In presence of us who have at) THOMAS VANHAGEN. his request signed our names

under.

as

(L. S.)

JOHN WEAKLEN.

The deceased left his property to his widow, who, with three sisters, was alone interested in case of an intestacy: two of the sisters had signed a proxy of consent, but the other refused. The widow and Mr. Hinea solicitor and son-in-law to the deceased-were the executors; and Hine had made an affidavit as to a recognition of the will of the testator a short time previous to his death.

Lushington moved for probate to the executors, pointing out the informality that there was an attestation clause in the plural number, with only one subscribed witness.

Per Curiam.

From the appearance of the paper, and from the position in which the names of the deceased and of the witness are placed with relation to the attestation clause, it would seem that the deceased, at the time that these names were subscribed, had no intention of having more than one witness. (a) The chief difficulty is that the executors have not brought in an affidavit of the attesting witness-that the deceased intended, what was done at the time the witness subscribed it, to be an effectual execution of the paper as his will: for I observe that the word "three" is written on an erasure. On a satisfactory affidavit upon this point, the Court will decree the probate, since no caveat has been entered by the sister who declines to give her consent; and a recognition of the will is sworn to by the executor.

On the 3rd Session, an affidavit from the attesting witness having been filed, fixing the date of the will and stating his belief that it was the intention of the deceased to execute it at the time it was subscribed, the Court decreed probate to the executors.

Motion granted.

(a) In the Goods of GEORGE WINGFIELD SPARROW.

On Motion.

Probate in common form decreed of a paper with an attestation clause in the plural number and only one witness, on affidavit of an implied recognition.

THE deceased died in April, 1828. He left a will and codicil. The will was regularly executed; but the codicil dated in February, 1824, which he had written at the foot of the will, with a clause of attestation-" in the presence of us" was only attested by Mr. Denton the deceased's solicitor. He was dead; but an affidavit exhibited by Mr. Briggs, his executor, (who was also a solicitor, and who had found the will and codicil among Denton's papers) stating that Mr. Sparrow had in February last, some time after the death of his solicitor, seen and inspected these testamentary papers, and had left them in his possession, saying, "he would call again, and alter his will and codicil;" but he never came. The Court-upon this affidavit, on motion by Lushington-granted probate of the will and codicil. Motion granted.

PICKERING and PICKERING v. PICKERING.-P. 480.

On Motion.

Administration de bonis non with a will annexed, in which was no executor,granted to one of two legatees, a decree with intimation having issued in their joint names against the residuary legatee; the sureties justifying in the amount of the surplus beyond the interest of the one legatee or (on a proxy of consent from the other) beyond their joint interests, and an affidavit of outstanding debts being made.

CHARLES PICKERING died in 1814. He left a widow, a son, and two daughters, Sarah and Sophia Pickering. By his will he made his wife universal legatee for life, and upon her death, he gave to each of his daughters 10007., and the residue to his son; but appointed no executor. On the 3d of May, 1814, the widow took administration, with the will annexed, in the sum of 35007.; and, upon her decease, the son-being on military service in the East Indies-was cited with a decree to show cause why administration de bonis non should not be granted to Sarah, and Sophia, Pickering, jointly, as legatees. This decree with intimation was duly served.

Haggard now prayed the administration to be decreed to Sarah Pickering, singly, upon a statement that, since the issuing of the decree, the other sister had been, and still was, dangerously ill. He further moved, after mentioning that the testator's debts had been discharged, that the sureties might justify in the amount of the residue only, first deducting the amount of the legacies to the two sisters.

Per Curiam.

The Court will allow this administration to pass, in the form now asked; but it will first require either a proxy of consent from the sister, or else that security should be given to cover the £1000-the amount of her interest-as well as the surplus. An affidavit should also be exhibited that there are no creditors.

Motion granted.

COOPER v. DERRIENNIC and Others.-p. 482.

On Motion.

A legatee-whose legacy had been paid him, having been examined without releasing allowed to be re-produced on his and the executor's giving mutual releases, and on the latter depositing in the registry, to abide the issue of the cause, a sum sufficient to cover the legacy.

JOHN COURTOy died on the 8th of December 1818. On the 7th of January 1819, his will and codicil were proved. On the 3d of November 1827, a decree issued, under seal of the Prerogative Court (at the instance of William Henry Cooper-executor of the surviving executor of Courtoy) citing, among others, Mary Derriennic,-(resident in France) the sole person entitled to the deceased's estate under an intestacy, to see the will propounded and proved in solemn form of law. Upon the return of the decree, the will and codicil were propounded in

a common condidit, and the three subscribing witnesses examined. On the first session of Easter Term, an appearance was given for Mrs. Derriennic and the cause was concluded: it was then discovered by the Proctor for Mrs. Derriennic, that William Giles-the deceased's attorney-drawer of, and a subscribing witness to, the will, under which he had a legacy of £300-had been examined without giving a release. The legacy with interest had been paid to him, in April 1824, under an order of the Court of Chancery; and he stated, in his affidavit, "that at his production and examination as a witness in this cause, the circumstance of his being a legatee in the will was omitted to be mentioned or alluded to by him or by any other person; and that in consequence thereof no release or discharge in respect thereto was then given; but that neither at the time of his production or examination as a witness, as aforesaid, had he any interest whatever under the will or codicil propounded, or any claim upon any person whomsoever touching the said legacy."

An application was now made to the Court to rescind the conclusion of the cause in order that William Giles might, on giving a release, be re-produced as a witness, and again repeated to his deposition.

În support of the motion Lushington and Addams-who mentioned the case of Peachey and Merricks v. Woodyer, before Dr. Calvert, as decisive of the question.(a)

Phillimore and Haggard contra.

Per Curiam.

The Court granted the motion, remarking that interrogatories, on the part of Mrs. Derriennic, might be administered. (b)

The following order was made:

(a) The editor has been favoured with a notice of this case. It was a cause of proving in solemn form the will of Charles Moxon: and was promoted by Dame Elizabeth Peachey and Elizabeth Merricks, the cousins german and only next of kin of the deceased, against Richard Woodyer the executor: and at the hearing, an objection was taken by Dr. Wynne and Dr. Scott to the testimony of Ann Ives, (a legatee under the will, who had received her legacy and given a release to the executor) on the ground, that she might be compelled to refund her legacy; that the release came from the wrong party; that it should have been given by the executor in order to release the witness from all future possible demands.

Dr. Harris and Dr. Nicholl, on the other side, argued that the executor could never compel Ives to refund ;* that the_legacy had been paid for the purpose of making her a witness, and that she had performed her contract by being a witness: the executor had therefore received his consideration.

The Court (Dr. Calvert) admitted the evidence, and observed-it was usual so to do, though the books rather incline the other way.†

(b) In Booth and Hannam v. Hurd, Prerog. 1827, on its being alleged that Charles Read, an executor, had renounced previous to his examination as a witness; the Court on this day permitted a release to be brought in of his legacy of 1007, as executor (bequeathed to him if he undertook the execution of the will) and on the same being brought in, that he might be reproduced as a witness, and again repeated to his deposition.

In Callow v. Mince, 2 Vern. 472, a witness was examined before the hearing whilst she was interested, but after the hearing she released her interest, and was examined again before the master. Her depositions before the master were allowed to be read.-See also Needham v. Smith, 2 Vern. 463.

See the cases upon this point collected in White's edition of Roper on Legacies, Vol. I. p. 396,

† Vide Harris' Justinian, lib. 2. tit. 10. s. 11. notis.

The Court rescinded its order assigning the cause for sentence on the second assignation, and gave leave that William Giles be re-produced for the purpose of being re-sworn and re-repeated as a witness; a release under the hand and seals of the said W. Giles and W. H. Cooper, and also the sum of £400, to abide the issue of the cause, being first brought in.

Note. This sum of £400 was deposited in order to obviate any possibility of claim by the residuary legatee under a prior will, in case the will propounded should be set aside.

In the Goods of CHARLES BRODERIP.-p. 485.

On Motion.

Probate, in common form, of two papers (one unfinished) granted on a proxy of consent and on affidavits accounting for their state, and showing that the deceased intended them to operate.

THE deceased died on the 14th of April, 1828, a bachelor, leaving two brothers, William and Francis Broderip, his only next of kin, and the sole persons entitled to his personal estate in case of an intestacy.

The deceased had occupied apartments at the Salopian Hotel, Spring Gardens, for upwards of three years previous to his death; and on the 9th of April, while in bed, he requested Mr. Williams-his intimate acquaintance, to give him pen ink and paper for the purpose of making his will, by which, he said, "he should secure to Colonel Joseph D'Arcy the whole of his property by constituting him sole executor and residuary legatee." The deceased, having written his will to the extent of nearly two sides of a sheet of letter paper, was obliged from exhaustion to stop, observing, at the time, "that he should complete it when his strength was sufficiently restored:" he then sent for Mrs. Holland-the mistress of the hotel-and her daughter; and upon their coming to his bed-side, he requested them to bear witness that the paper, which he had just written in the presence of Mr. Williams, was his will; that he then deposited it in a purple portfolio, and that he appointed Colonel D'Arcy sole executor, and residuary legatee. Upon their quitting the room he requested Williams to commit to paper the purport of such his communications, and to insert some directions as to his funeral; when this was done, the deceased further begged him to take it down stairs-to read it over to Mrs. Holland and her daughter-to obtain their signatures, and deposit it with Mrs. Holland, as instructions for her till the arrival of Colonel D'Arcy from Ireland. It appeared further, that, on the 12th of April, the deceased read over what he had written on the sheet of paper to Mrs. Holland and her daughter, repeated his intention in respect to Colonel D'Arcy, and expressed his conviction that the paper would take effect as his will. He made similar declarations to the waiter of the hotel.

Lushington-on an affidavit of the above facts, and on a proxy of consent from the deceased's brothers, moved for probate of the two papers, as together containing the will of the deceased, to be granted to Colonel D'Arcy. The property, he said, would scarcely cover the debts, funeral, and testamentary expences.

Per Curiam.

The affidavit fully states a case that would entitle these papers to probate, if the executor should be called upon to prove them in solemn form of law; and with the consent of the two brothers-the only persons interested under an intestacy-the Court has no difficulty in decreeing probate to Colonel D'Arcy.

Motion granted.

In the Goods of JAMES HARDSTONE.-p. 487.

On Motion.

On renunciation of a co-executor, the Court will not grant administration with the will annexed, without justifying securities, to the daughter-the residuary legatee-during the lunacy of the mother-the other executor.

THE deceased of his will appointed David Jones and his wife Mary Ann Hardstone, executors, and residuary legatees in trust; and his daughter residuary legatee. He died in 1826. Mr. Jones had renounced; and it appeared that Mrs. Hardstone was a lunatic under confinement, and that there was no committee of her person or estate.

Lushington applied for letters of administration with the will annexed to be granted to the daughter (during the lunacy of the executrix) without the sureties in the bond justifying. He admitted the motion was rather out of the usual course; but that to grant it would be for the benefit of the lunatic: he further stated that in consequence of the daughter's minority, which only very recently ceased, no one had been willing to administer to the effects, and that she was unable to procure the necessary affidavit of justification. The property consisted of a policy of insurance for £1500, and a sum due from the business, in which the deceased had been a partner.

Per Curiam.

It is quite impossible, under the circumstances of this motion, that the Court can deviate from its ordinary rules; nor, even if it had the authority, could it safely make the grant without requiring the securities to justify. Suppose for instance this young woman should marry and the whole property be dissipated, what remedy could be afforded to the mother? No reason is assigned for the renunciation of Mr. Jones the executor; nor is the Court informed that any obstacle exists to the formal appointment of a committee, to whom the administration for the use of the widow would regularly be granted; or the administration might go to the daughter as residuary legatee, but in that case the sureties would be required to justify. At all events the Court is bound to reject the present application.

Motion refused.