executors than one. That this second paper has any reference to o connection with the first, non constat; and unless that connexion is es tablished, Mr. Cundy would not be the legitimus contradictor; for he would not be the executor of the former paper, under which alone, as I have said, Wood is interested. True it is that the decree extracted by Peter Wood calls on the administratrix to show cause why Mr. Cundy should not be assigned to take out probate as executor; but that is the mere form in which he has been recommended to extract the process, and it may still be established that Mr. Cundy is not the executor. Mr. James Riddel Wood, who furnished information, and was consulted respecting the former suit, and was cognizant of, and privy to, every part of those proceedings, would unquestionably be bound by what then occurred: but the question with respect to Peter Wood is, whether he was legally, or de facto, privy to the suit between Cundy and the Misses Medley. Not legally, because though one of the opinions recommended that a citation against all persons interested under the papers should be taken out, that course was not pursued; but the parties thought to go a shorter way to work. It remains then for him to show that he was not de facto privy. If the intervention has not taken place at the earliest period, I should hold the party bound by the lis pendens; and as there was no reason why he should have intervened, his father and brother being both on the spot, I should not consider his bare non-intervention and non-citation sufficient grounds to justify the Court in permitting him to re-propound these papers, unless he can also show that he was de facto and bona fide ignorant that there was a suit depending. He does not state when he was informed of the actual lis pendens. There is, in his affidavit, much room for mental reservation. The Court does not actually arrive at what is his meaning-he does not state that he did not know, at the time, of his uncle's death-he does not state when, nor under what circumstances, information of the facts on which he now relies reached him, nor who are the agents from whom he received that information, nor what the facts are, so that the Court might judge for itself, nor does he even state, that they have been laid before Counsel as all the other facts have been: he says, "that he did not in any way consent, or make himself a party to any acts done by James Riddel Wood or John William Cundy, either during the dependence of the said proceedings, or subsequent thereto," but I rather collect from some other parts of the affidavits, that he was aware of the proceedings. Now if it is quite clear that Peter Wood did know there was a suit pending, and chose to trust the protection of his interest to his father, to his brother, or to any other friend or adviser, he would be in strictness perhaps bound; still as the Court in its discretion exercises a degree of indulgence towards parties out of the kingdom, and as what appears is not sufficient quite to convince me that he knew what was going forward, I do not feel imperatively called upon to uphold the protest without allowing a further opportunity of establishing his claim to the equitable consideration of the Court. I shall therefore allow the protest to stand over for the present, and adopting in some measure a suggestion of the learned Counsel who spoke last, shall permit Peter Wood to bring in an allegation; on his making an affidavit, showing that he was ignorant of, and abroad during the pendency of, the former proceedings, and stating the time when the facts relied on to substantiate the validity of these papers, first came to his knowledge: but he must understand that he does this

at the certain peril of the full costs of calling in the administration, if he should ultimately fail in proving these papers entitled to probate.

The allegation might, and perhaps, indeed, ought to have been brought in this day; but I direct it to be brought in on the next Court day. Perhaps, too, if Peter Wood had not been a party in distribution, the Court would have required from him a security for costs.

On Admission of the Allegation.

An executor having propounded papers in an allegation which was rejected, and administration being thereupon decreed to the next of kin; a legatee cannot be allowed to call in such administration, in order to repropound the same papers, unless he can bring in an admissible allegation, and show by affidavit that the facts have come to his knowledge since the rejection of the former allegation: in which case semble that even the executor might repropound them. An allegation repropounding two unfinished papers rejected, the facts not being sufficient to rebut the adverse presumption of law: and the administrator who appeared under protest dismissed with costs.

When an instrument is unfinished, its state must be accounted for; either by showing completion prevented, or that the deceased, abandoning his intention of finishing it, meant it to operate in that form without any further act.

This allegation was, in substance, as follows:

1. "That John Medley died on the 12th of August 1827, a bachelor; leaving Ann and Priscilla Medley, spinsters, and also Susanna-wife of John Frost-his sisters and only next of kin; and together with several nephews and nieces, children of two deceased sisters-Mary, wife of Benjamin Jefford; and Elizabeth, wife of Peter Wood, the only persons entitled in distribution to his personal estate and effects, in case he had died intestate. That the deceased left no real property, and that his personal estate and effects consisted of 17,000l. in the Funds."

2. "That he was a person of very eccentric and retired habits; extremely penurious and reserved in respect to his affairs, and kept up very little intercourse with any of his relatives; that during the latter years of his life he resided entirely either at taverns or lodgings; and, when at the latter, he took his meals almost daily at some neighbouring tavern.”

3. "That he for many years previous and up to the time of his death allowed to his sisters, Ann and Priscilla Medley the yearly sum of 801. each; that he frequently expressed his intention of leaving them annuities for life only (they being elderly unmarried ladies) and that such his intentions were at all times known to the said two sisters, who were and expressed themselves to be perfectly satisfied therewith."

4. "That for many years and till his death the deceased entertained a very unfavourable opinion of the conduct of John Frost, the husband of his sister Susanna, in consequence of his extravagant habits; and the deceased frequently declared that the said John Frost should not have the spending of any of his property."

5. "That the deceased at all times had a great affection for his nephews and nieces (Jefford and Wood); and frequently declared to divers persons that they would eventually come in for all his property, but not in equal proportions, as he intended to make a distinction in that respect

in favour of one or two of them, without however, at such time, specifying which one or two in particular."

6. "That in October 1824 the deceased wrote No. 1.; and that not having named any executor thereof, he did some time afterwards, but when more particularly the party proponent is unable to set forth, with his own hand draw up No. 2. That the said paper writings contain together the last will and testament of the deceased, and were meant and intended by him to operate as and for his last will and testament. And that by such last mentioned paper he appointed John William Cundy sole executor of his will."

7. "This article pleaded the handwriting of the testamentary papers." 8. "That the deceased employed Capel, Cuertons and Cundy as his Stockbrokers; that he placed great confidence in them, (particularly in J. W. Cundy, his executor); and that he frequently deposited large sums of money in their hands which they held as his bankers."

9. "That on the 10th of September 1823 the deceased took up his residence at the Princess Charlotte Tavern, at which he wholly lived until July 1825, when he quitted in consequence of its then proprietor retiring from the house. That during such his residence the deceased became much attached to, and took into his confidence, George Caines the principal waiter in the tavern, and frequently expressed himself as extremely thankful to Caines for his kindness and attention, especially during several serious attacks of illness. That in August 1826 the deceased, then resident in Arundel Street, having accidentally met Caines, proposed he should enter into his service in order constantly to attend upon him and accompany him in his walks; which Caines did, but shortly quitted the service from a want of suitable accommodation."

10. "That in the latter end of 1824, and whilst the deceased was living at the Princess Charlotte, he being very unwell, requested Caines (as he had frequently done on former similar occasions) to come and sit with him after the business of the house was over, which Caines did, and remained talking with the deceased for a considerable time. That the deceased who, on such occasions, was and complained of being unusually ill, stated expressly to Caines, that happen what would to him, or die when he might, he had made his will, or settled his affairs, and that his mind was quite easy in that respect.

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11. "That in the beginning of June 1825 he informed Caines it was his intention to go for a short time into the country, as he found his health still declining; and at the same time assured him, that in the event of any thing happening to him, (the deceased) his will was made, and his affairs finally settled.""

12. "That he for many years previous to his death, was on terms of the greatest intimacy and confidence with Edwards Esquire; that during the last two years of his life they met almost daily and dined together at the Constitution Tavern. That, on very many of those occasions, he informed Edwards that he had made his will, and thereby eventually bequeathed all his property to his nephews and nieces, but that one or two of them would take more than the rest.""

13. "That in the latter end of May 1827 the deceased was suddenly taken ill and deprived of his mental faculties; and that in consequence of such illness the said Ann and Priscilla Medley came to London; that, whilst at the deceased's lodgings, they wrote to Mr. Henry Edwards, a Solicitor, and acquaintance, to request he would immediately come to

them for the purpose of preparing a power of attorney to be executed by the deceased for receiving his dividends at the Bank. That Henry Edwards accordingly attended at the deceased's lodgings; and that on such occasion Ann and Priscilla Medley brought down, from the deceased's desk, the paper-writings, No. 1 and 2, pleaded as aforesaid, and requested him to inform them, whether it was a legal instrument?' That he replied, they were imperfectly executed, and recommended that a more formal instrument should be prepared.' That Ann and Priscilla Medley well knew the contents of the said papers, and expressed themselves satisfied that such were conformable to the wishes of the deceased; and, at the same time informed Henry Edwards that should the deceased be restored to a proper state of mind they would urge or recommend him formally to execute the same, or to make such or a similar will. That Henry Edwards again saw the said paper-writings on the following day; and that, on both occasions, they were pinned together. That the deceased continued, until his death, in a state both of body and mind which totally disqualified him from attending to, or comprehending his affairs."

14. "That the said papers, when taken possession of by Ann and Priscilla Medley, were discovered in a pocket-book in the deceased's writing-desk, wherein all his papers of value and his securities were deposited: that the pocket-book contained two receipts signed by the deceased's sister Susanna (now Frost) the one dated 16th December 1817 -the day previous to her marriage-for 4877. 10s.: and the other for 251. Also an acknowledgment from James Wood, a nephew, of the gift of 800l., subject to a 5 per cent. interest during the deceased's lifetime, bearing date the 7th of May 1827.

Lushington and Nicholl in objection.

The party still persists in propounding No. 2, and probate is prayed to Cundy exactly as before: but the only ground of allowing this cause to be revived, was the disconnexion of the two papers; yet, throughout this allegation, recognitions, custody, finding, are pleaded as applicable to both: all facts support the latter as well as the former. The expressions of intention go no further than the papers themselves; and it has already been decided that the papers show only a passing intention, à fortiori then, declarations, which are much weaker, inasmuch as they may be more easily misunderstood, and more easily made. The affidavit is unsatisfactory. Wood does not state that he was abroad, which was required to be set forth. He says that the proceedings were instituted and conducted without his knowledge, but he does not say that he was ignorant of the pendency of the suit. It is perfectly consistent with the affidavit that he knew there was a suit, though he might not be aware of the parties to such suit, nor of the particular steps that were taken in it.

[The objections taken to the substance of the allegation were those referred to in the judgment of the Court.]

Phillimore and Addams contra.

The paper is certainly imperfect, but what is the doctrine of the Court in cases of this description?-that the degree of proof must be in proportion to the imperfection of the instrument: it may, therefore, be more or less difficult of proof according to the circumstances. This paper is capable of being sustained by extrinsic evidence-by the answers of the adverse party, and by the testimony of the witnesses who are vouched to establish the allegation. It is, in itself, more than a mere

inception of a will; it disposes of the residue; and the heading of it"This is the last will and testament of me John Medley"-is very generally considered and adopted as tantamount to a signature; Burn, in his Ecclesiastical Law, and Blackstone furnish authorities to that effect; [see 4 Burn's Ecc. Law, p. 77., Tyrwhitt's edition, and the cases there cited: and 2 Black. Com. p. 376, Coleridge's edition;] and it is so laid down in respect to real property, a fortiori it may easily be regarded as sufficient in a case of personalty only; and here there can be no doubt as to the fixed and final intentions of the testator. The character of the deceased was eccentric, and that may account for his having written his will on a passport. The affidavit has been objected to as not sufficient; it might easily have been drawn more specifically, and, no doubt, it would have been fully borne out by the facts.

JUDGMENT.

Sir JOHN NICHOLL.

I am not clear that the Court ought to consider this allegation at all; for it appears that the papers, which are now brought forward, have been before propounded by Mr. Cundy, who then was, and still is, alleged to be the executor. Generally speaking, a legatee is bound by the act of the executor, and perhaps in the present instance, Mr. Wood might more especially be held bound, because in the former proceedings Mr. Cundy was assisted by another legatee-the brother of the present party. Thus the executor, who primâ facie is to be considered the pars principalis or legitimus contradictor, having failed in his endeavours to establish these papers, another legatee could not be allowed to assert their validity a second time except on some special grounds: I say "except on some special grounds," because I do not mean to assert that an executor even, after having once propounded a paper, and been unsuccessful in showing its title to probate, would in all possible cases be barred from re-propounding it, on proof, that since its former rejection, material facts had come to his knowledge.

The express condition then (as it also was the principal ground) on which the Court permitted, in this case, an allegation to be offered before it decided on the protest, was-that it should be accompanied by an affidavit that the facts were newly discovered, and that the party believ ed he should be able to make due proof of them.

The affidavit brought in however is extremely slight and loose, and does not at all satisfy the exigency of the case: but, passing over this preliminary objection, it would, perhaps, be more satisfactory to the party if I proceeded to consider the allegation. In so doing the Court can have but little doubt as to its decision, more particularly as it must bear in mind that the application, being special, the facts to support it must be special also.

The averments do not in substance, differ very widely from those contained in the original allegation. The only additional circumstances which could possibly be esteemed material, or have any weight, are cer tain declarations made to a waiter and to a tavern friend. The first eight articles-besides stating the number of the deceased's relations, the amount of his property, his habits, his mode of life, and the making and handwriting of these papers-plead the state of his affections, and regard for the different parts of his family; all which were to be inferred from, and do not go beyond, the papers themselves, and must, I presume, have been known when the former allegation was given in: if indeed they