ALTERATIONS (IN A WILL.)

See INSTRUCTIONS.

1. Alterations written by the testator in
pencil on the margin of his will, held to
be, in themselves, deliberative-also held
not to result from the facts pleaded that
the testator was prevented from render-
ing them final by any extrinsic circum-
stance-consequently, allegation pro-
pounding such alterations, rejected.
Lavender v. Adams.
155
2. The Court will not decree probate,
even in common form, of alterations in
a will so made as in themselves, and on
the face of them, to be only cursory
and deliberative, upon affidavits: where
it appears doubtful whether any attaina-
ble proof of what appears of their his-
tory in such affidavits would justify the
Court in pronouncing for the alterations,
if regularly propounded, as parts of the
testator's will. Re Rolls, deceased. 321

ANSWERS.

1. In criminal suits the defendant's answers
upon oath may not be required, even
to those heads or positions which are not
in themselves criminatory: and (though
may be) seldom are, required to such
heads or positions, in those civil suits, as
of divorce by reason of adultery, and
the like, which are founded on criminal
imputations. Schultes v. Hodgson. 43
2. Personal answers were twofold-being
to be had, in certain causes, on special
application, from the proctor in the
cause as well as from the principal. Du-
rant v. Durant.
46, et seq.
3. "Personal answers" are not confined to
being mere echoes of the plea, accom-
panied with simple affirmances, or de-
nials: but the respondents are, further,
at liberty, to enter into all such matter
as may fairly be deemed not more than
sufficient, to place the transactions as
to which their answers are taken, in
what they insist to be the true and pro-
per light. Oliver and Tuke v. Heathcote.
210

2. If an appearance be given under pro-
test to an inhibition, which discloses an
appealable grievance on the face of it,
without, at the same time, so disclosing
any peremption of the appellant's right
to appeal therefrom, the Court will, at
once, without any reference to the me-
rits of the appeal, overrule the protest,
and direct an absolute appearance, gen-
erally, with costs. Greg v. Greg. 303
3. Note 1. That praying a judge to re-
scind an order, perempts [any after ap-
peal from that order. 2. That his re-
fusing to accede to such prayer is not,
itself, an appealable grievance: any
more than is-3. His refusing to permit
witnesses to be examined on the day
assigned to propound all facts;" even
though such witnesses are actually in
Court, and sworn to be necessary wit-

nesses.

Ibid.
4. All the several acts done on one Court-
day, make up but one decree-at least so
as to warrant the appellant's including
the whole, (whether of an appealable
nature or not) in the præsertim of ap-
peal; and so, to warrant the inhibition's
305
going to the whole. Ibid.

5. The appeal from a bishop's "commis-
sary" by the law of this country, under
the statute of appeals, lies, not to his
diocesan, but to the metropolitan. Bur-
goyne v. Free.

366

2. A regular attestation clause, without any subscribed witness, affords but a slight presumption against the legal validity of a testamentary paper, perfect in other respects: but that presumption is infinitely slighter, where the writer's intention to have it regularly attested, is to be collected only from the single word "witnesses" at the foot of the paper. Doker v. Goff. 214

Quære, whether a paper so circumstanced can, in all cases, be considered an imperfect paper, so as to let in evidence against it? And note to what that evidence must, at all events in some cases, be confined. Ibid.

ATTESTING WITNESSES.

1. A will pronounced for-against the evidence of two, out of three, attesting witnesses. Landon v. Nettleship. 289 2. Against the evidence of one, out of two, attesting witnesses. Brogden v. Brown. 367

a party dying within his diocese, &c. upon proof, otherwise than by oath in his own court, of such party having left bona notabilia, &c. before requiring probate, or administration in the Prerogative Court. 125 Chase v. Yonge. 2. Quære, whether the mere holder of a will, monished to bring it in at the suit of one entitled to administration with that will annexed, has any right to insist on proof of bona notabilia, in the first instance, and prior to bringing in the will. Brown v. Coates.

BRAWLING.

128

2. Brawling may be by reading a "notice of vestry" in church, during divine ser vice, without due authority. Downe v. Williams.

256 3. A suit for brawling may be, in the Court of Arches, by "letters of request."

Ibid. 4. In all cases of brawling, &c. in church, where two parties are implicated, which is most to blame is, nearly, immaterial: each is bound to abstain; and each failing to abstain, incurs a like penalty. Palmer v. Roffey, 256. Palmer v. Tijou, 269. England v. Hurcomb and others.

318

5. Quære, whether one who chides and brawls in a vestry room, which is partly in, and partly out of, a church-yard, incurs thereby the penalties of 5 and 6 Edw. 6. c. 4. s. 1. Williams v. Goodyer. 378

C.

CALLING IN A PROBATE, OR LETTERS OF ADMINISTRATION.

91

1. The attornies of an executrix, having withdrawn from the suit, after propounding an alleged will, and suffered a next of kin to take administration, will not, under circumstances, bar that executrix, from calling upon the next of kin to bring in the administration, and re-propounding the alleged will. Troder v. Cox. 2. If a next of kin calls in a probate of a will, once taken, though ir common form, and puts the execu or on proof, per testes, of his will, he does it at the peril of costs. Evans Knight and Moore, 95. Bell v. Armstrong. 365 3. A next of kin who has acquiesced in probate taken in common form, and has even received a legacy due to him as under a will, is still at liberty to call in such probate, and put the executor on proof, per testes, of that identical will68

2. The cancellation must be done animo revocandi, to operate as the revocation, of a will. Ibid. 24 3. Cancellation, when partial and when total. 36

4. If a testamentary paper proved to have been duly made, is not found upon the death of the testator, having been left in his possession; the presumptions are that he cancelled it, and that he cancelled it, animo revocandi-but these presumptions may be repelled. Hence the substance of a testamentary paper may be pronounced for in the absence of the paper itself, upon satisfactory proof; 1st. that it was duly made. 2d. that (even if cancelled) it was not revoked by the testator. Davis v. Davis.

CANONS OF 1603.

277

CAPACITY (TESTAMENTARY.) See DELIRIUM.-DRUNKENNESS.-EVIDENCE. INSANITY.-INSTRUCTION.— PLEADINGS.

1. Alleged testamentary capacity, sustained, Evans v. Knight and Moore, 105— Not sustained, Le Mann v. Bonsal. 147 2. Allegation propounding a testamentary paper rejected for this, among other reasons-as not pleading facts of a nature to satisfy the Court, if proved, that the deceased was of testamentary capacity equal to the act, at the time of the act done. Montefiore v. Montefiore. 340.

CHURCH.

348

2. Quære, whether a citation of the wife at the domicile of the husband, is not sufficient to found the jurisdiction of the court, in a suit even of nullity of marriage against the wife (à fortiori in a suit for a separation, &c. by reason of adultery, or the like) wheresoever the wife may be actually resident. Chiches ter v. Donegal.

CODICIL.

REVOCATION.

13

See INSTRUCTIONS. 1. A codicil operates as the republication of that will to which it applies; and, consequently, as the revocation of any intermediate will. Rogers v. Pittis. 13 2. A. dies, leaving, by will, his wife B. sole executrix and universal legatee. A codicil to A.'s will, found after B.'s death, may be propounded on behalf of a legatee, on B.'s executor refusing to take administration of A.'s effects (left unadministered by B.) with his will, and such codicil, annexed. Dickenson v. 186 White. 3. The ordinary presumption is that a codicil to a will is revoked by the revocation of that will-but it may be rebutted by circumstances showing that the testator meant it to stand. Medlycott v. Assheton.

280

5. A codicil pronounced for as contained in an affidavit of scripts. Davis v. Davis. 279, n. 6. A codicil to a will effectually republishes that will; so as to repel any legal presumption whatever adverse to the will, taken per se. Gibbens v. Cross.

375

COMPARISON OF HANDWRITING. See HANDWRITING.

CONCURRENCE.

Concurrence of witnesses, effect of, what -and what, when it savours of precon

3. If a party committed for non-payment
of costs under an erroneous process, be,
thereupon, released, the Court is bound,
at the application of the party to whom
they are still due, to issue a new moni-
tion for payment of such costs. Austen
V. Dugger.

122

4. The obligation to pay costs pursuant to
a monition for payment, may not, under
circumstances, be dispensed with, by
the party to whom they were due having
bound himself to waive them, by an in-
strument executed out of Court. Coates
v. Brown.
128
5. Parties put in contempt, and as against
whom proceedings in a suit are had in
pœnam, merely, may be condemned in
costs of that suit, whether it be a crimi.
nal, or only a civil suit. Foster v. Foster.

185

6. A defensive allegation in a criminal suit
may be admitted to proof, if the facts
pleaded have a probable tendency to
render the case charged, one for miti-
gated costs, on that ground only. Gates
v. Chambers.
268
7. A creditor cites an executor to accept
or refuse probate, &c.-The executor,
sub modo, denies the jurisdiction of the
Court, as not having any knowledge of
assets. The creditor, then, in order to
found the jurisdiction, is compelled to
disclose assets; whereupon the executor
retracts his qualified denial of the juris-
diction of the Court, and prays probate.
Probate decreed to the executor with
costs; as incurred solely by reason of the
creditor's undue suppression of the fact
of there being assets. Lyon and War-
rington v. Balfour.

395

8. Where a next of kin calls for proof, per
testes, of a will, and merely interrogates
the witnesses produced in support of it,
he is not liable to costs for this; at least,
under ordinary circumstances. Aliter, in
the case of a mere legatee, under a FOR-
MER Will-whom the Court, as it may, is
at all times disposed to condemn in costs,
wholly, or in part; where, in putting
the executors of a latter will, on proof,
per testes, of such latter will, he so in-
terrogates (although he merely interro-
gates) the witnesses in support of it, as
to manifest any spirit of vexatious, or
undue, litigation on his part. Urquhart
and Waterman v. Fricker.
424

9. In all suits of nullity of marriage brought
by, or on the part of, the husband, the
wife, de facto, is regularly entitled, as
well to alimony, pending suit, as to pay-
ment of all such costs as she incurs in
her defence. Hence, the costs of the
defence, are, (in the first instance, at
least,) as necessary a charge upon the
husband's funds, as are those of the pro-
secution, of every such suit; and this,
although fraud in procuring the marriage
is expressly charged upon the wife in
the libel; and although costs are prayed
in the libel (and may ultimately be
awarded by the Court) against the wife.
The Earl of Portsmouth, by his Commit-
tee v. The Countess of Portsmouth. 428

CREDITOR.

See ADMINISTRATION. INVENTORY.

CRUELTY.

See RESTITUTION OF CONJUGAL RIGHTS.
1. Suit by the wife for a divorce by reason
of the husband's cruelty-complaint dis-
missed-and upon what grounds. Best
v. Best.
158, et seq.

2. A wife, to obtain a divorce by reason of
the husband's cruelty, is bound to prove
his ill treatment of her not merited or

1. The succession to the personal estate of
a British subject, dying, domiciled, in
any part of the British empire, intestate,
is to be regulated by the law of that part
of the British empire which was his do-
micil at the time of his death. But,
quare, whether a British subject can
select a foreign domicil in so complete
derogation of his British, as to sub-
ject his property here to distribution ac-
cording to any foreign law, even in case
of his intestacy: though admitting this
to be, it would by no means follow that
his will to be valid here must conform to
that foreign law; either on principle, or
on precedent. The rule that where pro-
perty is to be distributed under a certain
law, in a case of intestacy, it must be
so distributed in the absence of a will,
valid by that law, only applies to cases,
in which, there being no conflict of do-
micils, the law which must govern the
case, whether one of testacy or intes
tacy, admits of no question. Curäng v.
Thornton. Per tot.
197
2. On the validity of a will made by a do-
miciled inhabitant of Scotland, the
Court here will defer to the law of Scot-