fatuus, stultus, or the like, for non compos mentis is most sure and legall." Lib. iii. sect 405.-Sir John Nicholl also adverted to the well-known case of Greenwood, and two curious instances of mental delusion which had been described by the late lord Mansfield; and he showed that in those instances, there was the same species of mental delusion on particular topics, and those only. He then went through the various facts of this case, dwelling at great length on the history of deceased, and the influence which the accidents of his existence had exercised upon his character and opinions. He established the preexistence of a powerful prepossession in the mind of deceased against his daughter, from a very early period down to the making of the will; and his declarations to friends and others, as to the commission of acts of gross misconduct on the part of his daughter, which declarations were clearly and distinctly falsified by the testimony of his own witnesses. The learned judge then adverted to the evidence with respect to the character of Mrs. Dew. He stated the depositions on both sides of the question; and shewed (from her Down witnesses, and those produced by the Messrs. Clark), that her conduct had been at all times, not only irreproachable, but entitled htothehighest praise for her modesty, humility, and her affectionate endeavours to gain the confidence and love of her father, notwithstanding the harshness and brutality of his conduct towards her. The misconduct imputed to her, in one case, was disproved by the very witness (a single one) who was brought forward to prove it; in the other cases, the witnesses

vouched to establish the facts charged, expressly disavowed them. As for the letters of Mrs. Dew to her father, nothing in the world could be more clear than that they were written admissions of general misconduct, of which she had never been guilty; and written as much under the immediate awe of her father (the deceased), and as much under the dread of punishment, as if (to use the expressions of counsel) he had stood over her all the time with a rod. In conclusion, the learned judge declared his conviction, that at the time of making this will, the deceased was not in his sound mind; and he therefore pronounced against it.

PREROGATIVE COURT, April 19.

Ustick v. Bauden.

This cause involved an important question, as to the revival of a former uncancelled will, by the cancellation of a will of much later date, executed subsequently to other formally prepared wills, published at intervening periods between the first or uncancelled paper, and the last, and which intermediate instruments had all been cancelled.

Sir John Nicholl gave judgment. The question, he said, arose upon the validity of a will executed by the late Stephen Ustick, esq. in the year 1807; the death of that gentleman had not taken place, however, until the month of January, 1823. This will was set up by Mrs. Frances Elizabeth Bauden, the sole executrix named therein; and was opposed by the rev. Robert Ustick (Clerk), the only brother of the testator. These persons, however, were not the only individuals who were interested in the present suit; for the deceased, besides his brother, left

hind him three sisters and three ts of nephews and nieces, who, case of the deceased's being ronounced to have died intestate, ould be entitled in distribution o his personal property. There ere, likewise, other parties, leatees and devisees under the will, who were, of course, interested in aving that will established. The ase had also this peculiar feature bout it, that the personal property listributable among so many perons was but of small value, while he real property was of considerable amount. From inquiries which the Court had caused to be made into the state of the property, it had been given to understand that the realty which would pass under the will (if established) was of the value of about 7801. a year, exclusive of property in the Dutchy of Cornwall; but including that Dutchy property, it would be about 980l. per annum. The personal property, without making any deductions even for the expenses of this suit, other law proceedings, and so forth, was estimated at 3,500l. only. The parties, although they had engaged in a long and extensive litigation in this court, had not in any court put the validity of the will, as far as the learned judge was aware, in the course of trial at law, while the decision of this tribunal would not govern the devise of the real estate. Rules and principles, in some degree different from those which regulated the descent of personalty, governed the descent of realty. Still the parties in the cause had a clear right to the judgment of this Court in respect of the personal property. A question, however, was first to be determined, not only as to the due execution of the will propounded, but

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as to whether that will was, in point of law, revoked? Now that will, which had been regularly prepared by a solicitor, was executed by the deceased in the most deliberate and formal manner, and attested by three witnesses! It was executed, indeed, in duplicate; one copy being deposited with the solicitor employed, a Mr. Hamilton, and the other duplicate being de livered into the hands of Mrs. Bauden, who was herself the sole executrix named in such instrument; and both these parts remained perfect and uncancelled at the time of the testator's death. But the ground upon which the revocation of that will was contended for by the party opposing it, was, that about fourteen years afterwards, namely, in January, 1821, the deceased executed a new will, which other will was also attested by three witnesses. The latter will, at the death of the testator, was found in a cancelled state; and there was no occasion to doubt, that it had been so cancelled by the deceased himself. Had this latter will remained uncancelled, there could be no doubt but that it was sufficient in point of fact to have revoked the former instrument of 1807. Two questions were to be determined in this cause, by the Court, 1st whether upon the cancellation of the latter will, the former did, in point of law, remain in force, and unrevoked, or whether it remained revoked? And, 2ndly-whether, if, prima facie, the first will was to be considered as revoked, it was not, however, revived by the circumstances which were pleaded in the evidence before the Court? The dispositions contained in these two wills materially differed, in some respects, both as to the real

and personal property. By the will of 1807, the real estates were devised in trust for the benefit of Mrs. F. E. Bauden for life; and were entailed, after that life estate, on Mr. Lewis Charles Peters (nephew of the deceased) and his issue; remainder on failure of his issue, to another nephew and his issue; but on failure of this second person and his line, the estate was devised to the testator's own right heirs. It was further directed that upon the death of the said Frances Elizabeth Bauden, 900l. should be raised in order to pay legacies of 3001. each to his three nephews, Mr. W. Peters, Mr. Noel Peters, and Mr. Legrice.-A brewery, situated at Falmouth, which deceased at that time had, was also given to Mrs. Bauden for life, and then to deceased's nephews, the Legrices. The residue of the property of the testator was bequeathed to Mrs. Bauden, who was appointed sole executrix. So that by this paper, the brother of the deceased, who was also his heir at law, and the sister, who, with other parts of the family, would be entitled in distribution in case of an intestacy,were all passed over; the sisters, as much as the other parties so entitled in distribution. Such were the contents of the will of August, 1807. Those of the will of January, 1821, manifested different testamentary dispositions; but certainly not more favourable to the brother, who was the heir at law, nor to the sisters; but to the other next of kin the bequests of the will of 1807 were replaced by different legacies of a specific nature, and among the legatees were introduced other nieces of deceased the three Misses Beauchamp. The real estate was vested in trustees

chargeable with these legacies, and an annuity of 400l. a year was given to Frances Elizabeth Bauden, who was to have also the furniture, stock, and other articles of that description; the residue, both of the real and the personal property, was given to his two nephews, Michael Noel Peters and Charles Peters; who were also appointed executors. By a codicil, dated about a fortnight afterwards, on the 20th January, 1821, the annuity to Mrs. Bauden was still further reduced from 400l. to 2001. a year. What the value might be of the furniture, stock, and crops, which she was to take in addition, did not exactly appear; so that the Court could not judge of the proportion which that value bore to the 3,500l. at which the personalty was estimated. The brother, the sister, and others of the next of kin, were equally excluded, the former from the realty, and the others from any distributive share in the personal property. Now, putting all the circumstances of the case together, and contrasting together the dispositions of the two instruments of 1807 and 1821, there seemed nothing very revolting to probability, in the supposition that the deceased really might, at the date of the latter, have altered his testamentary intentions, from the effect to which they tended in 1807, to the dispositions thus apparently contemplated by him in 1821. Neither was there any thing exceedingly improbable in presuming that after January 1821, the deceased might have again reverted and returned to the will of 1807, as that which best expressed his intentions. But certainly the second will, of 1821, to that extent and in those particulars which the Court had stated, was an alteration

of, and a departure from, the will of 1807; different executors and different residuary legatees were appointed by it. Now several cases had, at different times, occurred in this Court, in which the point had arisen and been discussed,-whether, upon the cancellation of a later and revocatory will, a former uncancelled will continues in force, or remains revoked? whether such cancellation of the latter paper is a positive revival of the former? or whether the former requires some act, or some evidence of intention in order to be so revived? Indeed, this point had long been considered almost a vexata questio in these Courts. The rule upon it appeared to have been somewhat different in the Ecclesiastical Courts, where the cases respected personal property; and in the Common Law Courts, where the cases regarded realty. And even in the Ecclesiastical Courts the rule seemed to have varied in some degree. In these Courts, the execution of a subsequent will had been held to be a prima facie revocation of the former; at least to such an extent as to require evidence of the former's being revived. In the Common Law Courts, it has been generally held that a former uncancelled will is prima facie revived, or rather renewed unrevoked, upon the cancellation of the later one. Most of the cases, from which the learned judge deduced those principles, had been cited and very much discussed before the High Court of Delegates, in the recent case of Moore and Moore v. Metcalf, which was in the first volume of Dr. Phillimore's Reports. In these several cases-Whitehead v. Jennings (Court of Delegates, in the year 1714), Burt and Burt (Prerogative Court, 1718), Hellyer

and Hellyer (Ditto 1751), Arnold v. Hodges (Ditto 1765), the former will was held to be revoked, either because there was no evidence to show on the part of the testator an intention to revive it, or because there was evidence to show, upon his part, an intention that the former will should remain revoked. On the other hand, in Stacey v. Dickens, in 1724, in Barrier and Hew, in the same year, in Passey and Hennings, in the Prerogative Court in 1808, and in the Court of Delegates, in 1812, the former will was established upon evidence going to show that it was the intention of the deceased in each case that the former will should operate. The learned judge then went into a statement of the facts and principles of most of the cases he had cited. The Court also quoted Glazier and Glazier, (4 Burroughs) Mason and Merrywood, Harrowden and Rolfe, (Cowper 87), and expatiated on the various principles which common law, equity and ecclesiastical judges had laid down upon the doctrine of intention, which was always considered the polar star for the guidance of courts in testaments of personal property. Now, what were the facts of the present case? In the carly part of this history, the deceased had a brewery at Falmouth, and seemed to have lived there. He had formed an attachment for Miss Frances Elizabeth Bauden, who was the daughter of the collector of the customs at that port, and a young lady of very respectable connexions. The uncle of the deceased, in this cause, sir Michael Noel, much disapproved of the proposed match between them. He died in 1802, having made his will, whereby he bequeathed a certain

estate to the deceased, upon condition that he should not marry Miss Bauden. If he did, then the estate was to devolve over to another party. After the death of sir Michael Noel, Mr. Ustick and Miss Bauden went away, for a short time from Falmouth, and when they returned, they returned as Mr. and Mrs. Ustick, leaving the world to suppose that in the mean time they had been married. From that period till the death of the testator they cohabited together as husband and wife, and treated each other as such in every respect; and lady Noel, about that time, quitting Penwarne House, the former residence of sir Michael, Mr. Ustick and the lady, the party in the cause, took up their residence there. This was about the year 1805. The rev. Mr. Robert Ustick, the brother brought an ejectment against the testator, for the purpose of getting possession of that property, on the ground that he, Stephen Ustick, had violated the conditions of his devise from his deceased uncle, by marrying Miss Bauden. Many of the deceased's own family, and others of the neighbouring gentry, had visited Mr. and Mrs. Ustick, but many had also abstained from visiting them, and among the latter persons, were this brother and some of the sisters of the deceased. Now, though this matter of the ejectment never went to trial, it became pretty well understood in consequence of what did take place about it, that Mr. Ustick had never, in point of fact, been married to Miss Bauden. Naturally enough, the deceased took great offence, on these accounts, at the conduct of his brother towards him. In 1809, some attempts were made by particular friends of the family to

bring about a reconciliation between the two brothers, but they were little successful. In the mean time, the will of 1807 was made, and it could not be thought quite unaccountable, that under the impression of feelings of irritation, the deceased should have excluded his brother from that disposition of this property; or that, strongly sensible of what he always termed his great obligations to Miss Bauden for the sacrifices she had made on his account, he should have given her so large a benefit under it. The Court then went into the history of the continued connexion between Miss Bauden and the testator, and observed, that notwithstanding the testimony of one or two witnesses to whom the Court was very much indisposed to give ready credence, it did appear that until the last moments of his life, her conduct had been most kind and affectionate. Just before the making of the unfavourable instrument of 1821, however, a circumstance had occurred which not only threatened to overthrow her place in his regard entirely, but did appear to have actually reduced his mind to a condition of almost morbid suspicion and sensitiveness. Among the guests who were staying at Penwarne House, at that period, was a relation of Mrs. Bauden's, a Dr. Parsons. The deceased was much troubled with an internal complaint in the nature of diarrhoa, and was induced to take one of Dr. Parsons's prescriptions, in the hope of getting relief. At first the medicine prescribed agreed well with him; but latterly he became much weaker, and his disease more powerful. While under this condition of body, his mind became rather affected by