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![handle is hein.slavery/ssactsengr0357 and id is 1 raw text is: JOHNSTON V. JOHNSTON
have been done animo cancellandi ; on the face of it it is most carefully done, and has
all the appearance of design ; the law cannot resort to fanciful suppositions in opposi-
tion to such an act; we admit the act to be equivocal, and that the presumption might
have been rebutted, but we contend that all attempts to rebut it have failed.
Thus stands the argument on the documentary evidence; but when reference is
had to oral testimony to shew that Mrs. Moore did not consider B as cancelled, and
that her affection to her son [445] Thomas continued unabated till her death, the
facts established by evidence utterly refute any such notion.
Mr. French shews his impression of what the deceased's intentions were, by the
reasons he gives for not having, according to her request, sent Mr. Butler to her: all
the witnesses speak to her displeasure, her dissatisfaction, and her acrimony (these
are their expressions) at her son Thomas's marriage; to the bitter reproaches and
opprobrious epithets she lavished upon him-to her declarations that she now con-
sidered herself as having no relations ; and above all, there is clear testimony of the
anxiety she expressed to the latest moment of her life, to see Mr. Butler for the
avowed purpose of making a new will. It is in vain, in opposition to such stubborn
facts, to argue that her letters begin and end with those expressions of affection and
endearment, which a mother usually employs when writing to a son; that her anger
was only occasional, and that she never seriously came to the resolution of making
a new will.
The sum of the argument is that there is clear proof of the cancellation of B-
that from the facts and documents before the Court, it is equally clear that if she
intended to revoke A she must be presumed to have intended at the same time to
revoke B; and though she might not, and probably did not, intend to die intestate,
yet it is obvious that neither of the wills before the Court contain the disposition she
intended to make of her property ; [446] whatever that disposition might have been,
it would probably have been inofficious. It may be some satisfaction, therefore, to
the Court (if it is permitted to courts of justice to feel satisfaction on such subjects),
that the only conclusion of law at which it can arrive is to pronounce for an intestacy,
since there can be no doubt but that such a sentence will make a more just disposition
of the property of this unhappy lady, than she, if she had lived a short time longer,
would herself have made of it by will.
Feb. 5.-The Judges Delegates affirmed the sentence of the Prerogative Court of
Canterbury ; but gave no costs.
[447] JOHNSTON V. JOHNSTON. Prerogative Court, Hilary Term, Feb. 19th, March
1st, 1817. -The birth of children, combined with other circumstances, will revoke
the will of a married man.
[Applied, Castle v. Torre, 1837, 2 Moore P. C. 133.]
James Johnston made a will on the 21st of July, 1793; he was then resident in
the island of Jamaica, and had two children, a girl and a boy, and his wife was
pregnant. By this will he bequeathed 10,0001. to his daughter, 10,0001. to the
child of which his wife was ensient, and if more than one, then 10,0001. to each, and
the residue of his property to his son. He quitted Jamaica shortly after the making
of this will, and returned to England, where he continued to reside till his death,
which happened suddenly, on the 3d of July, 1815, at his house in Wimpole-street;
he had four children born subsequent to the date of his will; and his personal property
at the time of his decease amounted to nearly 300,0001. His widow was possessed of
a considerable landed estate in fee.
The will of the 21st of July, 1793, was propounded by the widow, who was one of
the executors under it. The three youngest children, who were minors, appeared by
their guardian, and prayed an intestacy.
At the time of the deceased's death, the will of the 21st of July, 1793, was in the
custody of his agent in Jamaica; but in the pigeon-hole of an [448] escrutoire in the
library in Wimpole-street was found a will bearing date June 21, 1793, originally
prepared for execution, but afterwards altered in several places by the deceased, and
obviously used as a draft for the will of July 21, 1793. There was also found within
the blotting paper leaves of a writing book in the same escrutoire (a) the sketch of a
(a) This paper was propounded in the Prerogative Court on the 26th of June, 1816,
as the last will of the deceased; but the Court held that it could not be entitled to
I PHILL. ECC. 445.
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