TESTAMENTARY CAUSES.

Arches Court, Doctors-Commons, Friday, May 20.-Adams v. Kneebone.-This was a case of appeal from the Consistorial Court of Exeter, brought by Mr. Thomas Adams, the brother and sole executor of the will of Mr. Thomas Adams, late of St. Winton, in Cornwall, deceased, against EliZabeth, the wife of Mr. Thomas Kneebone, the niece and administratrix of the effects of Mrs. Jemfer Adams, the widow of the deceased. The suit was originally instituted in the Court of Exeter, by Mrs. Kneebone, in impeachment of the validity of the will of Mr. Thomas Adams; and the Judge of that Court, upon the evidence there taken, pronounced against its validity, and revoked the probate which had been granted; from which decision, the present appeal to this Court was prosecuted by Mr. Thomas Adams, the executor.

The will in question was contained in two papers, both of them dated the 16th of May, 1799; the first, attested by Dr. Hall, the physician, who attended the deceased, and Mr. Philip Carnsew, a hair-dresser, who lived in the neighbourhood; and the second by Carnsew, and two neighbours of the names of Solomons and Curteys. Mr. Adams died three

days after the execution of these papers. The effect of both was pretty nearly the same, that of making a small provision for the testator's wife, but bequeathing the greater part of his property to his brother Thomas and his family, and appointing him executor; there was, however, a clause giving the residue of the property to Mr. Thomas Adams in the latter will, which there was not in the prior one. A probate was obtained of this latter will, in which all the testator's relatives appeared to acquiesce, no proceedings being taken to impeach its validity for 7 years afterwards. In September, 1806, Dr. Hall, who took the deceased's instructions for and prepared the first will, (from which the second was prepared by an attorney), died; and in October following, proceedings were instituted by some of the deceased's relatives, calling upon the executor. to bring in the probate, and prove the will by witnesses; but in January following, the first will, which had never till then made its appearance, was found to be in the possession of Mr. Philip Carnsew, one of the witnesses, and the proceedings were shortly afterwards discontinued. From this time the executor continued in undisturbed possession of the probate until December, 1811, when Mrs. Kneebone, as the administratrix of

the

the deceased's widow, who had survived him only about 2 years, instituted the present suit.

The evidence, in support of the will in the Court at Exeter, fully proved the death, hand-writing, and good character of Dr. Hall, the framer of it, by way of shewing, in order to supply the want of his evidence, the improbability that he would have been a party to the transaction, had it been otherwise than perfectly fair and correct, or the deceased incapable of knowing the nature of the act he did.

Mr. Philip Carnsew, however, spoke in direct derogation of his own act, and swore, in the most positive terms, to the testator's total incapacity, during the whole of the transactions in question. The rest of the evidence threw but little light on the subject, as the other subscribing witnesses were unable, from the great lapse of time since the transactions, and their being uninterested in them, to speak, with any great degree of positiveness or precision, to the facts in question. Upon this evidence the Judge of the Court at Exeter founded his decision against the validity of both wills, and pronounced the deceased to have died intestate. Upon the appeal to this Court, a variety of new matter was introduced in plead ings on both sides, and many additional witnesses examined, and the case therefore came on for a hearing upon the general complexion of the evidence, as taken in both Courts.

It appeared that the deceased was a farmer, and possessed of considerable property at St. Winnon and its neighbourhood. On

the Saturday preceding his death, he was seized with a fever, occasioned, as was supposed, by a cold he had taken, in being exposed to wet in the course of his farming concerns, and he was in consequence attended by Dr. Hall, in his medical capacity. Having expressed his wish, "to settle his mind," as he termed it, Dr. Hall was spoken to on the subject, and he accordingly took his instructions verbally; and reducing the same into writing, the paper was duly executed by the deceased, and attested by Dr. Hall, and at his request by Philip Carnsew, who had been sent for to take the hair off the deceased's breast, preparatory to the application of a blister. Dr. Hall then took the paper to Mr. Hext, an attorney, at Lostwithiel, since also dead; and in a subsequent conversation with Adams, told him his will was not half a will, and that Mr. Hext was preparing another, which Carnsew was directed to fetch; he accordingly did so, and according to his own account, Mr. Hext then tore off the seal from the first will, saying it was of no use, but that he must get three witnesses to the other, on account of the freehold property. Carnsew then carried both papers to Mr. Adams, the deceased's brother, who went out to fetch witnesses, and returning with two, this second will was executed in their presence, and attested by them and Carnsew. The latter then took both papers to Mr. Hext, to see that they were correct, and afterwards delivered them to Mr. T. Adams, who returned him the cancelled one as of no use, and he, as stated, threw it into a drawer with some refuse T 2

papers,

papers, and knew not afterwards what was become of it, until he accidentelly found it, on making a search by desire of the professional persons concerned in the cause. The rest of the evidence went principally to the degree of regard entertained by the deceased for the parties interested; his recognition to his family and others in conversation of his will and its contents; the acquiescence of the wife and relations in it for so many years; and Carnsew's declarations of animosity to the executor, on account of his enforcing payment of a debt due from him by legal proceedings.

It was contended, on the part of the next of kin, that no part of the evidence, in support of the will, was sufficiently strong to weigh against the positive evidence of Carnsew, as to the deceased's total incapacity, and, therefore, the d cree of the Court below, founded upon the proof of that fact, ought to be affirmed.

On the other hand it was ar gued, that Carnsew was not entitled to credit; and setting his evidence aside, the evidence of Dr. Hall's good character and hand-writing, corroborated by the eollateral facts of the case, was sufficient to uphold the will, and justify a reversal of the decision appealed from.

Sir John Nicholl recapitulated the circumstances of the case. He observed that the party now impeaching the validity of the will was the niece of the testator's widow, had lived with her until her death, and had acquired, by deed of gift from her, the same interest that she had herself in the property in question under the

will. She must, therefore, have obtained an ample knowledge of the circumstances connected with the making of the will, and have had the same motives for instituting a judicial inquiry into them. By not having done so, however, for so many years, every presump. tion of law arising from thence was as strong against her as it was in favour of the act impeached. Mr. Carnsew was the only one of the subscribing witnesses now alive who could give any distinct account of the transaction in question. He was a witness, common to both parties, they being equally entitled to call for his evidence. That evidence was most material in the present case, and must, therefore, meet with the most rigorous scrutiny, as, if he was to be believed, there was an end of both wills. It was, however, by no means to be concluded, on the other hand, that if he was discredited, the will must necessarily be established. The Court must form its judgment on that point from the whole circumstances of the case, and their probability and concurrence with each other, as there had been cases, as observed by the Counsel, in which wills had been established against the evidence of a very numerous body of witnesses, all speaking in derogation of their own act. contrary position would be grievous in the extreme, and lead to the grossest instances of fraud, by witnesses conspiring together, and agreeing in one uniform and posi, tive narration of fact. He then entered into a minute examination of Carnsew's evidence, and contrasted one part of it with another, and the whole with the evidence

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of the other witnesses, and was of opinion that, looking to the evidence, there was in support of the deceased's capacity, the respectability of Dr. Hall's character, and the improbability that he should lend himself, without having the least interest in the transaction, to the fabrication of a will, and the imposing it upon a man in a deranged state of mind, and afterwards busy himself in getting a more complete one prepared by an attorney, contrary to Carnsew's suggestion of fraud. Looking, also, to the fairness of the execution of the will, and the procurement of the witnesses by the Executor, indiscriminately and without any instructions to them, contrary to Carnsew's suggestion of subornation: observing, too, the evidence of the deceased's capacity, his silence at the times when he is described by Carnsew as raving, cursing, and swearing, and his recognition of the will and its contents, by saying to one witness, that his executor would pay her for her trouble in attending upon him; and to another, (his nephew), by calling him to his bedside, and telling him what he had left him, in direct contradiction to Carnsew's assertion, that the will was never read over to him (the deceased), nor did he know the contents of it; and all this, confirmed by the conduct of the widow, proved to have been in the house during the whole transaction, though Carnsew asserted she was not, and acquiescing till her death in the non-impeachment of the will. Looking to this mass of evidence, the Court could come to no other conclusion than that Carnsew was a most corrupt and per

jured witness, and his act must therefore be taken in opposition to his evidence. The will then appeared the act of a capable testator, and the law therefore presumed his knowledge of its contents. This presumption was, however, strongly augmented by the widow's acquiescence, and the proof of the testator's strong regard for his brother and nephew, the persons principally benefited. It was a very common notion amongst persons not conversant in law, that an executor takes every thing not given by the will, after payment of debts. Dr. Hall may have entertained this idea (not conceiving the bequest of an estate for 4 years only to his brother to be repugnant to the deceased's intention of giving him the_residue,) until undeceived by Mr. Hext, and the Court was bound to presume that Mr. Hext would not have inserted the residuary clause, unless he had previously ascertained from Dr. Hall that it was consonant to the deceased's instructions to him. Under all the circumstances, therefore, the Court was satisfied, as well from the presumption of law, as from the facts of the case, both being concurrent, that the paper in question was sufficiently proved to contain the will of the deceased, and the same was pronounced for accordingly, and the probate thereof confirmed to the executor in reversal of the decision of the Court below; but in consideration of the next of kin having only supported that decision in this court, and of its appearing that Carnsew had been induced to perjure himself so grossly, not at her instigation, but merely from motives of revenge

towards

Prerogative Court, Doctors' Commons.-Nicholls and Nicholls, by their Guardian, against Nicholls. This was a proceeding relative to the validity of the will of Mr. Thomas Nicholls deceased, an attorney, at Southampton, which was propounded on the part of his two children, who were the universal legatees named in it, and opposed by Mrs. Elizabeth Sarah Nicholls, the deceased's widow.

It appeared that Mr. Nicholls died in January, 1813, leaving the parties in the cause the only persons entitled to his property in case of his intestacy. The will in question was made under the following rather singular circumstances:-Mr. Nicholls was upon terms of intimacy with a Mr. King, of Southampton, they having frequent occasion to transact business together, the former as the solicitor, and the latter as the steward, of Sir Charles Mills. Upon these occasions they were in the habit of ridiculing the general prolixity of members of the legal profession, and drawing leases, and other instruments, as specimens of the brevity with which it was possible to draw them. On the 30th July, 1803, (the date of the will in question), they dined together, and after dinner a conversation taking place on the old subject, Mr. King handed a paper to Mr. Nicholls, which he said was his will, and asked him if it was not a valid one, as much as if it had been spun out by a lawyer. It contained a general bequest of all his property to his wife and children, with an admonition rela

Nicholls replied, "It was not only a valid one, but a devilish good one." He then took a sheet of paper, and wrote the will in question in these terms: "I leave my property between my two children; I hope that they will be virtuous and independent, and that they will worship God, and not black coats." He then signed it, and handing it over to King, said, "There, there is as good a will as I shall probably ever make." After he was gone, King signed his name as a witness, endorsed it, and deposited it among some papers of his own. Mr. Nicholls was at this tine a widower, but afterwards married the present defendant. In his last illness, Mr. King, who had, as he said, forgotten the transaction in question, urged him to make his will, to which he replied, "he did not know but that the law would make as good a disposal of his property as he should; but when he got better, he would, in compliance with his friends' wishes, make his will." This he never did; after his death Mrs. Nicholls applied to Mr. King, saying, she could find no will amongst the deceased's papers, but if there was one, she thought it was most likely to be in his (King's) possession, from his intimacy with her husband, He accordingly searched, but found only the paper in question, which he delivered to Mrs. Nicholls, telling her it was of no consequence, and she might put it in the fire if she pleased. Mr. King concluded his deposition by stating it as his opinion, that the deceased never meant the paper to operate as his will, but merely as one of

those