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

Any interest, however slight, and even, it seems, the bare What interest possibility of an interest, is sufficient to entitle a party to have to entitle

a party must oppose a testamentary paper. Thus where a testator dis- him to oppose

a Will. posed 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 (). 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 A creditor can

not dispute the of the deceased, to see whether there are assets sufficient to validity of a pay the debts; but he cannot controvert the validity of a

Will, unless he

has had a Will; for it is indifferent whether he shall receive his debt grant of ad

ministration. from 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).

(n) Newell r. Weeks, 2 Phillim. 224. Bell v. Armstrong, 1 Add. 372.

(0) Kipping v. Ash, 1 Robert. 270.

(P) Baskcomb v. Harrison, 2 Robert. 118. S. C. 7 Notes of Cas. 275.

(9) Burroughs v. Griffiths, 1 Cas. temp. Lee, 544. Menzies v. Pulbrook, 2 Curt. 845.

(r) 1 Phillim. 159, 160, per
curiam.

(s) 2 Curt. 851.
(t) 1 Cas. temp. Lee, 544.

A legatee can- A legatee cannot set up a Will, after it has been litigated not set up a Will which has between the executor and next of kin, or between the exebeen pro

cutor and the executor of another Will, and pronounced nounced against after against, unless he can shew the parties agreed to set aside being litigated by next of kin, the Will by fraud or collusion (u). But if he is afraid the or by the executor of another executor will not do justice, he may intervene for his interest Will.

pending the suit (x). Next of kin not When an executor has been called upon by a next of kin liable to costs, 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 tor to proof per testes : 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 secus, of a

opponent (2). And there is a difference between next of kin, legatee under a prior Will :

who are favourites of the Court, and the legatees under 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).

a

(u) Bittleston v. Clark, 2 Cas. after a considerable interval, cited temp. Lee, 250. Hayle v. Hasted, the executor to prove the Will: 1 Curt. 236 : or unless, as it is said, Bell v. Armstrong, 1 Add. 375. there has been neglect or misman- And where a next of kin and resiagement in the conduct of the suit: duary legatee under a prior Will, 1 Curt. 240.

suing in forma pauperis, put the (2) 2 Cas. temp. Lee, 250. executor of a later Will to proof

(y) 10ughton, tit. 6, s. 7. Reeves per testes, after seven years' acv. Freeling, 2 Phillim. 56. Urqu- quiescence in the probate, and the hart v. Fricker, 3 Add. 56. Secus proofs then adduced were perfectly autem si proposuerit, ac in probando clear and satisfactory; the Court defecerit; Tunc enim parsricta erit condemned the party in costs, suscondemnanda in expensis : saltem a pending the taxation while he contempore propositionis hujusmodi : tinued a pauper: Wagner v. Mears, 1 Oughton, tit. 6, s. 8. Evans v. 2 Hagg. 524. Knight, 1 Add. 229, Acc.

(a) Urquhart v. Fricker, 3 Add. (z) 3 Add. 57: As where a next 58 : See also on this subject, Mansof kin acquiesced in the probate, field v. Shaw, 3 Phillim. 22. and received his legacy, and then,

Where an executor, who has obtained probate of a former an executor

who has obWill, or a creditor who has a grant of administration, opposes tained probate a later Will, he has the same right to do so without being Will, or credisubject to costs, as where a Will is opposed by next of tor who has a

grant of ad. kin (b). But costs may be decreed against a party who has ministration. taken probate of a Will which he knew was not the last Will of the deceased (c).

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 One witness is

not sufficient the general law of the Ecclesiastical Courts, one witness does without other not make full proof; and if the Spiritual Court refuses to

adminicular

proof. 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 (e). 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

(6) 1 Phillim. 160, note (c) to the construction of an Act of ParDabbs v. Chisman. See also Lovett liament comes in question, a release v. Harkness, 1 Cas. temp. Lee, 332. is pleaded, &c., the Ecclesiastical

(c) Martin v. Robinson, 2 Cas. Court shall be prohibited, if they temp. Lee, 535.

proceed to try contrary to the rules (d) Chadron v. Harris, Noy, Rep. and customs of the common law; 12. Godolph. Pt. 1, c. 21, s. 1. 18 as if they refuse one witness, or Vin. Abr. Prohibition (Q.) 7. Evans construe the Act of Parliament 0. Evans, 3 Notes of Cas. 427, 428. otherwise than the common law S. C. 1 Robert. 165. Taylor v. requires : Juxon v. Byron, 2 Lev. Taylor, 6 Notes of Cas. 558.

64. 1 Show. 172. Carth. 142. Full (e) Shatter v. Friend, 1 Show. 172. v. Hutchins, Cowp. 424. Breedon S. C. Carth. 142. Anon. 1 Freem. v. Gill, 1 Lord Raym. 221. Gould 290. Breedon v. Gill, 1 Lord Raym. v. Gapper, 5 East, 345. Com. Dig. 221. But if a matter cognizable Prohibition (G.) 23. B. N. P. 219. at common law arises incidentally 1 Robert. 174. in an ecclesiastical suit, as where

VOL. I.

X

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

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

(f) Twaites v. Smith, 1 P. Wms. 10.

(9) 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.

(1) 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. Upon the principle above stated, it was held that the Competency of

witnesses. 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.

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 in

1 Vict. c. 26. competent 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). And now, by stat. 6 & 7 Vict. c. 85 (which appears to competency of

witnesses and apply to proceedings in the Ecclesiastical Court) (?), com- parties under petency is conferred on interested witnesses generally; and 6.8 7. Vict. c.

85, 14 by stat. 14 & 15 Vict. c. 99, s. 2, on parties to suits; and Vict. c. 99, by stat. 16 & 17 Vict. c. 83, s. 4, on husbands and wives of Vict. c. 83. parties.

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

executor.

and 16 & 17

(0) 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.

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