Williams v. Dormer.

of four legatees. Under these circumstances, he said that he saw no reason to pass him over, and he granted it to Mr. Hays in preference. Then, the result of that is, that it is a matter of fair discretion to whom the administration shall be granted. The court must judge, from all the circumstances of the case, to whom the administration ought properly to pass. I must say, this case is toto cœlo different from Salmon and Breese v. Hays, as to the title of Mr. Lynn to administration, for the course he has adopted is indeed very unlike that of Mr. Hays, who, when the allegation was admitted, withdrew from litigation. Mr. Lynn has carried the case not only through the Prerogative Court, not only to the superior court, the Judicial Committee, but, according to the statement made in his own act, threatens legal proceedings elsewhere. Now, then, can I think that Mr. Lynn is the person best calculated to administer this property, in which he has no interest, for the benefit of those entitled to it according to the instrument, if the court decrees probate? I verily think not. As to there being other property, he may take a cæterorum grant; and I see no inconvenience if there be such property. I cannot doubt the proper person to take the administration is Mrs. Brenchley, who has fought through this long-contested battle, and who, I think, on every principle of law as well as justice, is entitled. I therefore grant probate of this paper alone, namely, the codicil bearing date the 14th May, to Mrs. Brenchley, as the legatee named in the paper.

WILLIAMS v. DORMER, falsely called WILLIAMS.1
April 15, 1852.

Pleading-Jurisdiction- Domicile of Wife.

Where the husband and wife are living apart under a sentence of separation, the domicile of the husband is not the domicile of the wife, and the consequent defect of jurisdiction appa rent on the face of the libel will not be cured by the appearance of the wife.

THIS was a suit for nullity of marriage, under the stat. 4 Geo. 4, c. 76, s. 22, promoted by the husband against the wife, and brought before the Court of Arches under letters of request from the commissary of the diocese of Canterbury. The ninth article of the libel, as originally brought in, pleaded "that the said M. T. Dormer, when served with the service of the decree, was of the parish of, in the county of, diocese of, and province of Canterbury, and therefore, and by reason of the letters of request from the commissary, &c. was and is subject to the jurisdiction of this court." The libel was opposed on other grounds, but Sir H. Jenner Fust took the objection of want of jurisdiction to this article, and directed it to be reformed; and the article, as reformed, pleaded "that the said J. H. Williams

1 16 Jur. 366.

Williams v. Dormer.

was and is resident within the parish of Tunbridge, in the county of Kent, diocese of Canterbury, and province of Canterbury; and that the said M. T. Dormer, by reason thereof, and of the letters of request, &c. and of the appearance given on her behalf in this cause, was and is," &c.

Addams and Curteis opposed the admission of the article. The objection was taken by the court, and the proper course would have been to appeal, if the objection was supposed untenable. The reformation of the article has not removed the objection, for it does not follow that the domicile of the husband is that of the wife in all cases; generally it is so, but in the present case these parties are actually living apart by virtue of a sentence separating them from bed and board; this destroys the legal supposition of the wife's domicile. But it will be said she has cured the defect by appearing. First, it may be doubted whether her appearance would give the court jurisdiction; and, secondly, she was served in her proctor's office, and in another jurisdiction, that is, in the diocese of London. Chichester v. Donegal, 1 Add. 5, which will be referred to on the other side, does not apply; there the husband and wife were not separated by sentence of a competent court, and the objection was taken by an intervenor, and not by either of the parties to the marriage.

Jenner and Twiss, contrà. Notwithstanding the distinction taken, Chichester v. Donegal is an authority for a citation of the wife at the domicile of the husband, provided she has notice of the suit; but in the present case she is not simply fixed with notice of the suit; but actually gives an appearance. An appearance should have been given under protest, and the jurisdiction pleaded to; the objection is now taken too late.

Sir J. DODSON. This case is attended with very peculiar circumstances. The marriage took place in 1826. Then a suit was promoted by the wife against the husband for a separation by reason of adultery, in which she obtained a sentence; the marriage, therefore, which is the foundation of a decree of separation, must in that suit have been established. Then in 1838 there was a suit for nullity of marriage, (1 Curt. 870) promoted by the wife against the husband. The husband defended that suit, and successfully, for the marriage was not held to be void and null. The wife then had obtained a sentence of separation, but failed in her suit for annulling the marriage; and so things remained till the present suit was instituted by the husband. When the present case came before Sir H. Jenner Fust, he took the objection that the jurisdiction was not sufficiently pleaded, for the libel did not plead that the domicile of the wife was in the diocese of Canterbury; thus holding that if the wife was not resident in that diocese when the letters of request were signed, there was no jurisdiction. The libel, as now reformed, attempts to cure this defect; but how? Not by directly pleading the fact of the husband's domicile, but merely that "he was and is resident." Supposing that

In the goods of Fary.

I were to allow this to remain, still would it follow that the domicile of the husband was the domicile of the wife, she living separate and apart from him, by virtue of the sentence of a competent court? I think not. I am of opinion that the objection was well taken, and is not removed. The appearance of the wife will not cure the defect nor give the court jurisdiction; and Chichester v. Donegal is quite a different case. I reject the libel.

In the Goods of J. FARY.1

November 7, 1851.

1 Vict. c. 26, s. 20— Revocation.

THE deceased duly executed his will in 1846; in 1850 circumstances occurred which rendered this will inoperative, except as to a legacy of 1001.; and in December he drew a pen across the will, and wrote at the top of each sheet "cancelled," and also, at the end of the will, he wrote, "Cancelled by me, this 1st day of December, 1850."

Deane moved for probate of the will, the 20th section of the act not having been complied with, and no revocation effected. Stephens v. Taprell, 2 Curt. 458.

Sir H. JENNER FUST decreed probate.

115 Jur. 1114.

Diocesan or Prerogative - Trustees Relief Act.] A was entitled to a share of the pro-
duce of certain chattels, and of no other property. She was domiciled in the dio-
cese of L., and the chattels were in the same diocese. A died intestate. The chat-
tels were sold by the trustee, and A's share of the property was paid into court, un-
der provisions of the statute 10 & 11 Vict. c. 96. After this, letters of administra-
ion to A's estate were taken out in the diocese of L.; and, on application for the
payment of this fund out of court to the administrator, the same was ordered, the
court holding that a prerogative administration was not necessary. Spencer, in re,
219.

Chancery.

ANNUITY.

Fund in Court-Check-Seizure-Jurisdiction.] W. C. being in receipt of an an-
nuity payable out of stock standing in the name of the Accountant-General, became
indebted to F. C., who brought an action against him and obtained a judgment, upon
which a fieri facias was issued, but nothing was found upon which to execute it.
Upon half a year's annuity falling due, F. C. obtained an order stopping the Ac-
countant-General from parting with the check; but upon a petition, the court de-
clined to make an order authorizing the sheriff to seize the check or to direct it
to be dealt with as if it was standing in the name of a trustee, and the petition was
dismissed. Courtoy v. Vincent, 205.

1. Equity for a Settlement Assignment by the Husband of Wife's Interest-Form of
Settlement.] A, the husband of B, to whom a share of the residue of a testator's
estate had been bequeathed, assigned it to C, for valuable consideration. A sum of
stock representing this share was carried to the account of B in a suit. The proper
terms of a settlement of the part allowed to B, by way of equity of settlement, were
held to be to B for life, with remainder to her children as she should appoint, with
remainder to the children in default of appointment, and, in default of children, if
B should survive A, to B, absolutely; but, if A should survive B, to C. Carter v.
Taggart, 167.

2. The court has the power of directing that, in the last event, the fund shall be at the
disposal of the wife by will; and that in default of such disposition, it shall go to the
next of kin of B; but a special case must be made for such a settlement, and the
circumstance that B had needy relatives was held not sufficient to justify it. Ib.
3. Wife's Equity-Assignment of Reversionary Fund-Stop-order-Petition.] Un-
der the will of the testator a married woman was entitled to a sum of 600l. and up-
wards, and a share in a sum set apart to answer a life annuity, amounting to 3467.
In an administration suit the 600l. was paid to the husband, with the consent of the
wife. The husband and wife then joined in assigning their reversionary interest in
the annuity fund for value, and the assignees procured a stop-order upon the fund.
On the death of the annuitant, the wife petitioned for a settlement of the fund: -
Held, reversing the order of the court below, dismissing the petition, that the wife was
entitled to have the whole fund settled on herself and children, the husband being
insolvent and having made no settlement upon her; that the claim of the wife was
properly raised by petition; and that the assignees, though no parties to the admi-
nistration suit, had, by obtaining the stop-order, sufficiently brought themselves before
the court to enable it to deal with the fund upon petition. Scott v. Spashett, 265.

BENEFIT BUILDING SOCIETY.

See TRUSTEES.