mediately committed the same to writing, and then read it over to the deceased, when it was duly executed.

By this will, after bequeathing a suit of mourning to his eldest son, he left the residue of his estate and effects to his widow for life, and upon her death, in equal proportions, to his four younger children. He appointed his widow and John Hosier executors.

Upon the death of the testator his widow delivered the will to Mr. Hosier; but, in his life-time, on account of the embarrassed state of the deceased's affairs, no steps were taken to prove it. Mrs. Vallance was now anxious to take probate; she had recently been informed that the sum of 1127., to which her late husband was entitled, might be recovered; and had applied to the solicitor of the representative of the late Mr. Hosier for the will; but it could not be found; there was no copy in existence; and the attesting witnesses were dead.

Upon an affidavit of these circumstances, a decree with intimation had issued against the children, to show cause why probate of the substance of this will, as contained in the affidavit, should not be granted, under the usual limitations, to the lawful relict and executrix. This decree was personally served on the eldest son; it was also affixed to the Royal Exchange, as two of the children were minors and abroad.

A proxy of consent had been signed by all the children in England, except the eldest son; and Phillimore now moved that probate should pass according to the decree.

Per Curiam.

It would be dangerous to decree this probate merely on the affidavit of interested parties without requiring security;-but the Court sees no objection to the grant of an administration with the will, as contained in the affidavit, annexed, limited until the original is produced; provided the widow gives justifying security.

Limited administration decreed.

In the Goods of JAMES THOMAS.-p. 695.

On Motion.

In order to the grant of probate, in common form, of an unfinished paper, there must be, first, affidavits stating such a case as if proved by depositions would establish the paper, and secondly, consent, implied or express, from all parties

interested.

JAMES THOMAS died on the 13th of January, 1828; and left a widow and seven children. By a testamentary paper he appointed his wife universal legatee-sole executrix-and guardian of his children during their minorities. He left no real estate; and the personal property did not exceed 160%. Of this instrument, as the last will of the deceased, Pickard moved for probate.

Per Curiam.

This paper, in the deceased's own handwriting, giving every thing to the wife, is written on a small octavo half-sheet; and begins in a formal manner "This is the last will and testament of me James Thomas of Topsham:" it is signed, has an attestation clause, but no subscribing witnesses; and the paper concludes in these terms "In witness whereof

I have hereunto set my hand and seal this," &c. There is, however, no seal, nor date; though it is clear that the deceased intended there should be both; as well as that the paper should be witnessed: it therefore is unfinished. An attempt is now made to take probate of this instrument simply on affidavits. What do they establish? Challis—a neighbour of the deceased, and in habits of intimacy with him-says "that he, some time about the end of October, 1827, în speaking with the deceased about wills, informed him, that as he had no freehold property, there could be no occasion for any witnesses to his will:" this then takes place three months before the death of Thomas, and, according to the wife's account, before the paper was written. The remainder of this affidavit is made jointly with Pledge, and is merely to handwriting. The other affidavit is sworn by the wife--a party greatly interested: she says "that the will was written by the deceased on the 30th of December while he was confined to his bed-room; that he gave it to her to read, when she requested him to send for two witnesses, and that he replied--Challis had told him no witnesses were required,' that the deceased then signed the paper and put it into his desk:" she further says -"that on the day before he died he lamented to her that his will was not witnessed, but trusted from what Challis had told him, that it would do as it was.”

This is a dangerous affidavit: the party is interested; the paper perhaps was written to please the wife; the Court cannot exclude the children on her evidence: There is not sufficient to satisfy the regular demands of the Court, viz. first, affidavits stating such a case as if proved by depositions would establish the paper; and secondly, consent implied or express from all parties interested: (a) here no consent can be given for the minor children; and if the Court were to grant probate, the executrix would give no security, and the children would be entirely at her mercy: while if the deceased were held to be dead intestate administration might be granted to the widow, and she would then give security.

Motion refused.

(a) Vide "In the goods of Herne," ante 93; and "In the goods of Hurrill," ante 107.

TALBOT v. ANDREWS.-p. 697.

(On Motion.)

Administration granted to one creditor, a decree, with intimation, having issued in the name of another.

ROBERT ANDREWS died in January, 1828, intestate: he left an only daughter, solely entitled to his personal estate.

A decree having been personally served upon her, to show cause why administration should not be granted to Mr. Talbot, a creditor; it was discovered, that it would be of no avail for him to take the grant, as he was already party to a suit in which an appearance for the administrator of Andrews' estate was required. In consequence of this, an affidavit of

mediately committed the same to writing, and then read it over to the deceased, when it was duly executed.

By this will, after bequeathing a suit of mourning to his eldest son, he left the residue of his estate and effects to his widow for life, and upon her death, in equal proportions, to his four younger children. He appointed his widow and John Hosier executors.

Upon the death of the testator his widow delivered the will to Mr. Hosier; but, in his life-time, on account of the embarrassed state of the deceased's affairs, no steps were taken to prove it. Mrs. Vallance was now anxious to take probate; she had recently been informed that the sum of 1127., to which her late husband was entitled, might be recovered; and had applied to the solicitor of the representative of the late Mr. Hosier for the will; but it could not be found; there was no copy in existence; and the attesting witnesses were dead.

Upon an affidavit of these circumstances, a decree with intimation had issued against the children, to show cause why probate of the substance of this will, as contained in the affidavit, should not be granted, under the usual limitations, to the lawful relict and executrix. This decree was personally served on the eldest son; it was also affixed to the Royal Exchange, as two of the children were minors and abroad.

A proxy of consent had been signed by all the children in England, except the eldest son; and Phillimore now moved that probate should pass according to the decree.

Per Curiam.

It would be dangerous to decree this probate merely on the affidavit of interested parties without requiring security;-but the Court sees no objection to the grant of an administration with the will, as contained in the affidavit, annexed, limited until the original is produced; provided the widow gives justifying security.

Limited administration decreed.

In the Goods of JAMES THOMAS.-p. 695.

On Motion.

In order to the grant of probate, in common form, of an unfinished paper, there must be, first, affidavits stating such a case as if proved by depositions would establish the paper, and secondly, consent, implied or express, from all parties interested.

JAMES THOMAS died on the 13th of January, 1828; and left a widow and seven children. By a testamentary paper he appointed his wife universal legatee-sole executrix-and guardian of his children during their minorities. He left no real estate; and the personal property did not exceed 1607. Of this instrument, as the last will of the deceased, Pickard moved for probate.

Per Curiam.

This paper, in the deceased's own handwriting, giving every thing to the wife, is written on a small octavo half-sheet; and begins in a formal manner "This is the last will and testament of me James Thomas of Topsham:" it is signed, has an attestation clause, but no subscribing witnesses; and the paper concludes in these terms "In witness whereof

I have hereunto set my hand and seal this," &c. There is, however, no seal, nor date; though it is clear that the deceased intended there should be both; as well as that the paper should be witnessed: it therefore is unfinished. An attempt is now made to take probate of this instrument simply on affidavits. What do they establish? Challis—a neighbour of the deceased, and in habits of intimacy with him-says "that he, some time about the end of October, 1827, in speaking with the deceased about wills, informed him, that as he had no freehold property, there could be no occasion for any witnesses to his will:" this then takes place three months before the death of Thomas, and, according to the wife's account, before the paper was written. The remainder of this affidavit is made jointly with Pledge; and is merely to handwriting. The other affidavit is sworn by the wife--a party greatly interested: she says "that the will was written by the deceased on the 30th of December while he was confined to his bed-room; that he gave it to her to read, when she requested him to send for two witnesses, and that he replied--Challis had told him no witnesses were required,' that the deceased then signed the paper and put it into his desk:" she further says -"that on the day before he died he lamented to her that his will was not witnessed, but trusted from what Challis had told him, that it would do as it was. ""

This is a dangerous affidavit: the party is interested; the paper perhaps was written to please the wife; the Court cannot exclude the children on her evidence: There is not sufficient to satisfy the regular demands of the Court, viz. first, affidavits stating such a case as if proved by depositions would establish the paper; and secondly, consent implied or express from all parties interested: (a) here no consent can be given for the minor children; and if the Court were to grant probate, the executrix would give no security, and the children would be entirely at her mercy: while if the deceased were held to be dead intestate administration might be granted to the widow, and she would then give security.

Motion refused.

(a) Vide "In the goods of Herne," ante 93; and "In the goods of Hurrill," ante 107.

TALBOT v. ANDREWS.-p. 697.

(On Motion.)

Administration granted to one creditor, a decree, with intimation, having issued in the name of another.

ROBERT ANDREWS died in January, 1828, intestate: he left an only daughter, solely entitled to his personal estate.

A decree having been personally served upon her, to show cause why administration should not be granted to Mr. Talbot, a creditor; it was discovered, that it would be of no avail for him to take the grant, as he was already party to a suit in which an appearance for the administrator of Andrews' estate was required. In consequence of this, an affidavit of

debt was made by Robert Kipling, another creditor of the deceased's estate; and Pickard referring to "Maidman v. All persons in general," 1 Phil. 51.(a) moved for administration to be granted, on the original decree, to Mr. Kipling.

Motion granted.

(a) See also Law v. Campbell, supra, p. 22.

In the Goods of JOHN EDMONDS.-p. 698.

On Motion.

The Court will not on affidavit grant probate of an imperfect paper unless all the parties interested are consenting or cited.

THE deceased died on the 4th of June, 1828, a widower-leaving fourteen cousins-german (two abroad) his sole next of kin. A testamentary paper, in his own handwriting, dated the 19th of April, 1828, was found at his death: by this paper he had appointed Elizabeth Smith, (his niece by marriage, and who resided with him) and Isaac Hansonexecutors: they were also the only legatees, and there was no disposition of the residue. This paper was signed, but there were no signatures to the attestation clause.

Curties moved for probate, upon the affidavits of the executors, and of Mr. Goddard-a solicitor-that the deceased was ignorant of the effect of an attestation clause; and that he expressed, to the latest day of his life, an anxiety that his will should take effect. Annexed to the affidavits was a letter from Mr. Goddard to the deceased, informing him that, in a will merely of personal property, subscribing witnesses were not absolutely required.

Per Curiam.

Here is a slight presumption against this paper which it is necessary to remove: the affidavits, however, show fully that the deceased intended it to operate without being attested, having been informed that no witnesses were necessary. But these affidavits are made by parties interested, and there is no proxy of consent, nor notice to the next of kin; and the Court cannot depart from the rule, that when application for a probate is made on ex parte affidavits, all parties interested must be consenting or cited.

Motion to stand over.

Note. On the second session of Michaelmas term, no appearance being given to a decree duly served in respect to the next of kin, who were abroad; and a proxy of consent, from the next of kin who were in England, being exhibited; the Court granted the probate. Motion granted.