The danger of a will’s loss or destruction preys upon some minds, a subject which must be recurred to in the last chapter of this book. Various expedients to facilitate the finding of the will are adopted. Dr. Thomas Cheyney, Dean of Winchester, whose will was proved in 1760, began a codicil thus: “Whereas by my last will (which may be found in the innermost part of a little walnut bureau with one glass door in my long gallery)....” Lord St. Leonards, the lawyer, made every effort for the safety of his will, it being carefully kept in a strong-box and securely guarded, as was thought; but when he died in 1875, and the box was duly opened, the will was missing after all.
“Thackeray,” says G. W. E. Russell in “Seeing and Hearing,” “did not traffic very much in wills, though, to be sure, Jos. Sedley left £1,000 to Becky Sharp, and the opportune discovery of Lord Ringwood’s will in the pocket of his travelling-carriage simplified Philip’s career. The insolvent swindler, Dr. Firmin, who had robbed his son and absconded to America, left his will ‘in the tortoiseshell secretaire in the consulting-room, under the picture of Abraham offering up Isaac.’”
A missing will is the novelist’s delight. In Miss Everett Green’s “A Will in a Well,” among the incoherent sentences of a dying man, the words “Search well” are overheard. But it needed an acute intellect to realise, after every effort had been made to find a satisfactory last will, that it was a disused well that should have been scoured for the document. In Mrs. Wilfred Ward’s “Great Possessions” a lost will is found, and redeems the testator’s reputation.
No hiding-place is too unlikely. When Lord Hailes died in 1792 no will was to be found. The daughter and only child had given up hope of possessing the mansion-house, but when her servants were locking it up and closing the shutters, from behind a panel there fell the will which secured her the estate. Harris Norman, a pedlar, who died worth over £11,000, left a will which was found in a silk hat; and lately a curious story was told in the Probate Court of a will found in a clock. The deceased’s husband, it was stated, made a search for a will, but was for some time unsuccessful. As the greater part of his wife’s property consisted of freeholds, in which under an intestacy he would take but a curtesy interest, it was with anxiety that the search was made. Eventually, at the back of a clock on the mantelpiece, the will was found, betrayed by the stopping of the clock. Not unnaturally a charge of forgery was set up. It is certainly dangerous, for more than one reason, to hide a will securely away. In this case the judge pronounced in its favour. “What more likely than after the deceased had been worried to make a will for little Hilda (her niece), she thought that she would leave her property to her husband? Was it likely that she would tell any one? Was it not likely that she would put it in some place—as in the back of the clock—which would not be opened for some days after her death?”
On the other hand, the High Court of Bengal, in 1903, refused to admit to probate a will which was stated to have been searched for and found in a tin box formerly in the possession of one who was said to have been the custodian of the will in his lifetime, and the Court said: “We hold that fraud and deceit were practised at the finding of the will.” Certainly wills are given sometimes to friends for custody, and then themselves bequeathed. Charles Johnson, for instance, seaman of the frigate Coventry, in his will dated 1778, stated that he had two wills in his possession, and these at his death he gave to his friend Henry Dye, belonging to the same ship.
“Memorandum, that on the three and twentieth day of July, 1595, this will was found in the little black trunk of the said Elenor Clarke standing at her bed’s foot, being found locked and opened in the presence of us John Worsopp, William Payne, John Smithe.” The heirs of Charles William Minet, who died in 1874, a descendant of a family which had fled from France at the persecution of Protestants in 1686, were not so fortunate. No will could be found, and his manor-house was sold. But in 1905, on a death in another branch of the family, some neglected cases were examined, and in one of them lay the will. It showed that the estate had been settled in tail, and it was accordingly repurchased, that the testator’s intentions might not be frustrated.
But intentionally or unintentionally, a will may be destroyed. The romance of wills breathes from this codicil to the will of a West Indian merchant. “Grenada, 20th March, 1795. I Simpson Strachan, of said Island, and in the town of St. George Northant, do make this codicil to my last will and testament dated 1786, the day and month I do not at present recollect nor can I have recourse to said will by reason of its being buried under ground to prevent its being burnt by the enemy.” Sometimes a happy chance may preserve the tenour of a will. The estate of a testatrix who died in 1872 being at the time valueless, her will was not proved. But recent improvement in certain property made probate a necessity. The original will, however, had been destroyed in a fire, and only the copy of a copy remained. This copy, though imperfectly transcribed, was admitted to probate, subject to obvious emendations.
At other times a more serious problem is presented. A will may be destroyed by the testator, or in his presence, but not necessarily so as to revoke or annul it. Upon this point interesting actions turn from time to time, and curious family histories are disclosed. It is very difficult to decide in some cases whether the deceased himself destroyed the will or whether at the time he approved of its destruction; the time and temper lost, the publicity involved, show how foolish it is to die intestate. If one wishes the estate to devolve under the statutes for the distribution of intestates’ property, it is still possible to make a will stating that this is the testator’s desire.
As foolish is it to die intending that a torn will shall be valid. In 1908 a Yorkshireman died, leaving as his will one that had been torn in fragments by his wife. Next day she pinned the pieces together, and the matter was dismissed as a joke. The testator only laughed when it was suggested that trouble might ensue through the tearing of the will. “By the Wills Act a will might be revoked by tearing by the testator or by his authority and in his presence. This will had undoubtedly been torn up in his presence, but there was no evidence that it had been done by his authority; indeed the evidence was all the other way.... No will could be revived except by a duly executed document, and similarly the testator could have revoked his will by another will had he wished to do so. It was, however, clear that he always regarded the torn will as a good one and examined it to see if it was legible. Something had been said as to all Yorkshiremen being lawyers. They were a hard-headed people, and the testator’s view was quite correct.” So said the learned Judge.
Of all acts which exasperate the human sense of piety and justice, perhaps the most exasperating is the destruction of a will after the death of the deceased. The destruction of the will of George I. by his son George II. is famous in history, but in view of evidence recently adduced we need not enlarge upon the traditional interpretation. Some wills, indeed, are better destroyed.