1859. March 30. SWINFEN v. SWINFEN. family of the testator had been exceedingly beloved by him ; "that a very great change had taken place in his intentions "within a very few months; that at the period of the making "of the will his mind was enfeebled by his affections; his "affections prevailed; not that his judgment was weak, but "that his affections were stronger. The result of that was, " instead of having a comparatively large fortune left them, "the family, whom he had cherished with great affection— an affection mutual between the parties-were left with a legacy only of £1000, and nearly the whole, if not the whole, "was left to the widow Mrs. Armstrong. Their Lordships 66 are of opinion that the estate in this case should bear the "costs of the whole proceeding, with the exception of that "needless part to which I have adverted." I cannot help being struck by the language in which that judgment was given, as if the Court were embarrassed to find reasons for giving costs out of the estate. In the present case there is no change of intentions, no disappointment of expectations held out; it is simply the case of a party entitled in distribution calling for proof of the will, and administering unobjectionable interrogatories; and if I had thought that the object of the proceeding in the Prerogative Court had been simply to take the opinion of that Court upon the will, I should have considered that the circumstances of the case warranted a decree for costs out of the estate; but I cannot avoid coming to the conclusion that these proceedings were not taken for that purpose alone, but as ancillary to the other suit pending in respect of the real estate, and in the nature of a bill of discovery to get evidence which might be available on the trial of the issue at common law. I shall make no order as to costs. March 9. JANE BELL. In the Goods of JANE BELL, on Motion. In the Goods of Administration.-Wife's next of Kin.-Renunciation of Husband's personal Representative.-Practice. A. died in 1831, being at the time of her death entitled to the reversion of a share of £200, leaving (B.) her husband and several children by him her surviving. The husband subsequently married (C.), and died in 1832 intestate, leaving C. and several children by his two marriages him surviving. D., a creditor, took out administration to his effects. In 1857, A.'s reversion came into possession; D. renounced his right to administer to A.'s estate. On application to the Court to grant In the Goods of administration of it to C. as B.'s relict: JANE BELL. 1859. March 9. HELD, that the children of A., and not C., were entitled to the administration. Jane Bell, the deceased in this case, died in 1831, in the parish of Heddon, Northumberland, leaving her husband, George Bell, and children by him her surviving. At the time of her death, she was entitled in reversion to one-third part of £200 upon the death of Jane Barker. George Bell remarried, and died in September, 1832, intestate, leaving Elizabeth Bell, now Elizabeth Wallace, his widow, and six children by his first marriage and one by his second marriage him surviving. In December, 1832, letters of administration of the personal estate and effects of George Bell were granted by the Consistorial Court of Durham to William Stephenson, a creditor of George Bell, the said widow and children having been first cited, but not appearing. By the decease of the said Jane Barker, in 1857, the reversionary interest of the said Jane Bell in the £200 became due and payable to her estate. The said William Stevenson having satisfied his own debt out of the estate of George Bell, had renounced his right to the administration of the personal effects of Jane Bell. Dr. Tristram now moved the Court "to grant letters of "administration of the personal estate of Jane Bell to Eliza"beth Wallace." Mrs. Wallace, through her former husband took a derivative interest in Jane Bell's one-third share of the £200, amounting to one-third of the property unadministered and though George Stevenson, and not Mrs. Wallace, was his personal representative, yet, as he declined to administer to the property, the Court might grant her the administration. to; SIR C. CRESSWELL: Mrs. Wallace cannot claim to take out letters of administration to the effects of Jane Bell, as the representative of George Bell. She cannot claim as representing his former wife. If Stephenson, the representative of 1859. March 9. George Bell, declines to take out administration, the children of the former wife, as representing her, are entitled to take the grant. They are the proper persons to take out adminisJANE BELL. tration, and not Mrs. Wallace. In the Goods of Motion rejected. February 15 and March 9. WARREN V. KELSON. WARREN (by his Guardian, Badnell) v. KELSON. Letters of Administration with Will annexed.-Grant de bonis non-Residuary Legatee-Next of Kin. A. died in 1856, leaving a will on the construction of which, in respect to a question between B. the asserted residuary legatee, and C., the next of kin, the Judge of the Prerogative Court of Canterbury decreed letters of administration with the will annexed to C., the testator's sister and next of kin. A bill was subsequently filed in Chancery for the administration of the estate, in determining which Wood, V.C., held that B. was the beneficial residuary legatee. Afterwards C. died, leaving goods unadministered, and a question arising in the Court of Probate as to the grant de bonis non between B. and another next of kin : HELD, without going into the construction of the will, that the suit before Wood, V.C., was substantially an appeal from the decision of the Prerogative Court. Administration de bonis non granted to B. in accordance with the decision in Chancery. This was a question of administration with the will annexed of the unadministered goods of William Hall, who died on the 23rd of October, 1856, leaving a will bearing date the 17th of January, 1853, in his own handwriting, by which he gave all his real and personal estate to William Unsworth and John Atkinson, whom and their executors, administrators, and assigns he appointed executors of his will. W. Unsworth predeceased the testator, and Mr. Atkinson renounced probate. The testator died a widower, without child or parent, leaving him surviving Sarah Rudall, his sister and only next of kin, and several nephews and nieces entitled in distribution. A question arose as to the right to administration with the will annexed between Sarah Rudall, as next of kin, and Warren, 1859. a minor, by his guardian, claiming as residuary legatee under the following clause :-"I will my freehold house, No. 71, February 15 "Queen's Road, Bayswater, to be given to the inhabitants of and March 9. "Bayswater, to found a lying-in asylum for unmarried women, "and 66 'point my godson, William Hall Warren, one of the said trustees, leaving to the inhabitants to make choice of as many more as they may please; but in the event of the said in"habitants not appointing a committee, or not willing to carry "out the same scheme, I then will that all my said property so given to the said maternal retreat, or lying-in asylum, "shall absolutely belong to my godson, William Hall Warren; " and I will that the deeds of the said house be given to my "trustee or trustees; I will that the said trustee or trustees "be my residuary legatees to this my will." The will proceeded to give further legacies, some to the legatees only for life, to revert "to my residuary legatee or legatees for asylum "mentioned." There was no further disposition as to residue. It was agreed that the devise of the freehold was void under the Mortmain Act. The question as to the right to administration was argued before the late Judge of the Prerogative Court of Canterbury; and on the 4th of June, 1857, Sir John Dodson, being of opinion that the bequest attending the void devise failed, and that the bequest over to Warren would, under the circumstances, be of no effect, decreed administration with the will annexed to Mrs. Rudall as next of kin, and ordered the costs of both parties to be paid out of the estate: Rudall v. Warren, by his Guardian, Deane & Swabey, 306. The question of the construction of the will then came before Wood, V. C., and was argued and determined in the course of July, 1858, when the Vice-Chancellor held that the gift over to the godson took effect, and that it extended to all the property devised for the benefit of the charity: Hall v. Rudall; WARREN v. KELSON. 1858. February 15 and March 9. WARREN v. KELSON. Warren v. Hall.1 Sarah Rudall, the administratrix, with the will annexed, died on the 14th of September, 1858. A caveat was then entered on behalf of Jane Kelson, a niece of the testator; the caveat was warned, and an appearance entered for her; and a petition was filed on behalf of William Hall Warren, praying a grant of administration with the will annexed, of the goods unadministered, to be made to Emma Badnell, the guardian lawfully appointed by the High Court of Chancery of the person and estate of W. H. Warren the residuary legatee for his use and benefit and until he should attain the age of twenty-one years. The answer to the petition stated, among other matters, the intention of the next of kin to appeal from the decree of Wood, V. C., and prayed administration to be granted to Jane Kelson, as one of the next of kin. The case was argued on February 15th by Dr. Deane, Q.C., and Mr. De Gex, for the asserted residuary legatee. Dr. Spinks, and Mr. Osborne, for the next of kin. SIR C. CRESSWELL directed the case to stand over, to ascertain whether the parties could agree on an independent person to take the grant. The parties being unable to agree, judgment was subsequently given. SIR C. CRESSWELL: This was a petition for letters of admiMarch 15. nistration, with the will of William Hall annexed, of the goods left unadministered by Sarah Rudall deceased, to whom administration, with the will of W. Hall annexed, was granted by the Prerogative Court in 1857. The case for the petitioner was, that the grant of administration having been made to Rudall, a bill was filed in the Court of Chancery for the administration of the estate of the testator, and that Vice-Chancellor Sir W. Page Wood had, by his decree, declared that the petitioner, W. H. Warren, was entitled to his own use to the residuary, real, and personal estate of the testator, including his estate and interest in the freehold and leasehold houses, devised and bequeathed for the purposes of the maternal asylum, in the pleadings mentioned; subject, as to such of 14 Kay & Johnson, 603. |