 1873, having made a will with two codicils thereto, dated respectively the 3d of March, 1859, and the 3d of March, 1865, and one codicil without date. By the will she appointed James Read the younger and Henry James Kerrison executors and trustees. She gave to her daughters, Georgina Emily Crisp and Sarah Read, to and for their uses absolutely, all her household goods, and furniture, plate, china, wearing apparel, and consumable stores, and the residue to her two sons, Robert William Oswald and William Oswald, and the two daughters above-mentioned, equally, for their uses absolutely. On the 7th of December, 1872, she executed another testamentary paper to the following effect: "This is the last will and testament of me, Martha Oswald, of Beccles, in the county of Suffolk, widow, whereof I appoint James Read the younger, of Mildenhall, Suffolk, gentleman, and Henry James Kerrison, of Beccles, aforesaid, gentleman, executors. I give and bequeath all my furniture, plate, linen, china, books, and all other household effects now belonging to me, unto Georgina Emily Crisp, the wife of James Crisp, of Beccles, aforesaid, coal merchant, for her own separate use and benefit, free from all control, debts, or interference of her said husband, the said James Crisp. I hereby revoke all former

he executed the instrument, yet that from fraud he executed that which was not his will, there is no difficulty in pronouncing that the instrument is not his will. And it has been held that when it is sufficiently proved that the instrument comprised his will, but that from fraud, or perhaps from inadvertence, such as that In the Goods of Duane, the instrument which he actually executed contained also something which was not his will, this latter part is to be rejected. And in such a case, if this latter part is so distinct and severable from the true part that the rejection of it does not alter the construction of the true part, it has been held that, consistently with the Statute of Wills, the execution of what was shown to be the true will, and something more, may be treated as the execution of the true will alone. A much more difficult question arises where the rejection of words alters the sense of those which remain. For even though the court is convinced that the words were improperly introduced, so that if the instrument was inter vivos they would reform the instrument and order one in different words to be executed, it cannot make the dead man execute a new instrument; and there seems much difficulty in treating the will after its sense is thus altered as valid within the 9th section of the 7 Will. 4 & 1 Vict. c. 26, the signature at the end of the will required by that enactment having been attached to what bore quite a different meaning. It has never, as far as their Lordships are aware, been necessary to decide as to this, though the judgment of Sir James Hannen in Harter v. Harter has some bearing on it. And their Lordships think it unnecessary and therefore improper now to express any opinion on this question, for the evidence does not raise it."-Per LORD BLACKBURN in Rhodes v. Rhodes, 7 Ap. Cas. 192, 198 (1882).

wills by me heretofore made. It witness," &c. It appeared from the athidavit of Mr. Kerrison that in December, 1872, he saw and had a conversation with the deceased upon the subject of her will and the manner in which her household furniture was to be disposed of. James Crisp, the son-in-law of the deceased, to whose wife a portion of such furniture was bequeathed by her will, was in pecuniary difficulties, and he therefore suggested to Mrs. Oswald that she should secure the furniture for the sole and separate use of her daughter, free from the control, debts, or interference of her husband. The deceased assented, and instructed him (Mr. Kerrison) to have a document, carrying out the suggestion, prepared. Mr. Fiske was requested to draw up the proper instrument for the purpose, and prepared the will dated the 7th of December, 1872, which was sent to Mr. Kerrison, who, accompanied by his wife and Georgina Cowles, the two attesting witnesses, attended upon the deceased, when it was duly executed by Mrs. Oswald. The paper was never read over by or to the deceased before she executed it, and she was not aware of the clause of revocation contained therein. No instructions were given to Mr. Fiske to insert such a clause, and it never was the intention of the testatrix to revoke the dispositions made by her of her property, except so far as to secure the bequests made to her daughter. The whole property of the deceased was in value under £200. All the next of kin and the parties entitled in distribution in case the deceased had died intestate consented to probate being granted as asked for by this motion.

G. H. Cooper applied to the court to decree probate of the will dated the 3d of March, 1859, and of the two codicils thereto, as also of the paper dated the 7th of December, 1872, as together containing the will of the deceased, excluding from the last the clause of revocation. He referred to In the Goods of Duane, 2 Sw. & Tr. 590; 31 L. J. (P. M. & A.) 173.

SIR J. HANNEN. It was clearly not the intention of the deceased to revoke her previous will. From the facts stated in the affidavit it is evident that the words of revocation were introduced into the last paper per incuriam, and therefore probate will issue without them.1

1 Morrell v. Morrell, 7 P. D. 68 (1882), accord.

NOTE. A paper in form a will, but not really intended as such, as where it was made to show in how short a form a will could be drawn, Nichols v. Nichols, 2 Phillim. 180 (1814), or to induce a third person to believe a will had been made, Lister v. Smith, 3 Sw. & Tr. 282 (1863), but not intended to be operative, will not be admitted to probate. So when one paper is signed by mistake for another, it is not a will, Goods of Hunt, L. R. 3 P. & D. 250 (1875).