1840. In re Taylor.

the jurisdiction is to be exercised, I must look at the facts of the case, about which there is no dispute.

It appears that, on the 20th of October, 1837, Mrs. Taylor (under what I shall always consider the most unfortunate advice which a woman could receive) thought proper to absent herself from her husband's house; and, whether there was more or less disclosure made to her of the real circumstances of the case, does not appear to me to be very material, because she commenced the separation. In consequence of that separation, the husband, naturally feeling extremely hurt by the step which his wife had taken, took measures for leaving the country; and, in the course of the year 1838, he left England, and has substantially lived abroad ever since that time. On the 27th of July, 1838, Mrs. Taylor commenced her suit, in the Ecclesiastical Court, for a restitution of conjugal rights. The husband put in what is called a defensive allegation; and that allegation was rejected by the sentence of the Consistory Court on the 6th of February, 1839. And then, there being an appeal from that decision, it was affirmed, by the Arches Court, on the 20th of June, 1839; and the husband appealed from that decision as well as from the former one. Then, in the course of the summer of last year, a certain letter of retraction was written by Mrs. Taylor; and, on the 29th of October last, the present petition was presented to this Court.

Now I am not informed, at present, what would have been the effect of the sentence of affirmation had it never been appealed from: but, inasmuch as there is an appeal, one thing is quite certain, namely, that the suit is by no means determined. And

I think it would be highly improper for me to give any [*199] opinion on the *question whether the affirmation, by

the Court of Arches, of the sentence of the Consistory Court, was right or wrong; because, in the first place, this Court, or, at least, the jurisdiction given to the Lord Chan cellor by this act, has nothing of an appellate jurisdiction over the proceedings of the Ecclesiastical Court: and, as a further reason, it occurs to me that it may be possible that I myself may have to sit as one of the appellate Judges in the privy counsel,

1840. In re Taylor.

judging of that appeal; and, therefore, I shall refrain from pronouncing any opinion at all upon the matter. But certain it is that, at present, the wife having commenced the suit for restitution of conjugal rights, the final issue of that suit is uncertain; and it is in that state of the proceedings in the Ecclesiastical Court, that this lady has presented the petition which is now under consideration, and which, it should be observed, asks for a portion of that relief of which she will certainly have the whole, if her husband's appeal to the Privy Council is dismissed. She will have access to her children if a restitution of conjugal rights be finally decreed; for that decree, of itself, infers access to her children. [Mr. K. Bruce:-The husband might keep them apart.]-I am proceeding on the supposition that the decree of the inferior Courts would be enforced. At any rate, it would be then established, by the law of the land, that she had an unqualified right of access to her children.

Now it strikes me that the jurisdiction which this act has given, being to be exercised solely in the discretion of this Court, it would be hardly right for the Court to say that the lady was entitled to have access to her children, pending the question in the Ecclesiastical Court which she has thought proper to raise. The conduct of the husband, as far as I am enabled

*to judge of it, has been bona fide throughout. He went [*200] to France, and began his foreign residence prior to the institution of the suit in the Ecclesiastical Court: and my opinion is, that if this Court were to direct access at such times, and subject to such regulations as it should deem convenient and just, it ought to be reasonably assured, before it did interfere at all, that it can carry its order into execution. If the children were here, the Court might then easily execute its order; but I doubt very much whether this act was meant to be applicable to a case where the husband, bona fide, before the presentation of any petition by the wife, had actually removed his children to a foreign country. It seems to me rather to be inferred, from the Act, that, as far as the husband and the children are concerned, their residence was to remain the same; and that the Act never meant that that should be altered; and I confess that I do not

1840. In re Taylor.

at present see, (supposing that Mr. Taylor perseveres in presiding abroad, which, as the law at present stands, he may lawfully do,) how I could make any order which could be carried into effect. And the circumstance that no jurisdiction ought to be exercised under this act, pending the question in the Ecclesiastical Court, combined with the difficulty of making any order which could be enforced, appears to be a reason for not interfering under the act. There are no particular directions given by the act, except that it should be lawful for the Lord Chancellor, on hearing the petition of the mother, if he should see fit, to make an order for the access of the petitioner to the infant or infants, at such times, and subject to such regulations as he shall deem convenient and just. And, independently of that, the very fact that this lady

did, without cause, remove herself from her husband, [*201] appears to me to be a reason why this Court ought not to exercise the jurisdiction of ordering any access.

I am of opinion, therefore, that no order should be made upon the petition at present: and what I am inclined to do is this, simply to make no order on the petition, but to give leave to the parties to apply: because non constat that there may be such a termination of the proceedings in the Ecclesiastical Court as may make it right, coupled with other circumstances which may happen, for this Court to interfere on the ground of the facts stated in this petition.

But, before I finally dispose of this case, I cannot help saying that there is nothing whatever to sully the character of Mrs. Taylor in the slightest degree. The persons who are most culp able are those who have so injudiciously advised her to continue living apart from her husband.

With respect to Mr. Taylor, although he appears to have been hasty in some things, yet he seems to have acted with very great kindness and generosity, not only to his wife, but to his friends, dependents, and to a variety of other persons with whom he was accidentally connected. And I sincerely hope that he will allow his generous disposition to have its full scope; and, although he has suffered deeply and received injuries, that he will forgive

1840.-Griffiths v. Pruen.

what has passed, and no longer keep his wife from her children and her home.

Under all the circumstances of this case, I will not make any order on this petition, until I know what will be the result of the proceedings in the Ecclesiastical Court. The petition therefore will stand over, with liberty to apply.

1840: 7th August.

*GRIFFITHS v. PRUEN.

[*202]

Testator, after reciting that his property consisted of a house at C., (which was freehold,) and of mortgages, &c, directed the house to be sold; and then gave several pecuniary legacies, and amongst them, 300l. to G., and 100l. to P., whom he appointed his executors. The will concluded thus: "and to Mr. G., who is likewise my executor, any sum then appearing after the contents of this my will are fully complied with and fulfilled." G. died the day after the testator, without having proved the will. Held, in a suit by his executors against the testator's heir and next of kin, that the plaintiffs were entitled to the residue of the testator's estate, including the proceeds of the house.

If an executor is also the residuary legatee, he is entitled to the residue, although he does not prove the will.

THE testator in the cause, by his will, after reciting that his property consisted of a dwelling-house in Cheltenham, sundry mortgages and moneys in the English funds, directed the house (which was freehold) to be sold: he then gave pecuniary legacies to his brothers and several other persons, and concluded his will in the following words:

"I give and bequeath to Mr. Thomas Griffiths, solicitor, of Cheltenham, the sum of 3001; and to Mr. Pruen, his partner, 1007.; and I constitute and appoint those two gentlemen my executors and trustees. I request to be buried in the family vault at Trowbridge, where my father and mother rest. After providing for all the various legacies specified in the foregoing, and paying my debts, and funeral and other expenses, I direct the sum of 50l. to be given to E. M., and 50l. to Mrs. C.: and, to my friend

1840.-Griffiths v. Pruen.

Mr. Thomas Griffiths, who is likewise my executor, any sum then appearing after the contents of this my will are fully complied with and fulfilled agreeably to this my determination."

Both Griffiths and Pruen survived the testator; but Griffiths

died on the day after the testator's death, and, conse [*203] quently, *without having proved the will. His execu tors, however, claimed the residue of the testator's estate, including the legacy of 3001. and the proceeds of the sale of the house.

It was objected, for the defendants, that Griffiths ought to have proved the will, in order to entitle himself to the benefits under it. And the testator's heir-at-law claimed the proceeds of the sale of the house, on the ground that they were not expressly disposed of, and that the direction to sell the house was not, of itself, sufficient to deprive him of his right as heir.

Mr. Jacob and Mr. Blower, for Griffiths's executors, relied on Parsons v. Saffery.(a)

Mr. Knight Bruce and Mr. Stinton, for the testator's next of kin, cited Reed v. Devaynes, (b) and said that it was clearly settled that an executor must prove the will in order to entitle himself to a legacy, and that there was no case which showed that there was any difference, in that respect, between a legacy and a residue.

Mr. Bethell and Mr. Hallett, for the testator's heir, cited Kellett v. Kellett, (c) Maugham v. Mason, (d) Wilson v. Major,(e) Dunnage v. White,(f) Dixon v. Dawson.(g)

THE VICE-CHANCELLOR :-I have always understood the rule to be that, where either a general or specific legacy is [*204] given to an executor, *he must prove the will, in order

(a) 9 Price, 578.

(b) 2 Cox, 285.

(c) 1 Ball & Beatt. 533; and 3 Dow. P. C. 248.

(d) 1 V. & B. 410.

(e) 11 Ves. 205.

(f) 1 Jac. & Walk. 583.

(9) 2 Sim. & Stu. 327.