prove his capacity and soundness of mind! A nobleman of 40, flogging an old bailiff of 60 for his amusement, and in play cutting him across the legs! the bailiff not submitting nor quitting his service, but by force wresting the whip out of his hands! and the nobleman in his turn submitting to this indignity and forcible control! I dwell too long on these circumstances. In 1808,-whether Lord Portsmouth, perhaps from over indulgence and loose given to his fancies, became less manageable, as a froward boy does, or whether Lady Portsmouth, from her advanced time of life, approaching 60, grew less equal to the task,-Mr. Coombe, a medical gentleman, was taken into the family to assist in superintending the noble Earl. That gentleman soon acquired an ascendancy, by pretending to quarrel with him, and threatening to demand satisfaction as a gentleman. This of course had the effect of reducing Lord Portsmouth to passive obedience; generally at least, for on two or three occasions passion got the better of timidity. From that time Coombe's presence alone was sufficient to check him, whether at play with the labourers, or whatever irrational fancy he might be pursuing. Mr. Coombe's attendance continued three years, till 1811, when he left, not because Lord Portsmouth had recovered, but because Coombe's private concerns required his attention. It may be proper to repeat that a feature in the character of Lord Portsmouth, which accompanied him all through life, was, that he was easily intimidated and controlled. This character usually marks and accompanies. unsoundness of mind, whether it be imbecility or derangement, or a mixture of both: if a servant resisted him, he submitted and desisted; if a threat was held out to tell Lady Portsmouth, or Dr. Garnet, or Mr. Coombe, it produced the same effect, and among others (it is not immaterial) the threat to tell Mr. Hanson occasioned the same result. Mr. Hanson's influence and ascendency over him, as one of the trusteesthe acting trustee indeed-is fully established. In November, 1813, Lady Portsmouth died. Lord Portsmouth's conduct was of that inconsistent character which distinguishes persons of such a mind: at the funeral he behaved as at other "black jobs," as he termed them-one moment overcome with grief, the next, merry again. He talked of a Miss De Visme as the object he was very anxious to engage-Miss Hudson, he said, was also suggested to him, but she was too old. The trustees thought it prudent to send him down to Hurtsbourne, attended by Coombe. Another wife was the string of his disorder, but Miss Hanson was never proposed by him as the object of his choice. On the 28th of February, 1814, Coombe thought it prudent to bring him to London, and to deliver him up to his trustees, Hanson being one, and then in town-that day week he was married to the daughter of Mr. Hanson!-Hanson the confidential solicitor of the family-one of the trustees-who had a great ascendancy over him-who owed him every possible protection-married him to one of his daughters! It is unnecessary to state the jealousy with which the law looks at all transactions between parties standing in these relations to each other. I will not enter into the particulars of the transaction-the whole of it will bear but one interpretation!-every part is the act of the Hansons! -Lord Portsmouth is a mere instrument in their hands to go through the necessary forms!-the settlement is begun in forty-eight hours after Lord Portsmouth's arrival in London!-the contents of that settlement VOL. III. 21 -the mode in which it is prepared-the concealment of the whole from the friends and the other trustees who were in town, some in the same house with Lord Portsmouth-all these particulars bear the same character. The necessary forms are gone through, but in support of these mere forms, not a witness is produced to show that this nobleman was conducting himself as a man, understanding what he was doing, or capable of judging, or acting as a free and intelligent agent:-nothing tending to show that he was a person of sound mind-nothing in his conduct inconsistent with unsoundness of mind-every circumstance conspires to prove that he was the mere puppet of the Hanson family, and that the celebration of this marriage was brought about by a conspiracy among them, to circumvent Lord Portsmouth-over whom they, and particularly the father, had a complete ascendency and control, so as to destroy all free agency and rational consent on his Lordship's part to this marriage. A marriage so had wants the essential ingredient to render the contract valid the consent of a free and rational agent. The marriage itself and the circumstances immediately connected with it do not tend to establish restored sanity; it was neither "a rational act,' nor was it "rationally done"-the whole "sounds to folly" and negatives sanity of mind. The Hansons, in the mode of planning and conducting the transaction, show that they treated and considered Lord Portsmouth, as a person of unsound mind-and Lord Portsmouth, in submitting, acquiescing, and not resisting, confirms his own incompetency. Even if no actual unsoundness of mind, strictly so called-if no insane derangement had existed-if only weakness of mind-and all admit he was weak-yet considering the passiveness and timidity of his character on the one hand-the influence and relation of Hanson, his trustee, on the other-and the clandestinity and other marks of fraud, which accompanied the whole transaction-I am by no means prepared to say, that, without actual derangement in the strict sense, the marriage would not be invalid-but, in my judgment, Lord Portsmouth was of unsound mind, as well as circumvented by fraud. As this is the great fact which the Court has to decide, it seems unnecessary to pursue the subsequent history. The Court gladly relieves itself from going through the disgusting particulars of the treatment which this unfortunate nobleman afterwards experienced from the pretended wife, and her family and associates-forbearance, in this respect, is for their advantage;-yet the subsequent treatment corroborates, and is confirmatory of, the former condition of Lord Portsmouth-no change in his mind and character is suggested to have taken place after the marriage-no supervening malady producing derangement of mind -he continued just the same as before the marriage in mental condition, though treated in a manner very different from the kindness of the first wife. Upon the whole the Court pronounces, that the marriage in fact, solemnized between the Earl of Portsmouth and Mary Ann Hanson, is in law null and void; he being at that time not of sound mind, sufficient to enter into such a contract; and that the celebration of such marriage was effected by fraud and circumvention;-and pronouncing, as the Court feels bound to do, that latter part of its sentence, it feels also bound to grant the prayer for costs. CHEALE v. CHEALE.-p. 374. On Petition. A suit by the wife against the husband, having abated by the wife's death; the Court will not, at the petition of the Proctor, direct the costs incurred by the wife to be paid by the husband. PREROGATIVE COURT OF CANTERBURY. In the Goods of JAMES GIBBS.-p. 376. On Motion. Where minors are concerned, probate in common form cannot be granted of a mere memorandum of doubtful construction, on affidavits showing that the deceased intended to increase the benefit to certain legatees under a formal will, and was prevented by death from giving his solicitor instructions to that effect. JAMES GIBBS died on the 3rd of March, 1828. He left a widow and seven children-minors-four daughters and three sons. By his will, dated the 17th of February 1825, and duly executed, he appointed his wife (during widowhood), Samuel Pickering, and Thomas Gray, executors; and, after providing for the management of his business, and bequeathing legacies to his wife and three sons, he gave to each of his daughters 1000Z. 3 per cent reduced annuities, absolutely, and 15007. of the like stock for life-afterwards to their children; and the residue equally between all his children who should attain 21; the daughters' shares to them for life, and then to their respective children. The personal property amounted to about 25,000l. From an affidavit, it appeared, that the testator, during the last three months of his life, had frequently expressed to his executors, and to his eldest son, that he intended to alter his will and leave his daughters more property, in consequence of his eldest child, Mrs. Robinson, having died without issue; that on the 21st of February last, he wrote in the presence of his wife, a memorandum as follows: "Martha Eliza Cate Sofia, 3 R. 1300-1000 34, if James settles and "occopys the front house he must allow his brother Thomas 50l. a year "for that" The affidavit then stated, that he put this paper into his pocket-book, and both at that time, and on subsequent days, declared his intention of making an addition to his daughters' legacies; that on the 2d of March he expressed himself to that effect to his Solicitor, and appointed to attend, at his office, for that purpose on the following morning, but was prevented by sudden death. The memorandum was found after the testator's death in his pocket 162 PORTSMOUTH V. PORTSMOUT now mored for probate of it, to issue in common 161 IN THE GOODS OF RICHARD MORESET. E. I. 1828. beck and Lushington no -the mode in which it is pre- bate of this paper The present paper was written as a mere memorandum, not as embody There are not surient grounds laid to enable the Court to grant proThe original will is a long instrument, carefully ing the deceased final intention. His object, as the affidavit tends to prepared, and the disposition seems to have been maturely considered. of the paper is obscure, whether the sum mentioned was to be an adwas to give a larger portion to his daughters; but the construction dition to, or substitution for, the benefit under the will; whether it was proposed to be given to them, absolutely, or for life, and then to their children. I should feel considerable difficulty in granting probate of sion the interest of minors will be affected, I am decidedly of opinion particular' destroy this ma A m tract v self a estal "ra show. this instrument even on a that the facts stated are this motion. proxy of consent; but as on the present occa insufficient to justify the Court in acceding to Motion refused. In the Goods of RICHARD MORESBY.-p. 378. On Motion. The deceased supposing his will appointing his wife sole executrix and universal THIS was an application from the widow of Lieutenant Moresby, R. N. that probate of his will, dated on the 25th of January, 1821, might be granted to her as sole executrix; and in support of her application she made the following affidavit: "That she was the relict of the deceased, sole executrix, and universal "legatee for life named in his will duly executed and dated the 25th of "January, 1821; that shortly after this period the deceased left England, "in the command of a private merchant vessel, taking with him this will, "and proceeded with his wife to Peru; that after their arrival, they resided "principally on board; but that during a temporary absence of Lieute"nant Moresby, the vessel with all his effects and papers, including his "will, was captured by pirates, but was soon afterwards retaken: that "on the occasion of such capture, the deceased lost several papers of "consequence, and expressed his firm belief to his wife that his will had "then been destroyed. That the deceased, as she has been informed, "and verily believes, whilst at the city of Bolivar, was attacked by the "illness of which he died; that on the 13th day of February, 1827, the "day before his death, being incapable of writing, and fearing he might "die intestate, he sent for a notary, in whose presence, and that of four "other witnesses, he made a nuncupative will by declaring, that in " contemplation of his death, he nominated and appointed two executors "-both resident in the city of Bolivar-and his wife sole heiress, and "revoked all his other testamentary dispositions; but that the said will "was not reduced into writing in the lifetime of the deceased." Mrs. Moresby further made oath, that upon the renunciation of the two "executors in the proper Court at Lima, she there duly proved the "nuncupative will, and administered the effects in Peru; and that "shortly before the deceased's death, and, as she verily believes, while "he was at Bolivar in his last illness, she discovered among his papers " on board, the will, dated 25th January, 1821, but that he died in igno"rance of that circumstance." The affidavit further stated, that both the executors were resident in the city of Bolivar, or some other part of Peru, of which one was a native. The only property of the deceased in this country consisted of about 5001. due for arrears of half pay. Lushington. The question is, whether a nuncupative will made and proved in Peru supersedes a prior will written and executed in this country-whether the statute of frauds (a) does or does not affect such a case. The widow, in asking probate of the will of 1821, waives an interest which she would take under the will of 1827-in the former, she has but a life interest—in the latter, she is absolute universal legatee. Per Curiam. It is not necessary here to decide the question (upon which there may be some doubt) whether the statute of frauds would apply to the nuncupative will made in Peru. Both wills contain nearly the same disposition, and give the whole property to the wife; the latter, absolutely: the former, of which she is content to take probate,-for life only. It appears that the deceased did not intend to revoke the will of 1821, but supposing it to be lost, and being unwilling to die intestate, he made the nuncupative will. As, however, the former has been recovered, there is no objection to probate thereof being granted to the widow and universal legatee for life. (a) 29 Car. II. c. 3. s. 22. Motion granted. In the Goods of JOHN EWING.-p. 381. On Motion. Administration durante minoritate of children in the East Indies, decreed to the uncle resident in Ireland, he giving full justifying security: the grandfather, to whom as next of kin the grant would naturally pass, being upwards of 80, and also resident in Ireland. Haggard moved, on the affidavit of the Reverend William Ewing, to the following effect. Per Curiam. The deceased was a Major in the Madras regiment of Infantry: he died intestate, and has left three children who are minors-all resident in the East Indies; and the Uncle, (the Reverend Mr. Ewing) who lives in Ireland, is desirous of being nominated guardian to take out administration for their use and benefit. The next of kin, whom the Court usually appoints, is the Grandfather; but he is superannuated— |