1858. March 19 & 26. In the Goods of JOHN PETER RIPLEY (deceased), on Motion. Will.-Copy-Evidence of Execution. In the Goods of A. being resident in India, sent in 1850 to England, in a letter to his JOHN PETER RIPLEY. solicitor, a copy of a will which he stated he had made there. In February 1857 he transmitted in the same way a copy of a codicil stated by him to have been made at Delhi. A. lost his life in May 1857 in the mutiny at Delhi, and the will and codicil were not forthcoming. On motion for probate of the will and codicil as contained in the copies sent to England: HELD, that there being no proof of the execution of the original will and codicil except the statement of the deceased himself, made after their execution, the copies were not entitled to probate. This was a question of proving the will and codicil of the deceased, who was killed in May 1857, being then the colonel commanding the 54th Bengal N. I., as contained in copies sent by post to his brother, W. R. Ripley, of Lincoln's Inn Fields. Mr. W. R. Ripley's affidavit, on which the motion was founded, established the following facts: he had always acted as Colonel Ripley's legal adviser, and in the year 1850 he received by post from India a copy of a will dated the 2nd of March, 1850, with an attestation clause, but no copies of the signature either of the testator or of the subscribing witnesses. On the same paper was a letter from Colonel Ripley to his brother, referring to the will, desiring him, if he was not satisfied with it, to send him the draft of one properly expressed, and at all events to destroy a former will then in Mr. W. R. Ripley's custody. Mr. W. R. Ripley accordingly destroyed the old will, but did not send out any new draft, being satisfied with the one of which he had just received the copy. In April 1857 Mr. W. R. Ripley received in the same manner the copy of a codicil headed, "Codicil No. 1 to my will written at Delhi, 18th February, 1857." The copy of the codicil bore the signature J. P. Ripley, Lieutenant-Colonel, Bengal army. Witnesses H. C. Henderson, Lieutenant, 54th Regiment N. I.; Ernest Edwards, Lieutenant, 54th Regiment N. I. The letter accompanying this codicil referred to the will of 1850, the copy of which Colonel Ripley presumed his brother still retained. It seemed probable that Colonel Ripley, after he was wounded, had time to make over his papers of importance to a 1858. native servant, and that the will and codicil would be amongst them. One of his sons in India had made every exertion to March 19 & 26. recover them, but without success. Lieutenant Edwards was In the Goods of killed at the same time with Colonel Ripley; Lieutenant JOHN PETER Henderson was supposed to be alive. Dr. Deane, Q.C., moved the Court to decree probate of the will and codicil as contained in the copies transmitted by Colonel Ripley to his brother, to the executors therein named. SIR C. CRESSWELL: There is abundant proof of the contents of the will and codicil, but I have a great difficulty as regards the proof of execution of these papers. The only proof before me is the statement and assertion of the deceased himself. Is there any precedent for granting probate of papers, where there was no other proof of the execution of them? Dr. Deane: I have not been able to find any exact precedent; but where, as in the codicil now before the Court, a testamentary paper purported to bear the names of two subscribed witnesses and the attestation clause was defective, the Prerogative Court did not always insist upon affidavits from such witnesses if they were at a great distance, in India for instance. BY THE COURT: But in such cases the original instruments were produced. Here I have before me mere copies, and nothing besides the deceased's own statement that the originals were executed. I do not see where it would stop if I am to grant probate of these: the motion must stand over. SIR C. CRESSWELL: This was an application for probate of a supposed will and codicil (the alleged testator having been murdered at Delhi) as contained in what were said to be copies of the will and codicil sent over to this country. It seemed to me at the time when the application was made, that I could not grant it upon principle, there being no proof of the factum of the original will and codicil except the decla RIPLEY. 1858. JOHN PETER RIPLEY. rations of the supposed testator, made after their execution, March 19 & 26. that he had made such a will and codicil. But as the circumstances of the case caused me to feel rather disposed to grant In the Goods of probate of the instruments, if I could do so with propriety, I was anxious to have an opportunity of seeing whether any instance could be found, in which the Prerogative Court had granted probate under similar circumstances. No instance could be found; but in the case of Doe d. Shallcross v. Palmer, 16 Q. B. 747, a Common Law Court refused to receive in evidence the declaration of a testator, made after the execution of his will, that an interlineation in it was made before execution. If a declaration made after execution as to an interlineation could not be received, à fortiori a declaration as to the actual making of a will could not be received. There being no other evidence as to the factum of the will, I am bound to refuse probate of the copy. I must reject the motion. CASES IN THE COURT FOR DIVORCE AND MATRIMONIAL CAUSES. BEFORE THE JUDGE ORDINARY. Ex parte ARMITAGE. Divorce.-Practice.-Action of Crim. Con.-Adulterer.- A. having, in an action of crim. con., recovered damages against B., This was an application made under the 28th sect. of 20 & 21 Vict. c. 85, which provides that "upon any such petition "presented by a husband" (for the dissolution of marriage on the ground of his wife's adultery), "the petitioner shall make "the alleged adulterer a co-respondent to the said petition, un"less on special ground, to be allowed by the Court, he shall "be excused from so doing." Mr. Pullein, on behalf of a husband, applied for leave to present such a petition without making the alleged adulterer a co-respondent, on the special ground that the husband had already recovered damages and costs against him in an action. of crim. con. THE JUDGE ORDINARY: I cannot grant you any authority to present a petition without doing what the statute re 1858. January 23. Ex parte ARMITAGE. 1858. January 23. quires, unless upon special grounds shown. You have not shown any special grounds in this case, and I must therefore reject your application. February 8. SAUNDERS v. Saunders. SAUNDERS v. SAUNDERS. Wife.-Divorce à mensâ et thoro.-Application to reduce A. obtained a sentence of divorce à mensâ et thoro, in 1847, by reason of This was an application to the Court for a reduction of permanent alimony. The marriage took place in 1825. In 1847, Mrs. Saunders obtained a sentence of divorce à mensa et thoro in the Consistory Court of London,' by reason of her husband's cruelty. Permanent alimony was taken by consent of both proctors at £300 per annum. There were four children of the marriage, sons, now making their own way in the world, and who, as alleged by Mr. Saunders, had been educated at his sole expense, whilst Mrs. Saunders asserted that she had expended considerable sums and had incurred a debt of £750 in respect of the youngest son's education, and for the advancement of the others. Mrs. Saunders' father died in December, 1855. Some time after this event Mr. Saunders, conceiving that his wife had in consequence of her father's death become possessed of an independent income, allowed the payment of alimony to fall in arrear. Monitions to enforce payment were served on Mr. Saunders in the spring of last year, and on the 2nd of July the Judge of the Consistory Court of London ordered immediate payment of two quarters' alimony, due up to the 18th of March, 1857. 1 1 Rob. Ecc. Rep. 555. |