1859. November 16. In the Goods of In the Goods of ELEANOR LANCASTER (Spinster, deceased), on Motion. Probate.-General or Limited Grant.-Practice. A clause revoking all former wills in a will purporting to deal only with certain trust-property, entitles the executor of the will to a general grant of probate. In this case the deceased, Miss Lancaster, left a will in the following words :-"This is the last will and testament of me, "Eleanor Lancaster, spinster, whereby I revoke all other wills "by me at any time made, and declare this to be my last will "and testament; I give and bequeath all personal estate and "effects vested in me as trustee (being the only property of "which I am possessed, or to which I am entitled), to my "brother, Henry Lancaster, his executors, administrators, "and assigns, subject nevertheless to the trusts and equities upon which I hold the same, and I appoint the said Henry "Lancaster sole trustee and executor of this my will. In witness whereof," etc. On applying to the registry, a doubt arose whether the probate should be general or limited in terms to the trustproperty. Dr. Swabey moved the Court to grant a general probate to the executor named in the will. The general revocatory clause at the commencement is equivalent to a disposition to the persons designed by the Statute of Distributions, and would entitle the executor to a general probate (Brenchley v. Lynn, 2 Rob. 468), and the subsequent particular description of the trust-property does not affect this. The appointment of executor is also in general terms. SIR C. CRESSWELL: I think the executor is entitled to a general grant. O'DWYER V. JOHN GEARE AND ANOTHER. In the Goods of MARY ANN PARKIN (Widow, deceased). 1859. December 7. O'DWYER v. Appointment by Married Woman under Power.-Nomination JOHN GEARE of Executors.-21 & 22 Vict. c. 95, s. 16. Generally the nomination of executors in a testamentary paper purport- The deceased Mary Ann Parkin died in January, 1858, a widow without a child, having, during the lifetime of her husband George Parkin, by virtue of certain powers under an indenture of settlement, devised certain real property in St. John's, Newfoundland, to John Geare and John Ellis, upon certain trusts, and appointed them "executors in trust of this my will;" and Mary Ann Georgina O'Dwyer, her granddaughter, principal legatee for life. The testatrix survived her husband, and died without having revoked, altered, or republished her said will. Geare and Ellis had been cited to appear and take probate, or to show cause why administration of the personal estate of the deceased (with the will annexed) should not be granted to Mary Ann Georgina O'Dwyer, the grand-daughter and one of the next of kin of the deceased, and also the principal legatee for life named in the will. Dr. Wambey moved the Court accordingly.-The will purports to dispose of realty only, but where there is an appointment of executors the rule in the registry has been to grant probate on the ground that the appointment of executors saves an intestacy as regards any personal property which the deceased might possess. A difficulty is now felt in consequence of 21 & 22 Vict. c. 95, s. 16: "Whenever an executor "appointed in a will survives the testator, but dies without "having taken probate, and whenever an executor named in VOL. I. 2 I AND ANOTHER. Nov. 23, 1859. Nov. 23 and December 7. O'DWYER v. JOHN GEARE "a will is cited to take probate and does not appear to such "citation, the right of such person in respect of the executor. "ship shall wholly cease, and the representation to the tes"tator and the administration of his effects shall and may, "without any further renunciation, go, devolve, and be AND ANOTHER. "Committed in like manner as if such person had not been appointed executor." But the intention of this was to clear a non-appearing or renunciant executor for ever out of the way, and there is nothing to affect the construction of the will as to testacy or intestacy arising from the original appointment of executors. Cur. ad. vult. December 7. 66 SIR C. CRESSWELL: In this case I have considered the application made by Dr. Wambey, for administration with the will of Mary Ann Parkin annexed. It appeared to me at the time that the grant could not be made with the will annexed, for that the party died intestate, except as to certain real property devised in execution of a power. Dr. Wambey founded an argument on what he contended to be the true construction of the 21 & 22 Vict. c. 95, s. 16. I doubted whether at the time I clearly understood the drift of the argument, and therefore thought it better to take time to consider it. I apprehend that what he meant was, that the original appointment of executors would operate to prevent an intestacy as to any part of the property of the deceased, and that when they renounced, it did not so operate as to cause an intestacy. I agree to that, but the question turns upon the effect of the appointment of executors, not upon their renunciation. The will professes to deal with nothing but some real property, by virtue of a power of appointment, which was devised to Geare and Ellis, and their heirs, etc., and upon trust, and afterwards they were appointed executors in trust of that her will. In Tugman v. Hopkins, 4 M. & G. 400, Lord C. J. Tindal, in a well-considered judgment, ruled, that executors so appointed took nothing jure repræsentationis, and that as to property not disposed of under the power, the party died intestate. So here, the executors would take nothing jure repræsentationis. The will operated only on the property disposed of in execution of the power, and the grant now asked for must be without the will annexed. Miss O'Dwyer may swear that the testatrix made no will, except as to real estate. 467 CASES IN THE COURT FOR DIVORCE AND MATRIMONIAL CAUSES. (Before the Full Court,-CAMPBELL, C.J., MARTIN, B., and the JUDGE ORDINARY.) RATCLIFF V. RATCLIFF AND ANDERSON. Jurisdiction.-Evidence.-Arrangement between Husband and Where the domicil of the parties is English the jurisdiction of the The duplicate registers of marriage kept in the East Indies and transmitted to this country by the direction of the governing authority there, are admissible in evidence. Arrangements entered into between the husband and the adulterer, not with a view to the continuance of the adulterous intercourse, but to send the wife home to live under her mother's protection, are no bar to the husband's petition. Part of such arrangements being that, in any proceedings for a divorce the husband should bear his own costs, the Court condemned the corespondent in the whole costs, on the ground that he had not carried out a part of the agreement on his side as to leaving the regiment in which both were officers. On a question of permanent maintenance under section 32 of the Divorce Act, the Court will consider the ability of the husband as well as the conduct and income of the wife, not only as to the amount, but as to whether it shall make any order at all for maintenance. This case was conducted by Dr. Deane, Q.C., and Dr. Spinks, for the petitioner; by Dr. Swabey for the respondent; 1859. May 20 & 25. RATCLIFF v. RATCLIFF ANDERSON. May 20. 1859. by Dr. Phillimore, Q.C., and Mr. Addams, for the co-reMay 20 & 25. spondent. RATCLIFF v. RATCLIFF AND No witnesses were called on behalf of the respondent, and the questions that arose depended-first, on a correspondence put in evidence, and arrangements entered into thereby, ANDERSON. between the colonel and adjutant of the regiment, Captain Anderson on his own behalf, and Colonel Cotton acting for Captain Ratcliff. The marriage had taken place in India, at Poona, in November, 1844, and the transactions referred to took place in 1850, at Dugshai, in the East Indies, where the 22nd Regiment, to which both Captain Anderson and Captain Ratcliff were then attached, was quartered. The arrangement entered into was finally expressed in the two following letters:: "Sir, "Dugshai, 7th of August, 1850. "I have the honour, in reply to your letter of this morning, and in explanation of mine of yesterday, to inform you that Captain Ratcliff promises that no expense shall be incurred by Captain Anderson in regard to the process of law through which it may be necessary to go in obtaining a divorce, and Captain Ratcliff agrees, should he seek for a divorce, that the whole expense of the law process shall fall upon himself; provided, of course, that Captain Anderson leaves the regiment, maintains Mrs. Ratcliff as already proposed by him, and pays her passage to England in the event of her going there. "I have the honour, etc. "SYDNEY COTTON. "To Lieutenant-Colonel commanding 22nd Regiment." "Sir, "9th of August, 1850. "I have the honour to acknowledge your letter of the 8th inst. and copies of two letters from Lieutenant-colonel Cotton to Colonel Boileau, commanding. I have now to state, for the information of Colonel Boileau, commanding H.M. 22nd Regiment, that I will endeavour, as speedily as possible, to procure an exchange into another regiment; and I add, for the satisfaction of Captain Ratcliff, that I shall now do my |