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behind him three sisters and three sets of nephews and nieces, who, in case of the deceased's being pronounced to have died intestate, would be entitled in distribution to his personal property. There were, likewise, other parties, legatees and devisees under the will, who were, of course, interested in having that will established. The case had also this peculiar feature about it, that the personal property distributable among so many persons was but of small value, while the real property was of considerable amount. From inquiries which the Court had caused to be made into the state of the property, it had been given to understand that the realty which would pass under the will (if established) was of the value of about 780/. a year, exclusive of property in the Dutchy of Cornwall; but including that Dutchy property, it would be about 9801. per annum. The personal property, without making any deductions even for the expenses of this suit, other law proceedings, and so forth, was estimated at 3,500/. only. The parties, although they had engaged in a long and extensive litigation in this court, had not in any court put the validity of the will, as far as the learned judge was aware, in the course of trial at law, while the decision of this tribunal would not govern the devise of the real estate. Rules and principles, in some degree different from those which regulated the descent of personalty, governed the descent of realty. Still the parties in the cause had a clear right to the judgment of this Court in respect of the personal property. A question, however, was first to be determined, not only as to the due execution of the will propounded, but
as to whether that will was, in point of law, revoked? Now that will, which had been regularly prepared by a solicitor, was executed by the deceased in the most deliberate and formal manner, and attested by three witnesses. It was executed, indeed, in duplicate; one copy being deposited with the solicitor employed, a Mr. Hamilton, and the other duplicate being delivered into the hands of Mrs. Bauden, who was herself the sole executrix named in such instrument; and both these parts remained perfect and uncancelled at the time of the testator's death. But the ground upon which the revocation of that will was contended for by the party opposing it, was, that about fourteen years afterwards, namely, in January, 1821, the deceased executed a new will, which other will was also attested by three witnesses. The latter will, at the death of the testator, was found in a cancelled state; and there was no occasion to doubt, that it had been so cancelled by the deceased himself. Had this latter will remained uncancelled, there could be no doubt but that it was sufficient in point of fact to have revoked the former instrument of 1807- Two questions were to be determined'"in this cause, by the Court, !lsb*lwhether upon the cancellation*'of the latter will, the former did,"in point of law, remain in' foilcej 'and unrevoked, or whether it remained revoked? And, 2ndly—whether, if, prima facie, the first will was to be considered as revoked, it was not, however, revived by the circumstances which were pleaded in the evidence before the Court? The dispositions contained in these two wills materially differed, in some respects, both as to the real and personal property. By the will of 1807, the real estates were devised in trust for the benefit of Mrs. F. E. Baudcn for life; and were entailed, after that life estate, on Mr. Lewis Charles Peters (nephew of the deceased) and his issue; remainder on failure of his issue, to another nephew and his issue; but on failure of this second person and his line, the estate was devised to the testator's own right heirs. It was further directed that upon the death of the said Frances Elizabeth Bauden, 900/. should be raised in order to pay legacies of 300/. each to his three nephews, Mr. W. Peters, Mr. Noel Peters, and Mr. Legrice.—A brewery, situated at Falmouth, which deceased at that time had, was also given to Mrs. Bauden for life, and then to deceased's nephews, the Legrices. The residue of the property of the testator was bequeathed to Mrs. Bauden, who was appointed sole executrix. So that by this paper, the brother of the deceased, who was also his heir at law, and the sister, who, with other parts of the family, would be entitled in distribution in case of an intestacy,—were all passed over; the sisters, as much as the other parties so entitled in distribution. Such were the contents of the will of August, 1807. Those of the will of January, 1821, manifested different testamentary dispositions; but certainly not more favourable to the brother, who was the heir at law, nor to the sisters; but to the other next of kin the bequests of the will of 1807 were replaced by different legacies of a specific nature, and among the legatees were introduced other nieces of deceased — the three Misses Beauchamp. The real estate was vested in trustees
chargeable with these legacies, and an annuity of 400/. a year was given to Frances Elizabeth Bauden, who was to have also the furniture, stock, and other articles of that description; the residue, both of the real and the personal property, was given to his two nephews, Michael Noel Peters and Charles Peters; who were also appointed executors. By a codicil, dated about a fortnight afterwards, on the 20th January, 1821, the annuity to Mrs. Bauden was stiU further reduced from 400/. to 200/. a year. What the value might be of the furniture, stock, and crops, which she was to take in addition, did not exactly appear; so that the Court could not judge of the proportion which that value bore to the 3,500/. at which the personalty was estimated. The brother, the sister, and others of the next of kin, were equally excluded, the former from the realty, and the others from any distributive share in the personal property. Now, putting all the circumstances of the case together, and contrasting together the dispositions of the two instruments of 1807 and 1821, there seemed nothing very revolting to probability, in the supposition that the deceased really might, at the date of the latter, have altered his testamentary intentions, from the effect to which they tended in 1807, to the dispositions thus apparently contemplated by him in 1821. Neither was there any thing exceedingly improbable in presuming that after January 1821, the deceased might have again reverted and returned to the will of 1807, as that which best expressed his intentions. But certainly the second will, of 1821, to that extent and in those particulars which the Court had stated, was an alteration
of, and a departure from, the will of 1807; different executors and different residuary legatees were appointed by it. Now several cases had, at different times, occurred in this Court, in which the point had arisen and been discussed,—whether, upon the cancellation of a later and revocatory will, a former uncancelled will continues in force, or remains revoked? whether such cancellation of the latter paper is a positive revival of the former? or whether the former requires some act, or some evidence of intention in order to be so revived? Indeed, this point had long been considered almost a vcxata qucslio in these Courts. The rule upon it appeared to have been somewhat different in the Ecclesiastical Courts, where the cases respected personal property; and in the Common Law Courts, where the cases regarded realty. And even in the Ecclesiastical Courts the rule seemed to have varied in some degree. In these Courts, the execution of a subsequent will had been held to be a prima facie revocation of the former; at least to such an extent as to require evidence of the former's being revived. In the Common Law Courts, it has been generally held that a former uncancelled will is prima facie revived, or rather renewed unrevoked, upon the cancellation of the later one. Most of the cases, from which the learned judge deduced those principles, had been cited and very much discussed before the High Court of Delegates, in the recent case of Moore and Moore v. Mctcalf, which was in the first volume of Dr. Phillimore's Reports. In these several cases—Whitehead v. Jennings (Court of Delegates, in the year 1714), Burt and Burt (Prerogative Court, 1718), Hellyer
and Hellyer (Ditto 1751), Arnold v. Hodges (Ditto 1765), — the former will was held to be revoked, either because there was no evidence to show on the part of the testator an intention to revive it, or because there was evidence to show, upon his part, an intention that the former will should remain revoked. On the other hand, in Stacey v. Dickens, in 1724, in Barrier and Hew, in the same year, in Passey and Hennings, in the Prerogative Court in 1808, and in the Court of Delegates, in 1812, the former will was established upon evidence going to show that it was the intention of the deceased in each case that the former will should operate. The learned judge then went into a statement of the facts and principles of most of the cases he had cited. The Court also quoted Glazier and Glazier, (4 Burroughs) Mason and Merrywood, Harrowden and Rolfe, (Cowper 87), and expatiated on the various principles which common law, equity and ecclesiastical judges had laid down upon the doctrine of intention, which was always considered the polar star for the guidance of courts in testaments of personal property. Now, what were the facts of the present case? In the early part of this history, the deceased had a brewery at Falmouth, and seemed to have lived there. He had formed an attachment for Miss Frances Elizabeth Baudcn, who was the daughter of the collector of the customs at that port, and a young lady of very respectable connexions. The uncle of the deceased, in this cause, sir Michael Noel, much disapproved of the proposed match between them. He died in 1802, having made his will, whereby he bequeathed a certain estate to the deceased, upon condition that he should not marry Miss Bauden. if he did, then the estate was to devolve over to another party. After the death of sir Michael Noel, Mr. Ustick and Miss Bauden went away, for a short time from Falmouth, and when they returned, they returned as Mr. and Mrs. Ustick, leaving the world to suppose that in the mean time they had been married. From that period till the death of the testator they cohabited together as husband and wife, and treated each other as such in every respect; and lady Noel, about that time, quitting Penwarne House, the former residence of sir Michael, Mr. Ustick and the lady, the party in the cause, took up their residence there. This was about the year 1805. The rev. Mr. Robert Ustick, the brother brought an ejectment against the testator, for the purpose of getting possession of that property, on the ground that he, Stephen Ustick, had violated the conditions of his devise from his deceased uncle, by marrying Miss Bauden. Many of the deceased's own family, and others of the neighbouring gentry, had visited Mr. and Mrs. Ustick, but many had also abstained from visiting them, and among the latter persons, were this brother and some of the sisters of the deceased. Now, though this matter of the ejectment never went to trial, it became pretty well understood in consequence of what did take place about it, that Mr. Ustick had never, in point of fact, been married to Miss Bauden. Naturally enough, the deceased took great offence, on these accounts, at the conduct of his brother towards him. In 180g, some attempts were made by particular friends of the family to
bring about a reconciliation between the two brothers, but they were little successful. In the mean time, the will of 1807 was made, and it could not be thought quite unaccountable, that under the impression of feelings of irritation, the deceased should have excluded his brother from that disposition of jhis property; or that, strongly sensible of what he always termed his great obligations to Miss Bauden for the sacrifices she had made on his account, he should have given her so large a benefit under it. The Court then went into the history of the continued connexion between Miss Bauden and the testator, and observed, that notwithstanding the testimony of one or two witnesses to whom the Court was very much indisposed to give ready credence, it did appear that until the last moments of his life, her conduct had been most kind and affectionate. Just before the making of the unfavourable instrument of 1821, however, a circumstance had occurred which not only threatened to overthrow her place in his regard entirely, but did appear to have actually reduced his mind to a condition of almost morbid suspicion and sensitiveness. Among the guests who were staying at Penwarne House, at that period, was a relation of Mrs. Bauden's, a Dr. Parsons. The deceased was much troubled with an internal complaint in the nature of diarrhoea, and was induced to take one of Dr. Parsons's prescriptions, in the hope of getting relief. At first the medicine prescribed agreed well with him; but latterly he became much weaker, and his disease more powerful. While under this condition of body, his mind became rather affected by his sufferings; he took a most extraordinary antipathy to Dr. Parsons, and at last almost persuaded himself that the medicines he had taken of him, had killed him; and that, in fact, he had been poisoned. There were about the deceased, occasionally, some persons who seemed to have been not very backward in encouraging the anger he had conceived against Miss Bauden, on account of her having recommended him to avail himself of doctor Parsons's assistance. Mr. Vigurs, another medical gentleman, stated in his evidence, that the medicines were calculated to have a good effect on the deceased's complaint; but had not, in fact, had a fair trial. However, under some momentary anger, probably, the will of January 1821 was written, but it was discovered, afterwards, cancelled by the deceased. That cancellation was quite consistent with the affectionate declarations he on several subsequent occasions made of his unabated attachment to "his beloved Miss Bauden;" with his inquiries of her at other times, whether the will of August 1807 was -in existence, and his satisfaction at learning that it was; with his declarations in the presence of servants and others, of his intending to leave Miss Bauden as well off as ever she had been with him; with various acts and expressions, clearly proving his own reference to, and cognizance of the existence and the effect of that will, to the latest term, almost of his own life—with the cancellation of other subsequent papers, as unfavourable to Miss Bauden, as that of January 1821; and with his repeated manifestations, to the last, of his regard for her. Such being the construction, the learned judge added, which he felt himself
bound to put on the circumstances of this case, and on the intentions of the testator; he pronounced for the validity of the uncancelled will of 1807, which had been propounded by Mrs. Frances Bauden, as the sole executrix named therein.
Court Op Exchequer, May 16.
The New Custom-House.
The King v. Pelo.
The Attorney-general addressed the jury. This was a proceeding against Mr. Peto, to recover the penalty of a bond which he executed to secure the amount to the Crown, on behalf of the public, and which would become forfeited, provided Mr. Peto failed in building the new Custom-house, in the city of London. By the contract, Mr. Peto was bound to complete the work for the sum of 165,000/.; exclusive of the charge of 12,000/. which he was entitled to make for the piling of the building. The building was commenced in 1813, and was completed in 1817 or 1818—and the charge of building, including that for piling, amounted to 370,000/., a charge more than double the amount that Mr. Peto contracted to execute the building for; and of this, 24,000/. was apportioned for piling. The commissioners were extremely dissatisfied with these charges; and thought they had reason to complain of Mr. Laing, their surveyor; and, after having paid upwards of 300,000/. they thought they could not, with justice to the public, pay Mr. Peto any farther sum of money. Mr. Peto, in consequence, commenced some proceedings against the commissioners, but before these pro*