Page images

(Residue.) A testator, after directing his real and personal estate to be converted into money and invested, bequeathed the interest, dividends, and produce of the whole of his real estate, and of the residue of his personal estate, to A for life, and after her decease, one moiety of the interest of the residue of his personal estate and effects to B, and the other moiety to C, for life, and after her decease the whole of the principal of such moieties, or the whole of the residue of his estate whatsoever and wheresoever to B; held, that the moiety given to C included the real estate, which formed one mixed fund with the residue of the personality. Byam v. Munton, R. & M. 503.

(Estate for life.) A testator gave 'two houses in St. John's lane, and the other in Togwell-court, to his wife for life, and after her decease, that in St. John's lane to A, and the other betwen B and C, to be equally divided'; held, that A did not take a fee simple under the will. Esdaile v. Gall, R. & M. 540. (Vesting.) A testator devised all his real estate, subject to his daughter's life interest, to all the younger children of his daughter as tenants in common, with a devise over in case his daughter should die leaving no issue, or the children should die under twenty-one, or be married without consent; held, that the gift extended to the children of the daughter by a second husband, (Barrington v. Tristram, 6 Ves. 344:) that the children did not take vested interest until twenty-one. Critchett v. Taynton, R. & M. 541.

(Construction.) A testatrix gave the interest of certain stock equally between A and B, and in case of the death of either of them, the whole interest to the survivor of them, with a gift over of the principal and interest to C and D, if they should survive A and B, and if they should not to E: held, that B, who survived A, took only a life interest. Tilson v. Jones, R. & M. 553.

(Remoteness.) An estate at C. was settled on A for life, remainder to his first and other sons in tail mail, remainder to A in fee. A devised as follows: As to the reversion and inheritance of the freehold estate at C. purchased by me in pursuance of my marriage articles, bearing date, &c. in case of failure of issue of my body by my said wife, I give and devise the same, &c. He then limited the estate to his brothers in succession, and to their respective first and other sons in tale male: held, that the devise was good. Egerton v. Jones, Sim. 409.

(Construction.) A testator having one nephew, one niece, and

eight great nephews and nieces living at his death, gave one tenth of his residue to his nephew, another to his niece, and the remainder to trustees in trust for their children at twentyone; and he empowered his trustees to apply all or any part, of their respective shares, for their advancement: held, that all the great nephews and nieces born before the period of division arrived, namely, when the eldest attained twenty-one, were entitled. Titcomb v. Butler, Sim. 417.


A testator gave the yearly sum of £2,000 sterling to his wife for her life, and after her decease to his trustees, upon the same trusts as after declared concerning the yearly sum of £3,000 sterling. He then gave to his trustees the yearly sum of £3,000 sterling to issue out of a sufficient sum of stock in five per cents, to be invested in the names of his trustees for that purpose, in trust for his daughter for life, and, after her decease, for her childThe trustees invested £100,000 five per cents, to answer the two yearly sums. The stock was, two years after the testator's death, converted into four per cents, whereby the dividends became insufficient to pay the yearly sums: held, that the legatees were not entitled to have the deficiency made good out of the residue. Kendall v. Russell, Sim. 424. (West India Estate.) A testator, resident in Jamaica, devised the rents, issues, and profits of certain estates there to A: held, that the estates and the slaves, mules, cattle, and machinery thereon, passed. Stewart v. Garnett, Sim. 398. (Legacy) A testator bequeathed to his grandchildren, naming them, the sum of £1,000, payable to each of them on attaining twenty-one; and, in case of the death of either of them before that period, to be divided amongst the survivors: held, that the grandchildren were entitled to one sum only of £1,000, and not each of them to a separate legacy to that amount. S. C. (Fee.) Devise of 'one moiety of the rents, issues, and profits of my estate, named J., in the parish of M., to be divided equally amongst my grandchildren; the other moiety of the rents, issues, and profits of my said estate I give to R. and his heirs :' held, that the grandchildren take the fee as tenants in common in moiety of the estate. S. C. See POWER,


(Refusing to produce deeds.) On a commission to examine witnesses, A was served with a subpœna duces tecum to produce a deed in his possession, and which was to be proved by the subscribing witness; A and the witness attended, but the former

refused to produce the deed, without assigning a sufficient reason for the refusal; ordered, that A should attend and produce the deed at his own expense; that the witness should attend at his expense, and that he should pay all costs consequent to his refusal. Brassington v. Brassington, 1 S. & S. 455. Bradshaw v. Bradshaw, Sim. 285.

(Competency.) In equity, an objection to the competency of a witness, though apparent upon the record, is not waived by cross examination. Moorhouse v. De Parson, 19 Ves. 433. Harrison v. Courtland, R. & M. 428.



3 Haggard, Part 3.

(Presumption of death.) A testator went to Demarara in 1803, leaving a will, dated two years before, and had not been heard of since 1804. His mother, who died in 1826, believed him to have died a bachelor, without having made any later will, and diligent inquiries had been made at Demarara, but without obtaining conclusive evidence of his death. Administration with the will annexed was granted to a residuary legatee, the securities justifying. Dean v. Davidson, 554. (Widow or next of kin.) Where the asserted widow married, during the intestate's lifetime, another man (who had since been convicted of felony,) with whom she continued to live, the court granted administration to the next of kin upon her giving justifying security. Conyers v. Ketson, 554. (Revocation.) Administration was taken out by a brother of the deceased, there being no formal renunciation by his mother, who, however, was aware of her son's application for administration, and had under it received her distributive share. The brother died, and the mother then formally renounced. The renunciation was rescinded as being unnecessary, and a grant de bonis decreed. In the goods of Statles, 560.

(Title of Applicant.) The Court being bound to satisfy itself of the right of an applicant to the grant, will if any suspicious circumstance occur, such as great delay in the application, call for explanation. In the goods of Darling, 561.

(Widow.) Where the widow had lived separate from her husband, administration was awarded to the next of kin, the grant being discretionary. Lambell v. Lambell, 570.


In an allegation of faculties the only material circumstance is the amount of income; the particulars, therefore, of a partnership in which the husband is engaged ought not to be set forth, not from forbearance to the husband, but on account of the possible injury to the partner's interest. Higgs v. Higgs, 472. DOMICIL.

A British subject domiciled abroad must conform in his testamentary acts to the formalities required by the lex domicilii. Where, therefore, the will of a British subject, resident and naturalized in the Portuguese dominions, disposing of property partly there and partly in England, was executed according to the Portuguese law, it was admitted to probate here; but two codicils, fully proved as to capacity and intention, disposing solely of money in the British funds, but not executed according to the Portuguese law, were refused probate. Stanley v. Barnes, 373. HUSBAND AND WIFE.

(Adultery.) Sentence of separation by reason of adultery and cruelty, pronounced on proof of undue familiarities, clandestine communication, with frequent opportunities of guilt, or concealed correspondence by letters denoting great ardor of passion, if not allusions to actual guilt, (but no credible proof of a fact of adultery,) united with great violence of conduct and language, and an attempted blow. Bramwell v. Bramwell, 618. (Restitution.) On a suit for restitution, the defendant must be compelled to return, unless it be proved that the plaintiff's inherent right is forfeited; but semble, lest strict proof of cruelty or adultery is necessary, in answer to such a suit, than where the party making these charges is the original complainant. S. C.

(Condonation.) Condonation is a conditional forgiveness, on a full knowledge of all antecedent guilt. S. C.

(Marriage.) The lex loci contractus as to marriage will not prevail when either of the contracting parties is under a legal incapacity by the law of the domicil; and, therefore, a second marriage had in Scotland on a Scotch divorce (à vinculo) from an English marriage between parties domiciled in England at the time of such marriages and divorce, is null. (Quare.) Whether such divorce would be invalid if the parties were there bona fide domiciled in Scotland; still more, if the first marriage took place during a mere casual visit to England, both parties being at all times domiciled in Scotland. Conway v. Beazley, 639.


(Evidence.) In the absence of proof that registers of episcopal chapels at Edinburgh are by the law of Scotland documents of an authentic and public nature, copies thereof were rejected as inadmissible by the law of England. Conway v. Beagley, 651.

WILL. (Insanity.) The will of a person who labored under an erroneous belief of a continued intention to poison him, but was in all other respects perfectly rational, was declared valid. Fullock v. Atkinson, 527.

(Insanity.) Semble, a will of personality only made two months before execution, in pursuance of intentions entertained for many years, and of which the execution is delayed merely for want of witnesses, would be valid, even if executed during insanity intervening between the preparation and execution. S. C.

(Revocation.) Where a testatrix partially mutilated a duplicate will, (without destroying the seal or signature) but preserved the other duplicate, such mutilation was considered not even a partial revocation. Roberts v. Round, 548.

(Cancellation.) A will found in the repositories of the deceased, with the seal cut off, must be presumed to have been cancelled by him animo cancellandi, and can only be revived by some other act. Lambell v. Lambell, 568.

(Omissa.) A will is presumed to have contained, at the time of execution, the final intentions of the deceased. To authorize - alterations on the ground of mistake, there must be some ambiguity in the instrument; and the proofs of omission or fraudulent suppression must be clear beyond all doubt. Shadbolt v. Waugh, 570.

(Intoxication.) Where no fixed and settled delusion is shown, and, consequently, no decided actual insanity, and extravagant acts are accounted for by the excitement of liquor, while at times the mind was sound: in order to avoid a will it must be proved that the deceased was so excited by liquor or so conducted himself during the particular act, as to be at that moment legally disqualified from giving effect to such act. Wheeler v. Alderson, 608.

(Insanity.) The will (executed eight years before death) of a woman, who, though guilty of excessive drinking and great extravagances, managed her own property, received her dividends did various acts of business, corresponded rationally with her friends, and was not shown to be under any delusion, cannot

[blocks in formation]
« PreviousContinue »