stroke producing at least great bodily infirmity), had executed a second codicil materially departing from those instruments, and, six months before his death, a third codicil, revoking the second and reverting to the former disposition, probate of the will and first and third codicils was granted, there being no satisfactory proof of a change in his affections, and the evidence of volition and capacity being, at least, as strong in support of the third as of the second codicil (a). It was held in another case, that the clearest and most consistent evidence of capacity and volition is required to support a codicil conveying bequests of such extent as to be irreconcilable with the character of the deceased, and with her intentions, as proved by her affections and former testamentary dispositions; and where the deceased, at the time of the execution of such codicil (within ten days of her death), was in a state of extreme weakness and debility, all her confidential friends excluded or absent, and those only about her who were benefited under, or engaged in, the preparation or execution of the instrument (b). It seems, that if undue influence be exercised over the mind of a testator in making his will, the provisions in the will, in favour of the person exercising that influence, are void; and that the will may be good as far as respects other parties: so that a will may be valid as to some parties, and invalid as to others (c). Costs, in suits in the Ecclesiastical Courts, are, for the most part, in the discretion of the Judge, according to the nature and justice of the case; and the reasons for granting or refusing costs are generally publicly expressed at the time of giving judgment. If a fraudulent conspiracy in procuring a will is established, the party who has framed and engaged in it will be compelled, in the Ecclesiastical Court, to pay all the costs (a) King and Thwaites v. Farley, 1 p. 85; S. C. 1 Bligh, P. C. New Ser. Hagg. Eccl. R. 502. 427. But it seems that a deed can(b) Brydges v. King, 1 Hagg. not be partially set aside for fraud. Eccl. R. 256. Myddleton v. Lord Kenyon, 2 Ves. jun. 391. (c) Lord Trimlestown v. D'Alton and Others, 1 Dow & Clark, P. C. incurred in debating it; while, on the other hand, if the grounds of opposition fail, if the imputation of fraud is not sustained, the party who has set up an unfounded charge, which he is unable to prove, must pay the costs which he has occasioned (d). 12. When it appears that a lunatic, who has been so found by inquisition, has executed a will or any testamentary papers, an order may be obtained, on petition to the Lord Chancellor, for depositing them in the Master's office, or in some other secure place, for safe custody, during the life or lunacy of the party. Thus, an order was granted on the petition of the committee of the person and estate of a lunatic, to deposit his will, which had come into the hands of his committee many years ago, in the custody of the Master to whom the matter was referred, or with such other person as the Court should think proper, on an affidavit that the will was in the same state in which the petitioner received it. The next of kin were served with the petition, and consented (e). So, again, on the petition of three of the younger children and next of kin of a lunatic, the Lord Chancellor ordered the heir-at-law and committee of the estate of the lunatic, within a week after the service of the order, to deposit on oath in the Master's office, all wills and other testamentary papers in the custody of such committee, there to remain for safe custody until further order; and the Master was ordered to inquire and certify what wills or other testamentary papers of the lunatic did exist, or had existed, and where the same then were, or what had become of them, with liberty for the Master to examine any persons he might think necessary upon interrogatories or otherwise, for the better discovery of such matters: and the costs of the inquiry were directed to be taxed and paid out of the lunatic's estate (f) (d) Bird v. Bird, 2 Hagg. Eccl. Rep. 145; Green v. Proctor and Newey, 1 Hagg. Eccl. Rep. 337; Hoby v. Hoby, Id. 162. See ante, pp. 323, 328, 330. (e) In re Thomson, 1 Russ. & Mylne, 355. (f) In re Jodrell, 17 August, 1827. Where the will of a lunatic had been deposited in the Master's office, with other deeds and writings, pursuant to an order; on the petition of two of the executors named in such will, and proof of the death of the lunatic, the Master was ordered to cause such will to be taken to the proper officer of the Prerogative Court of the Archbishop of Canterbury, in order that the same might be duly proved and established (g). So, also, when, on the death of the lunatic, a petition was presented by the committee of his person, praying that the proper officer of the Bank of England might be directed to deliver up, with the privity of the Accountant-General of the Court of Chancery, unto the solicitor for the petitioner and the next of kin, and the rest of the lunatic's family, a paper packet having words indorsed thereon, indicative of its containing the will of the lunatic, which had been deposited, pursuant to an order in the Bank of England-The Lord Chancellor ordered one of the cashiers of the Bank to deliver such paper packet to the said solicitor, on his giving an undertaking in writing to the Secretary of lunatics immediately to deliver over the same to the executors (if any) named in the will, if such executors were willing to act; and notice was to be immediately given by such solicitor to such executors; and if they refused to act, the same packet was to be delivered to the next of kin of the lunatic, or the persons entitled to take out administration with the will annexed of the lunatic's estate (h). In another case, an order was made on the petition of the committee of the estate of a lunatic, that his solicitor should deposit in the Master's office, upon oath, all wills and codicils, and all instructions for, and drafts of, wills and codicils, of the lunatic, there to remain until further order (i). And, after the death of the lunatic, on the petition of his children, the Master was directed to open the box (deposited in his office under the last-mentioned order), containing the wills and codicils of the lunatic, and deliver the last will with all (g) In re Southby, 28 November, 1827. (h) In re Orme, 21 August, 1827. (i) In re Humpleby, 18 June, 1829. codicils thereto to a proctor named in the order, for the purpose of being exhibited and proved in the proper Ecclesiastical Court (k). And sometimes, after the death of a lunatic, the Master will be directed to look into the wills and testamentary papers of the lunatic deposited in the Master's office, and to certify such as he shall find to be the last will (1). If a person makes a will and afterwards becomes a lunatic, equity will not entertain a suit, in his lifetime, to perpetuate the testimony of the witnesses to such will (m). Nor to perpetuate testimony of any other facts in which the next of kin as such may be interested. An idiot can have no executor; for, being non compos a nativitate, he could at no time make a will: but a lunatic may have an executor; for lunacy is not a revocation of a will made in the absence of the disorder (n). Idiots and lunatics are, both by the civil law and likewise by the common law, incapable of being executors or administrators; for such disabilities render them not only incapable of executing the trust reposed in them, but also, by their insanity and want of understanding, they are incompetent to determine whether they will take upon them the execution of the trust or not (o). Therefore it is settled, that, if an executor become non compos, the Spiritual Court may, on account of such disability, commit administration to another (p). If a person appointed an executor become non compos, the Spiritual Court will grant administration to another, usually to the party whom the Chancellor appoints committee; but such grant of administration will not prejudice any right of retainer which the non compos would have had, provided he had been capable of taking the administration (q). And administration may be revoked if the next of (k) In re Humpleby, 16 June, 276. 1831. (0) Godolp. Orph. Leg. 86; Ba(1) In re Cresswell, 4 August, con's Abr. tit. "Idiots and Luna 1823. (m) Sackville v. Aylworth, 1 Vern. 105. See post, Chap. x. s. 1. (n) 4 Rep. 61 b. See ante, p. tics" (D). (p) Bacon's Abr. Ibid. Hills v. Mills, 1 Salk. 36. (q) Franks v. Cooper, 4 Ves. 763. kin, to whom it has been granted, becomes non compos or otherwise incapable (r). Where a sole executor or administrator becomes a lunatic, it is the ordinary practice of the Ecclesiastical Court to make a limited grant to his committee, for his use and benefit during his lunacy (s). And in a case where the executor had no beneficial interest and no committee had been appointed, administration with the will annexed was granted to the residuary legatee during the life and incapacity of the executor (). So, where letters of administration de bonis non had been granted to three administrators, one of whom was afterwards found a lunatic by inquisition, the Court directed, upon the letters of administration so granted being brought in by the two sane administrators, and the committees of the third, letters of administration de bonis non &c., should with the consent of such committees issue de novo to the two former only, (omitting the third administrator, who had so become a lunatic), in order to supply the defect in the legal representation, occasioned by such lunacy (u). In a case where the surviving executor and residuary legatee in trust had been found a lunatic by inquisition, administration of the unadministered effects of the deceased was granted during the lunacy of the surviving executor and residuary legatee in trust, to the two joint residuary legatees for life, with the consent of the committee of the lunatic (v); and administration was decreed under circumstances precisely similar, except that there was no actual consent of the committee of the lunatic, but a personal service of the citation upon the committee, calling upon him to shew cause, &c., and no dissent had been expressed (w). But, where a testator appointed two persons executors of his will, one of whom renounced, and the other was a lunatic under confinement, and no committee of her person or estate had been appointed, although it did not appear that any obstacle exist(t) 3 Phill. 497. See 3 Hagg. Eccl. R. 217. (r) Offley v. Best, 1 Sid. 373; Bac. Abr. tit. Executors, (E. 3.) 12; 4 Burn's Eccl. Law, 292, 8th ed.; Com. Dig. Administration, (B. 8.) (s) 2 Add. p. 336, n. Z (u) In bonis Phillips, 2 Add. R. 335. |