stated in my said will, and in addition to the six thousand pounds bequeathed to him absolutely in the said will. And I hereby give and bequeath the residue of my real and personal property whatsoever and wheresoever to my nieces, &c., to be divided between them in such manner as they shall decide. I hereby recall the appointment of my friend, William Cotton, Esq., of Walwood House, as my executor, and appoint his son, Henry Cotton, Esq., my sole executor. And in all other respects I confirm my said will." On the death of the deceased this codicil was found in an envelope endorsed "Dated 8th June, 1858. Will of Miss Turner. Executors, Henry Cotton, Esq., (in the handwriting of deceased), "Chas. H. Turner, Wm. Cotton" (these two last names were struck out with a pen). In a corner were the words "Codicil dated July 27th, 1864.' No will was found in the envelepe, which had been originally sealed and afterwards re-opened. The will had been burnt by the deceased, with an intention to revoke it, and certain memoranda were left by her in accordance with which she desired her property to be distributed.

Dr. Deane, Q. C., on the part of Mr. Cotton, the executor named in the codicil, and also on behalf of the next of kin, applied to the Court to direct what papers, if any, should be adinitted to probate. He submitted that the codicil was so worded that it could have no operation independently of the will. He referred to Barrow v. Barrow and Others (1); Hale v. Tokelove (2) ; Rodgers v. Goodenough and Others (3); In the Goods of W. Greig (4); Black v. Jobling (5).

LORD PENZANCE. This question has arisen several times lately. It is, whether, when a will has been revoked, a paper which is called a codicil perishes with it? Before the statute there is no doubt that if the will were destroyed, primâ facie the codicil fell with it; and in some cases that have been decided since the statute a similar principle has been upheld, provided that if the Court thought that the testator intended that the codicil should *have an operation independent of the will, it would ad- [405 mit it to probate, although the will had been destroyed. . I have tried in vain to get a clear idea of what was meant by a codicil being dependent or independent of the will; and in Black v. Jobling (5) I endeavored to show the difficulty I had had to find any safe rule on which I could act. "In one sense any codicil that makes any disposition of property at all must be considered to be dependent on the will, which disposes of the rest; for the codicil conveys only a part of the testator's intention regarding

(1) 2 Phillim. t. Lee, 335. () 2 Robert, 318.

(3) 2 Sw. & Tr., 342.
(*) Law Rep., 1 P. & M., 72.
(5) Law Rep., 1 P. & M., 685.

3 ENG. REP.1

61

his property, and the motives inducing that particular part of his intention cannot, with any certainty, be dissevered from the motives which induced the disposition of the rest. It is difficult, if not impossible, to predicate of a particular bequest in a codicil, that the testator would have made it if he had disposed of his other property in any different manner than that expressed by his will. It may be that the "independence of the will" spoken of is something of a more limited character; and the meaning of the cases may be that a codicil is independent of a will, unless it be of such a character that the giving validity and effect to it without the will to which it was intended to be attached would produce some manifest absurdity. I am not sure that even this rule is capable of being easily applied to all the cases that might arise, and I have serious doubts whether such a rule is to be gathered from the cases with sufficient distinctness to justify the Court in adopting it." I went on to state that it seemed to me that the statute had settled the matter, and that it is no longer competent for this Court to hold that a properly executed testamentary paper can be revoked in any other manner than by the methods stated therein. The words of the statute are decisive; and if on some speculation as to the testator's intention or supposed intention in reference to a connection between the will and codicil, I were to hold that the codicil is revoked by some method not in accordance with the statute, I should be acting directly contrary to its provisions. It is true there have been decisions since the statute to a contrary effect, but there is some confusion in the opinions of the learned judges, as reported. Sir H. J. Fust is supposed to have stated in one case that the only difference made by the statute was that it 406] *required that an "intention to destroy must be shown;" whilst Sir C. Cresswell stated that Sir H. Fust had decided that the statute made no difference at all. I must hold that the words of the statute are imperative. But it is said there is a difficulty in this case, because, by reason of the will having been destroyed, the codicil in great part is unintelligible. It seems to me that that difficulty has no bearing upon the question whe-. ther this codicil shall be admitted to probate. The same difficulty applies in every case where some other document is mentioned in a will, in such manner that the directions of the will cannot be carried out without a reference to such document, and that document is not forthcoming. It is a question of construction, which another Court only can decide. I am clear the codicil must be admitted to probate. The will having been destroyed, it is the only testamentary paper so admissible.

In the goods of Durance.

June 11, 1872.

IN THE GOODS OF DURANCE.

[Law Reports, 2 Probate and Divorce, 406.]

Will-Codicil - Directions to destroy Will Revocation.

1872

The testator, in a letter addressed to his brother, which was signed by him in the presence of two witnesses, directed his brother to obtain his will and burn it without reading it:

Held, that the letter was a writing duly executed declaring an intention to revoke the will, and administration with the letter only annexed was granted to the next of kin of the deceased.

THOMAS JOHN DURANCE, Orchard Lane, Lincolnshire, gentleman, died on the 13th of September, 1871, at the General Hospital, Toronto, Canada, leaving his brother Joseph Durance, one of his next of kin. On the 14th of March, 1871, he executed a will, in which he named Thomas Joseph Plant sole executor. By this will he gave legacies of 1007. each to his brother Joseph Durance, and to his sister Harriett Elizabeth Durance, and 250l. to Thomas Joseph Plant. He charged these legacies on his real estate, and subject to them he devised his real estate and the residue of his personal estate to Annie Swallow absolutely. After the date of the will he went to Canada with the intention of permanently *residing there. On the 13th [407 of September, 1871, he wrote two papers, which he sent to his brother Joseph Durance in England. The first was as follows.

"I, Thomas John Durance, authorize Mr. Denman, of the firm of Messrs. Mee, Denman, & Co., solicitors, of Retford, in the county of Nottingham, to deliver up in full to my brother Mr. Joseph Durance, of No. 9, the Park, in the city of Lincolu, England, the will completed by me at his residence on Tuesday evening, the 14th of March last, together with the copy of the will of my late grandfather, Mr. Joseph Durance, Senior.

"Thos. John Durance.

"Witnesses to the signature of Thomas John Durance,
"John Greenshields,
"John Herbert."

The second paper was:

"My dear Joe,- Enclosed, I hand you an order to get my will from Mr. Denman, which please burn as soon as you receive it without reading it. I will leave you my share as a deed of gift, leaving it to your honor to pay out of it 100l. each to each of my two sisters, and 100l. to Thomas Plant. I am very ill, sc good bye. God bless you.

Witnesses,

"Your affectionate brother,
"Thos. J. Durance.

"John Greenshields,
"Frank Booth."

This paper was executed in accordance with the requirements of the law of the province of Ontario, Canada, in which Toronto is situate.

Inderwick moved the court to grant probate of the will, and also the letter to the executor named in the will.

LORD PENZANCE. The question is, whether the will is not revoked by the letter. If a man writes to another "Go and get my will and burn it," he shows a strong intention to revoke his will. In the language of the 20th section of the Wills Act (1 Vict. c. 26), the letter is a writing declaring an intention to 408] *revoke the will, and it is duly executed. It is also of a testamentary character, and therefore I shall grant administration with it annexed to Joseph Durance the brother and one of the next of kin.

Attorneys: Swann & Co.

[Law Reports, 2 Probate and Divorce, 409.]

Evidence of Cruelty - Surprise - New Trial as to some Charges of Cruelty, not as

A wife having charged her husband with cruelty by the communication of disease, and also by personal violence, the Court found, on the evidence, that the charge of communication of disease was not proved, and that the charge of personal violence was proved. On the application of the husband, a rule for the rehearing of the issue which had been found against him was made absolute, on the ground of surprise; but the rehearing was ordered to be confined to the charge of personal violence, and not to extend to the charge of infection.

THESE were cross petitions in which the same issues were raised. The husband's petition was for restitution of conjugal rights, and the wife by her answer alleged adultery and cruelty. The wife's petition was for dissolution of marriage on the grounds of adultery and cruelty, and the husband's answer traversed those allegations The two suits were heard together before the Judge Ordinary without a jury on the 29th of November, 1871. The cruelty charged by the wife consisted of divers acts of personal violence, and also of the communication of venereal disease, and the charge of adultery rested on the same evidence as the charge of cruelty by infection. Several medical witnesses. were examined upon that issue.

In the result the Court came to the conclusion that the charge of infection was not proved, and therefore found the issues of cruelty by infection, and of adultery, in favor of the husband. But the issue of cruelty by personal violence was found in favor of the wife.

A rule nisi for a new trial of the issue of cruelty found against 410] *the husband was afterwards granted on his application,

and that rule after argument was made absolute on the ground of surprise. The question was then raised whether the charge of cruelty by infection as well as the charge of personal violence was to be reheard. On the application of the wife the rehearing was ordered to be before a common jury.

Dr. Spinks, Q.C., and Inderwick, were for the wife.

D. Seymour, Q.C., and G. Browne, for the husband.

Feb. 28. THE JUDGE ORDINARY. In this case an application was made for a rehearing on the ground of surprise, and the Court having intimated that the application would be granted, a question arose whether the wife, who was the petitioner in one suit and the respondent in the cross suit was or was not entitled to have the charge of the communication of venereal disease, which she brought against her husband, included in the questions to be submitted to the jury on the rehearing. The husband contended that this question ought not to be included in the new inquiry, because it was satisfactorily disposed of by the Court on the last inquiry, and that he would be put to considerable expense in producing a great deal of medical and other testimony if the question were to be tried a second time. The same issues were raised in the cross suits, the wife alleging that the husband had treated her with personal violence on four or five occasions which she specified, and further alleging the communication of venereal disease, making a charge of adultery founded on the same allegation. In granting a rehearing, the Court was mainly influenced by the fact that some evidence was given by the wife in support of one of the charges of personal violence which the husband had no reason to expect. She vouched a particular person as having been present when the act was committed, and the husband having no cause to suppose that he would be vouched, he was not in attendance. That person has now made an affidavit stating that he was present on the occasion referred to, but that nothing of the kind stated by the wife occurred. The Court thought this was a fair ground of surprise on which a new trial should be granted, but it is obvious that this being the ground of the new *trial it does [411 not extend to the re-opening of the question whether or not venereal disease was communicated to the wife. Under all the circumstances, I think it would be unfair to the husband to put him to the cost of a second inquiry into that question. The Court therefore proposes so to frame the issue for the jury as to confine it to the question whether the husband was guilty of cruelty by personal violence.

The husband must of course pay the costs of the first suit before the second trial.

Attorneys for wife: Albridge & Co.

Attorneys for husband: Paterson & Co.