India Docks-a paper which it was not probable the deceased should long keep by him; and it did not, therefore, appear that the document in question was written shortly before his death. Conjecture upon such a subject was not sufficient, and there was nothing else in this case. The paper appeared to contain merely the first thoughts of the deceased for future deliberation. There were no testamentary declarations, nor any thing which the law requires; and as it was not sufficient to dispose of his property, it could not revoke his former will. Under these circumstances, although they might form a strong claim upon the equity and humanity of the residuary legatee, the court felt itself bound to reject the allegation pleading the latter will.

Arches Court, Doctors' Commons. -Sturges v. Paterson.-This was a cause of legacy brought by Mr. James Sturges, the nephew and a legatee named in the will of Mr. Joshua Sturges, late of the Haymarket, victualler, deceased, against the executor, Mr. Simon Paterson.

The words of the bequest were these, "To my nephew James Sturges my watch and gun, and likewise a book of manuscript receipts marked with the letter R." The will was dated August 12, 1813, and the testator died a few days afterwards, possessed of four watches; viz. a gold repeating watch, valued at about 601. which he had taken in part payment of a debt, a silver watch which had originally belonged to his brother Luke, a pinchbeck watch, and an old silver watch; and the ques

tion was, which of these watches the deceased meant to give by the bequest stated. The executor contended, that it was the silver watch, formerly belonging to Luke Sturges, and accordingly tendered that watch, with the gun and book of manuscripts; but the legatee contended that it was the gold one, and therefore refused to accept the tender of the silver

one.

From the evidence of the legatee it appeared, that the deceased became possessed of the gold watch about a twelvemonth before his death, and from that time, including of course the period of the will being made, constantly wore it until his death, and one of the witnesses stated that the deceased told him he meant to leave it to a nephew of his.

From the evidence for the executor it appeared, that the deceased became possessed of his brother's watch at his death, in the latter end of 1807, and from that time usually wore it. In a draft of his will which he made in January, 1811, he gave a legacy to his nephew in these words, "I will to my nephew, James Sturges aforesaid, at my decease, the sum of my gun, my late brother Luke's watch, and a book of manuscript receipts, marked with the letter" R." but in April, 1812, he became possessed of the gold watch, by taking it in exchange for a debt, at 50 guineas, which was below its value. He wore it for some little time, but considering it too valuable a watch for him to wear, he offered it to Mr. Kirk, a watch-maker, to dispose of for him for 60 guineas, and offered him five guineas for

his trouble if he could find a purchaser. Mr. Kirk not being able to dispose of it, it was returned to the deceased, who then offered it to Mr. Paterson, the executor, for 50 guineas, in part of a debt he owed him. Mr. Paterson had it on trial for three months, but then returned it, thinking that it did not keep good time. The deceased then sent it, in December 1812, to the maker, Mr. Highfield, of Oxford, to be regulated, who did not return it till the 7th of August, 1813, at which time the deceased was confined to his bed by the illness of which he afterwards died. It was, therefore, deposited in a drawer, but the deceased was very particular in giving directions for its being carefully wound up, &c. He always wore it, except when it was sent to be regulated, when he resumed the use of his brother Luke's silver watch, and had that in use when he was taken ill, and afterwards when he made his will, but the gold one had been then returned to him. He always seemed desirous to dispose of the gold one, and at one time said, "a person gone to Ireland had got it on trial, and he hoped he should get rid of it;" and at another time that he had sent it to be regulated, in hopes that when perfect he might get rid of it, as it was too high priced for him."

Dr. Jenner, for the legatee, ocntended that the deceased brother Luke's watch was the best watch he had when he made his will in 1811, and this was the watch he then intended to leave to his nephew, with the other articles and a sum of money. But having subsequently acquired a

more valuable one, it was most probable the expression" my watch," referred to that, as the sum of money was then omitted. It was true the deceased had at one time the intention of selling this watch, but this intention was not known to his friends, and he even declared to one of them that he meant to give it to his nephew. It was evident the words of the bequest could only apply to the gold watch, or his brother Luke's: the gold watch was the one he most usually wore, and on which he set the highest value, and the expression " my watch," was therefore most likely to relate to that. In his former will he had designated the silver watch as his brother Luke's, but had not so designated it in the latter, and therefore could not mean the same watch he did then, and if not the same, then the gold one could be the only one meant. He trusted therefore the Court would award the gold one to his client, with

costs.

Dr. Swabey and Dr. Lushington for the executor, argued that the bequest being ambiguous, not in terms but from facts, would admit of the production of evidence to interpret the contents, that the onus of producing this evidence, and of shewing to the Court that the deceased clearly intended the gold watch was upon the legatee, because he was the party making that allegation, and consequently bound to prove it, and was to be considered in the light of a creditor, bound to make out his clain. By law, the executor was the party most favoured, and, therefore, if, after all the explanation given, the matter

should

should remain doubtful, the scale should descend in favour of the executor. It was clear from the former will, that the deceased meant to give the legatee not a watch, but a particular watch, and, therefore, the legatee must shew that his intention had changed, and if the matter still remained doubtful, the executor would have the right of election subject to equitable restraints. The Court could only pronounce for the legatee if it should be satisfied that the gold watch was the one intended. In case of doubt or leaning to the contrary, the executor would be entitled to the prefer

ence.

They then contended, that it was not the deceased's intention to give the gold watch, because he had it not in use as an ordinary watch, particularly at the making of the will, but having acquired it as property, he was desirous of converting it into money, and though he wore it occasionally, he constantly offered it for sale. His original intention was not to give valuable property to this nephew, but memorials of regard, family remembrances, rather than pecuniary profit, and this was manifest not only from his former will, but also from the articles associated with the gift of the watch, the gun, and manuscript book. There was no proof that the gold watch was the identical watch the deceased intended to give to this nephew, and nonconstat that the declaration of his intention to give that watch to a nephew of his might not relate to some other nephew. The legatee had therefore failed to make out his case, and they trusted the Court would pronounce for the

sufficiency of the tender of the silver watch, with costs.

Sir John Nicholl stated the circumstances of the case, and the point in issue between the parties. On the one hand, it appeared that the gold watch was a very valuable one, taken by the deceased in satisfaction of a debt, and that he had often tendered it for sale; but these circumstances were not conclusive, as it appeared, on the other hand, that the deceased, after acquiring the gold watch, constantly wore it, and only used the silver one when the gold one was sent to be repaired. It was sent to Oxford for that purpose in December, 1812, and not returned until the 7th August, 1813, when he desired his niece to take care of it, and gave her particular directions about winding it up, and it was much more likely when he made his will so soon afterwards, that he thought of this gold watch which he esteemed so much more than the silver one. The executor had brought forward the former will, contending that because the deceased had specified the silver watch in that will, that must be the watch he meant to give when he had not so specified it; but the Court was of opinion, that an opposite construction was to be put upon this circumstance: he meant to give the best watch he then had, having two inferior ones; but having afterwards acquired and used the gold watch, that would rather seem to come under the description he then used, of "my watch," and that expression to have been used in contradiction to "my brother Luke's watch." If he did not mean the gold watch,

he

he ought, and it was most likely he would have so expressed himself; or the common interpretation would be that it was the gold one that had thus become more peculiarly his, by purchase, and by having superseded the silver one in use but there was, besides, his declaration that he did not mean to wear it, but to give it to his nephew: this observation distinctly applied to the gold watch; the only question then would be, who was the nephew intended? and that was answered by the words of the bequest. Whatever therefore might have been his intention previously, it was evident that after acquiring the gold watch, that was the one he meant to give to his nephew, the party now claiming. The Court therefore pronounced for the gold watch claimed, with

costs.

Prerogative Court, Doctors' Commons.-Ryan and others, by their Guardian, v. Ryan.-This was a question as to the interest of parties claiming a right to the letters of administration of the effects of Philip Ryan, Esq. late of the city of Copenhagen, deceased.

He died at Hudson's Hotel, Covent-garden, in June 1808, leaving a widow, several children by a former marriage, and one by the latter, the parties in the present proceeding. The letters of administration were claimed on the one hand by the widow, and on the other by the children of the former marriage, denying the validity of the latter one, on the ground of the former wife being still living.

The evidence in support of the

widow's claim fully established the facts of the two marriages, and also that the first wife and the deceased, being domiciled in the kingdom of Denmark, had entered into a contract of separation, in which it was stipulated (amongst other things) that both parties should be at liberty to marry again with the consent of the King of Denmark, which the laws of that country empowered him to give. An act of divorce was accordingly obtained from the King; and the authenticity of this act, and its being, by the laws of Denmark, an effectual dissolution of the marriage contract between parties, subjects of that country, was proved by the evidence of some of his Danish Majesty's ministers, and persons conversant with the laws of that country.

No opposition was offered; aud Sir John Nicholl observed, that the shape in which the case presented itself imposed no necessity on the court to examine the grounds of nullity. The divorce was effectual, as a divorce a vinculo matrimonii, according to the laws of Denmark; and it was therefore not necessary to inquire whether the grounds of it would be sufficient here, as it was established that the parties were domiciled in that country: nor was it necessary to inquire whether such a divorce could invalidate a marriage had in England, if set up in a suit between the parties themselves. The present was only a case of interest; the fact of marriage was apparent, and not denied; the legal presumption was, therefore, in its favour. Semper præsumitur pro matrimonio,

and