instrument. And Mr. Justice LAWRENCE, in the same case, observed that the phrase "last will" was "merely one of form; meaning no more than that the instrument was the last of those instruments which the testator had executed." My Lords, I do not apprehend that in reality those words ought to receive any weight whatever in deciding this question. The next point to which the Judges constituting the majority attached importance was, that the last of the papers was prepared by a professional man. To my mind that argument tells the other way. The gentleman who prepared the instrument of 1845 prepared also the instrument of 1828. It is perfectly well known to every professional man, that, when called in to prepare a will, his duty is to ascertain if there be any former testamentary paper, and if there be, he is to take the testator's instructions whether he intends to revoke it or to make the new will subsidiary and additional. Now as this gentleman had prepared the instrument of 1828, which expressly reserved a power of revocation, it does strike me that the circumstance is very much in favour of these previous papers being deemed still testamentary. This lady's passion for making wills was probably known to her professional adviser; and supposing him to have possessed ordinary intelligence, I cannot help thinking that, if it had been meant to *revoke such papers, he would have inserted a clause for the purpose. In short, I should have supposed that he would have taken care clearly to understand, in the first place, whether there was any previous testamentary paper, and, secondly, if there was, whether she meant to revoke or continue it. My Lords, these are circumstances from which different minds may draw different conclusions, perhaps of equal authority. The law requires something more positive to work a revocation. The Courts do not act upon doubtful expressions, or upon circumstances as open to one construction as to another. Primâ facie, all these documents are to be taken as one will. Then if you say a portion of them is not to be so considered, I think to warrant the rejection of that portion there should be something more than guess and conjecture; for your guess and your conjecture may rest upon grounds which, to another person of equal professional experience and equal common sense, might suggest a quite opposite deduction. My Lords, it does not seem to me that the Courts in Scotland have ever, upon such slender grounds, sanctioned the repudiation of documents appearing primâ facie to be testamentary. Well, but then it is said that the instrument of 1845 refers to one paper only; the paper disposing of the house; and which had also been prepared by the same man of business. I own I cannot assent to this large conclusion, from so slight an indication. That there STODDART v. GRANT. [ *172 ] STODDART v. GRANT. [ *173 ] [174] should be a reference to one paper and not to the others, is a circumstance much too uncertain to justify the strong inference that all those other instruments are revoked. It was further observed, that "executors were named in the last instrument." But I cannot perceive how the mere nomination of executors necessarily imports *an intention to revoke previous documents. The nomination of executors is, no doubt, a very important act; but in the very instrument referred to by the LORD JUSTICE-CLERK, as containing that nomination, it is perfectly plain that there were other important things left undone; there was the residue still undisposed of. And as regards the naming of executors, the testatrix had done so before, in a document, containing, as it appears to me, nothing whatever on the face of it importing any intention to revoke previous instruments. Some stress was laid in the Court below on the alterations and erasures appearing on the face of these documents. New matter was written upon the erasures. But this would seem rather to imply that the testatrix intended that the paper so altered should continue to operate as a testamentary paper subject to the alterations; and that there was no intention to destroy it by those means. I say, my Lords, the circumstance tends more in favour of this conclusion than the contrary one. This, however, is but another instance of the danger of attaching too much importance to doubtful indications, which are open to different and even opposite constructions. I think it would tend very much to diminish the power of testators over their property, if you were to hold that slight or equivocal expressions found in a subsequent instrument would justify the conclusion that previous documents, otherwise entitled to probate, were to be regarded as revoked. In my apprehension, if you can execute the whole of the papers as one testament, you are bound to do so. It is said in the present case that the dispositions are inconsistent. I can hardly call them so. It is true, that, by one paper, the testatrix gives the house and furniture absolutely, and that she afterwards cuts down *that absolute gift to a life interest. She gives the household furniture, except such as shall be marked, and that which is so marked is to go to the person indicated by the mark. But, has it ever been contended in a court of justice, that the mere circumstance of a subsequent testamentary paper diminishing the interest which had been given by a previous one, was to be held to operate as an entire revocation of that previous instrument? I know of no authority whatever for such a proposition. The next remark made in support of the argument of revocation is, that certain of the legacies are repeated. This raises the question whether they are cumulative or substitutional, but furnishes no evidence of any intention to take away the testamentary character of the documents containing them. It becomes a question with respect to the particular legacy, how you shall deal with it, whether as revoked or not; but that this lady, whose property was going on accumulating from time to time, should give. 30l. to an object of her bounty at one time, and 2001. at another, does not seem to me (the lady growing richer and richer every day) inconsistent at all. I may observe that the testatrix, in several of the papers, says, "I reserve to myself to alter them in whole or in part." This shows that she had in her view a partial alteration, without an absolute revocation of the whole document. Again, I observe that this lady has given divers legacies to charitable institutions in Scotland; and she appears to have been animated by the same benevolent feeling from 1828 to 1845. But I can discover no reason for holding that, because, by a later instrument, she gave legacies to new institutions, or because she increased her benefactions to old ones, she therefore meant to revoke her former bequests. I think, on the contrary, the circumstance marks the continuance of the same disposition in the mind of the testatrix; and, remembering that her property was increasing, the fresh acts of bounty were but an exercise of the same liberal inclinations, leading, in my opinion, to any inference rather than that she was disposed to do less for these institutions, instead of more. I repeat, my Lords, these documents, having been all found under circumstances entitling them to that consideration, are, primâ facie, to be regarded as one will. They may be altered. They may be partially revoked. They may be partially inconsistent with each other. And yet the latter of them may not operate as an entire revocation of the former. The circumstance of a partial inconsistency, as it is called, that is to say, the circumstance of there being dispositions in two documents, both of which cannot be fulfilled, is held by the Courts to operate as a revocation only pro tanto; bearing upon the particular legacy, but not necessarily affecting the testamentary character of the document. The general rule is, that the onus is upon those who impeach; and the question is, whether those who have asserted the revocation of the earlier documents in the present case have satisfied your Lordships that it really took place. I own it appears to me that the grounds upon which this conclusion has been drawn are but slight, and not merely slight, but outweighed and counterbalanced by the circumstances which tend to the opposite conclusion. STODDART v. GRANT. [ *175 ] My Lords, I do not think it necessary to cite the authority of text-books for principles so well understood by the profession; particularly as I do not find that any of the established doctrines are challenged or thrown into doubt by the learned Judges who have pronounced an opinion in my mind not warranted by the principles which are admitted, but which I humbly think have been misapplied in the case now before your Lordships. Before concluding, there is one point as to which I wish to say a word. What parts of this will may be revoked? What legacies may be cumulative? Or what substitutional? Those, my Lords, are questions not now before the House. The interlocutor complained of finds that the testament of this lady consists of only three documents, to the exclusion of the previous four. If, therefore, your Lordships shall adopt the view which occurs to me as the right view to be taken, namely, that there is nothing to be found upon the face of the latter papers to warrant the conclusion that the previous papers were intended to be revoked, the case must go back to the Court of Session to consider those papers, and to give such effect to the different parts of them as they may by law be entitled to receive. Where there is an inconsistency, it will operate as a partial revocation. Where the inconsistency is only of such a nature as that the general intention can yet be executed, the general intention will prevail. I, therefore, respectfully submit to your Lordships that this interlocutor should be reversed and that the cause should be remitted to the Court of Session, to do therein as may be just. LORD BROUGHAM: My Lords, I had not the advantage, except for a part I think of one day, of hearing the learned counsel who addressed the House; but I certainly agree with my noble and learned friend in the view he has taken of this case. I place the greatest reliance on the grounds put forward in the Court below by the minority of the learned Judges. I particularly refer to the able and luminous argument of Lord *MONCREIFF. I, therefore, have no objection whatever to make to the motion of my noble and learned friend. Interlocutor reversed, and cause remitted with a declaration : "That the whole of the seven deeds or writings, mentioned in the said summons collectively, do form, and are to be considered and taken, as the last will of the said deceased Mrs. Bell: And it is further ordered, that the costs incurred by the said appellant and respondents, in respect of the said appeal, be paid out of the fund in medio: And it is further ordered, that the cause be remitted back to the Court of Session in Scotland, to do therein as shall be consistent with this declaration and judgment, and as shall be just," GEILS v. GEILS (1). (1 Macq. 255-275.) A domiciled Scotchman marries a domiciled English woman in England. This is a Scotch marriage. The wife's domicile merges in that of her husband. Warrender v. Warrender pronounced unassailable. The parties return to Scotland. Afterwards the wife leaves her husband and comes back to England. He sues her in Doctors' Commons for restitution of conjugal rights. Her defence coupled with a prayer for divorce à mensâ et thoro. Sentence accordingly. She then sues her husband in Scotland for divorce à vinculo matrimonii: Held, that she was not barred. Whether the wife's domicile was, or was not, severed by divorce in Doctors' Commons,-Quære. But the adultery having been committed in Scotland, and the husband's domicile continuing there,-Semble, that the Scotch Court had jurisdiction. [Cited, Harvey v. Farnie (1882) 8 App. Cas. 43, 52 L. J. P. 33, 48 L. T. 273, where the points of law here dealt with are, so far as they interest English lawyers, more fully and satisfactorily explained by Lord SELBORNE, Lord BLACKBURN, and Lord WATSON.] DYCE v. LADY JAMES HAY (2). There can be no prescriptive right in the nature of a servitude or easement so large as to preclude the ordinary uses of property by the owner of the lands affected. Semble-That where a claim in the nature of a servitude or easement is incapable of judicial control and restriction, it cannot be sustained by prescription. It does not follow that rights sustainable by grant are necessarily sustainable by prescription. The law of Scotland agrees with the law of England in holding that the right to village greens and play-grounds stands upon a principle of original dedication to the use of the public. Where new inventions come into use they may have the benefit of servitudes and easements; the law accommodating its practical operation to the varying circumstances of mankind. Special order for the payment of costs. ROBERT DYCE, a magistrate of Old Aberdeen, brought an action against Lady James Hay, alleging that he and the other inhabitants of New Aberdeen, Old Aberdeen, and the vicinity thereof, and the public generally, had used and enjoyed from time immemorial a certain footpath running along the bank of the river Don, on the defender's estate; and further and more particularly alleging that a certain piece or strip of ground between the foot-path and the river, to the extent mentioned in the pleadings, had been from time immemorial used and resorted to by the pursuer and the other inhabitants of the places aforesaid "for the purpose of recreation and taking air and exercise by walking over and through the same, (1) Reported below, Second Ser. vol. xiii. 321. (2) Reported, Second Series, vol. xi. 1266. Cited, Goodman v. Mayor of Saltash (1882) 7 App. Cas. 633, 643, 52 L. J. Q. B. 193, 48 L. T. 239; Bourke v. Davis (1889) 44 Ch. D. 1852. Nov. 22, 30. 1852. May 25, 27, 28. Lord ST. LEONARDS, L.C. [305] |