the wife, and it was therefore necessary to resort to the Court of Chan

cery.

This is the whole of the case, and it leads to these results: that where there is a trust, or where the Ecclesiastical Courts cannot do justice, as happened while the demand for security to refund was the practice of the Courts of Equity, or where a married woman is to be protectedor where there are proceedings in account to ascertain assets—or where there is any thing in the nature of a trust to be executed; an injunction will go-but not, as I understand, where there is the bare duty of an executor to perform-to pay legacies: for that would in all cases give an exclusive and not a mere concurrent jurisdiction.

In the present case, in my view, the simple duty of executor remains -to pay the legacy; there is no longer any trust but that which belongs to all executorships. I have considerable doubts whether any Court of Equity would enjoin, and perhaps, have reason to think that they would not. Times are changed a more liberal and enlightened view of questions of jurisdiction is taken: on the one hand, these Courts have no disposition to encroach-ampliare jurisdictionem-on the other hand, Temporal Courts have no jealousy-no wish to resort to fictions and to technicalities: they look (where not bound by former decisions directly in point) to the real substance and sound sense of the question-to that which is really most beneficial to the suitors-the public-and subjects of the country. There is quite as much business in all Courts as, under the increase of wealth and population, the institutions are able to discharge. The original jurisdiction in cases of legacy, to enforce payment and to compel executors to perform their duty, was in these Courts: Temporal Courts, however, interposed by injunction or prohibition when those Courts were already in possession of the cause, or when the powers of the Ecclesiastical Judge were defective or insufficient--but I find no case in which Temporal Courts have stopped these Courts, where no trust was existing (beyond the mere technical trust of executorship) which remained to be executed-where no legatee was to be protected by any special power-where a Court of Equity had not already been resorted to and was not in possession of the case.

The present case, as far as appears and is stated in the protest, is a mere subtraction of legacy---is a suit simply to enforce payment. The party who applies may have reasons for resorting to this jurisdictionby the very fact of his suing here it must be presumed that he conceives it would be a more convenient and beneficial jurisdiction for him:---whether he judges rightly it is not for this Court to decide; nor, unless it clearly appeared that the Court had no jurisdiction, has it any right to to refuse to entertain the suit---it would be a denial of justice.

Thinking then, that at least it is a matter of doubt, whether Temporal Courts would stop this suit by injunction, I hold it proper to overrule the protest. At the same time I should much regret misleading the parties and involving them in unnecessary expense, by taking an erroneous view of the subject through an insufficient acquaintance with the rules of a Court of Equity. I should therefore strongly recommend to the party, who institutes the present proceeding, (being now possessed of the view taken by this Court) to resort to the best advice he can respecting the rules of Courts of Equity. If under that advice he should be satisfied that an injunction would be granted, he may immediately declare, that he proceeds no further in this Court.

In respect to costs, it seems proper to reserve that consideration till the cause is fully disposed of.

Protest over-ruled.

PREROGATIVE COURT OF CANTERBURY.

In the Goods of WILLIAM CRINGAN.—p. 548.

On Motion.

A person dying in Scotland having by his will directed that the legatees should appoint two persons to execute his testamentary bequests, probate granted to the nominees as executors.

THE deceased-late a Surgeon of H. M. twenty-fifth regiment-died in Scotland in January 1828. By his will-dated "Antwerp 1st June, 1815"-he bequeathed to his mother the interest of all his money for life; and at her death he gave to each of his brothers 100%., and, to each of his sisters 2007.: the remainder of his property he directed to be equally divided among his brothers and sisters and their lawful heirs. The deceased appointed no executor, nor residuary legatee; but the last direction of the will was in these terms:

"It is left to the Legatees mutually to appoint two intelligent and trust worthy persons to execute this deed, and I would earnestly recommend the money to be either placed in the English stocks or lent on good landed security with a guarantee for the regular payment of the interest."

The deceased left a mother, three brothers and three sisters; all of whom (with the exception of two of the brothers in Canada) had by their proxy appointed "Thomas Hutchinson of Terswaldsmains, near Dumfries, and John Halliday of Sanquhar, merchant, to act as executors under the will of William Cringan, and to take probate thereof." The substitution of these persons, it appeared, had been admitted by the Court at Dumfries upon the appointment, solely, of the brothers and sisters in Scotland.

The property in this country was a sum under 2001. due to the deceased for pay.

Addams moved for probate to the executors substituted by the majority of legatees.

Per Curiam.

The provision in this will, as to the appointment of executors, I am informed, is not very unusual in Scotland; and had the Commissary Court at Dumfries, which has allowed the substitution, decreed probate, I should have had nothing to do but to follow the grant on the production of an exemplified copy. However, understanding from the Deputy-Registrar that instances have frequently occurred of granting probate to persons nominated by those authorized by the testator so to nominate, I shall allow this decree to pass as prayed.

Motion granted.

In the Goods of WILLIAM HOLDER JERRAM.-p. 550.

(On Motion.)

Probate, in common form, of a paper with an attestation clause and no witness, decreed to the only person entitled under an intestacy, on affidavit of recognition of it, as his will, by the deceased.

THE deceased died on the 27th of March, 1828, a bachelor. His will -written very fairly with his own hand-was dated on the 20th of January, 1825, and signed; but below the signature was the word "witness."

From a joint affidavit made by a brother and sister of the deceased, it appeared that in January, 1827, the deceased informed his brother that his will was in a secret drawer of his writing desk, which he then showed him how to open, in case of his death; and having produced his will, he replaced it. It further appeared that about a fortnight prior to his death, the deceased told his sister he had made his will;" and that on the day after his death, it was found by her in the secret drawer of his writingdesk. The deceased's father, who was also an executor, had been sworn to administer the effects under this will; and Dodson now moved that probate might pass in common form.

Per Curiam.

The circumstances, in this case, fully rebut the presumption of law; and the father-the only person entitled under an intestacy-has been sworn as executor of the will.

Motion granted.

In the Goods of ELIZABETH WENLOCK.-p. 551.

On Motion.

A paper manifestly unfinished and imperfect cannot be proved on mere affidavits of finding, hand-writing, and the non-existence of any other testamentary paper.

ELIZABETH WENLOCK, late of Brightlingsea, near Colchester, died on the 27th of March, 1828, a widow, leaving three nieces and two nephews, her next of kin, and the persons entitled to her personal estate in case she should be pronounced to have died intestate. These parties (if alive) were stated to be in obscure stations, and the whole of the deceased's property was of the value of 1207.

At her death was found a paper, beginning thus-"This is the last will and testament of me Elizabeth Wenlock;" it concluded with appointing her cousin, Mrs. Hodder, of London, and Mr. Root, Schoolmaster of Brightlingsea, "to be my whole executrix and executor of this my last will and testament, in consideration of which I beg his acceptance of five pounds." This paper was in the deceased's hand-writing, but it was not signed, nor dated; and there was no residuary clause; it was, however, stated to contain an entire disposition of her property. Mrs. Hodder was duly sworn as executrix: and probate was applied for in VOL. III.

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the Prerogative Office, on an affidavit that the paper was in the handwriting of the deceased. When the probate was presented for the signature of the Deputy-Registrar, he directed an affidavit to the effect that no other paper of the deceased's of a testamentary import had been found.

William Root of Brightlingsea, schoolmaster, and Mrs. Hodder, the executors under the paper in question, accordingly made an affidavit, from which it appeared that, on the 21st of December, 1827, the deceased left with Root the said paper, and requested him to prepare from it a more formal will, which he did; that on the 13th of March, 1828, the deceased told Root that "as her Father had recently died, she could not execute the will in the form it then stood; nor until she had ascertained what property, she really had to dispose of; that upon this occasion Root gave the will, he had prepared, to the deceased; after which he never saw, nor heard from, her; that upon her death, this instrument prepared as a will, was found among the deceased's papers, but probate of it had not been asked, "because they believed that the deceased intended the paper which she delivered to Root should operate and take effect as her last will and testament in case of her death without executing one of a more formal nature."

Dodson now moved for probate of the paper in the handwriting of the deceased.

Per Curiam.

This motion certainly affects me with some degree of surprise and alarm on account of the irregularity of the proceedings. The deceased died on the 27th of March, 1828. A paper is brought to be proved, which, on the face of it, is unfinished and more like a draft than a will. It has no concluding words, no date, no signature; and yet that paper is carried to the Prerogative office for the purpose of probate in common form. This must have been done by a mere clerk-it could not have been by the Proctor himself—an experienced practitioner. (a) But the Court is sorry to find that even a clerk should be so ignorant as not to know such a paper could not pass in common form, on a mere affidavit of handwriting. What appears more extraordinary, is, that the clerk of the seat considered the probate of this instrument as a regular grant. I should wish to be informed who was the clerk of that seat-he ought to have known better; or if he was not better instructed, he should have carried the paper to the acting Deputy-Registrar, and requested his instructions thereon-but no such thing-it is laid before the Deputy-Registrar for his signature as a perfectly regular document. Fortunately when papers are carried to the Deputy-Registrars for their signatures, they are very exact in looking to the nature of the grant, and on the present occasion the imperfect state of the paper was discovered.

It is, however, a serious hardship that all responsibility should rest on them, for in a great press of business, it is possible that an irregular probate might inadvertently pass them unnoticed; but it is hardly possible such a thing should occur if the public had, as they are entitled to

(a) The Proctor stated that he was, at the time, absent from town: and in an answer to a remark of the Court as to the motion being still persisted in, replied, that it was done partly to satisfy his client, who, as executrix, had been at expense respecting the funeral; and partly to afford himself an opportunity of explaining the matter to the Court: but that he had no hope that the Court would grant the motion.

have, a guarantee for the regularity of the grant, in the careful examination of the Proctor in the first instance; of the clerk of the seat in the second; and, ultimately, of the Deputy-Registrar.

It is stated that the Deputy-Registrar merely directed an affidavit as to the finding of the paper; this must, I think, have been a misapprehension, even from the face of the instrument itself-which is unsigned, undated, unconcluded, and appoints no residuary legatee. What now turns out to be the case upon affidavit?—that it was only a draft which was carried to Mr. Root to enable him to prepare a regular will. He, at the time, suggests an alteration which is acceded to by the deceased; and Root prepares the will for execution. The matter, however, does not rest here: the deceased comes again--says, "no,--I cannot execute this will in its present form-my father is lately dead-I must sell out some stock to pay his funeral expenses, and some debts-I don't know what property may remain:"-she then takes the will away with her, and leaves the draft; so that it appears probate of this paper, abandoned by the deceased, was on the point of passing in an ordinary way. This, of itself, is sufficient to excite considerable alarm; and still more so, when I look to the statement-that there are several next of kin--persons in very low and obscure stations in life-who, though they are the parties legally entitled to take the property, yet have not been informed of these applications for probate. Every practitioner here must be aware that an unfinished paper cannot take effect on a mere affidavit as to finding and handwriting. If no other paper exist, that fact alone will not render such an instrument as this valid without some circumstances accounting for its imperfection, and without first citing the next of kin. It is then quite impossible that this motion can be granted; and I direct that inquiry may be made, who was the clerk of the seat that would have allowed the probate to pass; and that he may be desired to act with greater caution for the future.

Motion refused.

YOUNG, otherwise MEARING, v. BROWN.-p. 556.

A testator, while at variance with his relations, having made a will in favour of a stranger in blood, being afterwards reconciled to his family and his full capacity down to his death being admitted; a subsequent will-in favour of his family, (produced shortly after his death from the custody of the drawer, who took nothing under it, nor was acquainted with those benefitted by it; the factum whereof-though occurring in secret and in a strange manner-was proved by the drawer and two unimpeached witnesses)-pronounced for; and the executor of the former will condemned in 201. nomine expensarum, he having directly alleged the second will to be a forgery; but succeeded in showing the drawer to be of doubtful character.

Dissimilitude of hand-writing is very weak and deceptive evidence, and of slight weight only against evidence of similitude; but, against positive evidence of witnesses attesting and deposing to a signature, as actually made in their presence, it can scarcely have any effect.

The executor of a former will deriving all his interest from-and if deprived of such interest being deprived by, the act of the deceased, is not entitled, in opposing a later will, to the same indulgence as a next of kin, who has by law a right to the succession unless ousted by the express direction of the deceased,