1. The indorsement "Heads of Will," on
a paper fairly written, signed, and dated,
lets in parol evidence of intention; but
the prima facie inference rather is, that
such paper was intended to operate, if
no more formal instrument were drawn
up. An allegation propounding such a
paper, with alterations made from time
to time, adapting it to the deceased's
circumstances and pleading facts infer-
ring adherence, admitted to proof: but,
on the parol evidence the paper pro-
nounced against. Mitchell v. Mitchell. 29
2. Where the drawer and attesting wit-
nesses of a will, (executed ten days be-
fore death by a person of eighty-five, in
weak bodily health) are confirmed as to
capacity, volition, and free agency by
adverse witnesses, and by the deceased's
affections, declarations, and recognitions;
the general character of the drawer (an
attorney employed by the deceased for
many years), and slight discrepancies in
the evidence of the factum are not ma-
terial. A will, in such a case, pronounc-
ed for, and the opposer, who had plead-
ed incapacity, conspiracy, fraud and cir-
cumvention, condemned in the costs
incurred since the giving in of his alle-
gation. Bird v. Bird.

60

3. When the will of a married woman--ob-
tained when she was in an extremely
weak state nine days before death, by
the active agency of the husband-the
sole executor and universal legatee,-
wholly departed from a former will de-
liberately made a few months before,
the presumption is strong against the
act; and the evidence not being satisfac-
tory, the will pronounced against, and
the husband condemned in the costs.
Mynn v. Robinson.
72

4. A widow having, after the death of her
husband, delivered a will made during
coverture to her executor for safe custo-

91

dy, such delivery, coupled with other
recognitions, amounts, in a Court of
Probate, to a republication, rendering it
a new will of which the executors are
entitled to a general probate. Miller
and Ross v. Brown.
5.-1st. A paper-commencing "Memo-
randum of my intended will," but dis-
positive in terms--signed and intended
to operate if no more formal will was
made, is, unless revoked, entitled to
probate.

2d. Neither instructions, nor a will
drawn up therefrom (which, though in
the deceased's possession for several
months, was not executed nor shown to
be finally determined on) will, either as
entitled to probate or as letting in an
intestacy, revoke such a paper. Bar-
wick v. Mullings.

98
6.-1. Where a testator executed a will
and two codicils, and afterwards had a
new will and certain bonds prepared
which were, in conjunction, to dispose
of his property, on the same principle
as his former will, and died when pre-
paring to sign the new will; first, the
execution being thus finally determined
on and prevented, the new will is enti
tled to probate; and secondly, the new
will never being intended to operate in-
dependent of the bonds, the Court is
bound, in order to carry his intentions
most nearly into effect, to grant probate
of the new will and of the unexecuted
bonds, as together containing his will;
and to revoke a probate of the former
papers.

2. Where there is final intention prov-
ed and execution prevented by the act
of God, the mere want of execution does
not invalidate an instrument disposing of
personalty. The disposition has the
same legal effect, as if the instrument
had been actually signed and attested.

3. When a paper is not intended as a
will, but as an instrument of a different
nature, if it cannot operate in the latter,
it may in the former character; for the
form does not affect its title to probate,
provided it is to carry into effect the in-
tention of the deceased after death.
Masterman v. Maberly.

103

185

8. The prima facie presumption, that the
deceased revoked a will, which was in
his own possession, but is either not
found at all at his death, or is found can-
celled; and the prima facie legal conse-
quence that a duplicate, not in his pos-
session, is revoked thereby, may be re-
butted by a strong combination of
circumstances leading to a moral convic-
tion, or direct positive evidence.
9. In order to rebut a presumption of law,
(e. g. as to the destruction of a will by a
testator), declarations unsupported by
circumstances strongly marking their
sincerity, and confirming their proba-
bility (especially where their stringency
depends on the exact words of a casual
expression), cannot safely be relied on.

ibid.

ibid.