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per testes of the Will, so once already proved, a second time (n).

a

What interest party must

have to entitle

him to oppose

a Will.

Any interest, however slight, and even, it seems, the bare possibility of an interest, is sufficient to entitle a party to oppose a testamentary paper. Thus where a testator disposed of all his personal estate by his Will and gave his real estate, but none of his personal, to his brother's children, and by a codicil he gave them pecuniary legacies, revoking the devise to them of the real estate which was of greater value than the legacies; it was held that they might oppose the codicil alone, notwithstanding their only right to a share of the personalty was under it (o). Though a next of kin may, as such, oppose all the testamentary papers, he has not a right to oppose any particular one he may think fit; for some interest in it, however remote, is necessary (p). A creditor has only a right to have a constat of the estate of the deceased, to see whether there are assets sufficient to pay the debts; but he cannot controvert the validity of a Will; for it is indifferent whether he shall receive his debt grant of adfrom an executor or an administrator; and if a creditor was admitted to dispute the validity of a Will, it would create infinite trouble, expense, and delay to executors (q).

But when administration has been granted to a creditor, he may oppose a Will; he is the same for this purpose as the next of kin (r).

And he may contest a Will without costs; because he is the appointee of the Court and defends that character, and does not appear simply as a creditor (s).

If nobody, who has a right, appears to oppose the Will, the Court is not obliged, ex officio, to order a citation to issue to call the next of kin (t).

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A creditor cannot dispute the validity of a

Will, unless he has had a

ministration.

A legatee cannot set up a

Will which has

been pronounced against after being litigated by next of kin,

or by the exec

utor of another Will.

Next of kin not

liable to costs, when he com

tor to proof per testes:

A legatee cannot set up a Will, after it has been litigated between the executor and next of kin, or between the executor and the executor of another Will, and pronounced against, unless he can shew the parties agreed to set aside the Will by fraud or collusion (u). But if he is afraid the executor will not do justice, he may intervene for his interest pending the suit (x).

When an executor has been called upon by a next of kin to prove the Will per testes, and has sufficiently proved it, if pels the execu- the party who caused him to do this, merely cross-examined the witnesses produced in support of the Will, he is not subject to costs, generally speaking (y). A case, notwithstanding, may happen, in which a next of kin may exercise his undoubted right in this matter so vexatiously, as to make himself responsible, if not wholly, in part for the costs of his opponent (z). And there is a difference between next of kin, who are favourites of the Court, and the legatees under a former Will; for, though such a legatee may call for proof, per testes, of a Will, by which his interests under a former Will are prejudiced, and may interrogate the witnesses produced in support of that Will, he does this at the risk of being condemned in costs, if the Court has reason to suspect him of undue litigation (a).

secus, of a legatee under a prior Will:

(u) Bittleston v. Clark, 2 Cas. temp. Lee, 250. Hayle v. Hasted, 1 Curt. 236 or unless, as it is said, there has been neglect or mismanagement in the conduct of the suit : 1 Curt. 240.

(x) 2 Cas. temp. Lee, 250.

(y) 1 Oughton, tit. 6, s. 7. Reeves v. Freeling, 2 Phillim. 56. Urquhart v. Fricker, 3 Add. 56. Secus autem si proposuerit, ac in probando defecerit; Tunc enim parsvicta erit condemnunda in expensis: saltem a tempore propositionis hujusmodi : 1 Oughton, tit. 6, s. 8. Evans v. Knight, 1 Add. 229, Acc.

(z) 3 Add. 57: As where a next of kin acquiesced in the probate, and received his legacy, and then,

after a considerable interval, cited the executor to prove the Will: Bell v. Armstrong, 1 Add. 375. And where a next of kin and residuary legatee under a prior Will, suing in forma pauperis, put the executor of a later Will to proof per testes, after seven years' acquiescence in the probate, and the proofs then adduced were perfectly clear and satisfactory; the Court condemned the party in costs, suspending the taxation while he continued a pauper: Wagner v. Mears, 2 Hagg. 524.

(a) Urquhart v. Fricker, 3 Add. 58: See also on this subject, Mansfield v. Shaw, 3 Phillim. 22.

Where an executor, who has obtained probate of a former Will, or a creditor who has a grant of administration, opposes a later Will, he has the same right to do so without being subject to costs, as where a Will is opposed by next of kin (b). But costs may be decreed against a party who has taken probate of a Will which he knew was not the last Will of the deceased (c).

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SECTION V.

Evidence in Testamentary Causes.

It now becomes necessary to consider some rules of the law of evidence, prevalent in the Ecclesiastical Court, with respect to the admission of a disputed Will to probate. By the general law of the Ecclesiastical Courts, one witness does not make full proof; and if the Spiritual Court refuses to admit the testimony of a single witness, no mandamus or prohibition will lie (d); for where the matter is wholly of ecclesiastical cognizance, as the probate of Wills, although the proceedings of the Spiritual Court be contrary to the common law, yet no mandamus or prohibition shall issue (c). And if there be an appeal to the Court of Delegates (i.e. by stat. 2 & 3 Wm. IV. c. 92, to the Queen in council), the

(b) 1 Phillim. 160, note (c) to Dabbs v. Chisman. See also Lovett v. Harkness, 1 Cas. temp. Lee, 332. (c) Martin v. Robinson, 2 Cas. temp. Lee, 535.

(d) Chadron v. Harris, Noy, Rep. 12. Godolph. Pt. 1, c. 21, s. 1. 18 Vin. Abr. Prohibition (Q.) 7. Evans v. Evans, 3 Notes of Cas. 427, 428. S. C. 1 Robert. 165. Taylor v. Taylor, 6 Notes of Cas. 558.

(e) Shatter v. Friend, 1 Show. 172. S. C. Carth. 142. Anon. 1 Freem. 290. Breedon v. Gill, 1 Lord Raym. 221. But if a matter cognizable at common law arises incidentally in an ecclesiastical suit, as where

VOL. I.

the construction of an Act of Par-
liament comes in question, a release
is pleaded, &c., the Ecclesiastical
Court shall be prohibited, if they
proceed to try contrary to the rules
and customs of the common law;
as if they refuse one witness, or
construe the Act of Parliament
otherwise than the common law
requires Juxon v. Byron, 2 Lev.
64. 1 Show. 172. Carth. 142. Full
v. Hutchins, Cowp. 424. Breedon
v. Gill, 1 Lord Raym. 221. Gould
v. Gapper, 5 East, 345. Com. Dig.
Prohibition (G.) 23. B. N. P. 219.
1 Robert. 174.

X

One witness is without other

not sufficient

adminicular

proof.

Common Law Judges, who are appointed members of such Court, will be bound, in such matters, by the rules of the Civilians (ƒ).

But it must not be supposed that, by the ecclesiastical law, two witnesses are required to each particular fact, nor to every part of a transaction; for it often happens, that to the contents of a Will, or to instructions, there is only one witness, the confidential solicitor, or other drawer;-but there are, and must be, adminicular circumstances to the transaction; such as the expressed wishes of the testator to make his Will, the sending for the drawer of it, his being left alone with the deceased for that known purpose, some previous declarations or subsequent recognitions, some extrinsic circumstances, in short, showing that a testamentary act was in progress, and tending to corroborate the act itself (g).

In Moore v. Paine (h), the testatrix was entirely blind; there were three subscribing witnesses to the Will, but only one of them (viz. the writer, who was of entire credit, and wholly unconcerned as to the event of the suit), could account for the instructions, for the reading of the Will to the testatrix, and her approbation of it, and for the identity of the paper; the other two only deposing to the publication of it by her as her Will, but they did not hear it read to her, nor did they know the contents of it: The capacity of the testatrix was fully proved, and that she had made a former Will, which differed from this chiefly in the quantum of the legacies, which were smaller in that than in this: And Sir George Lee was clearly of opinion that this Will was sufficiently proved: And the learned judge observed, that the proof of Wills with us is by the jus gentium, and by that law one witness is sufficient: There should be, indeed, some adminicular proof to corroborate the witness, which, in the

10.

(f) Twaites v. Smith, 1 P. Wms.

(g) Theakston v. Marson, 4 Hagg. 314. 1 Robert. 173. See Mackenzie

v. Yeo, 3 Curt. 125. In the goods of Winter, 4 Notes of Cas. 147.

(h) 2 Cas. temp. Lee, 595.

present case, arose from the conformity of the former to the present Will, and from a declaration which it appeared in evidence the deceased had made, that she believed some of her relations did not approve of her Will, which was some sort of recognition of this Will. This cause was appealed to the Delegates, where the sentence was confirmed.

witnesses.

Upon the principle above stated, it was held that the Competency of question of the competency of witnesses was to be decided according to the rules of the ecclesiastical, and not of the common law. Thus, in the case of Twaites v. Smith (i), there was an appeal to the Delegates from the Prerogative Court of York; and the ground of appealing was, that the testimony of the children of the residuary legatee had been admitted, who, by the Ecclesiastical Law, are incompetent, and the Judges Delegate, being of opinion that the rule of that law, and not of the common law, must prevail, reversed the sentence given at York.

executor.
1 Vict. c. 26.

By stat. 1 Vict. c. 26, s. 17, it is enacted, "that no person Competency of shall, on account of his being an executor of a Will, be incompetent to be admitted a witness to prove the execution. of such Will, or a witness to prove the validity or invalidity thereof."

This section rendered an executor, who was also entitled to a legacy in that character, a competent witness to support the Will, if he had released his legacy (k).

witnesses and

6

Competency of parties under & 7 Vict. c. Vict. c. 99, of Vict. c. 83.

And now, by stat. 6 & 7 Vict. c. 85 (which appears to apply to proceedings in the Ecclesiastical Court) (1), competency is conferred on interested witnesses generally; and by stat. 14 & 15 Vict. c. 99, s. 2, on parties to suits; and by stat. 16 & 17 Vict. c. 83, s. 4, on husbands and wives parties.

By stat. 17 & 18 Vict. c. 47, " in any suit or proceeding depending in any Ecclesiastical Court in England or Wales,

() 1 P. Wms. 10.

(k) Munday v. Slaughter, Prerog. 1839, 2 Curt. 72.

(1) Burder v. Hodgson, 4 Notes

of Cas. 491. Sanders v. Wigston,
5 Notes of Cas. 78, 83, 84. S. C.
1 Robert. 460. Cullum v. Seymour,
1 Robert. 772, by Sir H. J. Fust.

85, 14 & 15

and 16 & 17

17 & 18 Vict. nesses may

c. 47: wit

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