Boughey v sir William Moreton prerogative June lady Moreton in pursuance of  power on marriage execute two duplicate of will one she keep and the other be  leave in the hand of a executor soon after her death that in her custody be  find cancel in a trunk with other paper her seal name and entire attestation  of witness tear or cut off sir William swear he believe she cancel it herself  it be find upon the search in the state it how be which be the first time he  ever see it this cancel and cancel duplicate be bring in the matter be bring  before the court to determine whether probate shall be grant to Boughey of the  cancel duplicate or administration shall be grant to sir William as husband  the court be of opinion that a cancellation of one duplicate be in law a  cancellation of both and that as the cancel duplicate be find in her custody  and it do not appear that any other person have access to it it must be  presume the decease cancel it herself therefore refuse to grant probate to  Boughey as pray upon the evidence now before the court but give time to the  next court to determine whether he will propound the cancel duplicate or will  undertake to prove either that the other part be cancel by some other person  or if by decease that she do it inadvertent or accidental and not mind  cancelland otherwise the court decree administration to her as die intestate  to be grant to sir William as husband so in the case of hare v nasmyth before  the house of lord Lord chancellor Eldon say accord to all principle if a paper  cancel and the seal cut off or the name erase be find in a fastlocked place of  the testator the prima fancy inference from that be not that the testator mean  it shall continue to be his will but that the testator be the person that do  that act himself which be find to be evidence by the state of the paper find  in his fastlocked closet vide I shaw S c add n again I be satisfy that the  seal be take away by excision and it appear to mealso that this excision be  prima fancy to be take to be a excision by his own act and that accord to the  principle which you apply to case of this sort the circumstance that it be  find in his own custody and in a place of security and with this excision be  to be take as evidence that it be his own act ibidem but it be believe that  the presumption when a testamentary paper be not forthcoming on the death of a  party and no evidence be give of its destruction by the decease or by any  other person have never be ascertain by a judicial decision in the court of  Westminster hall however it seem probable that those court will be guide by  the principle act upon in the ecclesiastical court for in Moggridge v  Thackwell Ves Lord chancellor Eldon thus express himself Lord Thurlow refer to  the case of the attorneygeneral v siderfin do not take notice of the  circumstance that though there have be a appointment it may have be revoke and  the nonexistence of it be prima fancy evidence of that fact that it be revoke  haggard Ecc er p the only difficulty be to find out some fair ground to  justify the mother in set up such a case all the fact be fair communicate to  her and to her friend and adviser there be no appearance of mystery nor of  concealment the executor be satisfy that the haggard ecclesiastical will have  no existence either in fact or in law nay there be the widow affidavit direct  state that the decease have burn it in opposition to this the mother choose to  set up a case of spoliation against some person it be true that no person be  direct fix upon against who the charge of spoliation be make but on who must  the imputation attach though however she do not direct charge spoliation she  at all haggard ecclesiastical event by necessary implication impute to the  widow perjury in her affidavit of script and answer wherein she swear that she  see the decease burn a paper say I he wish he have never make it and that  while it be burn she read the word I this be the last will and testament the  engross copy which be before the court have the word last will and testament  in a large text hand and haggard ecclesiastical thus strengthen the widow  affidavit the mother brother and sister be entitle to onehalf of the  personalty and I think it more just that the expense incur in this suit shall  fall upon the mother the party in this cause than that any part of the cost  shall fall upon the widow in diminution of her share of the effect I therefore  pronounce against the instrument propound that as far as appear the decease be  dead intestate and I condemn mrs Christiana lily the mother in cost