fell with it; but that was subject to this condition, that if the court thought the codicil was independent of the will, then it might be admitted to probate. I have tried in vain to get a clear idea of what is meant by being independent of the will, and I endeavoured, in Black v. Jobling to express the difficulty I felt in giving a clear significance to that term as constituting a ground on which this court could act. I said there that any codicil that makes any disposition of property at all must be considered to be dependent on the will which disposes of the rest, for the codicil conveys only a part of the testator's intention regarding his property, and that it was impossible to pre. dicate of any particular bequest in a codicil

that the testator would have made it if he had disposed of his other property in any different manner than that expressed by his will. That was the difficulty the court felt in Black v. Jobling, but it seems to me that the statute has settled the matter. After the passing of the statute, unless the court is determined to shut its eyes to the words of the Act, it is no longer competent to hold that any paper properly executed has been revoked unless it is destroyed animo revocandi. The words of the statute are, "no will or codicil, or any part thereof, shall be otherwise revoked than as aforesaid, or by another will or codicil, executed in the manner hereinbefore required, or by some other writing, declaring an intention to revoke the same, executed, in the manner in which a will is hereinbefore required to be executed, or by burning, or tearing, or otherwise destroying the same, by the testator, or by some person in his presence, or by his direction, with the intention of revoking the same." It seems to me that any decision which would hold that by reason of some speculation as to the testator's intention, or by reason of some supposed intimate connection between the will and the codicil, the paper would be revoked in any other way than that prescribed by the words of the statute cannot be maintained. In Black V. Jobling, and In the Goods of Savage I held that the words of the statute were imperative and that the court could not enter into the intention, and that the degree to which the two papers were connected could not be inquired into. But now it is said what a difficulty there will be, because the will being destroyed, a great part of the codicil will be unintelligible. It is true but it has no bearing upon the question whether the codicil is intended to operate. A man may so refer to a will in his codicil that without the will the disposition of his property in the codicil cannot be carried out, but that does not make the paper less testamentary. That is a matter of construction for the court. It may well be that though the will is revoked it might assist the court in the construction of the codicil. I think the codicil here ought to be admitted to probate, but it does not revive the will which had been previously revoked. Proctor, Toller.

[PROB.

heard of since 1853. The wife's next of kin applied at her death for administration as in the case of a widow.

The court held that it was the duty of persons applying under such circumstances, to prove affirmatively that the party whom they claimed to represent had survived the other. In this case, as the seven years' presumption did not arise until 1860, four years after the death of the wife, it refused to grant administration to her next of kin until the husband's representatives had been cited.

MRS. JANE CHAMBERS NICHOLLS died 15th July 1856, intestate. In 1845 her husband was convicted of

felony, and was sentenced to seven years penal servitude. He subsequently went to Australia, and was last heard of in the year 1853. Mrs. Nicholls was entitled under the respective wills of Mary and Richard Eves to two sums of money on the death of her mother, Jane Dear. The mother died 19th Aug. 1864, and failing her husband, the three brothers of Mrs. Nicholls became her next of kin, and the only persons entitled in distribution.

Dr. Tristram now moved that administration of the effects of the deceased, be granted to her brother as one of her next of kin, without citing the husband, or his representatives. He relied

on:

Satterthwaite v. Powell, 1 Curt. 705;
Underwood v. Wing, 24 L. J. 293, Ch.;
In the goods of Wainwright, 1 S. & T. 257;
In the goods of Ewart, 1 S. & T. 258.

Cur. adv. vult.

Lord PENZANCE.-The court took time to consider the cases bearing on the question discussed here the survivorship of husband and wife. The intestate, Jane Nicholls, was a married woman whose husband, in 1854, was sentenced to seven years' penal servitude-though that has not much bearing on the question to be determined. Jane Nicholls died 19th July 1856, and her husband, who had been for some time out in Australia, was last heard of in 1853. The applicant in this case is John Dear, a brother of Jane Nicholls, who asks for a grant to his sister's estate, which consists of legacies subject to a life interest, which did not fall in until 1864. The married woman Jane Nicholls, having died in 1856, it was contended that her next of kin were entitled to a grant, unless it could be shown by the representatives of the husband if he were dead that he had survived his wife. The cases to which the attention of the court was called were, first, Satterthwaite v. Powell, in 1 Curt.; a case in Chancery (Underwood v. Wing, 24 L. J. 293); also a case in 1 Sw. & Tr. 257 (In the goods of Wainwright); and a case on the following page (In the goods of Ewart). It is not necessary to go into the facts of these cases. They are cases in which the husband and wife perished by drowning about the same period, and it was not possible to know which survived the other. But the mode in which this court, and the court of equity, and all courts, deal with such a state of things, is to say that those who depend upon the survivorship must prove it affirmatively. So that where a husband and wife die about the same period, if the husband's next of kin came forward to claim administration to the wife's estate on account of the husband surviving the wife, they must show that such is the fact. And conversely, if the next of kin of the wife desire to take the grant, they must show that she survived him. But it

appears to me that these cases have no application to the facts now before the court. There is no question here about both perishing at the same time. The state of things is simply this, was the husband alive when his wife died in 1856 ? It is not positively known that he is dead now; but there is the fact of his being in a foreign country and being last heard of in 1853 by his friends and relatives. Thereupon the applicant claims the benefit of the presumption of law which arises in this case, at the end of seven years after he was last heard of. That would carry his death to 1860. If that presumption is to operate, then the husband survived the wife. The present case, therefore, is the common case in which a married woman dying her husband is entitled to represent her if he is alive, and her husband's representatives would be entitled if he had survived her. It is the common practice in the court for the next of kin of a married woman coming here for a grant to be called to swear that she died a widow. That form was modified in one of the cases cited from 1 Sw. & Tr. by Sir C. Cresswell, who, instead of an oath that both the parties died about the same time, allowed them to swear that there was no reason to suppose that the husband survived the wife. In this case the next of kin of the married woman have no claim to the grant unless they can show that the husband was dead and she was a widow. They seem to me to have failed to do that; and the husband's representatives, therefore, are entitled to be cited before any grant is taken in the mode desired.

Attorney, Bell.

COURT FOR DIVORCE AND MATRIMONIAL CAUSES. Reported by W. LEYCESTER, Esq., Barrister-at-Law.

(Before Lord PENZANCE, J. O.) Wednesday, Feb. 28. LEE V. LEE. Matrimonial suits-Cross suits-Charges of cruelty Surprise-New trial granted as to some charges, and refused as to others.

A wife charged her husband with cruelty by the communication of venereal disease, and also by sundry acts of personal violence. The court at the trial found the latter proved, but gave a verdict for the husband on the charge of infection. At the application of the husband a new trial was granted on the ground of surprise, but it was ordered to be confined to the charge of personal violence, as to which the surprise had occurred.

THIS was a wife's suit for the dissolution of her marriage on the ground of her husband's cruelty and adultery, and the husband had traversed her allegations. He also presented a petition for restitution of conjugal rights, and the wife answered by pleading adultery and cruelty. The two suits were heard together before the court without a jury on 29th Nov. 1871. The cruelty charged by the wife consisted of several acts of personal violence, and also of the communication of venereal disease. The court came to the conclusion that the adultery and infection, were not proved, but it found the charges of personal violence in favour of the wife. Subsequently the husband obtained a rule nisi for a new trial on the

[Div.

issue of cruelty on the ground of surprise, and on the rule being made absolute after argument, the question was raised whether the new trial should include the charge of infection, or be confined solely to the charges of personal violence which had been found against the husband.

Dr. Spinks, Q. C. (Inderwick with him) for the wife.

D. Seymour, Q. C., and G. Browne, for the husband.

Lord PENZANCE, J.O.-In this case an application was made for a rehearing, on the ground of surprise, and the court having intimated that the application would be granted, a question arose whether the wife, who was the petitioner in one suit and the respondent in the cross suit, was or was not entitled to have the charge of communition of venereal disease which she brought against her husband included in the questions to be submitted to the jury on the rehearing. The husband contended that this question ought not to be included in the new inquiry because it was satisfactorily disposed of by the court on the last occasion, and that he ought not to be put to renewed expense by producing a great deal of medical and other testimony if the question were to be tried a second time. The same issues were raised in the cross suits-the wife alleging that her husband had treated her with personal violence on four or five occasions, which she specified, and, further, alleging the communication of venereal disease, and making a charge of adultery, founded on the same allegation. In granting a rehearing the court was mainly influenced by the fact that some evidence was given by the wife in support of one of the charges of personal violence, which the husband had no reason to expect. She swore to a particular person as having been present when the act was committed, and the husband having no reason to suppose that his name would be mentioned, that person was not in attendance. That person has now made an affidavit, stating that he was present on that occasion, but that nothing of the kind stated by the wife occurred. The court thought there was a fair ground of surprise, on which a new trial should be granted, but it is obvious that this being the ground of the new trial, it does not extend to the reopening of the question whether or not venereal disease was communicated to the wife. Under all the circumstances, I think it would be unfair to put him to the cost of a second inquiry into that question. The court, therefore, proposes so to frame the issue for the jury as to confine it to the question whether the husband was guilty of cruelty by personal violence.

Attorneys for wife, Aldridge and Co.
Attorneys for husband, Paterson and Co.

June 4 and 18.

(Before Lord PENZANCE, J.O.)
COVELL v. COVELL.

Judicial separation - Alimony-No petition for alimony pendente lite-Permanent alimony. After a decree of judicial separation had been granted, the wife presented a petition for perma nent alimony. No petition had been presented, and no order had been made for alimony pendente

lite. The husband, under the circumstances, appeared under protest, and put in no answer. The court held that it had power to allot permanent alimony, although there had been no alimony pendente lite, and directed the husband to answer his wife's petition on its merits.

THIS was a wife's suit for a dissolution of her marriage on the ground of her husband's adultery and cruelty. The cruelty was proved, but the allegation of adultery failed, and the court decreed a judicial separation.

No order for alimony pendente lite had been made, but after the decree the wife presented a petition for the allotment of permanent alimony. The husband did not answer, but appeared under protest.

Notice having been given that application would be made for an allotment of alimony,

G. Browne, on behalf of the husband, objected to the motion on the ground that there had been no allotment of alimony pendente lite. The court has no power to entertain a petition for permanent alimony after the final decree in the case had been pronounced. Rule 91 (Rules and Regulations, 1866), provides "That a wife who has obtained a final decree of judicial separation in her favour, and has previously thereto filed her petition for alimony pending suit, on such decree being affirmed on appeal to the full court, or after the expiration of the time for appealing against the decree, if no appeal be then pending, may apply to the Judge Ordinary by motion for an allotment of permanent alimony; provided that she shall, eight days at least before making such application, give notice thereof to the husband, or to his proctor, solicitor, or attorney." That rule does not apply, because there has been no previous petition for alimony pending suit. Neither does rule 93, which provides that permanent alimony shall commence and be computed from the date of the final decree, but the rule is to be read in connection with rule 91. In suits for dissolution of marriage the order for permanent alimony, under sect. 32 of 20 & 21 Vict. c. 85, must be embodied in the decree dissolving the marriage.

Vicars v. Vicars 29 L. J. 20 and Note P. & M.; Winstone v. Winstone and Dyre, 30 L. J. 109, P. & M.; 3 L. T. Rep. N. S. 895.

And by analogy the same rule should hold good in suits for judicial separation. Here a decree of judicial separation has been pronounced and the respondent is not within the jurisdiction of the court. No case can be found in the ecclesiastical courts in which alimony has been granted after suit, except where the decree has been appealed from.

Dr. Tristram for the petitioner.-There is no analogy between a decree for dissolution of marriage and a decree of judicial separation. In the case of dissolution of marriage, the husband is absolved from the further support of his wife; in the case of judicial separation he remains still liable for her maintenance. [Lord PENZANCE.Does not the whole question turn upon the practice of the Ecclesiastical Court, and under that practice, could the wife apply for permanent alimony after the decree was made ?] Certainly; she could not apply before. Moreover, the respondent had here left the country during the progress of the original suit; and if we had filed a petition for alimony pendente lite we could not have alleged faculties. Since then considerable property has come to the Vol. XXVII., N.S. 678.

[Div.

respondent, and it is because of his possession of faculties we now apply for permanent alimony. Where permanent alimony is allowed, it is in the power of either party to apply for a reduction or increase of it, according to the varying faculties of the husband. The court has still seisin of the cause, and may entertain the petition. Counsel referred to

Burn's Ecc. Law, vol. 2, 508 c. 9th edit.;
Westmeath v. Westmeath, 2 Hagg. Eccles. appendix,
Cur. adv. vult.

134.

June 18.-Lord PENZANCE, J.O.-This was a suit between husband and wife in which the wife obtained a decree of judicial separation. Pending suit. No order for alimony was made or applied for, neither was there any application made when the decree of separation was pronounced. But since that time a petition has been filed by the wife for an allotment of permanent alimony. The husband has not answered, but has appeared under protest, and contends that the court has no power to decree permanent alimony under such circumstances after the decree of judicial separation. The court looked for some authority for this contention, and some passages were referred to in Burn's Ecclesiastical Law which had nothing to do with the point. A general proposition was stated there that the court has power to allot alimony to a wife after a decree of judicial separation, but it makes no distinction as to the time when the court is to exercise that power. It was further argued that the court has not the power by analogy with the powers conferred on the court by the 32nd section. The words of that section are some

thing to the effect that upon making the decree for a dissolution of the marriage the court may make such order by way of provision for the wife as it thinks fit. It seems to me that the argument drawn from the specific words of the statute can apply only to the subject with which the statute deals-suits for dissolution-and that the power to order the husband to make provision for the wife after dissolution has no relation to permanent alimony on a decree of judicial separation. By the language of the statute, the rules to guide the court in a matter of this sort must be the practice of the Ecclesiastical Court. I have endeavoured to find whether in the Ecclesiastical Court any such distinction had ever been made, but I find no trace of it. I have conferred with the registrars of the court, and they are unable to tell me of any such practice. There is a case, Cook v. Cook (2 Phill. 40). It is not a decisive authority, but it was a case which was discussed in the Arches on appeal from the Commissary Court of the Dean and Chapter of St. Paul's. In the inferior court there had been no decree for alimony pendente lite, but there had been a decree of divorce à mensâ et thoro, and after that a decree for permanent alimony. There an appeal on the amount, and Sir John Nicholl, in supporting it, said, "The court below then proceeded to allot a permanent alimony to the wife; no alimony during the suit had been applied for; but, as the wife had a separate income, it was understood that an application for any further allowance during the suit, as alimony, would be resisted; and she remained content with her separate allowance. I consider this as tantamount to alimony during suit." What the bearing of the remark is I don't know,

was

July 11 and 12.

(Before the LORDS JUSTICES.)
MEINERTZHAGEN v. WALTERS.

Will-Gift of residue to wife and children-Advances to children Double portions Ademption Hotchpot.

A testator gave the residue of his estate to trustees upon trust to pay the income of one moiety to his wife during her life, and to divide the other moiety between his children in equal shares as tenants in common.

Subsequently to the date of his will, the testator made considerable advances to some of his children:

Held (affirming the decision of Bacon, V.C.), that the widow was entitled to the income of a moiety of the actual residue only, and that she was not entitled to have the advances made to the children brought into account in estimating the residue, but that the advances could only be taken into account in estimating the shares of the children among themselves in the residue.

Montefiore v. Guedalla, 1 L. T. Rep. N. S. 251; 1 De G. F. & J. 93, distinguished.

THIS was an appeal from a decision of Bacon, V.C. The hearing in the court below is reported in 26 L. T. Rep. N. S. 469, where the facts will be found fully stated.

The Vice-Chancellor having held that the testator's widow was entitled to the income of a moiety of the actual residue only, and was not entitled to have her income increased by having the advances brought into account in estimating the residue, the widow appealed from his decision.

Eddis, Q.C. and Vaughan Hawkins, in support of the appeal.-The advances made by the testator to his children subsequent to the date of the will must be held to be satisfactions pro tanto of their shares of the residue, and the sums so advanced must be brought into hotchpot before the residue is divided. In

Ex parte Pye, 2 White & Tud. L. Cas. 3rd edit. 331;
Watson v. The Earl of Lincoln, Ambl. 325;
Pym v. Lockyer, 5 Mỹ. & Cr. 29;

Tuining v. Powell, 2 Coll. 262.

the presumption against double portions was held to extend to the case of persons not children of

[CHAN.

the testator. In the earlier cases this doctrine was applied only to pecuniary legacies, but it is now well established by Montefiore v. Guadalla (1 L. T. Rep. N. S. 251; 1 De G. F. & J. 93), that it applies equally to a bequest of a share of residue. The principle of the rule, if carried to its logical conclusion, would entitle the widow in this case to have the advance brought into account in estimating her share of the residue. There would be no more hardship in applying the rule to this case than in many other cases in which it has always been applied. If a pecuniary legacy to a child were totally adeemed, a mere stranger entitled to a share of the residue would benefit by the ademption, and there does not seem to be any reason on principle why the same effect should not be produced by the ademption of a share of the residue. The principle of the rule is that the testator, in making advances in his lifetime, is paying off pro tanto a charge on his estate. It was contended in the court below, that as the provisions of the Statute of Distributions as to hotchpot do not operate as between the widow and the children of an intestate, it must be inferred that the rule as to ademption would not operate in favour of a widow, but Smith v. Strong (4 Bro. C. C. 493) shows that no conclusion can be drawn from the case of intestacy applicable to the division of a residue under a will. They also referred

to

Kirk v. Eddowes, 3 Hare, 509;

Lady Thynne v. The Earl of Glengall, 2 H.L.Cas. 131;
Rickman v. Morgan, 1 Bro. C. C. 63; 2 Bro. C.C. 394;
Trimmer v. Bayne, 7 Ves. 508;

Beckton v. Barton, 27 Beav. 99;
Dawson v. Dawson, L. Rep. 4 Eq. 504.
Without calling upon

Amphlett, Q.C. and Latham, who appeared for the executors and trustees of the will, or

Charles Hall, Jackson, and Cracknall, who ap

peared for the children,

Lord Justice JAMES said:-The contention of the appellant in this case is so shocking to my common sense and to my sense of justice that I am glad to find that there is no foundation in the authorities for holding that the law of England is subject to that opprobium to which, if the law were as alleged, it would be justly subject in the eyes of the civilised world. The contention of the appellant is, that if a father leaves his residue between a child and a stranger, and then makes a large advance to the child and also a large advance to the stranger, there being nothing more than the will and those advances, the law of England is this, that the child is obliged to bring what he has received into the residue, and that the stranger is not to bring in what he has received, but is entitled to have the residue enlarged by that which has been given to the child. The origin of the rule as applied to legacies is this-that where a father makes a provision for his children, leaving them legacies, and afterwards gives a portion to one of those children, it is supposed from what is that he did not intend to make any real difference known to be the ordinary intention of testators, between his children, but that the child advanced in his lifetime should take the sums advanced pro tanto by way of ademption of his legacy. No doubt that principle has been necessarily applied to the advantage of residuary legatees, because where a legacy fails, or is satisfied, or is adeemed, from the very nature of the case-from the nature of the residue--the residuary legatee who takes his