256 ANNUAL REGISTER, IBI6. 



ated in 1801, in consequence Of 

 an accident he then met with in 

 fracturing both liis legs, upon 

 which he retired to his house at 

 llfracombe, near Mount-Edge- 

 cunibc, on the oppobite side of 

 Plymouth harbour. During his 

 residence in the dock-yard lie had 

 a clandestine connexion with a 

 Mrs. Elizabeth Venton, by ■whom 

 he had four children, two of them 

 the minora in the present cause, 

 and the I'emaining two died in 

 their infancy. His regard for 

 these cliildren was unbounded. 

 Uiron the death of their mother 

 soon after he retired to llfra- 

 combe, he received them into his 

 house, superintended their edu- 

 cation himself, intending them, 

 . as he declared, one for the church, 

 • and the other for the na\ y ; had 

 them baptized and registered as if 

 they had been his legitimate child- 

 ren, and invariably behaved to 

 them with a degree of fondness and 

 indulgence not often witnessed. 

 He also repeatedly spoke of h.is 

 intention to leave them his pro- 

 perty at his death, and several 

 declarations of tliis kind were 

 proved down to within a very 

 short time of his death. Upon 

 breaking his leg, he sent for Mr. 

 Bennet Johns, of Plj-mouth-dock, 

 and gave him instructions for his 

 will, fi-om which the latter pre- 

 pared a draft, and left it with the 

 deceased j but in consequence of 

 some misunderstancUng, they had 

 afterwards no further conferences 

 on the subject. The deceased, 

 however, on the 4th of Septem- 

 ber, 1801, duly executed tliis 

 draft in the presence of two wit- 

 nesses, lu Februai7, 1805, he 

 ^ave instnictions to Mr. Foot, of 

 Plymouth-dock, solicitor;, for a 

 liew ^vill^ from ^vhicJi No. 5 was 



accordingly prepared in Mr. Foot's 

 office, and left with the deceased, 

 who said he would call and sign 

 it, but never did so down to his 

 death, at which time these two 

 were the only testamentary papers 

 tiiat could be found. It was 

 proved that the words " Cancel- 

 led, and another made out,'' were 

 of the deceased's handwriting5 

 but from his invariable declara- 

 tions down to his death of having 

 left his property to his children, 

 the witnesses were convinced that 

 he considered he had an operating 

 will in existence, and for several 

 reasons, which went to account 

 for the non-execution of No. 2, 

 they were further persuaded that 

 in such declarations he alluded to 

 No. 1, and that, with a precipi- 

 tancy not unusual witli him, he 

 must have written the words im- 

 porting cancellation when con- 

 templating the making of a new 

 will, which he afterwards aban- 

 doned, and not with any delibe- 

 rate intention of cancelling No. 1. 

 absolutely and unconditionally. 



Dr. Jenner and Dr. Lushmgton, 

 in support of No. 1, contended, 

 that the cancellation was condi- 

 tional : it was dependent on an- 

 other will being completed, and 

 the deceased did not intend a can- 

 cellation, except by completing 

 that new will. 



Dr. Swabey, in opposition to 

 the paper, shortly adverted to the 

 circumstances attending it, and 

 tlie doctrine of revocation con- 

 teaded for on the other side, and 

 tlien left the case to the candid 

 consideration of the Court. 



Sir John Nicholl remarked, 

 that he had no doubt as to the 

 facta of the case, nor as to the 

 law applying to them. There 

 ■\va5 »0 question as to the factum 



of 



