Barbara Cockayne Medlycott, widow, her mother and eight sisters, the parties entitled in distribution in case she is dead intestate.

In April, 1820, the deceased executed a will which she deposited for safe custody, in the hands of a Mr. Smith, described as the steward of the family. In December, 1820, she wrote a codicil, giving 1007. each to the two "trustees" named in her will, and dividing some trinkets among her family. In the month of January last (1824) she looked over the papers in her writing-desk, several of which she burnt (it is to be presumed) as useless; and a few days afterwards, wrote to Mr. Smith desiring him to destroy her will. This is admitted not to have been done with the intention of making a new will; for she neither expressed, nor is there reason to suppose she entertained, any such intention. Mr. Smith, upon receiving the letter, showed the envelope containing the will, with the seal unbroken, to a third person; and immediately, in his presence, put the will into the fire, unopened, where it was burnt, and wrote to inform the deceased that he had obeyed her directions. Upon the death of the deceased, Mr. Smith's letter is found in her writingdesk, the uppermost paper; and lower down, in the same desk, among other papers, the codicil of December, 1820, is also found, uncancelled. These are the facts of the case: and the Court is to decide whether this codicil is valid, or whether it is revoked.

A codicil is, primâ facie, dependant on the will; and the cancellation of the will is an implied revocation of the codicil. But there have been cases, where the codicil has appeared so independant of, and unconnected with, the will, that, under circumstances, the codicil has been established, though the will has been held invalid. It is a question altogether of intention. Consequently the legal presumption in this case may be repelled, namely, by showing, that the testatrix intended the codicil to operate, notwithstanding the revocation of the will. In my judgment, however, the circumstances of this case are not sufficient to establish such an intention, in order to repel the legal presumption. The codicil in this case appears connected with the will; for the principal legatees in the codicil are "her two trustees" being such under the will; and, the will being revoked, they no longer retain that character. Even the distribution of the trinkets made by the codicil might be influenced by the disposition contained in the will.

It seems probable, that the deceased last saw the codicil when she put her desk in order, and burnt some of her papers: but that was done before she sent directions to have her will destroyed. And even if she had then determined to cancel it, she might not choose actually to destroy the codicil, till she knew her directions to Mr. Smith had been carried into effect. Afterwards, when she received Mr. Smith's letter, which she deposited at the top of her desk, she either might not think of the codicil, or might not deem it necessary to destroy it; under the more common idea that a codicil is dependant on a will. Under these considerations I am of opinion, that the legal presumption of the codicil being revoked by the cancellation of the will, is not sufficiently repelled by circumstances showing a different intention in the testatrix, and, consequently, that she must be pronounced to be dead intestate.

IN THE GOODS OF MARY RADNALL, SPINSTER, DECEASED.

p. 232.

(On Motion.)

When a sole next of kin refuses to take administration, the Court, on cause shown, will decree letters ad colligendum bona defuncti, limited according to the special circumstances of the case.

MARY RADNALL, of Bewdley, in the county of Worcester, the party deceased in this cause or business, died in September, 1823, a spinster, without parent, and intestate, leaving behind her Francis Radnall, her natural and lawful brother, and only next of kin, and the sole person entitled to her personal estate and effects. The deceased's property, consisting principally of money due to her on mortgage, and by bond, leasehold estates, cash at her bankers, &c. amounted to about 3,7001. The deceased was also entitled to an undivided moiety, of certain leasehold property in Bewdley, as also of some freehold property, of which she, the deceased, and her brother, Francis Radnall, were tenants in common. She died without leaving any other than a few trifling debts, which were immediately discharged by her brother, Francis Radnall, out of his own property.

Subsequent to the deceased's death, various applications had been made to Francis Radnall, by Robert Pardoe, who had been agent for the said deceased during her life, and still was agent to the said Francis Radnall, relative to his taking out administration of the deceased's effects; but the said Francis Radnall (on being informed that, in case of an administration, an oath must be taken faithfully to administer the effects, and as to the value thereof) positively declined, either himself to take the said letters of administration, or to take any step whatever for enabling any other person so to do, on the score of all oath-taking being contrary, and repugnant, to his religious opinions.

Mr. Pardoe, and his partner Mr. Nicholas, were also agents and solicitors to the executrix of Henry Lancellot Lee, esq. deceased, whilst living indebted to the deceased, on bond, in the sum of 5007.; Mr. Pardoe being also a trustee under his will for the sale of his estates for payment of his debts. Those estates had been sold accordingly: the money was now ready for payment of the said sum of 5007. so due on bond to the deceased's estate; and inconvenience and loss were accruing to the estate of the said Henry Lancellot Lee, in consequence of there being no person legally authorized to receive, and give a discharge, for the same: nor could he, Mr. Pardoe, for the same reason, though willing and desirous so to do, settle his accounts with the estate of the deceased, and obtain a proper discharge for the balance thereof.

The above facts being duly verified by the affidavit of Mr. Pardoe, the Court, on motion of counsel, was pleased to direct a citation to issue, calling on the said Francis Radnall to accept or refuse the letters of administration of all and singular the goods, chattels, and credits of the said deceased: otherwise, to show cause why the same should not be committed and granted to the said Robert Pardoe, limited to "the collection of all the personal property of the said deceased; and giving discharges for all the debts which might have been due to her estate,

on payment of the same; and doing what further might be necessary for the preservation of the property aforesaid:" and, to "the safe keeping of the same, to abide the directions of the Court."

GALE v. LUTTRELL, and Others.-p. 234.

(On Petition.)

The executors of a deceased executor, though not the personal representatives of the original testator (there being an executor of the original testator still surviving) are compellable to bring in an inventory of the effects of the original

testator.

The Court will compel an executor to bring in an inventory, &c. at the suit of a creditor by bond of the testator, notwithstanding its alleged invalidity, and a suit as to this, actually commenced, and then depending, at common law.

JOHN FOWNES LUTTRELL, late of Dunster Castle in the county of Somerset, and of Northway, in the county of Devon, was the party deceased. He made his will and appointed four executors, two of whom only, John Fownes Luttrell and Francis Fownes Luttrell took probate of the will, namely, in May, 1816: of these Francis Fownes Luttrell was since dead, having made his will, and thereof appointed Henry Fownes Luttrell, and Frederick Moysey, esquires, executors, who took probate of the said will of Francis Fownes Luttrell, in May, 1823.

In Michaelmas Term, 1823, a decree issued, citing John Fownes Luttrell, Henry Fownes Luttrell, and Frederick Moysey, esquires, to exhibit an inventory of the effects of John Fownes Luttrell (the original testator, and an account of their administration thereof) at the suit of Mary Gale, administratrix (with the will annexed) of William Hawkes, whilst living, a creditor of the said original testator.

An appearance was given to this citation under protest as to Henry Fownes Luttrell, and Frederick Moysey; and the Court was prayed to pronounce for that protest, on the ground, that, there being, still living, an executor of the original testator who had proved his will, they, the said Henry Fownes Luttrell, and Frederick Moysey, though the executors of a deceased executor, were not the personal representatives of the said original testator, and, consequently, were unduly cited to render an inventory and account of his effects. As to the surviving executor Mr. John Fownes Luttrell, it was prayed, that, under the circumstances stated in an act of Court into which the protest was extended, the Court would further, in its discretion, decline assigning him to bring in the inventory and account called for; until a question stated to be then depending in the Court of King's Bench as to the validity of a bond, under which the party at whose suit the citation had issued, claimed to be a creditor of the deceased, should have been determined, in the affirmative, by that Court.

This act of Court, or extended protest, was replied to on the part of Gale the creditor, to the effect stated in the judgment, and the cause, after argument by counsel, now stood for sentence.

JUDGMENT.

SIR JOHN NICHOLL.

Gale, as a creditor of John Luttrell, deceased, has cited his son, John Luttrell, his surviving executor, and Henry Luttrell and Frederick Moysey, the executors of Francis Luttrell, another of his executors since deceased, to exhibit an inventory: an appearance for the parties cited has been given under protest: and in the act on petition, extending the protest, it is stated, that the validity of the bond, under which Gale claims to be a creditor, is controverted, in an action brought in a court of common law; and further, that the executors of the deceased executor, are not bound to exhibit an inventory, there being a surviving

executor.

To this it is replied, that Francis, the deceased executor, received a considerable portion of the testator's effects; that both exccutors had recognized the bond after the death of the testator: and that in the action brought against John, the surviving executor, he had pleaded "plene administravit." The Court is now to decide, whether the parties cited are bound to exhibit an inventory.

An inventory is due from an executor or administrator almost as matter of course, at the prayer of any person having the appearance of an interest: though, in modern practice, inventories are not required to be exhibited, without being so called for.

In respect to the party calling for the inventory in this case, here is an asserted creditor by bond:-this Court will not enter into the validity of the bond: it is sufficient that such a claim is put in suit against the executor. And as the executor has pleaded "plene administravit,” it furnishes the strongest reason to entitle the creditor, before he proceeds farther in trying the validity of the bond, to ascertain, by the production of an inventory, whether the deceased left assets to answer his demand. The surviving executor is therefore cited by a party, having an apparent interest sufficient to entitle him to call for an inventory.

In respect to the executors of the deceased executor, Francis Luttrell, though they are not the representatives of the first testator, there being a surviving executor, yet, being called upon as representing another executor, who took probate, and who is stated to have got possession of a considerable part of the deceased's effects, the creditor has an interest sufficient to entitle him to call upon them also for an inventory: since, without a disclosure from them of such parts of the first testator's property as came to the possession of the deceased executor, Francis, the creditor is still without means of finally ascertaining what assets his debtor has left; as those assets may be unknown to the surviving ex

ecutor.

Protest over-ruled-John Fownes Luttrell assigned

to bring in an inventory, and Henry Fownes Luttrell and Frederick Moysey assigned to appear absolutely-and question as to costs, reserved.

PAUL v. NETTLEFOLD.-p. 237.

An executor (at least one who has a special interest) may call upon his co-executor for an inventory.

JUDGMENT.

Sir JOHN NICHOLL.

In this case an inventory is called for, from an executor, by a co-executor, but who is also sole residuary legatee.

It is objected to on the ground that "an executor cannot sue his coexecutor"-but the rule does not apply. The party calling for an inventory in this case, does not call for it, as co-executor, but in the character of residuary legatee. Those characters are quite distinct: so much so, that a person who possesses both, and wishes to decline being the representative of the testator, must renounce, as well the probate, in the character of executor, as the administration, with the will annexed, in the character of residuary legatee. As residuary legatee the party has the greatest interest in ascertaining what effects the testator left behind him; the whole of which effects may have got into the hands of the co-executor, without the knowledge or privity of the residuary legatee. I therefore see no ground in principle, nor has any authority, (indeed quite the contrary,) (a) been produced, by which a residuary legatee, though also possessing the character of executor, is deprived of the right of calling upon the other executor for an inventory, and consequently I over-rule this objection.

Objection over-ruled, and an inventory ordered.

(a) The following case, cited in the argument from a manuscript note of Dr. Bettesworth, would go to shew that an executor, as such merely, or without any special interest, might call upon his co-executor for an inventory.

IN THE PREROGATIVE COURT OF CANTERBURY.

HUGGINS v. ALEXANDER.

Mr. ALEXANDER died, leaving children, minors; and made his will, whereof he appointed his wife, Mr. Huggins, and another person, executors. The wife possessed herself of all the effects, and refused to give Mr. Huggins any account. Huggins thereupon cited her to give an inventory; and the question now was, whether, where two executors have taken probate jointly, one can call the other to bring in an inventory.

Dr. Strahan, for Mrs. Alexander, said the deceased appointed his wife guardian to his children; and allowed her to dispose of 6000l. among the children, in such proportions as she should think fit. Executors and trustees by the will are not responsible for any involuntary acts or losses, but only for their own acts. One executor cannot sue another, [Swinburn, part iv. s. 20.] unless he has a special interest in the estate. Mr. Huggins hath nothing in the will, nor any interest. Dr. Paul, for Mr. Huggins. There are three executors, and two trustees named in the will; and, by the will, the executors and trustees, or one of them, are to consent to the marriage of the minors. Huggins had an interest, as executor; and in Chancery, one executor can sue another. In the Prerogative, February 6, 1726, Thomas Duck made an executor and an "overseer"-the "overseer" prayed a "commission of appraisement," and the Court decreed an inventory. Hugh Nash died at Paris, and left two sons, Hugh and Gyles, co-executors. Gyles prayed an inventory from the other; and it was granted in the