those specimens which he was in the habit of making, to shew that he could exceed him (King) in brevity; and in verification of this opinion, he exhibited his own will, which had given rise to the other. The rest of the evidence went principally to prove the deceased's regard for his wife, and that he lived very happily with her.

Sir John Nicholl recapitulated the evidence, but principally that of Mr. King; and observed, that if that was to be received, the will must be pronounced against, as wanting the great requisite, the animus testandi. He was of opinion, that the evidence must be received, because it was that of a witness made so by the testator himself; a witness, who was bound to come forward, even at the instance of the parties opposing the will, that they might have the benefit of his cross-examination. The evidence, however, of such a witness, if in derogation of his own act, was to be listened to with extreme caution; and the question therefore was, whether Mr. King was entitled to belief. He appeared to be a friend of the deceased's: the transaction described by him, though whimsical, was nevertheless probable; and the will was made as a specimen of brevity in imitation of King's; the disposing parts of both were to the same effect, and so were the admonitory parts; and it was therefore evident that the one was a strong imitation of the other, but in fewer words. The deceased did not intend that it should be witnessed by King, and gave no directions for its preservation. It was a strong circumstance, too, that the will made no alteration

in the manner in which the law would have disposed of the deceased's property, had he died at that time; and it was therefore not likely to have been written animo testandi, but as a specimen of brevity only. He afterwards married, and lived very happily with his wife; and his declarations during his illness rather shewed his intention to die intestate, as he merely expressed his intention of making his will when he should get better, to satisfy` those who desired it of him. During all this, no mention was made of the paper in question: it appeared to have been dismissed from his mind ever since the occasion that gave rise to it, and the Court could not but think, that when handed by the deceased to King, it was not intended by him to operate after his death; and therefore, though exercising every possible caution as to the evidence of a witness in derogation of his own act, it was bound to pronounce against the will; which was done accordingly, and letters of administration decreed to the widow.

Prerogative Court, Doctors' Commons,-Fox against Evans and Evans.-This was a proceeding re lative to the validity of the will of Francis Evans, Esq. late of Harrow-villa, Middlesex, deceased, which was propounded on the part of Miss Sarah Fox, spinster, one of the executors, and opposed by Mrs. Alicia Evans, and Francis Evans, Esq. the widow and son of the deceased.

It appeared that Mr. Evans was a gentleman of very respectable connections in Ireland, and had in

the

the former part of his life resided in various parts of that country; but family differences induced him to retire from it in 1802, the period at which a separation by mu. tual consent took place between him and Mrs. Evans. From that time Mr. Evans took up his residence in various parts of England, and being in want of a person to superintend his domestic arrange ments, he, in May, 1806, made choice of Miss Fox for that purpose, she having applied to him in answer to an advertisement for a governess to his niece. He was shortly afterwards seized with a paralytic affection, from the effects of which, added to the increasing infirmities of age, he suffered considerably. Through the interference of his son at this juncture, a reconciliation was effected between the deceased and his wife, and he accordingly invited her to take up her residence with him, at Bronsea-castle, Dorset, his then residence. In October, 1807, she complied with this invitation, and then found Miss Fox officiating in the superintendance of Mr. Evans's domestic affairs; but she quitted Bronsea-castle in November following, in consequence of the criminal intimacy which she suspected to exist between Miss Fox and Mr. Evans. From this time Mr. Evans's health declined considerably, and he travelled to Cheltenham and various other places for it's re-establishment, accompanied by Miss Fox; but at last took up his residence with her at Harrow-villa, the scene of the transaction in question. The will, it appeared, was here drawn up by the deceased, in the summer of 1809. He kept it by him until

the 5th of July, 1810, when he ordered his carriage, intending to drive to the house of his friend Richard Cooke, Esq. at Caldecotthill, but meeting him on the road, they returned together. They proceeded into Mr. Evans's library, where he told Mr. Cooke he had a favour to ask of him, as he was going to make his will, and leave him an executor, and pointing to a drawer in the table, said he would find the will there, adding, how necessary it was for every body not to be without a will, but particularly for him. The will was then produced, and purported to devise the testator's freehold property to his son, subject to the settlement made on his marriage with Miss Lock, daughter of John Lock, Esq. of America-square, London. It also gave an annuity of 600l. to Miss Fox, and another of 200l. to Miss Nixon, during life, secured upon certain copyhold lands, ultimately reverting to Mr. Francis Evans, jun. It also gave to Miss Fox any house the testator might reside in at his death, with the furniture, plate, linen, horses, carriages, &c.; and concluded with a bequest to her of all the rest of his personal property, and appointed her and William Johnson, Esq. of Mortimer-street, Cavendish-square, executors. Mr. Evans then desired Mr. Cooke to draw up the codicil, appointing himself an additional executor, and giving him and the other executors 500l. each for their trouble, which he accordingly did, and both papers were then executed in the presence of Mr. Fox, Miss Fox's father, and another witness.

The validity of these two instruments was opposed by Mrs. and

Mr.

Mr. Evans, upon the two grounds of an undue ascendancy exercised over the testator's mind by Miss Fox, and his total incapacity, as well at the time of making the will, as before, and subsequent to it; and in support of this, a variety of circumstances were adduced. It was stated, that Miss Fox had taken advantage of the deceased's infirmity of mind to produce a criminal connection between them; that they afterwards lived in open adultery, and she introduced her father and mother into the house as inmates, and endeavoured to estrange his affections as much as possible from his son, and his family; that they conspired together to obtain the deceased's property, and often spoke of the will as having been obtained by a plot of their's, and treated the deceased as insane, as in fact he was; that in the spring of 1810, he began to commit the most extravagant acts, purchasing Jarge quantities of poultry, jewellery, &c. for which he had no occasion, destroying the furniture, &c. about the house, ordering dinner at a particular hour, and then insisting upon having it, though raw, two or three hours sooner, and throwing the gravy and sauce over those at the table. Several letters, also, pompously and improperly addressed, and otherwise indicative of insanity, were produced, as having been written to persons with whom he had formerly corresponded in the most accurate manner, and by whom he was esteemed, as in fact he was till then, a man of uncommon judgment. And one instance in particular of his insanity, which happened on the very day

the will was executed, was much relied on. He was walking on that day in Lord Northwick's grounds at Harrow, and observing the doors open, said he would take that opportunity of paying his respects to his lordship, with whom he was acquainted. He then burst into the drawing-room, where Lord Northwick, the late Mr. Perceval, and lady, and a large party were assembled, with his dress much disordered, and his face pale, and disfigured by a blow he had received from Mr. Fox. His whole appearance and conduct were such as to convince Lord Northwick of his derangement, and he accordingly called for the assistance of his servants, and delivered the deceased into the custody of Mr. Fox and his daughter, who had by that time come up. He was shortly afterwards placed in the care of keepers, and in November following, a commission of lunacy having issued, an inquisition was held, and the Jury returned a verdict of insanity without lucid intervals, from the 1st of July preceding, five days prior to the transaction of the will. He was then removed to Dr. Willis's, at Hoxton, where he died in October, 1811.

In reply to this, circumstances were adduced on the part of Miss Fox, to shew that she possessed the deceased's confidence, but without any undue means; that his displeasure was very great against his son for not coming to see him, and he often declared it would be thousands out of his way that Miss Fox's connection with the deceased, far from being notorious, was hardly known, and her father was introduced into the

house

house to manage the deceased's farming concerns, with a salary of 40l. per annum, only on account of the deceased's good opinion of his skill in those matters; that the blow he gave the deceased was given under the impulse of irritation, as having been struck by him, but the matter was amicably adjusted next day: that the deceased continued of sound mind, managing his affairs, and drawing drafts on his bankers, until the 12th of July, 1810, and even wished Miss Fox to go with him the day the will was executed, but excused her solely on account of ill health; and that the transaction at Lord Northwick's was the effect of intoxication, and not of insanity, the deceased having that day drank very freely upon an empty stomach, but the next day having recovered, he spoke of the circumstances as a good joke only.

A great mass of evidence was adduced in proof of these different representations of the case on either side, and the arguments of counsel heard at great length thereon, during three days, it being contended on the one hand, that there was no proof of undue in fluence or control over the deceased, but that the will was the spontaneous act of a capable testator; and, on the other hand, that not only was an undue control proved, but also actual and positive incapacity, for a period long antecedent and subsequent to the making of the will, as well as at the very time.

Sir John Nicholl recapitulated the circumstances of the case. He was of opinion that the acts of extravagance committed by the deceased, coupled with what hap

pened on the very day of the will, and the verdict of the jury upon the inquisition, left no doubt of the deceased's having been afflicted with insanity. Where there was, prima facie, no proof of this, the presumption of law was always in favour of the testamentary act in question; but when it was otherwise, the onus probandi was thrown upon the party setting up the act; and the question therefore, in the present case was, whether the papers in question were executed by the deceased during a lucid interval. He then entered into an examination of the doctrine of lucid intervals, as laid down by Lord Thurlow, defining it to be that positive proof must be shewn of the disorder having been wholly thrown off for the time: there must be a complete lucid interval applying to the particular act in question, for if there was but a single word "sounding the folly," it was conclusive against the presumption of a lucid interval sufficient for legal purposes. Corroborative circumstances, however, such as whether the act was a natural disposition, or in favour of persons exercising an undue control, might considerably influence the inquiry, as they were material to shew the probability of the act being the spontaneous exertion of the deceased's mind; and the present case was, therefore, to be examined upon these principles. He then entered into the private history of the deceased and Miss Fox, remarking particularly upon her father's conduct in using such violence towards a poor paralytic old man like the deceased; and observing that, with all the Court's

caution

caution in listening to the evidence of servants in the house, still these circumstances must have their weight. They were, however, strongly confirmed by the account given of the deceased's incoherent correspondence; and the very fact of his wishing his wife and son to visit him when living in a state of open prostitution with this girl was in itself a proof of insanity. A further confirmation was afforded in the transaction at Lord Northwick's; and the Court could not but think the attempt to give it the colour of intoxication to have proceeded from fraudulent motives. Looking, then, at this evidence, it was not only sufficient to throw the burden of proving capacity upon the parties setting up the will, but it likewise proved the influence they exercised over the deceased; and it would be difficult to imagine the evidence that would be sufficient to sustain a will under such circumstances. Mr. Fox must have known of his daughter's prostitution; and this, added to his general conduct, did not go far to confirm his good character and hand-writing, in attestation of the act in question. Mr. Johnson and Mr. Cooke were both renouncing executors, and had released their legacies; the latter was also the writer of the codicil in his own favour. It was therefore probable, that they had expectations from the bounty of the executrix; and though this was not sufficient to discredit them, it must necessarily raise the presumption of their evidence being somewhat biassed. There was no reason to believe that the deceased's declarations of having made his will referred to either of the papers in question

and

they had the effect of disinheriting his son from one considerable part of his property, only to make an unreasonable provision for a woman with whom he lived in public adultery. The will itself bore strong internal marks of confusion and irregularity, and appeared to have been copied from some other not before the court. It was written very irregularly, with some names partly omitted in places, and others repeated in a varied manner, altogether shewing the deceased's confusion at the time, and, in the language of Lord Thurlow, "sounding his folly." So far, therefore, from any lucid interval being proved, there was every presumption of the continuance of the disorder, a presumption confirmed not only by the general state of the evidence, but also by the contents and appearance of the will itself. The Court was, therefore, bound to pronounce against its validity; and considering the active part taken by Miss Fox in this transaction, with all its attendant obloquy, the Court felt that it would not sufficiently mark its disapprobation of such practices, and hold out a discouragement of them for public example, did it not condemn her in the costs incurred. Costs decreed accord. ingly.

Lady Frances Elizabeth Brude. nell Wilson, and the Right Hon. Charles Abbott, Speaker of the House of Commons, against Sir Berkeley William Guise, Bart.This was a question upon the admission of an allegation, pleading a nuncupative codicil to the will of William Wright, Esq. late of Chelsea, deceased.

Mr,