this daughter, proceeded to make dispositions in favour of the wife and daughters differing from those in the first codicil. There was nothing making it absolutely impossible that the testator meant their disposition to be cumulative, but, as Sir H. Jenner points out, it did appear that if both the codicils had been acted upon "the property of the deceased would not have been equal to the payment of all the legacies that had been given." It was upon this state of facts that Sir J. Nicholl said: "The first instrument remains uncancelled and there are no revocatory words in the second. It is contended that the Court has no power to inquire further, but the same rules do not apply in a case relating to the factum of the will which would apply if the inquiry were concerning the construction of it. In the Court of Probate the whole question is one of intention. The animus testandi and the animus revocandi are completely open to investigation in this Court. It is admitted that if there is doubt on the face of the instrument the Court may admit parol evidence." That is an authority that in cases of doubt external evidence is admissible."—In the Estate of Ann Faith Bryan, [1907] P. 125, at pp. 130, 131, 132; 76 L. J. P. 30, at pp. 33, 34, Sir Gorell Barnes, President.

Alterations.

Wills Act, 1837 (7 Will. IV. & 1 Vict. c. 26).

Sect. 21. "No obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as herein before is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will."

B.

R R

Unattested alterations and interlineations must, in the absence of evidence, or as a general rule, be presumed to have been made after execution.

Cooper v. Bockett (1844—6), 4 Moo. P. C. 419, decided that as a general rule, in the absence of evidence, unattested alterations and interlineations must be presumed to have been made after execution. I think that in this case, however, I am not bound to draw that presumption. For I conceive that the Court is not precluded by the absence of direct evidence of the fact from considering the nature of the interlineation and the internal evidence, if any, furnished by the document itself."-In the goods of Cadge (1868), L. R. 1 P. & D). 543, at p. 545; 37 L. J. P. 15, at p. 16, Sir J. P. Wilde.

The onus lies on the party who seeks to derive an advantage from an alteration in a will to show that the alteration was made before the execution of the will.

"In the absence of evidence there is, in general, a presumption that all alterations made in a will were made after its execution. The authority for this is Cooper v. Bockett (1844—6), 4 Moo. P. C. 419. But the rule is somewhat differently expressed by the late Lord Chancellor, then Sir W. P. Wood, in Williams v. Ashton (1860), 1 J. & H. 115. He there [at p. 118] said, 'I do not think that it is quite a correct mode of stating the rule of law to say that alterations in a will are presumed to have been made at one time or another. The correct view is that the onus is cast upon the party who seeks to derive an advantage from an alteration in a will, to adduce some evidence from which a jury may infer that the alteration was made before the will was executed. I do not consider that the Court is bound to say that it will presume such alterations to have been made, either before or after execution. With regard to a will I do not see any necessary presumption of the kind.' The onus, therefore, lies on those who assert the alteration to show that it was made before the execution of the will. Stated, however, as the rule generally is, that there is a presumption that alterations on the face of a will were made after its execution, this presumption may be rebutted by evidence of declarations made before and not after the execution. Doe d. Shallcross v. Palmer (1851), 16 Q. B. 747; 20 L. J. Q. B. 367,"

-In the goods of Sykes (1873), L. R. 3 P. & D. 26, at p. 27; 42 L. J. P. 17, at p. 17, Sir J. Hannen.

Revival.

Wills Act, 1837 (7 Will. IV. & 1 Vict. c. 26).

Sect. 22. "No will or codicil or any part thereof which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof or by a codicil executed in manner hereinbefore required [sect. 9] and showing an intention to revive the same; and when any will or codicil which shall be partly revoked and afterwards wholly revoked shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown."

Republication.

"It seems to me, then, that in order that republication may be implied, something must be found in the second testamentary instrument from which the inference can be drawn that, when making and executing it, the testator considered the will as his will."—In re Smith, Bilke v. Roper (1890), 45 Ch. D. 632, at p. 639; 60 L. J. Ch. 57, at p. 60, Stirling, J.

Wills Act, 1837 (7 Will. IV. & 1 Vict. c. 26).

Sect. 34. "Every will re-executed or republished or revived by any codicil shall, for the purposes of this Act, be deemed to have been made at the time at which the same shall be so re-executed, republished, or revived.”

Incorporation of Instruments.

Where there is a reference in a duly executed testamentary document to an ascertainable existing unattested written instrument, parol evidence is admissible to incorporate the latter in the former.

"The rule of law is that an instrument, properly attested, in order to incorporate another instrument, not attested, must describe it so as to be a manifestation of what the paper is which is meant

to be incorporated; in such a way that the Court can be under no mistake."- Smart v. Prujean (1801), 6 Ves. 560, at p. 565, Lord Eldon (cited by Cozens-Hardy, M. R., in University College of North Wales v. Taylor, [1908] P. 140, at p. 144; 77 L. J. P. 20, at p. 22).

"A reference in a will may be in such terms as to exclude parol testimony, as where it is to papers not yet written, or where the description is so vague as to be incapable of being applied to any instrument in particular, but the authorities seem clearly to establish that where there is a reference to any written document as then existing in such terms that it is capable of being ascertained, parol evidence is admissible to ascertain it."-Allen v. Maddock (1858), 11 Moo. P. C. 427, at p. 454, Lord Kingsdown, delivering the opinion of the Privy Council.

"The result of the authorities, both before and since the late Act (Wills Act, 1837), appears to be, that where 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."-Allen v. Maddock (1858), 11 Moo. P. C. 427, at p. 461, Lord Kingsdown, delivering the opinion of the Privy Council.

"It seems to me that it has been established that if a testator, in a testamentary paper duly executed, refers to an existing unattested paper, the instrument so referred to becomes part of his will; in other words, it is incorporated into it; but it is clear that, in order that the informal document should be incorporated in the validly-executed document, the latter must refer to the former as a written instrument then existing-that is, at the time of execution-in such terms that it may be ascertained. A leading case upon this subject is Allen v. Maddock (1858), 11 Moo. P. C. 427, and it is desirable also to refer to In the goods of Mary Sunderland (1866), L. R. 1 P. & M. 198; 35 L. J. P. 82."-In the goods of Smart, [1902] P. 238, at p. 240; 71 L. J. P. 123, at p. 124, Gorell Barnes, J.

SECTION VIII.

CONDITIONS.

Conditions Precedent and Subsequent.

The same words in a will make a condition precedent or subsequent according to the nature of the intent of the testator.

Where there is a gift with a condition inconsistent with and repugnant to such gift, the condition is wholly void. Con

ditions subsequent which operate to annul previous gifts, are not looked upon favourably.

Where a vested estate is to be defeated by a condition on a contingency that is to happen afterwards, that condition must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding rested estate was to determine.

Where the language of the will and the intention of the testator admit of it devises " upon condition" are to be considered as imposing a trust and not as conditions which take the estate out of the devisee if he does not comply with them.

If the intention of the testator as evidenced by the words he has used is more consistent with the inference that he intended the condition to be a condition subsequent rather than a condition precedent, then, if the words are capable of admitting both interpretations the Court ought to hold the condition to be a condition subsequent.

Conditions "malum in se" or "malum prohibitum" or impossible.

"All conditions annexed to estates, being compulsory to compel a man to do anything that is in its nature good or indifferent, or being restrictive to restrain or forbid the doing of anything which in its nature is malum in se, as to kill a man, or the like, or malum prohibitum, being a thing forbidden by any statute, or the like, all such conditions are good, and may stand with the estates. But if the matter of the condition tend to provoke or further the doing of some unlawful act, or to restrain or forbid a man the doing of his duty; the condition for the most part is void."-Shep. Touch., p. 132 (cited in part by Swinfen Eady, J., in In re Beard, [1908] 1 Ch. 383, at p. 386; 77 L. J. Ch. 265, at p. 266).

"All conditions annexed to estates that contain in them matter