APPENDIX TO 
part being filled with the appoint- 
ment of the trustees ; that the tes- 
tator not being a man of educa- 
tion, wished to have the aid of 
Atkinson, merely as to style and 
orthography ; but that he signed 
in a clear strong hand, and wrote 
in the date in words at length. It 
was admitted that the writing by 
a legatee is always a circumstance 
proper to awaken the vigilance 
of a Court, as to the necessary 
proof of execution and capacity, 
but that at Common Law if these 
be proved, the party setting up 
the will has discharged his bur- 
then of, proof; and it was denied 
that the cases cited, had shewn 
any different rule to prevail in 
the Ecclesiastical Courts; that 
indeed the fuliest proof of execu- 
tion and capacity must give way 
to positive proofs of fraud; but 
that the burthen of proving fraud 
lies strongly on the party suggest- 
ing it; that what is said of the 
3,000/. is merely loose inference, 
from words not technically used, 
and in a transaction not clearly 
before the court; that at all 
events there is nothing to show 
that the testator himself did not 
consider this sum as an ultimate 
gift, and that it would be con- 
trary to al! justice to build upon 
a vague conjecture a charge of 
fraud so deeply involving the cha- 
racter of a person who, upon the 
evidence, stands high in point of 
respectability. That even if it 
were necessary to corroborate the 
proof of execution and capacity, 
by specific proof of knowledge of 
the contents of this codicil, the 
case supplied such corroboration; 
for it was in evidence that the tes- 
tator was fully aware of having 
_ appointed the trustees of the cha- 
CHRONICLE. 
rities, which was done by this 
codicil; and it would be absurd 
to say that he had a sufficient ca- 
pacity to understand the lower 
half of a paper lying open before 
him, and not to understand the 
upper half, when he executed the 
whole as his will in the most de- 
liberate and formal manner. 
After the arguments on both 
sides had been fully gone through, 
the Court adjourned for a week, 
and re-assembled on Wednesday 
last, when, after remaining four 
hours in deliberation, they de- 
clared as before, that they were 
satisfied of the validity of the will, 
and all the codicils except the 
third, but being equally divided 
on that they gave no judgment. 
271 
Dee. dem. Barford v. White,— 
Mr. Serjeant Blossett moved for a 
new trial of this ejectment before 
Mr.J. Heath, atthelast Cambridge 
Assizes, on the ground that the 
birth of a child after the death of 
the husband, the wife being then 
four months pregnant unknown 
to herself and her husband, ope- 
rated as a revocation of the hus- 
band’s will. The rule of Jaw is, 
that marriage and the birth of a 
child impliedly revoke a bache- 
lor’s will ; but in the case of Shep- 
herd v. Shepherd, in the Preroga- 
tive Court, it was held by Dr. 
Hay, that a married man’s will 
shall not be set aside by the birth 
of children. In the case of Doe 
v. Lancashire, 5 T. R. 49, it was 
held that marriage and the birth 
of a posthumous child amount to 
an implied revocation of a will of 
lands made before marriage ; but 
in that case the pregnancy was 
known to the husband. 
The court sanctioned the opin- 
