Bagnall against sir jacob gerard downing bart prerogative court Michaelmas  term November that a paper pronounce to be testamentary on the ground that it  be to take effect after death it contain a direction to the executor under the  will of the decease sir George Downing Bart die in June leave a natural  daughter by mrs townsend his housekeeper videlicet mrs Bagnall on that  September he make his will and give all his real and personal estate to his  cousin sir Jacob Downing and make he executor on d December after birth of mrs  Bagnall he make a codicil and give to mrs townsend a annuity of for life and a  legacy of l and to mrs Bagnall he leave a annuity for life of l sir Jacob have  take probate of say will and codicil decease lodge money in mrs townsend hand  which we say he intend shall go to his daughter he write with his own hand a  paper attest by three witness which be in these word January that this be to  satisfy my executor and all other person that what money mrs townsend my  housekeeper have that be I I give it her for the use of her daughter beside  what I have give to her daughter by the codicil to my will g downing witness  John pain David Lewis Richard lune lee sir Jacob do not prove this paper but  bring a bill in chancery against mrs townsend and her daughter to have the  money in the mother hand pay to he and for a discovery of the sum this paper  be hereupon produce Lord chancellor doubt whether it be not testamentary and  direct it to be try here Bagnall thereupon cite sir Jacob to take a additional  probate with this paper have plead the decease declaration that he mean the  money in townsend hand for Bagnall they say sir George mean this paper only as  a declaration of what money be in townsend hand dr Paul for sir Jacob Downing  decease give mrs townsend annuity the furniture of her room and l legacy on  that June sir George die after his death the will and codicil be find in his  custody townsend present at find they but say nothing of this paper on that  June sir Jacob prove the will and codicil without opposition No pretence then  of any other testamentary paper he file a bill in chancery for a discovery and  then townsend produce this paper the question be whether this paper be  testamentary or not decease though press by townsend refuse to make a new will  or codicil we may object to townsend evidence because she be a trustee for  Bagnall witness for Bagnall mary townsend deponent be housekeeper to decease  for thirty year before and to his death that January he in deponent presence  write and sign the paper plead by Bagnall and then execute it can be certain  lee but believe the witness see he sign it decease deliver it to deponent and  bid her take care of it and say life be uncertain I hope you will not have  alley trouble but if you shall this will secure the note I have give you for  Polly the deponent several time tell the decease she wish he will secure the  note for Polly some other way for she be afraid she shall have trouble after  his death he reply he know of no other way and say the paper he have give her  will secure at his death the money and note he have or shall give her and be  in her hand at his death and that he can give all he have by such a paper and  say if he shall give deponent but a year she will live on it but Polly must  not live so and make lee er p strong declaration of affection to deponent and  her daughter decease say will may be burn and he do not know any safe way than  give it his daughter by the paper in the deponent custody in the time of the  rebellion the deponent hide the money and note but decease think deponent do  not hide it safe and he send for deponent brother and bid he hide it and say  it be his daughter money Richard lune deponent be a witness to the paper plead  pain have sign it when deponent come into the room deponent do not remember he  see decease sign it witness for sir Jacob Downing John pain deponent be a  subscribe witness to the paper plead he do not apprehend decease write or sign  it as a testamentary paper by reason he do not publish it as such but after  decease have sign it he say to deponent in presence of the other subscribe  witness lee pain this be to satisfy my executor that some money which mrs mary  have of I in her keep in case of my death be for her and her daughter use till  such time as their annuity become Payable deponent believe decease mean say  note as a declaration of trust only to what money say mary townsend have at  that time of his in her hand and not as a testamentary paper and as such a  declaration of trust deponent then take say paper to be in it deponent be a  ride officer of the custom and have l a year from sir Jacob Downing David  Lewis deponent be servant to decease thirty year before and to his death  deponent do not apprehend decease write the paper plead as a testamentary  paper because he do not publish it but decease immediate after he have sign it  declare that say paper be only to secure some money which mrs mary then have  of his in her hand in case of his death for her and her daughter subsistence  till their annuity be Payable from such declaration deponent believe decease  intend such paper as a memorandum only as to what money say mary townsend then  have of his in her hand and not as a testamentary paper and as such deponent  then take it to be read order of the court of chancery for the party to take  the opinion of the prerogative court whether such paper be testamentary or not  dr Simpson argument for Bagnall there be no question as to the will and the  first codicil we have cite sir Jacob to take a additional probate with this  paper as a codicil this paper be write in contemplation of death it amount to  a direction lee to the executor not to demand the money of townsend it be to  give satisfaction to the executor and therefore be to take place at his death  be mention the legacy give to his daughter by his codicil none of the witness  say the paper be intend as a absolute gift inter live no declaration contrary  to what appear on the paper can be receive in evidence drs pinfold and hay  same side delegate garden against the earl of orrery and other a garden v the  earl of orrery and other pick off that Dec the question arise respect a  codicil to the will of the duke of Buckingham and Normanby the judge present  at the sentence be Mr justice Burnett Mr baron clarke dr Audley dr pinfold jun  dr walker and dr collier a this paper alter the will and codicil by revoke in  part the will and codicil as to the residue and therefore be testamentary dr  Paul contra for sir Jacob testator must have animus to cause to testify calvin  lexicon f donation death causan et bequest differ judgment sir George lee I be  of opinion the paper be testamentary the witness show that the decease intend  it shall take effect after his death and upon the face of the paper it be a  direction to his executor it refer to his will and codicil and give the money  in townsend hand in trust for her daughter beside what he have give to say  daughter by his codicil which have be prove I therefore pronounce for the  paper plead as a codicil and assign sir Jacob Downing to take a additional  probate of that paper by the rd session of this term No cost