called in the probate, in costs; and should she succeed to any property the decree may then be enforced: but while she continues a pauper I shall direct the taxation to be suspended. (a)

(a) See Filewood v. Cousens, 1 Add. 286. Le Mann v. Bonsal, ib. 399. [2 Eng. Eccl. Rep. 121, 152.]

CRISP and RYDER v. WALPOLE.-p. 531.

A codicil produced under mysterious circumstances eighteen months after the deceased's death-there being no evidence of finding nor of any thing directly connecting it with the deceased-cannot be established on evidence of hand-writing alone, particularly when such evidence is conflicting, and when other circumstances raise a suspicion of the genuineness of the instrument.

THIS was a cause of proving in solemn form of law a codicil to the last will and testament of William Henry Robinson, late of Denston Hall, Suffolk, promoted by John Crisp and Thomas Ryder, the principal legatees therein named, against the executors of his will. The deceased died on the 12th of November, 1826, and in December following his will (dated on the 6th of December, 1822,) and nine codicils were proved. By his will the testator gave certain pecuniary and specific legacies, (amounting in the whole to £1125,) to several of his friends and servants named in the first codicil. The paper now propounded was alleged to be a further codicil: it was as follows:

"Denston Hall, September 2, 1823. "I give and bequeath unto Mr. John Crisp of Denston, Suffolk, the sum of sixteen hundred pounds. I also wish to give to Amy Crisp the sum of two hundred pounds. And I give to Mr. Ryder Charter House London the sum of six hundred pounds. I wish to give to Mrs. Territt Chilton Hall Clare two hundred pounds. I also wish to give to my curate Mr. Seabroke and R. Forbes gardener one hundred pounds each. My will and meaning is that this codicil be adjudged to be a part of my last will and testament.

"W. H. ROBINSON."

This paper was propounded (as a codicil in the hand-writing of the deceased) in an allegation of fourteen articles: the fifth of which pleaded: "That on the 19th of May, 1828, a letter packet sent through the twopenny post-office was delivered to Thomas Ryder, having the postmark Newgate Street thereon, sealed with a wafer and addressed Ryder, Esq., Charter House: that the said letter, or packet, consisted of the cover or envelope so addressed and the paper writing being the codicil propounded: that advertisements had been inserted in several newspapers, and printed hand-bills circulated at Denston offering a reward for the discovery of the person who put the letter or packet into the post, but that no discovery relating thereto had been made."

Phillimore and Dodson in support of the codicil.

The King's Advocate and Lushington contra, were stopped by the Court.

JUDGMENT.

SIR JOHN NICHOLL.

This case lies in a narrow compass; for unless the principles established in these Courts for the security of property are broken through, I can entertain no doubt what decision ought to be given.

William Henry Robinson, the testator, died on the 12th of November, 1826; his will is dated 1822, and he left several codicils of different dates from 1823 to 1826 inclusive. In the month of December, 1826, the three executors, viz. the two Misses Walpole and Miss Jefferson took probate of his will and nine codicils: no other codicil was heard of, nor suggested to have been in existence at that time, nor until May, 1828, when Mr. Ryder received by the twopenny post-in a blank envelope-a paper purporting to be a codicil in the hand-writting of the deceased: this paper is dated, September the 2d, 1823; it gives various legacies, and among others, 1600l. to Mr. Crisp, and 600l. to Mr. Ryderthe two persons who have since propounded the instrument in this cause. Where this alleged codicil came from, or who sent it, has never been discovered. Mr. Ryder took all proper steps to trace its history, but without success. There rests not the least imputation or suspicion upon Mr. Ryder that he fabricated the instrument, or was in any manner privy to its concealment or to its production. No imputation whatever rests upon him.

But notwithstanding no discovery has been made accounting for this instrument not appearing till a year and a half after the testator's death, these two legatees, Mr. Crisp and Mr. Ryder, have called upon the executors to take probate of it; and have propounded and undertaken to prove it as a codicil. And the true question in the cause is, whether there be proof that the instrument is a genuine codicil-the act of the deceased. To this paper there is no attesting witness; the factum depends upon evidence of hand-writing alone; and there is no circumstance that connects the instrument directly with the deceased. Some general regard for the several legatees has been relied upon, as rendering the disposition probable. Now, in the first place, no person would set about the fabrication of an instrument without endeavouring to give the disposition some colour of probability: but looking to all the circumstances in which the deceased stood with reference to these parties at the date of this instrument, it does not appear to my mind even probable that he would have bequeathed these two legacies to Mr. Crisp and Mr. Ryder.

Declarations have also been relied upon; but they are loose and general, not referring specifically to this instrument; and they were made in 1826, when the deceased was residing at Brook House-a lunatic asylum-and labouring under a morbid depression of spirits. The proof, then, seems to rest on evidence of the hand-writing.

It is a rule of this Court that evidence of handwriting alone is not sufficient to establish a testamentary paper, without something to connect the act with the deceased: (a) and this rule is founded upon the facility there is of imitating handwriting so closely as to deceive those who are best acquainted with that of the supposed testator. It is therefore required that there shall be something to connect the instrument with the deceased, either that it was found in his repositories at his death, or

(a) See Constable v. Steibel and Emmanuel, Vol. I. 60. [3 Eng. Eccl. Rep. 26.]

some direct recògnition of it in his lifetime, or else some other circumstances of such strong probability that it was the genuine act of the deceased, as to leave no reasonable doubt on the moral conviction of the Court.

In the present case the evidence of the similitude of handwriting, even produced by the parties setting up the paper, is not uniform in support of it, while it is opposed by the evidence of other individuals who believe it not to be the handwriting of the deceased: so that this proof, at best of a loose and unsatisfactory species, is in the present instance conflicting.

There are other circumstances unfavourable to the genuineness of the instrument: the day of the month is written after the name of the month, whereas it is proved to have been the habit of the deceased, almost universally observed by him, to write the day of the month before its name.

It was also the habit of the deceased to write his names of baptism at full length, and not by initials, to formal instruments, though not to common letters: but to this codicil there are only the initials of the christened names. These, however, are slight circumstances of suspicion, not very much to be relied upon.

But the great difficulty of the case arises from the mysterious appearance of this instrument a year and a half after the testator's death: nor is there any account from whom it came, or from whence it came, or where it was first discovered, or why it had lain so long concealed: no plausible conjecture can be formed in explanation; and this circumstance raises a strong suspicion that the instrument has been a fabrication of much more recent date than the death of the testator. In addition to this, the paper is dated at the head, "Denston Hall, September 2, 1823," which was the testator's usual place of residence. Now it is satisfactorily proved that the testator was not at Denston Hall at that time; but that he had left that place on the 28th of July, had come to town, staid there some time, had then proceeded to Cheltenham, and did not return to Denston till the end of September. That the deceased, therefore, should have formally headed this instrument at Denston Hall, he being for a considerable time absent from thence, is not probable, more especially as there are several other instruments before the Court dated at the place where they were written: but if this instrument were fabricated three or four years after its date, and after the death of the deceased, it is not extraordinary that the person who fabricated it should not have been aware of, or should not have recollected the absence of the testator from Denston Hall on the 2d of September, 1823; and thus have fallen into a mistake, and furnished this additional circumstance of suspicion.

Upon the whole, the judgment of the Court is, that there is a complete failure of proof of this instrument, as a codicil of the deceased testator: the Court is not called upon to pronounce that it is a fabrication; but, whether fabricated or not, I must repeat that I fully acquit Mr. Ryder of any participation in the transaction, and that I entertain no suspicion that he was concerned in, or privy to, the fabrication of the paper.

If, however, parties will set up and undertake to establish such a case by proof for the chance of benefit to themselves, they must also be content to do it at their own risk of paying the costs in case of failure. I must, therefore, not only pronounce against the codicil, but feel bound to condemn the parties, who have propounded it, in costs.

HARRISON v. STONE.-p. 537.

On Protest.

The Court of Probate does not admit parol evidence to shew an error in a testamentary paper, unless there be, 1st, some ambiguity on the face of the instrument: 2ndly, the means of obtaining clear and indisputable proof of the deceased's intention.

GEORGE HARRISON, late of the Herald's College, died on the 16th of April, 1821, possessed of considerable personal property. By his will, dated the 8th of April, 1821, and described in the concluding paragraph, as, "Instructions which the testator desires may be formed into his will, and until then, that they should be considered as his last will and testament;" he appointed his nephews, Daniel Charles Rogers Harrison, (the residuary legatee,) Samuel Harrison (since dead,) and Robert Stone, the husband of a great-niece, executors. They took probate on the 27th of April.

In the will was a bequest to Robert Stone in the manner and words following:-"Gives to Mr. Robert Stone all such money as shall be due to the testator at the time of his decease."(a)

On the 30th of March, 1829, a decree issued, at the instance of Daniel Charles Rogers Harrison against Robert Stone, the other surviving executor, citing him to show cause "why the probate should not be revoked and declared null and void by reason of the omission in the will of the words from him' alleged to have been erroneously and incautiously erased; and to accept, in conjunction with Daniel Charles Rogers Harrison, a new probate, with the words 'from him' reinstated in, and made to form part and parcel of the will, or to show cause why probate in such form should not be granted to Mr. Harrison."

An appearance was given for Stone under protest, which alleged;"That within two or three days after the deceased's death, the will was read over by Daniel Moore, of Lincoln's Inn, the solicitor who prepared it, (and also solicitor of D. C. R. Harrison,) in the presence of D. C. R. Harrison and others; that D. C. R. Harrison himself gave instructions for the probate of the will without any interference on the part of Stone. That on the 26th of April, eighteen days only after the preparation of the will, Moore made an affidavit, that he attended the deceased on the 8th of April, and then by his desire wrote instructions for his will, which having been read over to, approved and signed by, the deceased, remained in the deceased's possession till his death; that in writing the will deponent committed many clerical errors, and that many alterations were made by the deceased's directions; that having now carefully inspected the will and particularly observed the several alterations, obliterations, and interlineations therein, (amongst others, the obliteration of me from him,' and interlineations of the testator,' and 'his' in the bequest in favour of Robert Stone,) he saith the whole of such alterations, obliterations, and interlineations were made by him, by the deceased's directions, or with his knowledge and approbation, and previous to the execution of the will." That Stone was not until seve

(a) The words in italics were substituted by interlineation. See the Judgment, infra, p. 208-9.

ral years afterwards aware of the existence of this affidavit; that on the 27th of April, probate issued to the three executors, and when completed, was sent to D. C. R. Harrison, by his directions, who took the sole management of the estate, and that Stone and Samuel Harrison did not interfere in the execution of the will except by joining in the acts of their co-executor for the sake of conformity and under his direction: that very shortly after probate was obtained, Stone claimed, under the will, all the money due to the deceased at his death, and that D. C. R. Harrison on such occasion said to him, 'I think you and I can settle it between ourselves, as it would be a pity that any part of the money should be spent in law;' that Stone had since frequently repeated the claim to Harrison, who on such occasions promised to arrange it, and that in consequence thereof Stone had delayed taking legal proceedings to recover the same, but that Harrison at length having refused to settle the matter, Stone filed a bill in Chancery on the 17th of May, 1827, to compel him; and the Master of the Rolls, on the 25th of February, 1829, decreed, that Stone was entitled to all debts and sums of money due to the deceased at his death."" It was further alleged, "that Harrison, very shortly after the deceased's death, knew of the alterations in the bequest to Stone, and who was entitled under the will, to all monies due to the deceased at his death: that Mr. Moore the preparer of the will, survived the deceased nearly seven years; and that, notwithstanding the premises, no proceedings were taken by Harrison to call in the probate, until nearly eight years after the deceased's, and upwards of a year after Moore's death; nor until after the decree of the Court of Chancery." The protest, in conclusion, submitted, "that under the circumstances alleged it was not now competent to call upon Stone according to the tenor of the decree."

In reply, it was alleged, "That on the 8th of April, 1821, the deceased, being exceedingly ill and confined to his bed, caused his solicitor, Moore, to attend him immediately: that on Moore's arrival in the morning of that day, the deceased requested him to take down instructions for his will; and Moore, accordingly, from the verbal directions of the deceased, in his presence, and the presence of Sir George Naylor (an intimate and confidential friend of the deceased,) wrote such instructions: that in the course, and as part of such instructions, the deceased said, 'I give to Mr. Stone all the money that he owes me,' meaning a sum of 15001. due to him from Stone on mortgage with interest;--or, in words to that effect, signified his intentions by his will to remit such debt: that Moore immediately wrote down, gives to Stone all such money as shall be due to him from him at the time of my death;' but afterwards, in order to make the clause in the third person, made the alteration appearing in such bequest entirely of his own accord, and without having received any directions or instructions to that effect from the deceased: that after the entire instructions had been reduced into writing, and the alterations made, the will was read over to the deceased, and duly executed by him: that the alteration made by Moore in Stone's bequest, was made without the knowledge, and contrary to the meaning and intention, of the deceased, who never knowingly approved thereof, but remained in ignorance of the effect to the time of his death, and that the deceased never intimated an intention to benefit Stone, beyond forgiving him his debt: that the will was not otherwise read over to the deceased, nor was his intention directed to the alteration, and