1. Administration of the goods of an intes-
tate bastard, drowned together with his
wife and only child, will be granted to a
creditor, the King's Proctor having been
cited, but not the representatives of the
wife, on presumption that the husband
survived; and the debt being large, and
the property small. Colvin v. The King's
Proctor.
41

2. The 21 Hen. 8. c. 5. s. 3. leaves it to
the discretion of the ordinary to grant
administration to the widow or to the
next of kin. Dew v. Clark.
135
3. Administration may be granted to the
nephew on the renunciation of his fa-
ther-the brother and sole next of kin
of the deceased. re Keane.

ADMINISTRATION BOND.

293

An action at common law being brought,
in the Archbishop's name, by the admi-
nistrator de bonis non against the execu-
tors of the original administrator for the

balance of the intestate's effects, the
Court will direct the bond, given by the
original administrator, to be attended
with, on security being given to indem-
nify the Archbishop against costs.
Hall.

re

64

ADMINISTRATION CUM TESTAMEN-
TO ANNEXO.

Administration with a will (in which was no
executor nor residuary legatee) annex-
ed, may be decreed to two aunts of the
deceased, legatees in the will and daugh-
ters of the grandmother (the next of
kin), she being ninety years of age, and
incapable. re Hinckley.

208

ADMINISTRATION DE BONIS NON.
1. Probate of a will of a feme covert (sup-
posed at the time of the grant to have
been sole) revoked; and administration
granted to her next of kin, the husband
having died after her: the administration
of a feme covert's goods, left unadminis
tered by the husband, having been held,
in several cases, to belong under 31 Edw.
3. st. 1. c. 41. and 21 Hen. 8. c. 5. to
the next of kin of the wife at the time
of her death, though the right to the
property is in the representatives of the
husband. But if the persons who on
her death were her next of kin die be-
fore the grant of administration, the
Court may exercise its discretion.
Gill, 341 and 344. See also Wellington
otherwise Hole v. Dolman, 344. Kinle-
side v. Cleaver, 345. Walton v. Jacobson,
346. Reece v. Strafford.
151
2. Administration durante minoritate, for-
merly granted to the mother, having
ceased by the minor's death, and the
mother having thereby become joint re-
siduary legatee with another minor, ad-

Re

21

ADMINISTRATOR PENDENTE LITE.
1. An administrator, pendente lite, will be
appointed, such appointment being ne-
cessary from the nature of the deceased's
property and from the conduct of one of
the parties in the suit; and the nominee
of the other party on whose conduct
there is no imputation, may be selected
if shown to be impartial, competent, and
responsible. Young v. Brown.
2. In an administration, pendente lite, limit-
ed to recover certain sums, and granted
jointly to the nominees of the two par
ties in the suit, the Court will not dis-
pense with such administrators entering
into a joint bond. Stanley v. Bernes. 92
3. Administrators, pendente lite, are the
appointees of the Court, and are not to
be merely considered as the nominees or
agents of the several parties on whose
recommendation they are selected. Ibid.

useless to prove more than a few facts,
such as the birth of a child, identity, and
non-access. Richardson v. Richardson.

13

2. Semble, going to a brothel and remain-
ing alone for a considerable time in a
room with a common prostitute is suffi-
cient evidence from which to infer adul-
tery. Astley v. Astley.

303

3. A married man going to a brothel,
knowing it to be a house of that descrip-
tion, raises a suspicion of adultery neces-
sary to be rebutted by the very best
evidence. Ibid.

303
4. In a suit for separation a mensa et thoro
by reason of the wife's adultery, she,
having in a plea of recrimination, or
compensatio criminum, proved a long
series of misconduct-(adultery, solici
tation of the servants' chastity, and ve-
nereal disease communicated to her)-
for which she separated from him long
prior to the adultery committed by her,
is entitled to her dismissal; nor will a
return to live in the same house, after a
former separation on account of the hus-
band's adultery, operate as a condona.
tion so as to extinguish her right to set
up his guilt as a bar to his prayer.
Beeby v. Beeby.
938

AFFECTIONS OF TESTATOR.

A testator having, (ten years before his
death) when in perfect health, executed
a will, and subsequently, a codicil con-
formable to his ascertained affections;
and two years and a half before his death,
after a paralytic stroke producing at
least great bodily infirmity, having exe-
cuted a second codicil materially depart-
ing from those instruments; and six
months before his death, a third codicil
revoking the second and reverting to the
former disposition; probate of the will,
first, and third codicils granted, there
being no satisfactory proof of a change
in his affections, and the evidence of
volition and capacity being at least as
strong in support of the third as of the
second codicil. King and Thwaits v.
Farley.
220

AFFIDAVIT OF SCRIPTS.
An affidavit of scripts, "that no testamen-
tary paper of the deceased had, at any
time, come to the appearer's hands or
possession," without adding "that it had
not come to his knowledge," is insuffi-
cient. Colvin v. Fraser, 53, notis.

AFFIDAVIT, WILL CONTAINED IN.
The original will being lost and no copy in
existence, a limited administration with
the will (contained in an affidavit) an-
nexed, may be granted to the widow as

1. When alimony, pendente lite, is decreed
to commence from the return of the ci-
tation, all sums paid subsequent to that
return are to be allowed as part payment.
Hamerton v. Hamerton, 23. Harris v.
Harris.
153

2. Alimony pendente lite is usually about
one fifth of the annual income; but the
proportion may vary according to the
circumstances of the parties. Hawkes v.
Hawkes.

230

3. In a suit of divorce brought by the wife,
repeated and profligate adultery being
proved on the part of the husband, who
however had to maintain and educate
twelve children, permanent alimony at
the rate of 600l. per annum, (in addition
to 120l. per annum separate property)
out of a net income of 4000/., allotted
from the date of the sentence, three
years before; the case having in the in-
terval been carried to the delegates, by
appeal on the part of the husband, but
remitted, no steps being there taken by
the appellant, and the remaining delay
being occasioned by his absence from
the kingdom. Durant v. Durant. 231
4. Permanent alimony is always larger than
alimony pendente lite. Out of an income
of 750%, the husband having no state nor
family to maintain, 2501. allotted to the
wife, she taking charge of their only
child. Kempe v. Kempe.
233

ALTERATION IN WILL.

On testator's death, an alteration appearing
in a will which, during his lifetime, was
in the custody of the writer (one of the
executors) who swore such alteration
was made with the testator's concurrence,
but gave no further explanation and de-
clined to propound the will so altered,
the Court will assign the executors to
take probate of the will in its original
state; the residuary legatees, on being
personally cited to propound the will or
to show cause, &c. not appearing. Par-
ker v. Hickmott.
87

1. The Court will grant administration,
with papers annexed, to a person, as at-
torney of an executor according to the
tenor, without requiring a regular pow-
er of attorney; such person being clearly
authorized, by letter from that executor,
to act: the executor of the residuary
legatee (who was also executor, but did
not take probate) having consented. re
Ormond.
Page 67

ATTORNEY AND CLIENT.

1. Mere evidence of execution of a will
and codicil, by a person of weak and in-
ert mind, appointing his attorney and
agent sole executor and almost univer-
sal legatee of a large property, is insuf
ficient without proof of instructions by

the deceased; the instructions for the
will being given to the solicitor, who
prepared and attested it, by and in the
handwriting of the executor's father
(also the deceased's co-agent and attor-
ney); the codicil being prepared exclu-
sively for his own benefit by the execu-
tor, in whose house the deceased was
living apart from his family: and other
circumstances strongly inferring fraud
and circumvention. Ingram v. Wyatt.
167
2. Courts of Equity have in many instances
set deeds aside on account of the rela
tion of influence in the person obtaining,
and of confidence in the person granting
the benefit: as in the cases of Guardian
and Ward, Attorney and Client, Agent
and Principal, and the like; more par-
ticularly in respect to Attorney and Cli-
ent. Ibid.

170

3. All Courts jealously guard suitors
against that sort of influence and know.
ledge which Attornies, Agents, Guar-
dians, &c. possess, and may exercise in-
juriously towards their Clients. Where
such relations of confidence exist, and
where the party frames an instrument
for his own advantage and benefit, every
presumption arises against the transac-
tion. In the case of such an executor,
it is not necessary to prove fraud and
circumvention; he must remove the sus-
picion by clear and satisfactory proof.
Ibid.
171, 172

Though the parties may stand in any
such suspicious relation, and though
there may be suspicious conduct and
some deficiency of capacity, yet satisfac-
tory evidence of the factum may estab-
lish the instrument: it is not in law in-
valid. Ibid.

BAR.

174

1. Slighter acts will bar than will found an
original suit. Astley v. Astley. 303
2. Semble, a single act of adultery is suffi-
cient to bar the husband's remedy. Ibid.
303

3. Entering into a voluntary deed of sepa-
ration and bringing an action on that
deed, does not bar a wife from proceed-
ing for a divorce in the Spiritual Court,
nor bear unfavourably on her case. Du-
rant v. Durant.
310

4. In suits of adultery, &c. mere lapse of
time is not sufficient to bar the wife's
remedy. Ruding v. Ruding. 314, notis.
Also, Popkin v. Popkin, 325, notis.

BONA NOTABILIA.

A Diocesan administration obtained by
one next of kin may be directed to be
brought in, and pronounced null and
void on the prayer of another next of

1. In a suit for brawling, under 5 & 6 Edw.
6. c. 4. § 3., the words of brawling must
be set forth in the articles. The words
"other enormous ecclesiastical offences"
in a citation are surplusage, and will not
support a charge of smiting under 5 &
6 Edw. 6. c. 4. § 2. Jenkins v. Barrett.
16

2. A threatening posture is not smiling
under the statute. Ibid.
16

3. The 5 & 6 Edw. 6. c. 4. was not intended
to abridge the ecclesiastical jurisdiction
in cases of brawling. Ibid.

16

4. Provocation is no defence to a criminal
suit for brawling in a church at a vestry
meeting. On proof of the offence, the
defendant suspended for a fortnight ab
ingressu ecclesiæ, and condemned in costs.
North and Little v. Dickson,

310

CALLING IN ADMINISTRATION.

1. Two papers having been propounded
by an executor in an allegation which
was rejected, and administration there-
upon taken out by the next of kin; on a
legatee under one of those papers calling
in the administration, and the adminis-
trator appearing under protest, the pro-
test may be allowed to stand over in
order that the legatee, on showing he
was not cognisant of the former pro-
ceedings, &c. might bring in an allega-
tion; the appointment of the executor
being in one paper, the interest of the
legatee entirely under the other, and the
two papers not necessarily connected.
Wood v. Medley.
275

2. An executor having propounded pa-
pers in an allegation which was rejected,
and administration being thereupon de-
creed to the next of kin; a legatee can-
not be allowed to call in such adminis
tration in order to repropound the same
papers, unless he can bring in an admis-
sible allegation, and show by affidavit
that the facts have come to his know-
ledge since the rejection of the former
allegation; in which case semble, that even
the executor might re-propound them.
Ibid.

283

An allegation re-propounding two un-
finished papers rejected, the facts not
being sufficient to rebut the adverse pre-
sumption of law: and the administrator,
who appeared under protest, dismissed
with costs. Ibid.
3. Where administration was granted in
1791, on the renunciation of the next of
kin, to a creditor who died in 1806; when
no de bonis grant was taken out till March
1827, and when an administration, limited
to certain leasehold property, and grant-
ed at that time (without citing the next
of kin) to a nominee of the persons in
possession of such property, was, in Feb-
ruary 1828, called in by the representa-
tive of the next of kin, such representa-
tive held barred by time and circum-
stances, and the administrator, who ap-
peared under protest, dismissed with
costs. Skeffington v. White.

CANCELLATION.

297

An executor having, in pencil, altered a
will (by the direction of the testator who
approved of it when so altered) and then
cancelled it only in order that another
might be drawn up, the preparation of
which was prevented by the death of the
deceased; probate, in common form, of
the cancelled will (in its original state)
will be granted on a proxy of consent
from all persons interested. re Applebee.
66

CAPACITY.

1. The clearest and most consistent evi-
dence of capacity and volition are re-
quired to support a codicil conveying be-
quests of such extent as to be irrecon-
cileable with the character of the de.
ceased, and with her intention as proved
by her affections and former testamenta.
ry dispositions; the deceased being at
the time within ten days of her death
and in a state of extreme weakness and
debility, all her confidential friends ex-
cluded or absent, and those only about
her who are benefited under, or engaged
in, the preparation or execution of the
instrument. Brydges v. King.

109

252

capacity at the time of the factum; the
disposition contained being consistent
with his affections, and its variation from
a will, executed before his mind became
impaired, being accounted for by a
change of circumstances. Williams for-
merly Cook v. Goude and Bennet.
3. The asserted will of a person of fluc-
tuating capacity (totally abandoning the
principles of a former disposition, made
before the deceased's faculties were im-
paired, and long adhered to) pronounced
against; and the executor, the person
principally benefited, who among other
things indicative of fraud, had himself
given the instructions, and whose son, a
minor, alone spoke to the execution,
condemned in costs. Dodge v. Meech.
267

COMPENSATIO CRIMINUM.

1. In a suit for separation a mensa et thoro,
the wife's adultery being fully establish-
ed, but she having on a recriminatory al-
legation proved facts antecedent to her
adultery from which the Court necessa-
rily presumed the husband's adultery,
this amounts to compensatio criminum,
and the wife is entitled to be dismissed.
Astley v. Astley.

303
2. The doctrine received in the Ecclesias-
tical Courts of England from the civil
and canon law, that a plea of recrimina-
tion, or compensatio criminum, is a valid
plea in bar, is founded on the principle
that a man cannot complain of the breach
of a contract which he has violated.
Beeby v. Beeby.
338