alone, sitting at her writing-table, upon which were several papers lying before her, but how many the said Fanny Brown did not recollect; that Lady Mary Monck took from amongst the said papers the said paper marked A, and signed it in the presence of Fanny Brown and Isabella Graham, and requested them to sign their names to it as witnesses, which they thereupon did in her presence, and in the presence of one another. The following is a copy of exhibit A :

"It is my wish for my dear husband to administer to the moneys, the smaller bequests dear Laura will be so kind as to attend to. M. E. MONCK, May 16th, 1851. Fanny Brown. Isabella Graham.

"Some tapestry work of the Dowager Countess of Tankerville to be disposed of as Sir Charles may think fit, or kept by the family at Belsay."

nesses.

This last paragraph was not on the paper when signed by the witImmediately after the witnesses had subscribed their names, Lady Mary Monck took from among the papers lying on the writingtable two sheets of paper with writing on them (but Fanny Brown could not identify them), and enclosed them in the paper marked A, which she sealed with two seals. Some time after the year 1853, Lady Mary Monck gave to her husband exhibit A, sealed with two seals, impressed with the letter M, to deposit in the strong-room. This paper parcel was opened after her death, and was found to contain two pieces of paper, marked exhibits B and C. They commenced as follows:

"BELSAY, May 11, 1851.

"Of the £5000 in my power to leave, I bequeath to dear Harriet Straubenzee, to be settled on my god-daughter Mary Straubenzee, £1000; £2000 to Louisa and Alicia Hammond, £1000 each; £500 to Maria and Mary Wrottesley, £250 each; £1000 to Gertrude Gorges, to be settled on her son Arthur."

Then followed a great number of bequests of articles of jewelry and pictures to various persons, including the bequest of torquoise and gold earrings, and concluded thus: "Signed in the envelope, May 16th, 1851;" underneath this, and in a different-colored ink were these words: "P. S.-The water-colored paintings in Duke Street, and whatever else of mine of worth and ornament, to my dear husband. My will revised, April 19th, 1858."

Several alterations in red ink had been made by the deceased subsequent to the original date of the document, and it was clear from the state of the seal that the envelope had been opened after it had been sealed in the presence of the attesting witnesses.

The pleadings are sufficiently referred to in the judgment.

Dr. Tristram, for the plaintiffs.

Dr. Spinks, contra.

SIR C. CRESSWELL. In this case Mr. Henry Van Straubenzee and his wife propounded the will of the late Lady Mary Elizabeth Monck,

and alleged that in pursuance of the power contained in her marriagesettlement, and of every other authority enabling her in that behalf, she made her last will and testament, dated the 16th of May, 1851, in manner following: that two persons having by her previous request come into the room where she was then sitting, she signed her name to a paper-writing which was then on a table before her, containing the words following: "It is my wish for my dear husband to administer the moneys; the smaller bequests dear Laura will be so kind as to attend to;" in the presence of the said two persons as witnesses, who duly attested the same; and that the said deceased then, in the presence of the said two witnesses, placed two sheets of paper with writing thereon, and which were lying on the said table before the testatrix, within the first-mentioned paper-writing; and that she then, in their presence, folded up the said first-mentioned paper with the two sheets of paper within it, and sealed the same; and that the first-mentioned paper is exhibit A, and that the two others are exhibits B and C, and that the exhibits A, B, and C contain together the last will and testament of the deceased. The defendant, in his answer, admits the due execution of exhibit A, and that the deceased in the presence of the two attesting witnesses placed two sheets of paper with writing thereon, and which were then lying on the table before her, within exhibit A; but denies that the said two sheets of paper are the same as the two sheets of paper marked exhibits B and C, and denies that the exhibits A, B, and C together contained the last will and testament of the deceased.

In support of the case of the plaintiffs, the decision of the Judicial Committee in Allen v. Maddock, 11 Moo. 427, was relied on, and I was anxious to examine that case carefully, so as to decide the present in conformity with it, for the whole law on the subject was then collected and considered by Lord Kingsdown, in his very learned and elaborate judgment.

The facts in this case, in addition to those admitted on the pleadings, are very few. The papers B and C were found in the envelope A, but it is not shown that they are the same that were originally placed there by the testatrix. The paper B had a date at the commencement, but no other evidence was given of the time when it was written; and I cannot, for the purpose of this cause, hold that any part, still less the whole, was then written. No other evidence was given of the exist ence of the papers at any particular time than the fact of the envelope containing them having been delivered to Sir Charles Monck by the deceased, some time before her death, and long after the paper A was signed.

Such being the facts of the case, the judgment in Allen v. Maddock points out the conclusion at which I ought to arrive. It adopts the opinion of Lord Eldon, in Smart v. Prujean, 6 Ves. 565, that a testamentary paper duly executed, in order to incorporate another, must refer to it as a written document then existing in such terms that it may be ascertained. To that opinion it has been added, by subsequent

decisions, that the identity may be ascertained by the aid of evidence of the surrounding facts, in conformity with the fifth proposition of Sir James Wigram in his work on Extrinsic Evidence, referred to by Lord Kingsdown in 11 Moo. P. C. 441. Such evidence, however, can only be used to aid in the construction of what the testator has written.

In the present case I think the plaintiff's have failed to establish that the papers A, B, and C constituted the will of the deceased, on two grounds. The reference in A is not distinctly to any written paper then existing. One may conjecture that the deceased was referring to something written or to be written, but it is mere conjecture; and certainly there is no such reference to any instrument as will enable the court to ascertain it. The fact of the papers B and C being found enclosed in the envelope can have no effect, according to Lord Eldon's opinion in Smart v. Prujean, especially as it is not shown when they were placed there. Nor is there any legal evidence to satisfy the court when they were written. Under these circumstances, I feel bound to pronounce against the papers propounded. Paper A does not refer to any written document as then existing; and, assuming that it does, such document is not pointed out in such manner as to enable the court to ascertain its identity; and paper A, taken by itself, has no testamentary character, so as to enable the court to grant probate of it. The costs of all parties should be paid out of the estate.

THE deceased, Mary Sunderland, widow, died on the 7th of April, 1866, having duly executed a will, dated March 9, 1864, and two codicils thereto, dated respectively December 30, 1864, and January 6, 1866. The residuary clause in the will was as follows: "I give all the residue of my personal estate whatsoever and wheresoever (save and except such articles of furniture, pictures, plate, trinkets, linen, and wearing apparel, in my dwelling-house at the time of my decease, as shall be ticketed or may be described in a paper in my own handwriting, to show my intention as regards the same, which intention I expect my executors to give effect to) unto the said H. Freeman, and T. F. Ormerod, &c., in trust, &c."

The deceased left paper writings, marked D and E, purporting to contain gifts of her furniture in her dwelling-house, signed by her, but unattested, and in neither of them was there any reference to either her will or codicils. Mr. Chambers, the solicitor who prepared the will and codicils, deposed that he prepared the will from her instructions;