248 ANNUAL REGISTER, 1816. 



Dr. Burnaby, in support of the 

 latter paper, contended, that from 

 the material alteration of the de- 

 ceased's circumstances by the 

 birth of four other children, and 

 the great increase of his property, 

 it cofuld not be supposed that he 

 intended the first will to operate, 

 which was made to provide against 

 the contingencies of a voyage he 

 was contemplating from Jamaica 

 to England. He had accordingly 

 proceeded to make a new will, 

 which was found after his death 

 between the leaves of blotting 

 paper in his scrutoire — a situation 

 in which it was not probable that 

 he would have suffered such a 

 paper to remain for a consider- 

 able time. By this paper it ap- 

 peared, that the deceased had not 

 made up his mind with respect to 

 certain specific legacies ; but the 

 disposition of the residue and the 

 appointment of executors were 

 complete. The deceased died sud- 

 denly of an apoplexy ; and, imder 

 all the circumstances, it was to be 

 presumed that he was thereby 

 alone prevented from completing 

 this paper, which he had left in 

 his scrutoire for that purpose, and 

 which therefore must be consi- 

 dered as containing his will to the 

 extent expressed in it. 



Sir John Nicholl observed, 

 that the question in this case was, 

 whether the latter paper could he 

 shown to be an operative instru- 

 ment? Under the will of 1793 

 the children subsequently born 

 could not take any benefit. The 

 Avife, it was said, was pro- 

 vided for by her marriage settle- 

 ment ; but that circumstance did 

 not appear in these proceedings. 

 This was a very distressing case, 

 but the general rule of law by 



which testamentary dispositions 

 are protected could not be relaxed 

 on account of cases of individual 

 distress. The subsequent birth 

 of children, and the great increase 

 of the deceased's property, in this 

 case did not amount to a legal re- 

 vocation of his will. It was 

 pleaded that this will was made 

 by the deceased in consequence of 

 his then contemplating his return 

 to England ; but there was no 

 clause in it by which its opera- 

 tion was made to depend on that 

 or any other contingency. The 

 deceased must have been aware 

 of the existence of this will, and, 

 being a gentleman of legal edu- 

 cation and habits, could not be 

 supposed to have been ignoiant 

 of its operation. The learned 

 judge then expressed his opinion 

 that the latter will was not such a 

 paper as could receive the sanc- 

 tion of that court as an operative 

 instrument. Adverting to its va- 

 rious imperfections, he proceeded 

 to state, that the presumption of 

 law was against such papers ; and 

 it was incumbent on those who 

 supported them to adduce some 

 strong extrinsic circumstances for 

 that purpose. It might be pos- 

 sible to do so, if the deceased 

 were struck \\ith death in writing 

 such a paper, or if there were 

 confirmatory declarations ; but if 

 there were nothing to show that 

 the deceased was prevented from 

 completing it, the paper could not 

 operate. In this case all that was 

 shown was, tliat the paper was 

 written on the back of a printed 

 letter, dated July 6, ISU, about 

 a year before the deceased's death, 

 and found in his scrutoire. The 

 printed letter was a summons to 

 attend the Directors of the West 



India 



