making another. A. let the will fall on the ground, but in a few minutes
picked it up and refused to burn it; it was replaced in his drawers up-
stairs; and a few days afterwards, being about to sail for India, he burnt
certain papers,
but not the will, to which his attention was at that time
directed; he afterwards showed a paper, which he called his will, to the
principal legatee. He sailed for India, still expressing his intention of
making a new will. After his death the torn will was found in the house
in Wales in which he had been staying. Held, that in order to revoke a
will by tearing, it is not necessary to rend the will into more pieces than
it originally consisted of, but that it is sufficient, if the testator intended
the tearing actually done of itself to work a revocation without any fur-
ther act; that there being satisfactory evidence that the paper had been
duly executed, and no evidence sufficient to prove that by the partial
tearing the testator had carried into effect the original intention he had
had to revoke it, the instrument was entitled to probate.-Elms v. Elms,
155.
12. Revocation of Will.—Will not forthcoming at Testatrix's Death.—
Presumption of Revocation rebutted.
The presumption of fact, that a will, known to have been in the testatrix's
custody, and not forthcoming at her death, was destroyed by her ani-
mo revocandi, is a primâ facie presumption only, and may be rebutted
by probable circumstances, among which declarations of unchanged
affection and intention have much weight. It is not necessary for the
parties seeking probate, having proved the factum of the original in-
strument, and given secondary evidence of its contents, to show how
the original instrument was in fact destroyed or lost.-Patten v. Poul-
ton and Others, 55.
13. Dependent relative Revocation.-Will.-Undue Execution of a
later Will.-Destruction of the former Will.-Revocation not sustained.
A will was destroyed by the testator, on the supposition that he had substi-
tuted another for it, but which was not duly executed. Probate of a
copy of the first will granted.-Scott v. Scott, 258.
See MARRIAGE WITH A DECEASED WIFE'S SISTER.
1. Separate Property.-Will.-Wife.-Husband.-Separation by con-
A. and B. married in 1811; in 1817 they verbally agree to separate, and
not to interfere with each other, and divided their then furniture and
effects. They never again cohabited, and the wife supported herself by
her own industry, and acquired property, which she disposed of by will
in 1856. Probate of this will was opposed by the husband, who asserted
his marital right to his wife's property. Held, that under the circum-
stances, the property had been acquired to the wife's sole and separate
use, and that the jus disponendi would therefore attach to such property.
-Haddon v. Fladgate, 48.
2. Separate Property.—Will of Married Woman.-Effect of Will
during Coverture by a Wife who survives her Husband.
R. S. died on the 19th of January, 1858, two days after her husband's
SEPARATE PROPERTY-continued.
death, leaving a will made during his coverture, which had not been
republished after her husband's death. R. S. had no power under any
instrument to make a will during coverture. At the time of the death
of her husband and herself, there was invested in the husband's name
in the Three per Cent. Annuities with moneys of his, a sum of money
which had always been treated by the husband and wife as her separate
property, the same being the savings of the wife of presents made to her
by her husband. By his will the husband declared that the said sum
was the property of the wife. Held, that the said moneys were the
separate estate of the wife, her husband being as to them a trustee for
her, and consequently might be disposed of by a will made during her
coverture; but that as she survived her husband, probate should be
granted, limited to such property as she had power to dispose of.—In the
goods of Rebecca Smith (deceased), 125.
See ADMINISTRATION, 2.
SUBSTITUTED EXECUTOR.
Substituted Executor in case of Death of one of the original Executors.
A. made a will, and appointed B., C., D., and E., executors, and in case of
the death of B., F. to be executor in his place. B., C., D., and E,
proved the will. B. and C. died. F. applied to have a double probate
granted to him. D. and E. opposed such grant. Held, that F. was
entitled to the grant, and that the casualty was not restricted to the
death of B. in A.'s lifetime.-In the goods of Henrietta Johnson (widow,
deceased), 17.
1. Sureties.-Administration Bond.-Amount.-20 & 21 Vict. c. 77,
ss. 81, 82.
A. died intestate, leaving his mother solely entitled in distribution,-pro-
perty under £3,000,—and debts £45. The Court granted administration
on the mother entering into a bond in the amount of £100, with sureties,
-In the goods of Matthew Gent (deceased), 54.
Where a grant was made to persons representing three-fourths of the
interest, but which was opposed by the person representing the remaining
fourth, their sureties were ordered to justify to the extent of the remain-
ing fourth.-Iredale v. Ford and Bramworth, 305.
See ADMINISTRATION BOND, 1, 2.
Administration.-Death of Husband and Wife.-Uncertainty as to
Survivorship.-Form of Oath.
F. W. perished with his wife and only child, an infant, in the Cawnpore
massacre, leaving no will. There being no evidence as to survivorship,
the Court granted administration of the personal estate of F. W., as
having died a widower, to his mother, as his next of kin. The admi-
nistrator's oath, instead of being in the usual form, may state that
there is no reason to believe that the wife survived the husband.-In the
goods of Frederick Wainright, 257; In the goods of Lieutenant-Colonel
Ewart, 258,
1. Taxation of Costs, 20 & 21 Vict. c. 77, s. 29.-Number of Counsel
allowed.-Discretion of Registrar.-Costs of Application.—Practice.
In taxing a bill of costs, the registrar is not bound by the practice of the
Prerogative Court as to the number of counsel to be allowed, but should
exercise his own discretion in the matter. In making an allowance for
briefs, he should consider whether they have been made unnecessarily
long and expensive. The question brought before the Court on this ap-
plication having been raised by the registrar, costs of the application
were not allowed against the plaintiffs.-Braine v. Braine and Braine,
271.
2. Will.-Verdict and Costs for Defendants.-Taxation thereof.—
Practice.
A. propounded a will of April, 1858, and was opposed by B. and C., execu-
tors of a will of April, 1847. Verdict for the defendants, and A. con-
demned in their costs. B. and C. objected to the registrar's taxation of
costs, disallowing, first, sixteen witnesses out of twenty-seven who were
not examined by the defendant's counsel, though their evidence was
briefed, and they were in Court; secondly, two witnesses out of the eleven
examined as immaterial to the issue; thirdly, the third counsel and brief;
fourthly, consultation at end of plaintiff's case. The Court confirming
the registrar's taxation, except as to the second point: Held, that the
fact which the two witnesses were called to prove was material to the
issue, but that, as it was not a fact controverted in the case, it would have
been sufficiently proved by one witness, and the costs of one were allowed
accordingly. That the Court will not interfere with the registrar's dis-
cretion as to number of counsel to be allowed, and more than one consul-
tation in the progress of a cause is never allowed.-Edwards v. Payne
and Reeve, 276.
1. Will in the Registry of the Court.-Application to allow it to be
sent Abroad.-Practice.
A. by her will devised to B. certain lands in Australia. A suit was com-
menced by B. in the Supreme Court of Australia, to recover possession
of such lands. An application on behalf of B., that the original will,
which was deposited in the Principal Registry of the Court of Probate,
should be delivered out of it for the purpose of being sent to Australia,
to be used as evidence in the suit was refused.-In the goods of M. Holl
(deceased), 136.
The Court will not allow a will in its custody to be taken out of its juris-
diction on any alleged necessity for the furtherance of justice. It must
presume that other Courts, when satisfied that the original document is
withheld by a competent authority, will not allow a suitor to be preju-
diced by its non-production.—In the goods of Biagio Manfredi (deceased),
2. Will.-Domicil.-Probate.-Court of Construction.
A., a natural born British subject, died domiciled in Russia, having acquired
large property, both real and personal, in that country; he was also pos-
sessed of a considerable sum in the English funds. He left a will in the
Russian language and form, appointing Russian subjects executors, which
was duly authenticated in the Russian courts. It purported to "dispose
"of all my movable and immovable property." There were no words
distinctly excluding any part of his property from its operation, nor was
there any allusion to, nor any words distinctly describing, the money in
the English funds: Held, that the executors, being clothed with the au-
thority of the competent Court of the testator's domicil, were entitled to
probate as regards the money in the English funds. Semble, where the
Court of Probate has any doubt on a point of construction, it will so de-
cide as will best enable the parties concerned to have recourse to the tri-
bunal, whose more special duty it is to put a construction on testamentary
papers.-Enohin and Others v. Wylie, 118.
3. Will.-Memorandum.-Codicil.
A. executed his will in February, and a codicil on the same paper in De-
cember; below the signature to the will, and before the commencement
of the codicil, appeared a memorandum, which, from the evidence of the
solicitor who prepared the will, had been written on the paper before the
execution of the will: Held, that the memorandum being no part of the
will as originally executed, was not entitled to probate by reason of the
duly executed codicil of subsequent date, such codicil referring merely to
the will.-In the goods of John P. Willmott (deceased), 38.
4. Will.-Probate of Missing Will.
G. made his will in 1855, appointing his wife sole executrix. In May, 1857,
he fled from Delhi when the mutiny broke out, leaving there a desk con-
taining the will. After the recapture of Delhi, an attempt was made to
recover it, but without success. G. died in June, 1857. On proof of the
due execution of the will and of its contents, the Court granted probate
to the executrix.-In the goods of H, C. Gardner (deceased), 109.
Power of the Court to adjourn the hearing of a petition for further evidence
or consideration.-Ward v. Ward, 185; Robinson v. Robinson and Lane,
384; Lloyd v. Lloyd and Chichester, 569.
Of guilty respondent may be sufficient evidence against the person making
such admissions to found a sentence of dissolution.-Robinson v. Robin-
son and Lane, 362.
ADULTERY. See CONDONATION.
1. The wife petitioned for dissolution by reason of the husband's adultery
and cruelty, and bigamy and adultery; she had obtained a sentence of
divorce in the United States, North America, where she and her husband,
English subjects by origin, had resided, by reason of her husband's adul-
tery with G. The only adultery proved at the hearing of the petition
was the cohabitation of the respondent with G. subsequently to the sen-
tence of divorce, to whom he was then married; and the Court dismissed
the petition.-Palmer v. Palmer, 551.
2. An act of adultery by the wife condoned, no bar to the husband's peti-
tion by reason of her subsequent adultery.-Wilton v. Wilton and Cham-
berlain, 563.
1. Affidavit, required by 20 & 21 Vict. c. 85, s. 41, and by Rule 2, to verify
the facts of the petition cannot be used as evidence by the petitioner at
the hearing.-Deane v. Deane, 90.
2. Must go to all the facts in the petition either absolutely or to the best of
knowledge and belief, as the case may be.-Tourle v. Tourle and Another,
165.
3. The affidavit to verify answer, Rule 15, must go to all new facts intro-
duced by the answer though not necessarily in absolute terms.—Ibid.
4. Affidavit in verification ought not to detail the matrimonial history of
the parties; the Court will not order such an affidavit to be taken off the
file, but its costs would probably not be allowed on taxation.-Forster
v. Forster and Evans, 167.
5. Where the petitioner had obtained a divorce à mensâ et thoro, and da-
mages in an action for crim. con., the facts of the petition were allowed
to be proved by affidavit.-Ling v. Ling and Croker, 180.
But not where nominal damages only had been recovered.-Potts v.
Potts and Another, 181.
On a petition for dissolution the Court allowed the marriage to be
proved by affidavit, the witnesses residing in Scotland, and no appear-
ance being given for either respondent.-M'Kechnie v. M'Kechnie,
550.
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