16] 
to attend in person next term, for 
the purpose of being examined upon 
interrogatories by the officer before 
the barons. This is a circumstance 
to which nothing similar has hap- 
pened for a great many years. 
An important cause came on to 
be tried in the common pleas, in 
consequence of an issue directed 
from the court of chancery on the 
question of fact, whether the late 
earl of Orford devised by his last 
will any lands and: effects to the 
earl of Cholmondeley. The case is 
briefly this—On the 25th of No- 
yember, 1752, the earl of Orford 
made a will, in which he bequeathed 
his principal estates, after the de- 
mise of his immediate heir, the 
present earl of Orford, to the earl 
of Cholmondeley, whose grand- 
father had married the daughter of 
his ancestor, sir Robert Walpole, 
the first earl of Orford. In 1756, 
the earl of Orford made a second 
will, in which he changed the 
order of succession, and gave 4 
preference over the earl of Cholmon- 
deley to lord Walpole, who is de- 
scended in a direé line from the 
second brother of the first earl of 
Orford.—This, of course, annihi- 
lated the first will; and, had no- 
thing farther occurred, no question 
could have arisen on the subjeét. 
But, in 1776, twenty years after 
the second will was made, the earl 
of Orford signed a codicil, the pur- 
port of which was to make various 
provisions which had been omitted 
in his wills, and declared this co- 
dicil to be a codicil to his last will, 
signed on the 25th day of Novem- 
ber, 1752. On the part of the 
plaintiff, it was contended that this 
codicil, which was duly signed and 
attested, was a revival and setting 
up of the will to which it referred ; 
ANNUAL REGISTER, 1796. 
and that, of course, that will ree 
tained the same force and effeét, 
as if the second will had never 
been made, On the part of the 
defendant, it was maintained, ip 
the first place, that the codicil was 
destitute of those forms, expressly 
required by the statute of wills, 
which could alone give it the effect 
of reviving a first will in preference 
to a second, where a real estate was 
devised ; and, secondly, that it was 
the intention of the testator to an- 
nex the codicil to the second, and 
not to the first will. To establish 
these points, it was proposed to 
adduce parol evidence ;~ but the 
court interfered ; and were unani- 
mous in their opihion, that the 
established law of the land forbade 
the admission of parol evidence to 
contradiét a written and perfect 
instrument, such as the will and 
codicil together appeared to be ; 
that the word last, on which the 
counsel for the defendant had laid 
so much stress, was an expression 
which had no determinate mean- 
ing until the death of the testator, 
when it operated to explain the 
intended last aét of his life; that 
neither the will of 1751, nor the 
will of 1756, was, in faét, a will 
until the testator was dead ; that an 
alteration of the date of the codicil 
would be making a new disposition 
for the dead, which no court upon 
earth was entitled to do; the only 
power vested in a court, on the 
subjeét of wills, being that of ex- 
plaining the intention of the de- 
ceased, which, in this case, was 
perfectly clear; that wills ought 
only to be considered as ambulatory 
instruments, subjeét to the pleasure 
of the owner, and to be used by 
him as his judgment or caprice 
might direct; and that the will of | 
1752 
» 
