1844.

the acuteness of vision in a Judge; the Judge of a January 25th. Court is the proper person to decide a question of obscure handwriting, Remon v. Hayward. (a)

TOWNLEY against WATSON.

Per Curiam.-That is not the rule in this Court; this Court looks to the evidence of engravers and persons skilled in the art of decyphering, and decides upon their testimony according to the best of its judgment.

[Argument.] That could scarcely be the intention of the Legislature; such evidence, from its very nature, will almost always be conflicting; in intricate cases it must ever be doubtful; supposing, in this very case, an engraver can be found who will read these several legacies as "two hundred," instead of "one hundred pounds" each, will the Court, with this facsimile copy of the will before it, order the words "two hundred " to be inserted in the probate?

Per Curiam.-If it be the only evidence that may be the effect of the construction which I have already put on this section of the act, and which has not as yet been overruled. But you have not pleaded, that the words can be made out by the evidence of engravers, so that the Court will not be embarrassed with the difficulty suggested.

[Argument. Such a construction renders that part of the section, which provides, that all alterations and obliterations shall be attended with the

(a) 2 Add. Ell. 666.

TOWNLEY

ceremonies prescribed in the 9th section, a mere 1844. nullity; no person will care to comply with those January 25th. ceremonies, if simply tearing off or cutting out three lines in a will, can produce the same effect: it is contrary to the whole policy of the statute.

SIR H. JENNER FUST.

The question in this case now turns on the admissibility of an allegation, offered in opposition to an allegation already admitted, and which has propounded a paper bearing date in the year 1837, having on the face of it certain alterations or obliterations. Circumstances were pleaded, in that allegation, which could leave no doubt in the mind of the Court, that it was the intention of the deceased to revoke several of the legacies, which she had, at one time, given as part of that instrument. Looking to what the deceased had done the Court was of opinion, that according to the construction which it deems the proper construction of the 21st section of the Wills Act, it was bound to give effect to those obliterations as revocations of part of the will, inasmuch as the words effaced are not apparent on the will itself. That decision is in accordance with a former expressed opinion of the Court, to which it still adheres, and to which it will continue to adhere until better advised. The allegation of Dr. Watson pleads, what the words of this will, in its original or unaltered state, were; but it does not plead, that these words are apparent on the face, of the instrument itself, or that they can be made out by the aid of magnifying glasses, or by evidence of that nature; it simply pleads the fact, that the words obliterated were such and such, and, in supply of proof,

against WATSON.

768

1844.

January 25th.

TOWNLEY against WATSON.

adduces the draft from which this will was engrossed or copied, and tenders the evidence of the professional gentleman who prepared both draft and will, and who, I assume, can also prove, that the words, appearing in certain lines of this draft copy, are the very same words as were inserted in and existing, on that portion of the will now effaced, at the time when it was executed by the deceased; and to be sure, no evidence could be stronger or more satisfactory to the Court in order to show what really were the contents of this will before it was thus mutilated. The question, therefore, comes to this, is any, and what, evidence admissible to prove what the words obtiterated in this will were at the time when it was executed? The answer to this depends on the construction to be put on the 21st section of the act of Parliament. What, then, is the interpretation to be put on this section, when either words in a will, or the effect of words, are so completely effaced or obliterated as not to be apparent? Now, I think the prima facie construction must be apparent on the face of the instrument itself, and not that suggested in argument, namely, capable of being made apparent by extrinsic evidence. What is an obliteration? Is it not by some means covering over words originally written, so as to render them no longer legible? I cannot understand, if the Legislature really intended that extrinsic evidence should be admitted, why a few more words were not added, which would have freed the section from all doubt; for instance, why was it not thus penned, "unless the words shall be capable of being made apparent."

There may be inconsistencies and there may be inconveniencies-I do not say there are-in the

1844.

against WATSON.

construction I am putting on the section; but I think it is impossible to read the words, and not say, January 25th. it was the intention of the Legislature, that if a TOWNLEY testator shall take such pains to obliterate certain passages in his will, and shall so effectually accomplish his purpose, that those passages cannot be made out on the face of the instrument itself, it shall be a revocation as good and valid as if done according to the stricter forms mentioned in the act of Parliament.

Moreover, this is not a case, where, by restoring the words obliterated, the Court would be carrying out the intentions of the deceased; there can be no doubt that it was her intention to effect a complete revocation of these legacies. I confess I do not feel the force of the argument,-as to the inconvenience to follow from such a construction; because the Court will not, in the first instance, take upon itself to decide, whether the words obliterated can or cannot be made out; if it be asserted in an allegation that they are capable of being distinguished on the face of the will, the Court will refer such an allegation to proof, and then pronounce its judgment according to the testimony which may be offered at the hearing.

The construction which has been put upon the 21st section by the Judicial Committee is this:That, as in the prior section, the 20th, where a will is to be revoked by burning, tearing, or otherwise destroying the same, the act must be done with an intention to revoke; so, in the 21st section, the Legislature must be assumed to have meant, that an obliteration, interlineation, or other alteration, shall be made animo revocandi, with an intention to revoke, not to substitute.

1844.

TOWNLEY against WATSON.

Brooke v. Kent turned entirely on the want of

January 25th. intention to revoke, and that intention may be made out precisely as in other cases. I really do not think I should be justified in departing from what I have over and over again repeated is my construction of this act of Parliament. I do not enter into the question of the construction of the 20th section, or how far it refers to the destruction of the whole

or of part of a will. I put the construction, I have already stated, on the 21st section, upon the ground, that these words not being apparent on the face of the instrument, are not to be supplied by extrinsic evidence. I think, however, this a very fair case upon which to take the opinion of the superior Court. I admit the allegation of the executor, and reject that of Dr. Watson.

Feb. 22nd. On this day, upon proof of the facts pleaded in the allegation of the executor, the Court pronounced for the will without the obliterated passages. Costs out of the estate.

1844. February 26th.

A testator, in the year 1832, made a will and codicil,

JAMES V. COHEN.

THIS was a cause of proving in solemn form of law the last will and testament, with two codicils

and, in March, 1836, a second codicil. In October, 1836, he executed a new will, prepared by his solicitor, and which was delivered into his own possession. At his death the will of 1836 could not be found. Held, that the effect of the execution of the later will was to revoke the prior will and codicils, and that the subsequent destruction of the second will by the testator (so presumed from it having been delivered into his possession and not being forthcoming) did not per se operate to revive the first will and codicils.