the rest of my will to be put in execution, and considered as my last will and testament."

It was contended on the one hand, that the construction to be put upon the second codicil was, that the deceased did not mean that it should revoke the appointment of Mrs. Sherard as an executor; that had he so intended, he would have made the revocation in the same strong terms as those by which he had in the 1st codicil revoked the appointment of one of his brothers, and not in words of a remote and doubtful implication; and that by confirming "the rest of his will, he had confirmed the appointment of Mrs. Sherard, that appointment forming part of the rest of his will."

On the other hand it was argued, that when two testamentary papers contradict each other, it was held as a rule of law in courts of construction, that the latter should operate; that the latter paper, or second codicil in this case, being by implication contradictory to the former as to the appointment of executors, must operate singly in that respect, and as making no mention of Mrs. Sherard, probate must be granted without her.

Sir John Nicholl observed, that the question was, whether the appointment of Mrs. Sherard was revoked. The appointment was made by a very formal instrument, and its revocation must therefore be in express terms, or by necessary implication. It was evidently not expressly revoked; and the question therefore was, whether it was so by necessary implication, which, he was of opinion, it was not. The direc

tion in the second codicil, that the testator's brother, George, should remain an executor, and Sir Siinon Haughton Clarke be joined with him only, did not by the word "only" necessarily shew a revocation. In interpretation, the Court must hesitate in giving a positive meaning to every word: and that this had no such positive meaning was to be inferred from what followed-the express revocation of the appointment of the two brothers without revoking that of the wife. By confirming the rest of his will, the deceased had also confirmed his wife's appointment. There were three executors throughout, the deceased always contemplating a joint appointment. There appearing, then, no revocation either in express terms or by necessary implication, the court directed Mrs. Sherard to be joined in the probate with the other executors.

Henshaw and Hadfield v. Atkinson and Atkinson.-For many days this very important cause had been under discussion before a Commission of adjuncts, composed of the following learned judges:-The Hon. Mr. Baron Wood, the Hon. Mr. Justice Bailey, the Hon. Mr. Justice Dallas, the Hon. Mr. Baron Richards, Dr. Burnaby, Dr. Daubeny, Dr. Phillimore, and Dr. Gostling. It was a question as to the validity of the will and codicils of the late Mr. Henshaw, of Oidham, in Lancashire, who died worth near 150,000l.

The will bore date in November, 1807; the two first codicils in January, 1808; the third in May following, and the fourth in

July, 1809; and the testator's death happened on the 4th of March 1810, on which day he was found drowned. The parties who would have been entitled to his property, if dying intestate, were his second wife (whom he married at the age of 67, and who had a family by a former husband) and his niece who was unmarried, and who had offended him by having had an illegitimate child. These parties endeavoured to set aside all the testamentary papers which were supported on the other side by the executors, Mr. John Atkinson, formerly an eminent manufacturer at Manchester, and Mr. Joseph Atkinson, a Quaker, not at all connected with the preceding

The substance of the will was to leave 2001. per annum to Mrs. Henshaw; 2000l. to each of her three daughters; the land and buildings at Oldham equally between her sons, and George Hadfield, the illegitimate child abovementioned; various legacies of 100l. 500l. 1000l. &c. to different legatees, about sixty in number; and the residue to found a Bluecoat School and Blind Asylum, the trustees of which were to be named by a subsequent codicil.

The first codicil gave 20,000l. to the Blue-coat School, and declared Mrs. Henshaw entitled to her savings during marriage.

The second gave legacies of 6,000l. in all, to other charities.

The third named the Trustees referred to in the will, and gave 18,000l. to Mr. John Atkinson, who was one of the number.

The fourth revoked the devise of a small piece of land, in the will, the testator intending, had

he lived, to build the Blue-coat School on it.

The will was executed at an attorney's office in Manchester. The codicils were all in Mr. John Atkinson's hand-writing, and each executed at his house by the testator in presence of two witnesses.

This cause was first heard in the Consistorial Court of Chester, where the will and all the codicils were pronounced for. It was thence appealed to the Archiepiscopal Court of York, where the former judgment was affirmed with costs. The appellants, however, brought it again by appeal to the Court of Delegates, where it was argued for five days in the summer, before six judges, who pronounced themselves satisfied of the validity of the will and all the codicils, except the third, on which, being equally divided, they gave no judgment. It became therefore necessary to have a rehearing before part of the former commission, assisted by adjuncts: and the present argument, which lasted for six successive days was conducted on the part of the appellants by Drs. Swabey and Jenner, and Messrs. Warren and Williams; and on that of the respondents by Mr. Hart, Drs. Stoddart and Lushington, and Mr. Cross.

It was contended against the will and codicils generally, that the deceased had been of a weak and decaying capacity ever since 1800, when he had a paralytic attack; that Mr. John Atkinson had obtained an entire ascendancy over him, principally by assisting him in June 1807, to set aside the will of his brother Henry Henshaw; that by means of this influence, Mr. Atkinson had per

suaded the deceased to alter those testamentary dispositions by which he had bequeathed his property to his wife and family, and to devote the mass of his fortune to the endowment of eleemosynary institutions, leaving Mrs. Henshaw the slender pittance of 2001. a yearthat he had urged him to do so not by a single testament, but by a series of codicils, with the intention of keeping him in a course of testamentary disposition, in order that he might seize some favourable opportunity, when the testator was in the humour, of procuring a bequest to himself. The Learned Counsel for Mrs. Henshaw, in language the most energetic, dwelt upon the conduct of Mr. Atkinson in obtruding himself into the family of the testator, and diverting him from those benevolent intentions towards his family, which, till his interference, had uniformly actuated him. They represented to the Court, the artful and insidious proceedings of the defendant in deporting himself as a friend towards Mrs. Henshaw, dining at her table, and expressing his regard for her; when, at the same time, he must have been conscious, that by his persuasion, her husband, by what he had left her, had comparatively disinherited her. They argued from the voluminous evidence before the Court, and by the last act of the testator, which was self-destruction, the impaired and weakened state of his intellects. They contended that it was not necessary to prove a deranged mind: it was sufficient that the facts of the case présented the testator before the Court as a man who had been afflicted with

paralysis, and as a man, with respect to whom his regular medical attendant had advised that he should be strictly watched, to prevent that catastrophe which eventually occurred. They insisted, that when a testator, thus vacillating between the extremes of sanity and insanity, was practised upon by a person who had obtained an absolute control over him, such as Atkinson unquestionably had over the testator, the will made, under such circumstances, was not the will of the testator, but was in truth the will of the party by whom he was influenced.

Against the third codicil it was specially urged, that being in the hand-writing of a hand-writing of a party benefited under it, common proof of its execution by the deceased, in presence of witnesses, and of his testamentary capacity at the time, would not suffice to establish the act; but that there must be specific proof that he knew the contents, by some declaration coming from him, either before, at, or after the execution: and several cases from the year 1723 to the present time were cited, to show that this was the rule of the Ecclesiastical Court. Lastly, it was contended that a sum of 3,000%. mentioned in this codicil as having been previously given by the testator to Mr. Atkinson, was, in reality only lent, which seemed to show, that the testator could not have understood what he signed,

In support of the will and codicils generally, it was replied that, upon all the evidence, there could not be a doubt but that the testator was a man of extraordi

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nary activity of mind, that he was so described by the learned physician (Dr. Ferriar of Manchester) who had attended him for a slight paralytic attack in 1800, from which he perfectly recovered in a few weeks, and who saw him frequently afterwards till his death; that his having been so affected in 1800 could afford no inference against his acts in 1807, 1808, and 1809, done in the presence of unimpeached witnesses, who spoke fully to his capacity. That his letters, many of which were before the Court, shewed extreme shrewdness in resisting attempts at circumvention and fraud; and that the conduct of the opposing parties themselves was conclusive against their plea, they having, whilst the testamentary acts were going on, joined in a great variety of most important transactions of business with him, and having all of them derived great benefit from his liberality and judicious kindness toward them on those occasions: that there was not a tittle of evidence to shew that any one provision in any of the papers was suggested to Mr. Atkinson; and as to the charities, it was most manifest, that they were the favourite objects of the testator's thoughts, after providing, with remarkable liberality, for all his friends and connections, particularly for Mrs. Henshaw's family, who had large fortunes of their own, greatly owing to his good management of their property, and to his having given her sons a large share of his own business, It was stated, that Mr. Atkinson far from intruding himself into the family, had been one of the

oldest friends the testator had, from a period long antecedent to his second marriage; that he had been on all occasions of difficulty resorted to as an arbitrator and adviser by the testator and all his connections, and had rendered them all most essential services; that in the affair of Henry Henshaw's will, George Hadfield had voluntarily released his interest to the amount of 60,000l. acknowledging under his hand and seal, that that will was executed when Henry Henshaw was in a state of incapacity; that it did not appear that Mr. Atkinson had advised Hadfield to this step at all; but if he had, it was probably the best advice that could have been given, as no man would, without very strong reasons, have been induced to give up 60,000l. That, in short, there was not one syllable in the whole voluminous mass of evi, dence to show that any undue means whatever had been resorted to by Mr. Atkinson to obtain an influence either with the deceased, or with any of his connections; that it was true the deceased had a high opinion of him, and always spoke of him in such terms as to induce their common acquaintance to believe he would leave him something very considerable. That this furnished a reasonable motive for, and solution of, the bequest in the third codicil; that if this codicil was in Mr. Atkinson's hand-writing, those in which he was not at all benefited were so too; that it was written in a large, plain, le, gible hand, all on one side of a sheet of paper; that the bequest to Mr. Atkinson occupied the upper half of the page, the other

part being filled with the appointment of the trustees; that the testator not being a man of education, 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 burthen of proof; and it was denied that the cases cited, had shewn any different rule to prevail in the Ecclesiastical Courts; that indeed the fullest proof of execution 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 3,000l. 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 contrary to all justice to build upon a vague conjecture a charge of fraud so deeply involving the character 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 testator was fully aware of having appointed the trustees of the cha

rities, which was done by this codicil; and it would be absurd to say that he had a sufficient capacity 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 declared 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.

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Doe. dem. Barford v. White,Mr. Serjeant Blossett moved for a new trial of this ejectment before Mr.J.Heath, at the last 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, operated as a revocation of the husband's will. The rule of law is, that marriage and the birth of child impliedly revoke a bachelor's will; but in the case of Shepherd v. Shepherd, in the Prerogative 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