It appears that the testatrix became entitled to the houses and lands in question under the will of her husband, who died in March, 1819. The property bequeathed to her by his will consisted of personalty and realty. The personalty was probably known by the testatrix before May, 1819; but there is no evidence either that she knew of any realty at all till August, 1819, or that she knew of the property now in question at any time, as it consisted of the reversion expectant on the decease of the four tenants for life, liable to be divested by the survivor of these leaving any issue, *and it did not fall into possession until many years after her death.

*355]

We find, that, on the 10th of May, 1819, she executed a testamentary paper attested by one witness only, which is the document. numbered 3 in the list of fac simile copies of testamentary documents produced. It begins by a recital which shows that she felt much aggrieved by what she regarded as the cruel treatment of her brother (who was her heir at law) since her husband's death, and then gives all the property of which she may die possessed (except certain specific legacies, and an annuity to a servant), to be divided amongst her nephews and nieces, seven in number, three being children of her sister Mrs. Dickinson, and four being children of her sister Mrs. Ibbott.

If there had been three witnesses to this document, the cases collected in Jarman on Wills, 3d edit. Ch. 22, show that it contains words sufficient to pass all the real and personal estate to the parties therein named.

The tenor of this will, however, and the circumstance that it is not. sufficiently attested to pass real estate, may indicate that the testatrix understood it to apply to personalty only. Still, the expressions it contains respecting her brother make it plain that she wished to exclude him from her real property, if she had any. But there is no evidence that at this date she was aware she had any realty which he could inherit from her.

On the 27th of August, 1819, she made a will, numbered 1 in the list before mentioned, attested by three witnesses, and devising some realty at Tonbridge and the money she might have in the bank at her death to her sisters and to their children named in the testamentary document of the 10th of May, omitting one of the children of her sister Mrs. Dickinson and two of the children of her sister Mrs. Ibbott. By this instrument, *she expressly revoked all former wills, excepting two memorandums dated 10th May, 1819, which are to remain in force with this my last will."

*356]

Upon the discussion, the cardinal question has been whether this clause referred to the testamentary paper above mentioned dated 10th of May, 1819, and incorporated it with the will of the 27th of August, 1819. And this question we answer in the affirmative.

The testatrix refers to two memorandums. The context shows that she refers to a testamentary paper; for, they are to remain in force with her will, and, as no other testamentary paper made by her of that date has been found, we consider this to be sufficiently identified as one of those to which she refers. It is signed by her; it has the specified date; and it constitutes the disposition of her residuary estate, which is wanting in the will of August, 1819. If in the

interval between the making of the two papers she had discovered her right to the land at Tonbridge and the Bank Stock, and her general intent to exclude her brother from succeeding to any of her property and to prefer her other relations continued, the two instruments taken together would carry that intention into effect.

Several objections were made to this construction. First, that the reference is to "two memorandums," and the paper of the 10th of May is not well described as a "memorandum." But we see no weight in this objection. The instrument, though it apparently purports to dispose of all the property of the testatrix, does not, like the paper of August the 27th, formally style itself "her last will," and does not appoint any executor. We think, therefore, the executrix may well have adverted to it as a "memorandum."

We are desirous of adding, that, by the opinion we have

expressed on this point, we do not at all intend to infringe, but [*357 only to apply the rule of law which we consider to be established by Smart v. Prujean, 6 Ves. 560, and many other subsequent cases, viz. that, in order that an unattested paper may be adopted as part of a duly attested will, it must be referred to by the will in such a manner as shall, with the assistance of parol evidence when necessary and properly admissible, leave no doubt of its identity.

Secondly, it was objected that the testatrix refers to two memorandums, and only one is found. But, if she intended to adopt two instruments, and only one is found, the law requires that effect should be given to that which is found: for, either the ordinary presumption must prevail, that the missing paper was destroyed by the testatrix animo revocandi, or the principle must be applied that the apparent testamentary intentions of a testator are not to be disappointed merely because she made other dispositions of her property which are unknown by reason of the testamentary paper which contained them not being forthcoming. It is on this principle that a subsequent will is no revocation of a former one, if the contents of the subsequent will are unknown. And the law is the same even if the later will be expressly found to be different from the former, provided it be unknown in what the difference consists: Hitchins . Basset, 3 Mod. 203, 2 Salk. 592, Show. P. C. 146; Goodright d. Rolfe v. Harwood, 3 Wils. 497, 2 W. Bl. 937, Cowp. 87, 7 Bro. P. C. 344.

Thirdly, it was objected, that, if one of the memorandums referred to was the instrument of the 10th of May, that instrument was intended to be confined to personalty only, and therefore a reference to it willing that it should remain in force with that her last will, left it still to operate on the personalty only: and reliance was placed on the cases of Wentworth v. Cox, 6 Madd. 363, and Maxwell v. [*358 Maxwell, 2 De Gex, M'N. & G. 105, as establishing the rule that a testator by a general gift of all his property ought to be deemed to have intended to pass only such estate as the nature of the instrument is capable of passing. And it was accordingly contended, that, as the paper of May the 10th, 1819, was not attested so as to be capable of passing real estate, the general words contained in it could only have been intended to extend to personalty. But it appears to us that the principle of these cases does not apply here. The intent is apparent to exclude the brother from all property, by including all in the gift

to the sisters' children. The expressions more appropriate to person. alty than realty are consistent with that intent, if only personal estate was known by the testatrix; and the form of attestation would be accounted for by the same fact.

But, if she afterwards discovered that she had real property, and disposed of that which she knew of by a specific devise, and incorporated a will applicable in expression to all property real and personal, but limited to personalty by reason of the attestation, such incorporation of the former will with the will duly attested would make both instruments one will, and all her expressions in each become expressions in a will duly attested to pass real property.

The form of the incorporation,-that the memorandum is to remain in force with that her last will,-might mean that it should have no different effect by reason of the reference thereto and incorporation thereof in the will. But we consider the apparent intention of excluding her brother to be strongly opposed to this construction of the words of reference. If she knew of no other realty but that at Tonbridge, the form would be accounted for, and, being a will of *359] *personalty only, it might be called a "memorandum," as compared with a will effective for all property, and it might be supposed by the testatrix to apply to personalty, because she knew of no realty; still, if her words are wide enough to include all property, and her apparent intention includes all property, we ought to give effect to the words of the will in their ordinary sense, and make them include all the property to which they in that sense extend, whether that property was known to the testatrix or not.

If the words of reference are some indication of intending a narrower sense, this indication is not sufficiently strong to induce us to alter the effect of the words of the instrument, and construe them according to the words of reference rather than according to their ordinary meaning.

We think, then, that none of these objections ought to prevent us from coming to the conclusion that the reference in the will of August the 27th (No. 1) incorporates the testamentary paper of May 10, 1819 (No. 3), and makes the two instruments one will.

The cases which have occurred with respect to the effect of a codicil in republishing a will of realty, appear to support the principle that the effect of such incorporation is, to make it the duty of the Court to construe the two instruments in the same way, and to allow the same operation to the language of the incorporated instrument as if it had been originally contained in the will which incorporates it. Barnes v. Crow, 1 Ves. jun. 486, is the leading case of the series of decisions which established the rule that a duly attested codicil, though it related only to personal estate, would operate as a republication of the will so as to pass lands purchased between the dates of the will and codicil. "The effect of these authorities," said Lord Ellenborough, in Goodtitle v. Meredith, 2 M. & Selw. 5, *"is, to give an operation to *360] the codici per se and independently of any intention, so as to bring down the will to the date of the codicil, making the will speak as of that date, unless, indeed, a contrary intention be shown, in which case it will repel that effect."

Assuming, however, that the two instruments as they existed at the

time of the making of the will of August 27th, 1819, might be regarded as forming one duly executed will, and might be so construed, it was further contended on the part of the defendant that the paper of the 10th of May was revoked by the obliterations and alterations which were subsequently made on the face of it by the testatrix.

It is unnecessary for us to consider what effect these acts, coupled with the testamentary documents dated the 16th of November, 1819 (and numbered 4 and 5 in the list of fac simile copies), ought to have on the bequests of personal estate contained in the paper of May 10, 1819 (No. 3). It is enough to say, that, with respect to the devise of the realty, which, for the purposes of this part of the argument, it must be deemed to contain, the obliterations and alterations did not operate as a revocation. Even if they are to be regarded as final and absolute, and not as deliberative or dependent alterations, they would only operate to produce an intestacy pro tanto (which would not affect the result of this action) as to the shares of those devisees whose names are struck out, and not as a revocation of the whole instrument. But we incline to think, applying the doctrine of dependent relative revocations, that they are totally ineffectual as to the bequest of real estate. The case of Winsor v. Pratt, 2 B. & B. 650 (E. Ĉ. L. R. vol. 6), which was cited by Mr. Couch on the argument, is an example of that doctrine; and it is supported by a long line of authorities, on the principle stated by Lord Alvanley in Ex parte Ilchester, 7 Ves. 373, that, where it is evident that the testator, though using the

means of revocation, could not intend it for any purpose than [*361 to give effect to another disposition, though, if it had been a mere revocation, it would have had effect, yet, the object being only to make way for another disposition, if the instrument cannot have that effect, it shall not be a revocation."

A further argument on the part of the defendant was, that both the papers of the 10th of May and 27th of August, 1819, were revoked by the codicil dated February 19, 1821 (numbered 6 in the list of fact simile documents), by which the testatrix, after giving a life estate in all her property to Dr. G. Rees, wills that, after his decease, her property shall go to the persons mentioned in her will "in the hands of Mr. Fisher, Green Street."

On the part of the plaintiffs, it was argued that this refers to the papers dated 27th August, 1819 (No. 1), and May 10th, 1819 (No. 3). But we agree so far with the counsel for the defendant, that it does not sufficiently appear that these documents were the will to which reference is thus made. But, inasmuch as no testamentary paper is forthcoming which answers the description of "my will in the hands of Mr. Fisher of Green Street," it is proved by the cases of Hitchins v. Basset and Goodright v. Harwood, to which there has already been occasion to refer, that the mere fact of such a will having been once made, the contents of it being unknown, cannot operate as a revocation of any other will which is found in existence after the death of the testator.

For these reasons, we are of opinion that the claimant James Dickinson in his own right, and the other claimants as representatives of George Dickinson, Joseph Ibbott, and Sarah Ibbott, mentioned in the C. B. N. S., VOL. XI.-15

*362] testamentary paper of May 10th, 1819, are each of them respectively entitled to one-seventh of the three undivided fourth parts of the lands and premises in question; and that judgment must be entered accordingly. Judgment for the plaintiffs.

In Tonnele v. Hall, 4 Comst. 140, it was held that where a will otherwise properly executed, refers to another paper already written and so describes it as to leave no doubt of its identity, such paper makes part of the will, although the paper be not subscribed or even attached. But where the maker of a deed of gift, handed it to one to hold till it was called for and referred tɔ it in his will thus: "I give and bequeath to my son S. in addition to what I had given him by deed of gift,”—it

was held the reference was not sufficient to incorporate it into the will, and parol evidence was not admissible to show that it was the deed referred to. Bailey v. Bailey, 7 Jones' (Law) N. C. 144.

It is text law that a will unmistakably referred to in a codicil, is proved by the proof of the codicil: Mooers v. White, 6 J. Ch. 360 (375*); Haven v. Foster, 14 Pick. 534; Duncan v. Duncan, 23 Ill. 364; Murray v. Oliver, 6 Ire. Eq. R. 55.

LIDGETT and Others v. PERRIN and Another. Nov. 18.

Goods were put on board a ship consigned for Calcutta, at 39s. per ton "payable in London :" -Held, that it was for the jury to say from the surrounding circumstances whether the contract was a contract for "freight" contingent on the ship's arrival at her destination, or for a sum payable on the receipt of the goods on board her.

THIS was an action brought in the Sheriffs' Court, London, by a plaint issued on the 13th of September, 1860, to recover the sum of 371. Os. 10d. for freight and primage of 300 boxes of soap alleged to have been shipped by the defendants on board the Earl of Eglinton, of which the plaintiffs were the charterers, on a voyage from London to Calcutta.

The particulars of demand accompanying the plaint were as follows:

"In the Sheriff's Court, London, &c.

"Messrs. G. & R. G. Perrin,

66

"London, 10th January, 1860. 'Drs. to freight per ship Earl of Eglinton Captain Wardrop, for Calcutta.

*663]

£

s. d. 34 26 1 14 2

*The cause was tried before the Judge of the said Court on the 17th of October, 1860, when the plaintiff George Lidgett