grounds whatever for his belief?" The Court pronounced in favour of the will and two other papers, but allowed all the costs out of the estate (u).

When the mind of a dying person is reduced by the stress of his malady, or by general exhaustion, to such a state of mental depression and debility as to be incapable of a determinate testamentary act, a paper signed by him under such circumstances, as a codicil to his will, will be rejected by the Ecclesiastical Court, especially if such instrument contains internal evidence of intellectual weakness, and disturbs the settlement of the testator's affairs by a former well-considered will made by him when in the entire possession of his mental powers (v).

Mental incapacity may invalidate only part of a will; as in a recent case where a testator wrote the first part of what was propounded as his will with his own hand, but the concluding part was written by the executor, who was principally benefited, and who was the active agent in bringing the witness to it to the house of the deceased. According to the evidence, the deceased was so worn out that he could not complete his will, but there was no proof of any actual incapacity which could be set against his writing his intentions sensibly and intelligibly to a certain extent. It It appeared, however, that, after this effort, his capacity was not so alive as to prevent him from executing an instrument of the contents of which he was not aware; and it was not in evidence that he gave any instructions for the part of the paper which was written for him, or that it was read over to him after it was written. The Court pronounced against the part of the will as to the appointment of the executor and residuary legatee, but in favonr of the part written by the testator himself (w).

Where a will is partially defaced by a testator whilst of unsound mind, it is to be pronounced for as it existed in its integral state, if that can be ascertained (x). If a testator

(u) Fulleck v. Allinson, 3 Hagg. Eccl. Rep. 527-547.

(v) Brouncker and Cooke v. Brouncker, 2 Phill. 57.

(w) Bellinghurst v. Vickers, 1

Phill. 187-198. And see Wood v.
Wood, Id. 357.

(x) Scruby and Finch v. Fordham and Others, 1 Add. 74.

of impeached sanity do some act with relation to his will, of whose state of mind at the time of doing the act, there is no evidence aliunde, his rationality at such time, or the contrary, is to be inferred from that of the act itself (y). In a case where it appeared that the testator being moved with a sudden impulse of passion against one of the devisees under his will, conceived the intention of cancelling it, and of accomplishing that object by tearing, and, having torn it twice through, but, before he had completed his purpose, his arms were arrested by a bystander, and his anger mitigated by the submission of the party who had provoked him, and he proceeded no further: it was held a question for the jury to determine whether the act of cancellation was complete (~).

In another case, where it appeared from affidavits that the testator altered his will while in a state of unsound mind, and there was a proxy of consent from all the parties affected by such alterations, probate of the will in its original form was decreed (a).

Besides insanity, properly so called, a species of insanity, the mere effect of drunkenness and excitement from spirituous and other intoxicating liquors, has sometimes been set up for the purpose of defeating an alleged will. It has, however, been very justly observed (b), that, whatever resemblance there may be in the conduct and actions of a man under such excitement, and those of a person properly insane "their apparent similarity are subject to very different considerations." Where actual insanity has once shewn itself, either perfect recovery, or at least a lucid interval at the time of making, must be clearly proved, to entitle an alleged testamentary paper to be pronounced for as a valid will. Either of these, however, the last especially, is highly difficult of proof, for this reason-that insanity will often exist, though latent; so that a person may in effect be completely mad or insane on some subjects, and in some parts (a) In bonis R. Bicknell, 3 Add. 231.

(g) Scruby and Finch v. Fordham and Others, 1 Add. 74.

(z) Doe d. Perkes v. Perkes, 3 B. & A. 489.

(b) Per Sir J. Nicholl, 2 Add. 209. See ante, p. 276.

of his conduct apparently rational; but the effects of drunkenness only subsist, whilst the cause, the excitement, visibly lasts: there can scarcely be such a thing as latent ebriety; so that a case of incapacity from mere drunkenness, and yet the man being capable to all outward appearance, can hardly arise. Consequently, in cases of this description, all which is required to be shewn is, the absence of such excitement at the time of the act done, as would vitiate it: for, under a slight degree of excitement from liquor, the memory and understanding may be as correct as in the total absence of any exciting cause (c).

7. The Ecclesiastical Courts have exclusive jurisdiction respecting wills and testaments of personalty, by custom (d). Thus, in Partridge's case (e), (overruling the Marquis of Winchester's case (f)) prohibition to probate of a will of lands and goods, on suggestion of non compos, was denied; the Court saying, that the statute (g) never intended to lessen the jurisdiction of the Ecclesiastical Court as to probate of wills; and to grant a prohibition might be inconvenient; for, without probate, the executor cannot sue for debts, which by this means might be lost, and the will remain unperformed. As for granting it quoad the land it would be vain; because it is no evidence, either pro or con, in any Court of law, but a proceeding coram non judice; yet it is good as to the personal estate. And in Lady Chester's case (h), Hale said, that the Ecclesiastical Courts may prove a will which contains goods and lands, though formerly a prohibition used to go quoad the lands (i). A will, as to so much as concerns lands, is to be tried in a Court of common law, and for so much as concerns personal estate in the Spiritual Court.

The granting probate is a judicial act, for the Ecclesiastical Court may hear and examine the parties on the dif ferent sides whether a will of chattels be or be not properly made; that being the only Court which can decide as to the

(c) Ayrey v. Hill, 2 Add. 209, 210. (d) 6 Mod. 205; Shutter v. Friend, 1 Show. 158. The origin of this jurisdiction is stated in 1 Str. 667672; Gilb. Eq. Rep. 203-209; Henloe's case, 9 Rep. 36-41. See 4 Inst. c. 74.

(e) 2 Salk. 552.

(f) 6 Rep. 23.
(g) 24 Hen. 8, c. 12.
(h) 1 Ventr. 207.

(i) See 1 Mod. 90; 2 Sid. 143; Hardr. 131; 2 Roll. 315; 1 Sid. 141.

validity of such a will. The Courts of common law and of equity have no jurisdiction over the subject (j). The probate is also conclusive until repealed; and no Court of common law can admit evidence to impeach it (k). Where a party has obtained probate, it is conclusive that he is executor (1).

The seal of the Ecclesiastical Court authenticates the will; and therefore, if probate of a will of personalty under the seal of the ordinary be produced, evidence cannot be given in the temporal Courts that such will was forged, or that the testator was non compos mentis, or that another person was executor; but evidence may be offered that the seal of the Ecclesiastical Court was forged, or that there were bona notabilia, because that is not in contradiction to the real seal of the Court, but it admits the seal and avoids it (m). Since the Ecclesiastical Court has the probate of wills of personal estate, the temporal Courts cannot prohibit them in their inquiries, whether the testator was non compos or not, or whether the will be revoked or not (n). But if the validity of a will of personalty has been incidentally admitted by a party to a suit in equity, the Court of Chancery will restrain him from afterwards instituting proceedings in the Prerogative Court to impeach its validity (o). In a suit in the Ecclesiastical Court, by the administrator, for a legacy, if the defendant plead a release from the deceased legatee, and the administrator would avoid it by an allegation of lunacy or idiocy (p), that fact must be tried there; and no prohibition will lie, because that Court has jurisdiction of the original matter, according to the rule " 'quod non est consonum rationi, quod cognitio accessorii in curiá Christianitatis impediatur, ubi cognitio causa principalis ad forum ecclesiasticum noscitur pertinere" (q).

A will of personal estate was proved in the Spiritual Vaugh. 207; Str. 671; 1 Show. 273; Sir T. Raym. 406.

(j) Jones v. Frost, 1 Madd. Rep. 1; S. C. Jac. Rep. 466. See 2 Atk. 324; Allen v. Hill, Gilb. Eq. 257; 13 Ves. 297.

(k) Allen v. Dundas, 3 T. R. 125; Rex v. Vincent, 1 Str. 481; Rex v. Rhodes, Id. 703.

(1) Griffiths v. Hamilton, 12 Ves. 298.

(m) Noell v, Wells, 1 Lev. 235;

(n) Minshal v. Spicer, Hardr. 131; Hobart v. Barrow, Id. 313. See Hob. 135.

(0) Sheffield v. Duchess of Buckinghamshire, 1 Atk. 628.

(p) Hob. 188; Godolp. Abr. Eccl. Law, p. 120.

(q) See 12 Rep. 65.

Court, but the executor of a former will brought his bill in equity, to discover by what means the latter will was obtained, and to have an account of the personal estate, and to stop the wasting of it, and whether the testator was not incapable, or imposed on. To this bill, the defendant demurred, because it belongs to the Spiritual Court only to determine the validity of wills of personal estate, and the former will was not proved in the Spiritual Court, as the will in the defendant's favour was; but the demurrer was overruled (r). In this case, an order was made for the defendant to bring into Court all papers and writings relating to the testator's estate, to pay into Court what had been received on account thereof, for the appointment of a receiver, and for an injunc tion to restrain the defendant from receiving any more of the estate(s).

The heir-at-law is not estopped from impeaching a will, on the ground of the testator's insanity, although he has himself proved the will in the Eccleasiastical Court, and retained legacies (t). A person who proved a will in the Spiritual Court, by which he swore the testator was of sound memory, afterwards controverted the same will at law as to the real estate, upon which an issue was directed, compos or non compos, and the testator was found non compos (u)—Lord Hardwicke said, it was much to be lamented that there should be such different determinations in two concurrent jurisdictions; and though it was a great absurdity there was no way to make them uniform; but he knew only one case where this variation of judgment had happened, which was the case of Maxwell and Lord Montagu, where a testator was determined to be compos mentis in the Ecclesiastical Court, which sentence was affirmed in the Court of Delegates; and afterwards, on a trial at law, in relation to the real estate devised by the will, the testator was found non compos; and then an application was made to the House of Lords, by petition, to reverse the sentence in the Court of Delegates, in

(r) Andrews v. Powis, Vin. Abr. tit. "Executors,” (B. 3.) pl. 14; S. C. 2 Bro. P. C. 504, Toml. ed.

(t) Lord Montagu's case, cited 9 Mod. 90.

(u) Id. Vin. Abr. tit. "Execu

(s) Reg. Lib. B. 1727, p. 151. See tors," (B. 6.) pl. 9; 4 Br. P. C. 598,