the probate that the ground of those proceedings was that John Littlewood, as the Defendant alleged, was to be considered as having died intestate, inasmuch as the will, proved by the Plaintiff, was made while the testator was a bachelor; and that by afterwards marrying the Defendant, and having children by her, he had in effect revoked the will: that the Defendant had served the Plaintiff with a citation to bring in the probate in order that it might be annulled, and that administration of the estate and effects of John Littlewood might be granted to her; and that the suit was now depending in the Ecclesiastical Court, and involved a question of doubt and difficulty, which might not be determined for some time; and that in the meanwhile, the Defendant had given notice to the bankers, and to the other debtors of Littlewood not to pay their debts to the Plaintiff; and that the estate of Littlewood was insolvent, and the property or part of it was in danger of being lost. The bill prayed the appointment of a receiver to get in the outstanding personal estate pending the proceedings in the Ecclesiastical Court. The Plaintiff moved before the Vice-Chancellor for a receiver. The motion was supported by the Plaintiff's affidavit, verifying the statements in the bill. In opposition to it, several affidavits were made by the Defendant and other persons, tending to throw discredit on the motives and conduct of the Plaintiff, in reference to his interference with the affairs of John Littlewood, and to impeach the validity of the will. The Vice-Chancellor having refused the motion, the application was now renewed, by way of appeal. 1837. MARR v. LITTLEWOOD. 1837. MARR v. Sir W. Horne and Mr. Koe, in support of the motion. The motion, which is quite of course, is founded on LITTLEWOOD. the fact that the Defendant, by the proceedings she has taken, has deprived the Plaintiff of the power of any longer acting upon the probate which he had obtained, so as to secure the property for the benefit of the parties interested. The Plaintiff is not himself attempting to act, or seeking to put the assets in jeopardy: he merely asks, as a principal creditor, to have the assets placed in security, until the proper court has determined who is the legal hand to receive and distribute them. Mr. Jacob and Mr. Bethell, contrà. The question is, whether the mere institution of a suit in the Ecclesiastical Court, disputing the validity of the will, and seeking to have the probate annulled, furnishes a sufficient ground for the interference of the Court, without some special circumstances being shewn in the nature or state of the property, which would render such a step expedient and beneficial. Here the estate is extremely small; it does not appear to be in any danger; and the additional security to be derived from the appointment of a receiver, and the payment of the money into court, is certainly not worth the cost. Littlewood is stated to have died insolvent. The utmost benefit to be obtained from this suit is only the difference between the solvency of the Accountant-General, and that of the testator's bankers, during the short interval that must elapse between the time of the present motion, and the judgment of the Ecclesiastical Court. The question before that Court, as it is stated in the Plaintiff's bill is too clear for argument, and must be decided against him in the course of a few weeks. The judgment of Sir John Leach, in Jones v. Frost (a), shews (a) 3 Mad. 1. shews that a Court of Equity will not interfere by the appointment of a receiver, where a suit respecting the validity of a will is depending in the Ecclesiastical Court, unless a special case is made; and the same principle was laid down by your Lordship in Watkins v. Brent. (a) If it should turn out eventually that the Plaintiff is not entitled to probate, nothing further can be done upon this bill; and the money, should it be brought into court upon the present motion, must remain impounded, and will only be got out by the institution of a new suit. The LORD CHANCELLOR. The case stated on behalf of the widow, alleges that probate ought not to have been granted to the Plaintiff'; and now, it is a matter not ascertained, whether the proceedings in the Ecclesiastical Court have, or have not suspended the operation of that probate. Thus much, however, is clear, that the widow who resists the appointment of the receiver, has herself destroyed the effect of the probate; for she has given notice to the bankers and to the other debtors of the testator's estate, who are stated to have been perfectly willing to pay their debts, not to pay them to the Plaintiff. There is, therefore, through the act of the party opposing the application, an incapacity on the part of the executor to proceed under the probate (assuming that there is a legal probate), even for the collection and preservation of the assets. The doctrine laid down by Sir John Leach in Jones v. Frost (b) does not in the least interfere with the ground upon which I proceed here. In that case it did not sufficiently appear that there was a litigation pending in the 1837. MARR v. LITTLEWOOD. 1837. MARR the Ecclesiastical Court; whereas, here, unquestionably such a litigation is now depending between these parties; and it is solely by the act of the party prosecuting LITTLEWOOD. that litigation, that the legal power of the Plaintiff has been rendered unavailing. In Watkins v. Brent (a) I expressed an opinion, that a Plaintiff who had instituted proceedings in the Ecclesiastical Court for the purpose of challenging a will, and who sought to deprive his adversary of the title to administer the assets, could not put forward that circumstance, as of itself furnishing a ground for the interference of the Court: but here the party, who disputes the title of the Plaintiff, has herself deprived him of the power of securing the fund. Upon these grounds, I cannot, if it is pressed, refuse to appoint a receiver; but the fund is so small that I am not disposed to give him a per-centage. (a) 1 Mylne & Craig, 97. 1837. THE FLOWER v. MARTEN. April 6, 8. Bond for a ordered to be sum of money delivered up celled; the to be can Lord Chancellor being was not in events, but was given for a collateral purpose, which had HE Plaintiff was the only son and heir at law of the late Sir Charles Flower, Bart. Some time prior to the year 1822, his expensive habits and mode of life had occasioned much dissatisfaction to his father, and had led to differences, which terminated in a total estrangement and suspension of intercourse between of opinion, them. In the course of that year, however, the Plain- upon the evidence, first, tiff, who was then married, having got into further that the bond pecuniary difficulties, was induced to apply to his father, tended to and to request him to advance a sum of money to re- operate as a lieve his immediate necessities. The application was money at all security for referred by Sir Charles Flower to the Defendants Robert Humphrey Marten and John Petty Muspratt, two of Sir Charles's old and confidential friends, with a request that they would take into consideration all matters in differ- been fully ence between the Plaintiff and himself, more especially secondly, if satisfied; and, as regarded the Plaintiff's debts and the expenses of his that were doubtful, that mode of living, and that they would give him their im- the obligee's partial advice as to the course he ought to adopt towards subsequent his son, by which advice he professed himself willing to be governed. Those gentlemen undertook the reference, and entered into communication with the Plaintiff, who likewise consented to abide by the determination to which they should come with respect to his future course: and, after having fully investigated and considered the state of the Plaintiff's affairs, they communicated the result of their deliberations in the form of a letter, addressed to Sir Charles Flower, and containing a number of distinct propositions, which were intended and understood by all parties as the basis of the proposed arrangement between the father and the son. conduct and mode of deal- |