during the life of his deceased brother. On the will being produced, there was a manifest alteration of the widow's legacy, the words one thousand having been erased, and the words six hundred written upon the erasure.

Henry Parker stated in an affidavit, that the legacy was reduced by the desire, and with the concurrence, of the testator; but gave no further explanation.

A caveat having been entered on the part of the widow; the same was warned: but the Proctor for the executors having declined to propound the will in its present state, a decree issued, at the instance of the widow, against the residuary legatees (Henry Parker being one), citing them to propound it in that manner, or to show cause why the executors should not be assigned to extract a probate of the will, as originally written, with the said legacy of 1,000l. reinstated.

This decree having been personally served; and no appearance given

Jenner, on behalf of Mrs. Parker, moved the Court accordingly; and that the costs of the widow should be paid out of the estate.

Per Curiam.

It is not stated when the erasure was made:-but there being no party before the Court who prays probate of this will with the alterations; and a decree with intimation-issued under seal of the Court-having been personally served-I shall allow the probate to pass agreeably to the tenor of the decree; and direct the costs of the widow to be paid out of the estate.

Motion granted.

IN THE GOODS OF JOHN HOWE.-p. 212.

On Motion.

When pencil alterations are inferred to be deliberative, probate in common form will be granted of the paper, without such alterations; the only party materially injured by such grant, having executed a proxy of consent.

JOHN HOWE, late of Hoxton, died on the 25th of November, 1825. By his will duly made and executed on the 27th of April, 1824, he appointed John Faulkner and James Hall, executors. Ann Elizabeth Buckle, spinster (now the wife of George Passingham), was the residuary legatee.

On the 24th of November 1827, the testator was attacked with paralysis, and continued insensible till his death on the following day. The will was found by Mr. Faulkner (within a few hours of the deceased's death), locked up in a cupboard with his plate, and other articles of value, and with his papers of moment and concern. The will was in an envelope with the seal broken. Upon being opened several erasures and interlineations, made in pencil, and very indistinct, were discovered; and it was presumed they were made by the deceased, who had informed Mr. Faulkner that he contemplated some alterations in his will. These alterations were-with the single exception of an increase of a legacy of 751. to 100l. to one of his nephews-in favour of the residuary legatee. The property of the deceased was under 2,000.

Addams moved that probate should be granted to the executors without the pencil marks; the residuary legatee having consented, and executed a proxy to that effect.

Motion granted.

ARBERY v. ASHE.-p. 214.

On the Admission of an Allegation.

The Court will not, at once, reject an allegation propounding a will, which sounds to folly, when facts are pleaded, showing that the deceased, up to his death, conducted himself, in the ordinary concerns of life, as a sane man.

THE Reverend Robert Hoadly Ashe, late of Crewkerne, in the county of Somerset, died in May, 1826, leaving a widow (since dead), and several children. In June following, letters of administration, as if he were dead intestate, were granted by this Court to Charlotte Hoadly Ashe, spinster, one of his natural and lawful children. In September last, a decree was extracted at the suit of Elizabeth Arbery (wife of John Arbery of Weymouth), calling upon Miss Ashe to bring in the letters of administration, and to show cause why the same should not be revoked; and administration, with a will (as asserted) of the deceased annexed, be granted to her as the universal legatee.

In support of this paper an allegation, consisting of ten articles, of the following effect, had been brought in; and its admissibility was now debated.

1. That the deceased died, at the age of seventy-five, leaving a widow, and Charlotte Hoadly Ashe, spinster, and others his natural, lawful, and only children; that he was Rector of Misterton in the county of Somerset, and also perpetual curate of Crewkerne in the said county; and had so been from 1775; that the widow and children of the deceased, save William Hoadly Ashe (one of his said children) quarrelled with the deceased about sixteen years before his death, and during all that period resided separate and apart from him, and, to the time of his death, were never reconciled to, nor had any communication with him; that his property amounted to 15007., and that the widow and deceased's children were possessed of property entirely independent of him.

The second pleaded,-that William Hoadly Ashe resided at Crewkerne with his father (the deceased), who manifested on all occasions the most parental affection for him; that from and after the death of the said W. H. Ashe, who died at Crewkerne on 4th February, 1818, the deceased (Dr. Ashe) often declared, in the presence of divers credible witnesses, "that his family, meaning his wife and children, should never benefit by him; should have none of his property; and that he would rather give it to a stranger:" and he also often declared he intended to bequeath his property to Mrs. Arbery.

The third-after pleading the factum of the will; and that it was in the deceased's own hand-writing-" that the deceased did, on the day of the date thereof, after he had drawn and prepared the will, walk to the Swan Inn in the village of Misterton (at that time and now kept by Mary Rendell, the aunt of the party próponent), where he had been in the VOL. III.

12

habit, for upwards of fourteen years, of visiting and holding his annual audit, and receiving his tithes; that after he had arrived at the inn, he took out of his pocket his said will, and then, in the presence of several persons, signed it, and published and declared the same to be his last will and testament. "" The article then pleaded the attestation, and that the deceased was of sound mind.

The fourth-that after the execution of his will, he folded it up in an envelope, which he sealed and addressed to Mrs. Arbery; and then left it in the custody of her cousin, Susan Rendell-and requested it might be given to the said Elizabeth Arbery; which was accordingly done.

The fifth pleaded the great age and blindness of Mrs. Rendell; and that on the day aforesaid the deceased also brought with him a paperwriting, which he said required to be signed by the Churchwarden of Misterton, for procuring an allowance for her from the blind institution in London, and that the deceased had been in the habit of preparing for her similar papers for many years.

The sixth pleaded the hand-writing of the instrument propounded.

The seventh-"that the deceased, some time after he had so executed his will, whilst conversing with Mrs. Arbery respecting it, expressed himself, in the presence of credible witnesses, as follows:-'I never will make another will, as I am a minister of the gospel; and mind, as soon as I am dead, that you come and take possession of your property.''

It was also pleaded, that the deceased, though somewhat eccentric in his conversation and habits, was at all times, till his death, of sound mind; that for fifteen years preceding, and for some time after, the making his will, he invariably performed divine service, preached, administered the holy sacrament, and did all the duties of incumbent of Crewkerne and Misterton, and managed all his own concerns.

The ninth-that neither the party proponent, nor her husband, heard of the death of the testator until some time in June last, when she was informed that letters of administration to his effects had been granted to Charlotte Hoadly Ashe, the other party in the cause, who had possessed herself of his property.

Lushington, for the allegation.
Dodson, contra.

JUDGMENT.

Sir JOHN NICHOLL.

The paper propounded in this cause is a most extraordinary one; more especially with reference to the deceased, and considering his condition and station in life. It is in these terms:

I promise & swear that I will give all my Plate-Watch & Seals-Rings and all that I have in the World-at my decease

I promise and swear that I will give Elizabeth Arbery-at my Decease, all that I have in this world or ever shall have in wtaver in money or lands

A paper--couched in these strange terms, and written in this strange manner, coming from a person of education -raises a great doubt-whe

ther it could have been the offspring of his mind when sound. The custody also of the paper, when sent to Mrs. Arbery, has been careless; for it is in a very torn and shattered state: this shows that she had no great confidence in its validity; and the delay of twenty-one months in producing it leads to the same inference. The whole proves, that Mrs. Arbery has a very arduous case to make out, in order to establish that the deceased was of sound mind at the time of the execution; still I do not know that the Court, on the face of the paper, can, positively, pronounce that he was not so. Mrs. Arbery may, perhaps, do well to consider whether she will not give up the pursuit. It may be of some benefit for her to relinquish this paper:-in persisting in this undertaking she will incur a considerable risk of expense, as if it is shown that he was insane at any previous time, the appearance of the paper itself may be sufficient to condemn it.

There may, however, be facts accounting for the disposition. It is pleaded, that his family had a separate and independent provisionthough its nature or amount is not stated; nor does the allegation describe what was the sort of intimacy the deceased kept up with Mrs. Arbery, nor give any reason why she was selected as the object of his bounty. It is also pleaded, that he brought this paper to the place where he usually held his audit, and there he executed it: there is nothing extraordinary, or unnatural, perhaps, that he should direct it to be delivered to the party benefitted. It is also alleged, that he, subsequently, recognized it as his will, and declared he would make no other; and, it is further pleaded, that, after the execution of it, he continued to perform divine service in the parish church, and to administer the sacraments.

The whole tenor and shape of the paper very strongly "sound to folly." Swinburne-in the passage that has been quoted-thus states the law: "If in the testament there be a mixture of wisdom and folly, it is to be presumed that the same was made during the testator's frenzy, insomuch that if there be but one word sounding to folly, it is presumed that the testator was not of sound mind and memory when he made the same" (a).-Such is the doctrine of Swinburne; but it applies only to the case of a person who is sometimes sane, and sometimes insane; and of whose state when he wrote his will there is no direct proof. I cannot, therefore, on the face of the paper, reject it at once, and pronounce the man insane in opposition to such conduct in life as I have before referred to; but I strongly recommend an arrangement out of Court.

As, in cases of married women, there should be some security for costs, the husband must, of course, join in the proxy, more especially here where the woman is in a low condition of life, and the property amounts in value to 1,5001.

Allegation admitted.

(a) Swinburne on Wills, part 2, s. 3, ad finem.

In the Goods of ARMINE ANNE DYER.

219. -p.

(On Motion.)

Probate may be granted in common form of a will written entirely in pencil by the deceased, who, a few days before death, declared she wished it to operate, unless altered.

THE deceased, on the 26th of December, 1827, died at the age of about 80 years, a spinster-possessed of personal property amounting to 3,000l. She left four persons entitled in distribution in case of an intestacy.

On the 20th of December, and on a subsequent day, the deceased spoke of her will-described where it would be found-and said, that she had appointed her nephew executor; and that she intended the same should operate unless she altered it. Upon her death, a few days afterwards, a will-written in pencil, entirely in the hand-writing of the deceased, and dated on the 21st of July, 1823--was found in conformity with her declarations.

Lushington, on affidavits of these facts, moved that the paper should be admitted to probate.

Per Curiam.

By granting this motion, the Court will, of course, not preclude any one interested in the property from contesting this paper at a future period; but if the contents of these affidavits are true (and the Court has no reason for doubting them), the paper is clearly valid. The application, however, would have been stronger, if it had been accompanied by the consent of those interested under a prior will, and who may be prejudiced by its revocation.

Motion granted.

STANLEY v. BERNES.-p. 221.

On Motion.

In an administration pendente lite, limited to recover certain sums, and granted jointly to the nominees of the two parties in the suit, the Court will not dispense with such administrators entering into a joint bond.

THIS was an application to the Court by both parties to grant an administration, pendente lite, jointly to James Campbell, agent of Mr. Bernes, and William Collins, agent of Mr. Stanley, and limited to recover the sum of 14,8007. due to the estate of John Stanley, the deceased; of which 6,9007. were due from Mr. Campbell, and 7,9007. from Baring, Brothers and Company; also to receive the dividends on certain stock standing in the deceased's name; and the Court was further asked to permit the administrators, instead of entering into a joint administration bond for the property, so limited, to enter into separate bonds, each to the amount only of a moiety of the limited property. Lushington and Addams, counsel for Mr. Stanley. Jenner and Phillimore, for Mr. Bernes.