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the respondent, for her own proper use. But in regard the Lord Chief Justice Raymond, then also one of the Lords Commissioners, was absent, their Lordships were pleased to declare, they would consult him upon the case, and directed he should be attended with a copy of the will; which was done accordingly, and his Lordship concurred in opinion with the other Lords Commissioners: and the cause standing in the paper for judgment on the 4th of March following, their Lordships were pleased to respite the making any decree therein, till the matter concerning the razure should be litigated in the Prerogative Court of Canterbury, where it was most proper, in regard it concerned personal estate only; and where the appellant William Stratton, who was then come of age, had lately commenced a suit to have the erazed words pronounced part of the will.

After a long contest in the Prerogative Court, where the respondent and John Cock, the writer of the will, and several other witnesses were examined over again, touching the razure; the Judge of that Court declared that the original will was in the same state and condition, as it was at the time of the execution thereof; and that the words after the decease of my sister Ann were not erazed since the execution of the will by the testator; and therefore, that the respondent ought to be dismissed, and he dismissed her accordingly; and decreed the probate which the re-[102]-spondent had obtained under the seal of that Court, without the said words, to be delivered out to her, and which probate was delivered out accordingly.

On the 23d of July 1726, the cause was again heard before the Lord Chancellor King, upon the Master's report of the 1st of August 1724, and also touching the validity of the devise over of the moiety of the testator's personal estate, bequeathed to the respondent; when his Lordship, inter alia, ordered, that the Master should proceed to take the account of the testator's personal estate, which had come to the hands of the appellants or respondent respectively, or to the hands of any other person or persons, for their or either of their use; in the taking of which account the Master was to make all just allowances: and it was further ordered and decreed, that the surplus of the testator's personal estate, after payment of his debts, legacies, and funeral expenses, should be divided into moieties; and that the respondent should have one moiety, to her own proper use and benefit; and that the appellants Nathaniel Stratton and his wife should join in assigning and transferring the same accordingly: and the said appellants Nathaniel Stratton and his wife were immediately to join with the respondent in transferring a moiety of the South-sea stock and annuities, wherein the personal estate chiefly consisted, to such person as the respondent should direct, for her use and benefit; and all parties were to have their costs out of the testator's estate, to be taxed by the Master.

From this decree the appellants appealed; insisting (J. Willes, S. Forster) that the proofs taken in the cause, and particularly the evidence of Cock, ought to have been read at the hearing; the same no ways tending to destroy or defeat the will, but being in aid and support of what was evidently the meaning and intention of the testator. That in the present ease it was highly reasonable to admit the evidence of the person who drew the will, and received the instructions for that purpose from the testator's. mouth, to explain what the testator meant and intended by any doubtful expressions made use of by the drawer of the will; and the rather, because it was admitted on all hands, that Cock was no way skilled in the law, but wholly ignorant of the legal construction and operation of the words which he made use of, however certain he was of the testator's intention. That it plainly appeared from the whole tenor of the will, as well as from the proofs in the cause, and particularly from the evidence of Cock, and was even so admitted by the respondent herself, that the testator never intended that she, who was unmarried at the time of making the will, and not likely to have any children if she should marry, by reason of her advanced age, should have the absolute power and disposition of a moiety of his personal estate, which was so very considerable, so as to have it in her power to give the same away to an absolute stranger, in prejudice of his own nephews; but on the contrary it plainly appeared to be his intention, that in case the respondent should die, without leaving any child at her death, the said moiety so devised to her for life, should come to and be equally divided [103] amongst all the appellants his nephews. And this being plainly the testator's intention, it was apprehended that this construction ought to have been put upon the words of the will; considering by whom and in what manner the same was drawn, and the instructions