1858. June 8. BELBIN V. SKEATS. BELBIN V. SKEATS. Will.-Proof of Execution.-Examination of one of the To prove the execution of a will in the Court of Probate, it is not Probate in common form had been granted by the Prerogative Court of Canterbury of a paper professing to be the last will of Moses Hebbard, deceased, and dated the 1st day of July, 1856, to Horatio Ward and Robert Skeats, the executors named therein. The present suit was instituted by the plaintiff (Jane Belbin), the executrix of a will of the deceased of prior date, with a view to obtain revocation of such probate. Dr. Phillimore, Q.C., and Mr. Denman, for the plaintiff. Dr. Deane, Q.C., and Mr. Coleridge, for the defendant. Both the attesting witnesses to the will of July the 1st, 1856, viz. J. Phillips and John Ward, were examined on behalf of the defendant to prove its due execution. John Ward was a witness hostile to the case set up by the defendant. Dr. Deane, Q.C. (to the Jury): The evidence given by John Ward on his cross-examination was no doubt prejudicial to the case of the defendant, one of his own witnesses; but he was not his witness by choice; the defendant was compelled to produce him, as one of the attesting witnesses to the will to prove its due execution. SIR C. CRESSWELL: I think not. Dr. Deane: By the practice of the Prerogative Court, both the attesting witnesses to a will were required to be produced by the party seeking to prove its execution. SIR C. CRESSWELL: The question does not arise here, but whenever it does arise, I shall most unhesitatingly rule that it is not necessary to call both the attesting witnesses to prove the execution of a will. This is purely a question of evidence, and by 20 & 21 Vict. c. 77, s. 33, the rules of evidence observed in the Courts of Common Law are to be observed in this Court in the trial of all questions of fact. It must be governed, therefore, not by the practice of the Prerogative Court, but by the rules of evidence observed in the Courts of Common Law. In those Courts the execution of a will may be proved by calling one only of the attesting witnesses. In Wright v. Doe dem. Tatham (1 Ad. & Ellis) 3, which was an action of ejectment brought by the heir-at-law against a devisee claiming under a will made prior to the passing of the Wills Act, the Exchequer Chamber held that to prove the execution of a will it was sufficient to call one only of the subscribing witnesses, if he could speak to the observance of all that was required by the statute. The authority of that case has never been disputed. 1858. June 8. BELBIN v. SKEATS. PALMER V. MACLEAR AND M'GRATH. Proof of Will in Solemn Form.-Several Defendants.- Where an executor propounds a will in solemn form, and there are This was a case of proving in solemn form of law the will and codicil, dated respectively the 29th day of August, and the 13th day of October, 1854, of Sir George M'Grath of Plymouth, Knight, K.C.C., etc., M.D., deceased, promoted by Mary Elizabeth Palmer, one of the executors named in the said will, against Mary Maclear, the sister and sole next of kin of the deceased. 1858. June 8. PALMER v. The will and codicil were propounded in a declaration in the usual form. To this Mrs. Maclear pleaded: 1st. That the deceased, at the respective dates of the execution of the will and codicil, was of unsound mind. 2nd. That their execution had been M'GRATH. procured by undue influence. MACLEAR AND After the issue had been delivered, the heir-at-law of the deceased (John C. M'Grath) was cited, and the declaration was delivered to him. He put in pleas similar in effect to those given in by Mrs. Maclear, and in addition thereto denied the due execution of both the will and codicil. The Queen's Advocate (Sir J. D. Harding) and Mr. Skinner, Q.C., appeared for the plaintiff. Mr. Collier, Q.C., and Dr. Phillimore, Q.C., for the next of kin. Dr. Deane, Q.C., for the heir-at-law. SIR C. CRESSWELL: There are two defendants in this case. A question arises, whether they are entitled to be heard separately by counsel. Dr. Deane, Q.C., appeared for the heir-at-law. He went a little further in his pleadings than the next of kin. There was one point raised by the heir-at-law, which was not raised by the next of kin, viz. as to the due execution of the will and codicil. SIR C. CRESSWELL: The case is substantially the same on the pleadings on behalf of both defendants. I shall hear counsel only for one defendant. That is the rule, which has been established by the Court of Queen's Bench. W. L., the drawer of the will and codicil, was then examined on behalf of the plaintiff. This witness, during his examination, held in his hand notes which he had made from his day-book to refresh his memory, together with certain letters, which had reference to the subject of inquiry. Mr. Collier (to the witness): Are you referring to the notes which you say you made to refresh your memory, or to some other papers ? Hand me those papers. SIR C. CRESSWELL: You may look at the notes made by the witness to refresh his memory; but you cannot look at the letters without putting them in evidence, if required by the plaintiff. 1858. June 8. PALMER v. MACLEAR AND M'GRATH. HARVEY V. Allen. Proving Will in Solemn Form.-Compromise.-Jurisdiction of Court of Probate. In a cause of proving a will and codicil in solemn form, promoted by the executor against the legal personal representative of the sole next of kin of the deceased, a compromise having been agreed to, by which a verdict establishing the will and codicil was to be taken by consent for the plaintiff, and the defendant was to receive £2000 out of the estate: HELD, that the Judge of the Court of Probate had jurisdiction to make the terms of the compromise a rule of Court, and to enforce it as such. Probate of the will and codicil was decreed to the plaintiff, as executor, the terms of the compromise being embodied in the decree. This was a cause of granting letters of administration, with the will and codicil, bearing date respectively the 21st day of July, 1855, annexed, of Mary Carter, late of Brook Terrace, Old Kent Road, in the county of Surrey, deceased, promoted by William Godfrey Harvey, a legatee therein named (the executor appointed in the said will having renounced probate of the said will and codicil), against Ann Allen, wife of John Lucas Allen, the legal personal representative of the sole next of kin of the deceased. During the hearing of the cause before Sir C. Cresswell and a special jury, a compromise was agreed to by the counsel on both sides, and the following memorandum, containing the terms of the compromise, was subsequently signed by the plaintiff and the defendant: "Amount of property, £7700. "Verdict for the plaintiff establishing the will. Plaintiff June 9 and 26. HARVEY v. ALLEN. 1858. June 9 and 26. HARVEY V. ALLEN. June 26. undertaking to pay the defendant upon receipt of the " money the sum of £2000. Each party to pay their own "costs." Dr. Deane, Q.C., moved the Court to decree letters of administration, with the said will and codicil annexed, to the plaintiff, in conformity with the compromise agreed to. There had been some difficulty in carrying out the compromise. The plaintiff (Mr. Harvey) would not take under the will a sufficient sum to pay the defendant's £2000. This difficulty had been got over; for since the jury were discharged two of the plaintiff's children, who were of age and were legatees under the will, had become parties to the compromise, and had agreed to make their respective shares chargeable in equal proportions for the above sum. Mr. Collier, QC., contrà: Both parties are anxious to carry out the compromise. He objected, however, to the grant of administration passing to Harvey, by which he would be put in possession of the whole of the deceased's property, and the defendant would have no security for ever getting the £2000 agreed to be paid to her. If the plaintiff declined to give her security, the Court has power to grant the defendant administration under sect. 73 of the Probate Act; or administration pendente lite under sect. 70. [BY THE COURT: I don't see how I can duly exercise such power in the present case.] Until judgment is signed, the lis will be pendens. [SIR C. CRESSWELL: I don't see how that can be; but I don't say that I am deprived of all authority in the matter.] The jury were discharged, subject to this: that if the parties did not agree, another jury would be summoned to try the case. SIR C. CRESSWELL: There is another ground upon which I might interfere. By the 37th section of the Probate Act, when I try questions before a jury in this Court, I have the same powers, jurisdiction, and authority as belong to a judge sitting at Nisi Prius. Let the terms be embodied in the order I make. The Court can then enforce them as an order, or rather as a rule of Court, just as an order is made by a judge |