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1. (Probate.) Where a testatrix bad a power of appointment, and a general probate of her will of 1829, and a codicil thereto, had been granted, the delegates, reversing a decree of the prerogative, Held, that the Court of Probate could not also grant an administration, with a will of 1815 and codicils annexed, limited to become a party to proceedings in equity, touching the execution of the power by such wills; but must itself decide whether the will of 1815 was, under the circumstances, revoked by the will of 1829, and therefore grant either a probate of the will and codicil of 1829 alone, or a probate of those papers and of the will of 1815 and its codicils, as together containing the will.—Hughes v. Turner, 30.
2. (Contingent.) A will, written eighteen years before the testator's death, containing the passage, "All men are mortal, and no one knows how soon his life may be required of him. Lest I should die before the next sun, I make my will," was admitted to probate; the Court thinking it not contingent as to the disposition of the property; and that the careful manner in which it had been preserved manifested adherence.—Burton v. Collingwood, 176.
3. (Probate.) An unattested letter, disposing of real and personal property, conditioned on the deceased dying during a journey to Ireland, was not admitted to probate in common form, the deceased having returned from Ireland, and subsequently executed a will disposing of land, but not referring to the letter or to the personalty.—In the goods of B. J. Ward, 179.
4. (Same.) Probate, in common form, of an unattested will, was granted on the affidavit of one person only to handwriting, and the consent of the executor and sole next of kin in distribution.—In the goods of Mary Reeton, 209.
5. (Same.) A paper, not found in the deceased's repositories, never traced into his possession, never recognized, nor alluded to by him, by declaration or act, but transmitted anonymously to the parties interested in 1820, (the deceased having died in May 1829,) treated by them at that time as a forgery, but propounded as her will in 1831, was rejected; evidence of the probability of the disposition and similitude of handwriting (which moreover was contradictory) being insufficient to support such a paper, and the other evidence leading to the conclusion that the deceased had not written, and could not, from bodily infirmity, have written such a paper at the time it purported to bear date; and a claim of relationship by a party asserting himself to be cousin-german and next of kin, resting upon no documentary proof, but upon evidence of declarations, contradictory in themselves, and inconsistent with the real facts of the case, was pronounced against, but without costs: and an administration granted to the crown, as of the deceased being dead intestate, without known relations, was confirmed.—Rutherford v. Maule, 213.
6. (Same.) Where there is a regularly executed paper disposing of realty and personalty, and an unexecuted paper in which the disposition of real and personal estates are blended, and are dependent upon each other, the Court will not grant probate of such unexecuted paper; aliter, where the disposition of the one is not dependent on the other.—-Tudor v. TWor, 199, n. '•-'
7. (Probate—Handwriting.) It has always been the doctrine of the Court, that similitude of handwriting, even with a probable disposition, is not sufficient to entitle a paper to probate, without something to connect it with the deceased.— Rutherford v. Maule, 224.
8. (Opposing—Cos!i.)—Where testator was proved to possess sufficient understanding to comprehend the effect of his will, excluding his kindred from the benefit of his property, and an attempt to show that the will was induced by fraud and contrivance in the person chiefly benefited, failed: the Court, in pronouncing for the will, condemned the next of kin in the costs of allegations given in charging incapacity and fraud.— Grindall v. Grindall, 10.
9. (Adherence.) An entry in an account-book, containing a full disposition of the property, appointment of executor dated eight months before the testatrix's'death, which was sudden, subscribed and carefully preserved, pronounced for, though containing these words:—" I intend this as a sketch of my will, which I intend making on my return home," the circumstances showing adherence of intention.—Haltatt v. Haltalt, 111.
10. (Construction.) In a suit of subtraction of legacy, a coachman, a married man, originally hired by, and who had lived five years with, the testatrix, residing over her stables in town, occasionally accompanying her into the country, where he lived in the house, though, like all her servants, on board wages; waiting sometimes at table, and remaining with her, though she changed her jobman: Held, although the several jobmasters paid him his wages and board wages, except 3s. per week extra in the country, and found him in liveries, entitled under a bequest "to each of my servants living with me at the time of my death £10."— Howard v. Wilson, 107.
11. (Deliberative.) A testator, having executed his will, disposing of realty and personalty and duly attested, subsequently wrote, signed, and dated a paper complete in disposition, but unattested, having the appearance of a draft, and spoken of in a memorandum subjoined as intended to be settled and transcribed by his attorney, but "if he should have no opportunity, to be acted upon if it could be done fairly; if not, the former Will to be resorted to:" the testator having the opportunity of completing such paper, which, if admitted to probate, would have been inoperative totally as to the realty, and partially as to the personalty, must be presumed to have abandoned it, and to have reverted to the regular will.—Ehden v. Elsden, 183.
12. (Same.) The deceased in 1812 regularly executed a Will, and in 1818 two codicils to carry real estate; he, in February 1828, gave instructions for a new will disposing both of real and personal estate i the will was prepared for execution, read over to him, and altered; the sheets altered, re-copied, and the will again read over, after an interval of some days; the deceased postponed the execution, and in March the will was again read over to him; pencil alterations of slight importance were then made; on the 14th November 1829, further alterations were alluded to; the deceased said he would call and "finish" it on the 19th, he died , suddenly on the 17th. The Court refused probate of this instrument, not being satisfied that the deceased had finally made up his mind.— Gillow v. Bourne, 192.
13. (Probability—Forgery.) Probability of disposition is of very little weight to negative forgery, though material to prove capacity, volition, and the absence of fraudulent imposition.—Rutherford v. Maule, 326.
14. (Presumption of destruction.) Where a will is not traced out of the deceased's possession, but is not forthcoming, the presumption of law is, that he destroyed it, (though that presumption may be rebutted by proof,) and the presumption requires stronger evidence to rebut it when a charge of spoliation is made. The evidence establishing that the deceased had possession of and access to his will, and might have destroyed it, and the presumption of law not being rebutted, a copy was pronounced against,— Wargent v. Hollings, 247.
[Containing 2 Knapp, Part 2.]
(Bengal.) An adoption by a widow after her husband's death, without any authority from him, is invalid in the Zillah of Etawa, in provinces ceded by the Nabob of Oude, in 1801.
During the pendency of a suit instituted by a person claiming as an adopted son against a widow, the widow dies, and proclamation is made for her heirs to come in and defend the suit, and the claimant is put in possession of the property in dispute by the collector. The Court of Sudder Dewannee Adawlut decided that the claimant had not made out his title, and directed the collector to put in possession of the property another person who had come in under the proclamation, but produced no evidence of his title: Held, that the claimant by adoption ought to have been permitted to continue in possession, subject to be dispossessed by any one showing a title not barred by lapse of time.—Raja Haimun Chull Sing App., Koomer Gimsheam Sing Resp., 203.
(Guernsey.) The Order in Council of the 13th of May 1823 directs that appeals shall be confined to cases where the object in dispute, if real property, amounts to £10 per annum, or if personal, to £200. Leave was however given, on petition, to appeal from a decision of the Court confirming a poor-rate on the real and personal property of the petitioners, though the assessments were, separately and collectively, less than the amounts fixed; the Court, in their answer to the petition, stated, that though the order in question, as well as another Order in Council, were sufficient to justify their refusal to permit the petitioners to appeal, yet that they had refused, not on these grounds only, but for other reasons, arising from the case itself.—In re Tupper, 201.
[Whenever the Royal Courts of Guernsey and Jersey refuse to grant permission to a party to appeal, and a petition for leave to do so is presented to the King in Council, a letter is sent to the Courts from the Council Office, desiring them to state the reasons of their refusal: to which, as in this case, they return answers, signed by their bailiffs. Die practice is confined to the Courts of these islands.]
BILL OF EXCEPTIONS.
(Antigua.) A bill of exceptions having been taken to the directions of a judge, and sealed by him, and the case having been removed by writ to a Court of Error, an affidavit was filed, stating that an allegation in the bill to the effect that the judge had declared certain evidence to be conclusive, was incorrect, since he had in fact left it to the jury, and that the bill omitted to set out material points of the evidence; and the judge, on being called upon by the Court of Error, corroborated the statements of the affidavit, declaring that he had sealed the bill under an erroneous impression that it had been settled by the council on both sides; the Court of Error ordered that the writ should be quashed, and the paper writing, purporting to be a bill of exceptions, taken off the file for irregularity: Held, that the Court of Error ought not to have quashed the writ, but ought to have taken it off the file for the purpose of having it amended according to the judge's notes.—Pownall App., Mascall Resp., 161,
LIMITATION (STATUTES OF).
(Bengal.) A suit instituted in 1817, to recover Altumgha lands in right of an ancestor who died out of possession of them in 1798, was held to be barred by the Bengal Statutes of Limitations, Regulation 3 of 1793, and 2 of 1805.—Gordon App., Moohummed Khan Resp., 225.
(Grenada.) L., a partner in a firm at Grenada, having entered into a contract with the Spanish Government, employed U. and Co. at St. Thomas's to supply articles to fulfil the contract. The other partners in the Grenada firm wrote to U. and Co. disclaiming all connection with the contract. U. and Co., both before and after the receipt of the letter, supplied articles to enable L. to fulfil the contract: Held, that the Grenada firm were liable for all advances previous to the disclaimer, and for all advances subsequent to it, for which any liability had been previously incurred; and that the Grenada firm were entitled to credit for all payments made in respect of the contract prior to the disclaimer, or subsequently, if specifically made in respect of the account then due, and for the balance of all payments made generally in respect of the contract subsequently, after satisfying the amount due to U. and Co. by L. alone.—Smith App., Tire Resp., 188.
Memorials to the King in Council complaining of, and appealing against, a scheme for a distribution of part of the booty taken in the war in the Deccan, which had been approved of by the Lords Commissioners of the Treasury, having been referred to a Committee of Council, they, without hearing the memoralists upon the merits of their cases, advised his Majesty to refer the consideration of the memorials to the Lords Commissioners of the Treasury, to do therein as to them might seem proper.
The Lords of the Treasury afterwards affirmed the judgment already pronounced, and directed the distribution to be carried into immediate effect.—Case of the Army of the Deccan, 103.