APPENDIX TO CHRONICLE. 



251 



should remain doubtful, the scale 

 should descend in favour of the 

 executor. It was clear from the 

 former will, that the deceased 

 meant to give the legatee not a 

 watch, but a particular watch, 

 and, therefore, the legatee must 

 shew that his intention had chang- 

 ed, and if the matter still remain- 

 ed doubtful, the executor would 

 have the right of election subject 

 to equitable restraints. The Court 

 could only pronounce for the le- 

 gatee if it sliould be satisfied that 

 the gold watch was the one in- 

 tended. In case of doubt or lean- 

 ing to the contrary, the executor 

 would be entitled to the prefer- 

 ence. They then contended, that 

 it was not the deceased's intention 

 to give the gold watch, because 

 he had it not in use as an ordi- 

 nary watch, particularly at the 

 maliing of the wiU, but having 

 acquired it as property, he was 

 desirous of converting it into 

 money, and though he wore it 

 occasionally, he constantly offered 

 it for sale. His original intention 

 was not to give valuable proper- 

 ty to tliis nephew, but memorials 

 of regard, family remembrances, 

 rather than pecuniary profit, and 

 this was manifest not only from 

 his former will, but also from tlie 

 articles associated with the gift of 

 the watch, tlie gun, and manu- 

 script book. There was no proof 

 that the gokl watch was the iden- 

 tical watch tlie deceased intended 

 to give to this nephew, and non- 

 constat that ilie declaration of his 

 intcnliofi to give that watch to a 

 nephew of his might not relate to 

 some other nephew. The legatee 

 had therefore failed to make out 

 liis case, and they trusted the 

 Court would jironounce for the 



sufficiency of the tender of the 

 silver watch, with costs. 



Sir John NichoU stated the 

 circumstances of the case, and the 

 point in issue between the parties. 

 On the one hand, it appeared that 

 the gold watch was a very valu- 

 able one, taken by the deceased 

 in satisfaction of a debt, and that 

 he had often tendered it for sale ; 

 but these circumstances were not 

 conclusive, as it appeared, on the 

 other hand, that the deceased, 

 after acquiring the gold watch, 

 constantly wore it, and only used 

 the silver one when the gold one 

 was sent to be repaired. It w^as 

 sent to Oxford for that purpose in 

 Decembei', 1812, and not return- 

 ed until the 7 th August, 1813, 

 when he desired his niece to take 

 care of it, and gave her particular 

 directions about winding it up, 

 and it was much more likely when 

 he made his will so soon after- 

 wards, that he thought of this 

 gold watch which he esteemed so 

 much more than the silver one; 

 The executor had brought for- 

 ward the former will, contending 

 that because the deceased had 

 specified the silver watch in that 

 Avill, that nmst be the watch he 

 meant to give when he had not so 

 specified it ; but the Court was of 

 opinion, that an opposite con- 

 struction was to be put upon this 

 circumstance : he meant to give 

 the best watch he then had, having 

 two inferior ones ; but having 

 afterwards acquired and used the 

 gold watch, tliat would rather 

 seem to come under the descrip- 

 tion he then used, of " my 

 watch," and that expression to 

 have been used in contradiction 

 to "my brother Luke's watch." 

 If he did not mean the gold watch, 



he 



