on the subject of this will: Mr. Symes, I wish to speak with you about making an alteration in my will.' " Great stress has been laid on the term "alteration in my will:" but I do not see the force of the observations, nor that any advantage can be derived from them; for if the deceased were capable of making an alteration in his will, he was equally capable of making a new will. Symes proceeds: "that never having made a will for the deceased, although he had been his solicitor for many years, he asked him, if he had a will?' deceased replied, 'he had; but wished it to be altered, or an addition made to it.' Deponent wished to see the will: to this deceased objected, and said, he could not.'" Much discussion ensued about the production of this old will: the deceased persisted in saying it could not be seen,' and Symes, after repeating in reply, then really, Sir, I cannot make the codicil,' quitted the room, informed William Bird (whom he met in the passage or on the stairs) of what had passed, and the witness was, in a few minutes, called up again into the bedroom: "He found the deceased sitting up in bed, apparently he had been out of bed, and W. Bird said, he had helped his uncle out, to get the will himself from the bottom of an old coffer at the foot of the bed: ... the deceased had evidently read the will, or Bird had read it to him, for he said to the deponent, I must make a new will altogether.'... Pen and ink being brought, deponent took the deceased's instructions from his own mouth to prepare the new will; he made no draft of it, he wrote it off fair at once, in the deceased's presence: he commenced writing the deceased's name, residence, and date, and then looked for directions to the deceased, who said, 'I shall give Molly Waldron, my niece, my estate at Stapley for her life, and after her death, to her son Peter.'" So it was the deceased, who commenced the instructions; "deponent did not know the estate, but he considered it freehold, and wrote down a devise thereof accordingly: he then looked to the deceased for further directions: the deceased was silent, as if considering what should come next, when Mr. Bird said (they three being alone in the room) do you mean, uncle, to give my son, John, any thing?' to which deceased replied, 'I'll give him my place at West Buckland.' Deponent inquired the name of it: deceased said, 'it was called Lippencotts;' that name deponent wrote down, and asked, 'in whose occupation?' the deceased replied, my own:' deponent concluded it was a freehold, and, as deceased did not say it was for life only, (as with the devise to Mrs. Waldron,) he gave it in fee." This clause did spring from a question put by William Bird; but it was the deceased who settled what the devise should be. Symes proceeds with a circumstantial detail of the instructions;(a) and if all his statement be true,

(a)" As deponent was looking to the deceased for something more, Mrs. Bicknell, deceased's sister, who deponent knew well, came into the room and exclaimed, 'Brother, what will you leave me?' he answered. 100l. a year:' deponent inquired, if he should charge his remaining real estate with this annuity,' and deceased replied, 'Yes,' and deponent made it so. Mrs. Bicknell then left the room, but afterwards came in again: Bird then said, 'What do you mean to give Mrs. Webber'-(the deceased's niece, then in the house, who came into the room for a short time, but not, as he thinks, till after that part of the will was settled:) the deceased said, '2001.' The deceased was still sitting up in bed; he addressed his answers to deponent, who wrote that legacy down; Bird then added, 'What do you mean to give her children?' the deceased said, 'the same to each.' Deponent knew Mrs. Webber had four daughters and no sons, and he wrote that legacy also. Bird, as before, then asked, 'What do you mean to give Joan Bond?' (William Bird's sister, whom deponent knew well, as indeed almost

there is no doubt of the deceased's volition, nor was there any thing of dictation: the deceased decided for himself, and his family were all brought fairly to his recollection. But the main point for my consideration is, the disposition of the residue; and, in respect to that, William Bird had actually quitted the room before it was bequeathed. He was not named to the deceased: so this part of the transaction proceeded from the testator himself. If, then, this evidence can be believed, and if the witness be not wholly discredited, can I possibly doubt of capacity, intention, and volition? Here were free agency and the absence of fraud and circumvention.

It is unnecessary to proceed with this account of the preparation of the instrument. Two respectable neighbours, apparently quite disinterested, were called in to see and attest the execution. It is true, much did not pass in their presence: but it was not natural that the deceasedwith an inflamed chest, with a blister on, with a white mouth beginning, and being in some degree exhausted by the preparation of the willwould be disposed to say much: but he recognized them, he asked for his spectacles, he signed, he published the instrument, he shook hands with one or both of them; and he thanked them. The witnesses at the time were satisfied of, and they now believe in, his testamentary capacity. There is some little variation between these witnesses and Symes as to the publication: but little variations will not affect the truth of the transaction. Symes says, the deceased himself, of his own accord, used the words of publication. Rendell, the second witness, that the deceased was beginning to publish, but that Symes took this part of the matter up, and then the deceased repeated the words after him; and Carpenter, among other grounds, judges, that the deceased was, on this occasion, capable, from the way in which he repeated the words of pub

all the deceased's relations;) the deceased, in reply, said, '2001.;' he wrote that also: Bird then said, 'What will you give brother John?" he replied 50%.:' he did not assign any reason for giving John Bird less than the rest: but William Bird asked, And what will you give his children?' he replied, "The same;' deponent asked, if he knew their names?' he said, 'No,' deponent understood there were eight, and said, 'Shall I write, to all the children that shall be living at your death?' and the deceased replied, 'Yes.' William Bird then inquired, what the deceased would give John Sharland?' married to a great niece of the deceased, and he said, 507.' Before, however, deponent could write this legacy, Bird left the room: and deponent then asked the deceased himself about Sharland's Legacy: the deceased gave him the same answer, and he wrote it down. I mean,' the deceased added, 'to give the Bicknells 50%. a-piece.' (John Sharland's wife was a Miss Bicknell.) There was another daughter, Mrs. Hardwidge, and deponent asked, "if he was to put her name down for 501.' and the deceased said 'Yes.' At this time Mrs. Bicknell had come into the room again, and said, 'Brother, do you mean to give me any thing more? where am I to live-am I to be turned out of this house?' (or to that effect:) to which the deceased replied, 'No, you shall have the house as long as you live.' Deponent then inquired of the deceased what it consisted of, and he replied, there was a house, orchard, and garden; I shall give them to her for life, and, after her death, to Mrs. Webber.' Deponent wrote all this down, and the deceased then asked him (they were now alone, for Mrs. Bicknell had left the room) 'to add up the legacies, and tell him their amount.' Upon deponent informing deceased they came to 1,750. (so he thinks,) the deceased, who said, 'I did not think it was so much,' or to that effect, seemed a little hurt at not having left more for the residue: deponent then said, 'Who is to have the rest?' the deceased replied, 'I shall give the rest to William, (meaning William Bird) and make him my executor,' or to that effect. Deponent accordingly wrote this also, and having read it over several times to himself to see that there was no mistake in it which required correction, he added the concluding period, In witness whereof I have hereunto set my hand and seal the day and year first above written.''

lication after Symes. There is nothing of material contradiction in these accounts: the proof then of instructions, execution, and capacity is sufficient on the condidit, unless there be some other circumstance to overturn it.

The remaining ground of impeaching the factum is the character of Symes: it is alleged that he is a person of bad character, of low practice, a friend of William Bird, and that he made certain drunken declarations subsequently." Supposing all this to be true and proved, though it must shake his credit, so that the Court cannot give full faith to his single testimony, yet if he is supported by probability, and corroborated by other circumstances, the act itself and the instructions of the testator would not be defeated. If this were a will against all probability-the deceased nearly in a state of fatuity, or in the custody and under the control of the person benefited, the general character of the attorney might indeed be important: but the disposition and the whole course of the transaction are probable, and the evidence of the witness is confirmed. To go then, into the general character and line of practice of Symes to hunt up witnesses to prove that, thirty years ago, he was extremely ill-used under the popular outcry set up of his being a common informer, or the clerk of a common informer-to produce witnesses in order to attempt the introduction of a great deal of extraneous and irrelevant matter into the suit,-such proceedings only show the sort of spirit in which the cause has been conducted; and the same observation applies to the evidence respecting the disputes between William Bird and his wife. Symes may be more concerned in recovering debts than in drawing conveyances, but he does both; and, what is to his credit, he pays over the money when he has received it: he has long resided and practised at Wellington-from twenty to thirty years-his character must be well known-yet several of John Bird's own witnesses have employed him. The very professional duties of a country attorney, however respectable he may be, necessarily produce some enemies; and the unsuccessful suitor, whether client or adversary, is, not unfrequently, ready to censure, and be angry with, the attorney. There is one other circumstance to which I think it necessary to advert. Symes was the friend of William Bird, and both seem much too fond of drinking-a vice which, according to the evidence, is rather prevalent in that part of the country; and on the day, and after the execution, of the will,-elated for the sake of his friend and excited by liquor, Symes did, very imprudently and very improperly, go into a large company and express himself about this business in a very unbecoming manner. Such a communication was a great breach of his professional duty; but in these declarations, loosely made and loosely recollected, there is nothing satisfactorily proved to have been said, that imports fraud or conspiracy in the making of the will. It was elated joy at a valid instrument having been executed-it was vain boasting and disclosure.

If, however, the witness be in some degree shaken in credit, or confused in his recollection, still if the general substance of his evidence be corroborated by circumstances, the case is proved. There are circumstances of that description-testamentary declarations previously made by the deceased, and subsequent recognitions that the act had taken place.

The declarations, detailed by Shattock, appear quite natural and probable, and I see nothing to affect the credit of that witness in the par

ticulars which he relates. (a) Though the deceased generally was a reserved man, not addicted to speak of his concerns, yet the circumstances deposed to were such as to call forth the declarations, and they nearly concerned the witness; so that he is not likely to have misapprehended them: and the sincerity of the deceased is confirmed by his general conduct and confidence towards William Bird. So long ago, then, as 1817, he intended to appoint William Bird his executor, and to make a will in his favour; it was therefore no transient intention-it was long decided, and is consistent with his conduct and intercourse, though he procrastinated, and postponed the execution of his purpose.

The other declaration came from the deceased the last time he was at Buckland, shortly before his death, just when his illness was commencing, and tends more directly to show that the instructions for this will originated with himself. Shattock says, "in the wheat harvest preceding the deceased's death, the deceased rode up to him, and began a conversation by asking deponent, whether he had made up his mind about the fields?' deponent said, he had not exactly done so;' upon which the deceased observed, that he should very much wish to know,' and added, 'I'll tell you my reason, for I feel this illness and pain in my stomach, and I don't think I shall be here many years: I have made my will, but it is many years ago; it is an old will of a great many years standing, and I mean to make another, and William Bird will have the management of it:' these were his exact words as near as deponent can recollect them, but deponent is quite sure they were to that precise effect: he says the last observation about William Bird was made in answer to the deponent, who, inquiring as to the rent, said, 'I can't tell, Sir, into whose hands it will fall after your death:' to which he said, 'As to that I can make your mind easy, for William Bird will have it all, and I mean to give him the greatest part of my property.' Before parting, the deceased said, 'Now do let me know in a day or two, because I want to make my new will.' After this the deponent did not see the deceased." This latter part of the conversation connects itself with, and in some degree accounts for, his conversation with Symes on the evening of the 12th: but finding himself worse on the night of the 12th, he, on the morning of the 13th, went at once to the making of the will. On that morning, immediately before the testamentary business, was his conversation with Liddon, his medical attendant. The evidence

(a) John Shattock, a yeoman, after stating that he was intimate with the deceased; that they conversed together about their families and property; and that he had borrowed money of the deceased,-went on: "In 1817, deponent called upon the deceased to repay him: William Bird happened to be at the house that day, but deponent and deceased went into a private parlour together, and deponent told the deceased what he had come for: the deceased did not like to have the loan back because he could not get so good interest for it elsewhere, and he tried to make deponent keep it, and said, he should have it at four and a half per cent. interest:' deponent well recollects, on that occasion, the deceased remarking, in order to induce him to keep it, Why, Mr. Shattock, you know the money you have of me is not like what you might have of any body else, for, you know, I shall never trouble you for it; and even when I do miss (meaning when he died) I can tell you whose it will be;-it will be William Bird's:' he at first said, 'a person in the next room,' and afterwards Mr. Bird; and I will, if you like, go and speak to him, and I am sure he will always let it be in your hands in the same manner, and you shall not be troubled about it:' he also said, 'you know there will be no expense to you of bond or mortgage, or any thing of that sort:" he very much wanted deponent to keep the money and to go and speak to William Bird, but deponent was determined that the deceased should take it back."

is by no means immaterial, and is to the following effect: "On the morning of the day on which the will in question was made, he was at the deceased's, and was then introduced to Mr. Symes: Mrs. Webber asked deponent, whether he still thought her uncle in a fit state to alter his will?' deponent replied, 'he would go up and see:' he accordingly went up; asked the deceased the necessary questions connected with his disease; found him pretty much the same as usual; believes the thrush had not come on: in the course of conversation, he said to the deceased, "I understand you are about to alter your will; Mr. Symes is belowdo you feel equal to it?' And the deceased replied, "I think I do.' Deponent added, 'I hope you will go through it well.' Upon returning to the room where William Bird and Symes were, deponent said, ‘Mr. Bicknell is in a state to attend to you, Mr. Symes." And, on the 26th interrogatory, the same witness-after he has stated what he communicated to Mrs. Webber about the deceased's blister; and that he had perused the will of the 13th of September-answers, "He verily believes the deceased was of sufficiently sound mind, memory, and understanding on that day to have given directions for it, and to have comprehended every clause therein, and to have executed the said will, more especially, because in the evening of the same day, on his second visit, respondent inquired of him, 'If he had gone through what he wished, and how he bore it?' and the deceased said, 'He had done it, and bore it very well.'" This evidence-coming from such a witness— to capacity, to testamentary intentions immediately before the act, and to a recognition of the act so soon after it had taken place, coupled with other circumstances, is so confirmatory of Symes as to leave no doubt, in my mind, in respect to the proof of the factum of this will; and Í therefore pronounce for it.

And as the charges of fraudulent conspiracy, set up and founded on misrepresentation of the state of the deceased's affections and of his incapacity, and those of controul and custody, have each of them so failed in proof, and as the whole cause has been conducted with so much litigious acrimony, and with attempts to introduce much irrelevant matter, justice requires the sentence, pronouncing for the will, should be accompanied by a condemnation of the opposer, John Bird, in all the costs occasioned by his giving in his allegation.

MYNN v. ROBINSON and Others, by their Guardian.-p. 169.

After publication, the evidence of an attesting witness may be excepted to by the party who produces him.

The admission of an allegation responsive to an exceptive allegation reserved to the final hearing, the Court being of opinion that that part if otherwise admissible, was not material, and that the remainder probably would not in the event be of sufficient importance to delay the cause.

When the will of a married woman-obtained, while 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 deliberately made a few months before, the presumption is strong against the act; and the evidence not being satisfactory, the will pronounced against, and the husband condemned in the costs. Declarations of testamentary intentions, if unaccompanied by any immediate acts, are always looked upon with great caution, and their weight depends upon all the circumstances accompanying and connected with them.