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[*]it never was made at all. All argument, founded on probability is excluded(a).
It was on one occasion thrown out by Lord Eldon, that from long possession of an estate consistently with the terms of a devise, re-publication of the will might perhaps in some cases be presumed; where, for example, to obviate the effect of an implied revocation(b). And, indeed, after a possession for thirty or forty years, there seems to be no very solid reason why the presumption might not be made. For although the will bear not any internal mark of re-execution, it is still open to suppose that it may have been re-published by codicil; a supposition, which is fortified by the acquiescence on the part of the heir. This presumption would be the more readily entertained in courts of equity, which, as it is said, favour the new publication of wills, and rely on slender testimony as competent to establish the fact(c).
Where any act in the nature of a condition; whetherprecedent or subsequent, is necessary either to vest or to prevent the devesting of a right or interest, long undisputed possession is primâ facie evidence of the act having been performed. Thus, where the title of a lay person to a rectory was disputed on the alleged ground that the vicarage was not competently endowed (upon which fact the original grant of impropriation of the rectory was made conditional); [*]after a lapse of one hundred years, a competent
(a) Wright v. Smythies, 10 (b) 8 Ves. 129. East, 409; Doe d. Howson v. (c) See Hall v. Dench, 1 Vern. Waterton, 3 Barn. and Ald. 149. 329, 330.
endowment was presúmed, there having been during that period a constant succession of vicars, all of whom had been inducted as rightfully endowed, and had paid their first fruits and tenths(a). And again, in a late similar case, where the allegation of non-endowment was corroborated by the actual production of a deed of endowment which was clearly insufficient, the court, from the unvarying acquiescence of the vicars, inferred the existence of a subsequent deed of endowment supplying the deficiences of the former(6).
On a like principle, fifteen years possession of a benefice has been held sufficient, in the absence of contrary proof, to show that the incumbent was regularly inducted, and had read the Thirty-nine Articles(c).
In this place, it may not be improper again to no tice, that, where the effect of a proviso for redemption in a mortgage is absolutely to defeat the mortgagee's estate, and revest the property in the mortgagor; if the debt has been satisfied, but it cannot be shown at what precise time, whether on or after the day appointed in the proviso, the law, in order to support the beneficial owner's title, will presume the money to have been paid at the specified time(d).
The confirmation of a deed by a third person, or his
(a) Crimes v. Smith, 12 Rep. 4. (d) Barnardist. 93, per Lord
(b) Wolley v. Brownhill, M'- Hardwicke; Wilson v. Witherby, Clel. 317.
Bull. N. P. 110. (c) Chapman v. Beard, 3 Anstr.
[*]consent to it, is likewise presumed after long unmolested enjoyment. Thus, if a parson conveys away part of his glebe, the conveyance, after a great lapse of time, with possession under it, will be taken to have been confirmed, as the law requires, by the patron and ordinary(a).
And as the right of presentation to a chapel of ease may be obtained by agreement with the incumbent of the parish church, sanctioned by the patron and ordinary, such agreement and sanction will, as it seems, be presumed after several successive presentations made by the person claiming in opposition to the incumbent; though, should the real origin of the asserted right appear, and that be manifestly insupportable, the antiquity of the usage will not defeat the incumbent's title(b).
In the case of a modus, too, evidence of payment from a remote period, is deemed conclusive of its lawful commencement; that is to say, of the agreement with the parson having been confirmed by the patron and ordinary(c). And so, in the case of a composition real, the consent of the ordinary is held to be sufficiently proved by testimony of ancient enjoyment(d).
To the inclosure of a common the consent of the [*]commoners is of course essential. But though
(a) Semb. Cro. Jac. 456. (c) Sec 2 P. Wins. 573 ; 1 Eq.
(6) Dixon v. Metcalfe, 2 Eden. Abr. 368. 360; Amb. 528, S. C.; Farnsworth (d) Sawbridge v. Benton, 2 v. Bishop of Chester, 4 Barn. and Anst. 372. Cress. 555, 568-9.
proof of such consent be wanting, equity will not, for that reason alone, where a common has been enclos. ed, and a considerable length of time has since elapsed, allow it to be again thrown open: the necessary consent will be presumed (a). In like manner, the consent of a landowner to an agreement entered into by his bailiff for the enclosing of the common, will be supposed after long acquiescence (6). In both these cases, twenty or thirty years, unanswered, will be sufficient to establish the presumption.
On the same principle, as it should seem, the assent of an executor to a bequest may be concluded from the legatee's possessing himself of the subject bequeathed, and retaining it for some considerable time without complaint by the executor. For as very slight circumstances (for example, a congratulatory address) ) are in general sufficient to denote the executor's agreement to a legacy (c); so it is conceived, long acquiescence, which in all cases of this kind is esteemed a significant and important circumstance, may, without the aid of other marks of assent, be regarded as affording the requisite presumption. Where the bequest is of property yielding an annual income, as a leasehold tenement, and the executor allows the profits to be appropriated by the legatee, the argument for the implied assent is manifestly stronger (d).
(a) Silway v. Compton, 1 Vern. 32.
(6) Tufton v. Wentworth, 5 Vin. Abr. 8, pl. 32.
(c) Com. Dig., Tit. Administration, C. 6.
(d) See Paramour v. Yardley, Plowd. 539.
PRESUMPTIONS OF FACT CONTINUED.
Of presumptive Evidence in Matters of Pedigree, &-c.
The title to property as regards individual posses. sors, whether founded in the general provisions of law, or in the limitations of a particular instrument, has in most cases to be proved through the medium of various matters in pais that have occurred since the time to which the title is traced. Of this description are marriages, deaths, heirships, survivorships (a), the periods of attaining majority or marrying, the number of children in a certain family, the failure of a particular person's issue, or the circumstance of such person never having married. But of these and similar facts or events connected with the vesting and determining of interests and estates, it frequently happens that direct proof either does not exist or cannot be obtained. Recourse therefore, in such cases, is of necessity had to secondary and presumptive evidence. The object of
(a) As to the presumption of note; and Mr. Butler's preface to survivorship between two or more the seventh edition of Fearn on individuals who perish in a gene- Remainders. A court of equity ral catastrophe, see Mason v. Ma- will direct an issue to try the fact, son, 1 Mer. 308; also 6 East, 82, if the parties desire it.