such an instrument would, we think, render this conclusion irresistible. This being our opinion as to the true import and construction of paper B, the next question will be, was there any such instrument? This leads then to the consideration of the paper marked A. It bears date the 2nd of December, and is signed by the testator, for we are satisfied as to the handwriting. It is entitled "Instructions for the will of me, James Wood, esq., of Glocester," and it proceeds thus: "I request my friends Alderman Wood, of London, M. P., John Chadborn, of Glocester, Jacob Osborn, of Glocester, and John S. Surman, of Glocester, to be my executors, and I appoint them executors accordingly." In this paper then, purporting to be drawn up by the direction of the testator, signed by him, and dated the day before the date of the will, he expressly names his executors. "I request them to be my executors, and appoint them executors accordingly." The will B begins by referring to instructions. "I, James Wood, do declare this to be my will for disposing my estates, as directed by my instructions." The expressions we think import instructions in writing. If the paper A then be genuine, there were instructions of this description dated only the day before, and signed by the testator. The natural inference, therefore, is that in speaking of instructions he referred to these, and in these instructions he had named his executors. "I request my friends, naming them, to be my executors, and I appoint them executors accordingly." We think, then, if this paper be genuine, that no reasonable doubt can be entertained that the executors to whom

the testator thus bequeathed his property were meant to be the persons named as such by him in the paper entitled "Instructions of the 2nd of December." If the testator in the paper, &c., meant as we think he did, executors already named, they must have been the executors named in the instructions of the day before, or there must have been some subsequent written appointment of executors in the interval (an interval of only a few hours), of which there is no trace, and which is extremely improbable. If the testator, then, intended to refer to paper A, and to the persons therein named as executors, the circumstance of the paper being entitled and intended as instructions for the will would not, we think, impair the effect of the reference. For suppose he had in terms said, "The executors named in my instructions of the 2nd of December," this would indisputably have been sufficient. But if we are satisfied, from the circumstances, that he referred to paper A, and to the executors therein named, the same consequence would necessarily follow. The effect of the reference to A would be the same as to any other paper, although A might be intended either in the whole or in part as instructions. It has been argued, that the instructions in paper A could not have been the instruction referred to, because the testator disposed of his property, not according to these instructions, but in a different manner. first as to the personal property, the instructions give it to the executors as joint tenants, whereas by the paper B they take it as tenants in common. This objection does not appear to us to be of any weight. The instructions are gen

For,

eral; the will more precise and specific. In this there is not only no inconsistency, but it is not at all unnatural. Secondly, then, as to the real property. In the paper A the testator says, "He shall dispose of the same to such persons and in such parts, as he shall by any writing endorsed therein direct." By the will, the disposition of the property, both real and personal, is on a separate paper, and without endorsement. This also appears to us to be an immaterial circumstance. These observations and this reasoning have proceeded upon the assumption that the paper A was what it purports to be, the act of the testator, and signed by him on the day it bears date, viz., the day before the date of the will. We are, as I have already stated, satisfied as to the signature; we believe it to be the handwriting of the testaThe paper bears date on the 2nd of December, and there is no appearance of any alteration or addition. The date, we think, was obviously written at the same time as the body of the instrument. But the paper is in the handwriting of a legatee who would take largely under it. It comes also out of his possession, and not out of the possession of the testator, which would have been the proper custody of it after the execution of the paper B. These circumstances and the conduct of Chadborn in secretly changing the custody are justly calculated to create suspicion, and according to the rule of the ecclesiastical court in granting probate, proof of the handwriting alone of the alleged testator, would not in such a case be sufficient. There must be further adminicular or corroborative evidence. Is there then such evidence in this case? And

tor.

if so, is it sufficient, in connexion with the other circumstances, to satisfy the Court that the paper A is what it purports to be, and that the testator, when he signed and published the paper B and bequeathed his property to his executors, meant the persons named as such in the paper A? And, first, it is not immaterial to observe, that Chadborn, Osborn, and Surman were all present, or at hand, when the will was signed:

neither of them, however, attested the execution, but two servants and a stranger Chadborn's clerk, were called in for that purpose. The inference obviously is, that they were intended to take some benefit under it. There is nothing improbable in the selection of persons named as executors: there is nothing improbable arising out of the amount of the property, as it was subject to be reduced by subsequent legacies, which it is obvious the testator intended to give. In considering the evidence of recognition, I pass over the many loose declarations made at different times in general conversation. We place no reliance upon them-they are even of less value than they might otherwise be, from the insincerity and sort of low cunning exhibited in the character of the testator. Some point to Chadborn alone as the party to be benefitted-but these are open to the explanation, that they were used as an excuse to prevent claims by tenants, and were not really true. Sometimes Alderman Wood and Chadborn are said to be the parties to be benefitted; and they two are said to be his "executors, and to have the bulk of his property." allude to the evidence of Mrs. Timbrell. If on that occasion he

I

said that they were to be two of his executors, and to share in the bulk of his property (a very slight change), such declaration would accord with the supposition that paper A was referred to. It is remarkable that in no one instance is any person mentioned as his executor, except some one of the four named in the paper A. There are declarations mentioning Chadborn, or those in the house, namely, Osborn and Surman, as having the management of his affairs; but there are none mentioning any one else as executor or manager except one or more of the four mentioned in paper A. The declarations in favour of other individuals as objects of his bounty do not affect this question; for they are reconcilable, if true, and really expressive of the deceased's intention, with the supposition, which is undoubtedly correct, that he meant to leave many legacies to others. But the most important recognitions are those which are proved by Sutton and Stevens, and to which it will be proper more particularly to advert. The first shows a motive for making a will appointing executors arising before the 1st of December-namely, the opinion of the customers as to the necessity of providing for the payment of their accounts. Sutton appears to have been on very friendly and intimate terms with the testator. The testator had at different times expressed to him his dissatisfaction that the deposits at his bank were diminishing; and, in reply, Sutton reminded him that unless the public were satisfied that their balances would be immediately receivable in the event of his death, his banking business must diminish, notwith standing the security derived from

his large property. Sutton says:"In the afternoon of Monday, the 1st day of December, 1834, I accidentally called at the deceas ed's, and saw in the shop Mr. Surman, who, addressing me said, Mr. Sutton, you have a great deal of influence with Mr. Wood; we want him to make a will, and wish you to speak to him about it,' or to that effect. I did not at that time see the deceased, but went away, telling Mr. Surman that I would call again in the evening. Soon after six o'clock the same evening I went to the deceased's, and found him in his parlour and alone. I sat and conversed with him for some time on general topics, until, at length, I opened the subject by saying, that I thought it was time that his will was made,' or 'that he made his will.' His reply was very short; he said, 'Ay, ay, I must.' Upon this I dropped the subject, and soon after took my leave." Of the date, he says, "I am certain, by reason of a note I made on the 2nd of December, 1830, of the visit. In the course of the same week, and I believe on the 4th of December, 1830, I again called on the deceased, and, going with him into his parlour, I reverted to the subject of making his will, rather, as I believe, hinting at it, than mentioning it in direct terms. The deceased readily apprehended me, and said, I have settled my affairs, my debts will be paid when I die.' Taking the whole of these conversations together, he must, we think, have meant to convey to Sutton that he had so settled his affairs, that his debts would be paid immediately on his death, which could only be the case if he had appointed executors. His

reply on the 1st of December, shows that he had not then made his will; he says, "Ay, I must." Three days afterwards, on the 4th, he says, "I have settled my affairs; my debts will be paid when I die," thereby implying that he had appointed executors. The appointment, then, must have been made between the 1st and the 4th, which corresponds precisely with the dates of papers A and B, and shows that B, not naming executors, must have referred to some other instrument executed between the 1st and the 4th, by which they were named, and which corresponds with and confirms paper A. Sutton adds, that the impression made on his mind by this conversation was too powerful to be forgotten; for it struck him as remarkable that the testator did not say he had made his will, but only "that he had settled his affairs," an expression, the witness says, which struck him forcibly. He afterwards adds, in answer to a further interrogatory put to him by Thomas Helps, that "the impression made on his mind by what the deceased said, namely "I have settled my affairs; my debts will be paid when I die, was, that he had not made a will," that is, a will by which he had bequeathed his property in the way of bequest or legacy. He seems, therefore, to have understood from this conversation that the deceased had made a will so far only as to secure the payment of his debts in the event of his decease, which implied the appointment of executors; and, accordingly, Sutton continued to bank with the testator to the time of his death. This, we think materially confirms the case of the appellants. The evidence of Stevens, upon which con

siderable stress has been laid, also appears to us to be entitled to much attention. He and his father had cash deposits in the hands of the testator to the amount of upwards of 2,000l. They were desirous of knowing what the testator had done as to his will, as they might be put to much inconvenience respecting this balance in the event of his dying intestate. The witness was empowered and directed by his father to withdraw the balance unless the explanation should be satisfactory. Upon the application made by Stevens to the testator, he said, "I respect your father very highly; do tell him that I have made a will, and that I left my property to four individuals, or four good men, and they are my executors, and they will pay you and your father and every one else." Speaking of the executors he said, "Two of them are Alderman Wood and Jacob,"-that is Osborn. Upon this assurance the witness said, he continued to bank with the testator. This took place in the month of September, 1835. It was not a loose and careless conversation, but, on the contrary, a very distinct recognition-very deliberately made in the course of business, and is strongly confirmatory of the case of the appellants. The answer of Mrs. Goodlake has been referred to. We think it admissible, though under all the circumstances of her position, and in the absence of any opportunity for cross-examination, we should not, if it stood by itself, consider it as having much weight. She was alone with the testator for a considerable time in the forenoon of the Monday before his death, having been sent for in consequence of his illness. Mrs. Goodlake, on

that occasion, spoke to him about the propriety of making his will, when the testator, in allusion, as she believed, to her various suggestions on this subject, after tracing his relationship to the respondent and her son, and speaking of the uncle of the respondent, who had been a trustee under the will of the testator's father, "Cousin John," he said, "was a very good kind of man; then I shan't live long; it will be all right by-andby;" or to that effect: and the testator, proceeding to speak about his will, said, "Don't fret yourself to fiddle-strings; Alderman Wood will spend the money very properly. Chadborn has done all my business many years, and he has been very honest and attentive. Mr. Osborn has been a very faithful servant, and our John I always loved. He always was a great favourite of mine; he knows all about it, and can tell you all about it." This is also confirmatory of the written documents, and, if correct, shows that the four persons named in the paper A were objects of the testator's bounty. It appears singular, indeed, that Surman had not made any communication to his mother, Mrs. Goodlake, on the subject of the will, and yet he certainly was present when it was signed and published by the testator. The result then is this: We are of opinion that the paper A, entitled "Instructions," was signed by the testator, and on the day it bears date. That in the paper B the testator referred to these instructions, and to the persons whom he had therein named as his executors. That, in addition to the proof of handwriting, there is sufficient confirmatory evidence to satisfy us that the paper A was the act of

the testator, and that he meant, in mentioning his executors in paper B, the executors whom he had previously named or appointed in the paper A. We must not be understood to say, that this is a case free from doubt; we consider, on the contrary, that it is involved in difficulty, and that it is in many of its circumstances painfully obscure. But, after much and attentive consideration, we think the balance of evidence, and by that we must be governed, is in favour of the appellants. An objection of form was taken at the bar, but was not I think much pressed-viz., that there was a material variance between the allegation and the proof. We think the objection cannot be sustained. If enough of the allegation is proved to entitle the party to probate, that is all that is necessary. Next as to the codicil, we think it is (both the body of the instrument and the signature) in the handwriting of the testator. The evidence in the affirmative so greatly outweighs that which is opposed to it, as to satisfy us on this point. That evidence has been so thoroughly sifted, both at the bar and by the learned judge in the court below, as to render any further examination of it unnecessary. It derives further strength and confirmation from the conduct of the executors. They were intimately acquainted with the handwriting of the testator, and with everything relating to him. They saw the codicil, and expressed no doubt as to its genuineness. It is true, that the letter of the 13th of June, to the Mayor of Glocester, was written before they had seen the original; but they afterwards saw and examined it, long before the post left London on that day.