different classes of persons to make wills (); but it may be as well to advert here, briefly, to certain facts which may invalidate an apparently regular will, and which may, as we have just supposed, be alleged in opposition to a claim of probate in solemn form. Thus, with regard to the testator's capacity to make a will, three essentials are requisite (1.) He must understand the nature of his act and its effects; (2.) He must understand the extent of the property that he is disposing of; and (3.) He must be able to comprehend and appreciate the claims to which he ought to give effect (k). And as regards the testator's being of sound mind, memory, and understanding, the law holds that the mere fact of a man having an insane delusion does not ipso facto deprive him of his disposing power; but if the delusion has not influenced him in the disposal of his property, he is, notwithstanding his malady, deemed competent to make a will (1). As regards the defence of undue influence, it does not follow that, because one person has unbounded influence over another, it is undue in the legal sense of the word. To quote the words of eminent judges," a young man may be caught "in the toils of a harlot who makes use of her influence to "induce him to make a will in her favour to the exclusion "of his relatives. It is, unfortunately, quite natural that a "man so entangled should yield to that influence, and con"fer large bounties on the person with whom he has been brought into such relations; yet the law does not attempt "to guard against those contingencies. To be "undue influence in the eye of the law there must be-to "sum it up in a word-coercion" (m). A testator may 66 "be led but not driven; his will must be the offspring of "his own volition and not the record of someone else's. (i) Ante, vol. II. pp. 231–235. L. R. 5 Q. B., at p. 565. (1) Boughton v. Knight (1873), L. R. 3 P. & D. 64; Pilkington v. (m) Wingrove V. Wingrove (1885), 11 P. D. 81, per HANNEN, J. "Pressure of whatever character, whether acting on the "fears or the hopes, if so exerted as to overpower the volition "without convincing the judgment, is a specimen of restraint "under which no valid will can be made. Importunity "or threats, such as the testator has not courage to resist, "moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or "social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion, or wishes "are overborne, will constitute undue influence, though no "force is either used or threatened " (n). 66 66 On these or similar defences, issue will be joined, unless the plaintiff should go on to allege, in his reply, that the earlier will set up was afterwards revoked (o). But sometimes the defendant, in his defence, will merely insist upon the will set up being proved in solemn form of law, intimating to the plaintiff, that he only intends to crossexamine the witnesses produced in support of the will (p). By leave of the court or a judge, the writ of summons may be served out of the jurisdiction (q); and anyone not named in the writ may, on filing an affidavit showing how he is interested in the estate, intervene and appear in the action (). If the defendant makes default in pleading, the probate action proceeds notwithstanding such default (s); and is conducted in much the same way as an ordinary common law action. If on the facts proved, and the law applicable to them, the court is of opinion that any of the wills propounded are valid, it "pronounces" for them; and such will or wills is or are then deemed to be "proved "in solemn form." If not, the deceased will be deemed to have died intestate, unless, at a later stage, a new will should be set up. An appeal lies from the judgment of the court to the Court of Appeal (†). (n) Hall v. Hall (1868), L. R. 1 P. & D. 481; per WILDE, J. (0) Parton v. Johnson (1868), L. R. 1 P. & D. 549. (p) Ord. XXI. r. 18. (7) Ord. XI. r. 3. (r) Ord. XII. r. 23. (8) Ord. XXVII. r. 10. (t) Sugden v. Lord St. Leonards (1876), 1 P. D. 154. II. Divorce Petition. The proceedings in divorce and matrimonial causes are commenced by the filing of a petition, which is addressed to the President of the Probate, Divorce and Admiralty Division. The petition sets out, shortly and concisely, when and where the parties. were married, and where they have cohabited; and states what issue there has been of the marriage. The matrimonial offences relied on, with the dates when, and the places where, they were committed, are then tabulated in paragraphs in chronological order; and the petition concludes with a prayer for the relief sought for by the petitioner. The petition must be verified by affidavit ; and the petitioner must swear to the truth of the statements in his petition, in so far as they are within his personal knowledge, and to his belief in the truth of those that are not (u). In suits for dissolution, judicial separation, jactitation, and nullity of marriage, the petitioner must further swear, that no collusion or connivance exists between him and the respondent (r). So soon as the petitioner has filed his petition and affidavit he must forthwith “extract a citation" (y), a citation being a command, drawn in the name of the King and signed by one of the Registrars of the Court, calling upon the alleged offender to appear and make answer to the petition; and it warns him that, in default of his so doing, sentence will be pronounced notwithstanding his absence. The citation must be served personally; or, if that cannot be done, application must be made to the court, by motion. founded on affidavit, for leave to dispense with service (~). If the petition be presented by a husband praying for a dissolution of his marriage on the ground of adultery, the alleged adulterers must be made co-respondents, unless the court gives leave to proceed without making them co-respondents, which it will do on its being moved by the (u) Divorce Rules, 2. () Rules 10-13; Williams v Williams, [1896] P. 153. petitioner, and on being satisfied that there is good reason for their being dispensed with (a). The husband may also claim damages against the adulterers; but such damages are not awarded by way of a penalty to punish the adulterer for the wrong he has done, but rather by way of compensation to the petitioner for the loss he has sustained by the ruin of his wife (b). Hence the jury must consider what was the value of the wife to the petitioner. In all cases where damages are claimed, the petition must be tried by a jury, on whom falls the duty of assessing the amount. The petitioner may claim what amount of damages he thinks fit, and must specify in the petition the amount he claims (c). But it is not the practice to allow the counsel for the petitioner to inform the jury what that amount is, though, in case the jury assess a greater sum than that which the petitioner claimed, the court will generally grant leave to amend the prayer in that respect (d). The manner in which the damages shall be paid or applied is subject to the directions of the court; and, if the court thinks fit, it may order the whole of the damages, or any part thereof, to be settled for the benefit of the children of the marriage, or as a provision for the maintenance of the wife (e). Within the pre scribed time after the service of the petition, each respondent who has entered an appearance, may file in the registry an answer to the petition (ƒ); and if such answer contain matter other than a simple denial of the facts stated in the petition, an affidavit must be filed with it verifying the additional matter. If it is an answer to a petition (a) Rules 4-7; Appleyard v. Appleyard and Smith (1875), L. R. 3 P. & D. 257; Barber v. Barber, [1896] P. 73; Edwards v. Edwards, [1897] P. 316. (b) Matrimonial Causes Act, 1857, s. 33. Cowing v. Cowing and Wollen (1863), 33 L. J. P. D. & A. 149; Evans v. Erans, [1899] P. 195. (c) Pegler` v. Pegler (1901), 85 L. T. 649. (d) Beckett v. Beckett, [1901] P. 85. (e) Sect. 33. (f) Rules 19-28. for dissolution, nullity, judicial separation, or jactitation, the affidavit must further state, that there is not any collusion or connivance between the deponent and the petitioner (g). In cases where the answer is more than a simple denial of the allegations, the petitioner admits, or puts in issue, the fresh facts therein alleged by filing a reply (h). And here it will be convenient to refer more specifically to the defences available in the suit for a divorce; which defences are eight in number, and are either (1) Absolute Bars; or (2) Discretionary Bars. And, first, the Absolute Bars are (A.) Condonation; (B.) Connivance; and (c.) Collusion (i). (A.) By "condonation" is meant forgiveness of the conjugal offence complained of, with a full knowledge of all the circumstances. A continuance of the marital intercourse would justify the inference that the offence had been condoned (k). (B.) By "connivance " is meant the actual acquiescence in the respondent's guilt by the petitioner (1). (c.) By "collusion" is meant the entering into an agreement by the parties to the suit, as to what evidence shall or shall not be laid before the court; for example, to agree that the respondent shall abstain from defending the suit constitutes collusion (m). If, therefore, a respondent or co-respondent proves the condonation or connivance of the petitioner, or they are themselves found to be in collusion with him, the court can not grant a decree. Secondly, the Discretionary Bars are, (D.) The un (g) Rules 30, 31. (h) Rules 32, 33. (i) Matrimonial Causes Act, 1857, s. 31. (k) Peacock v. Peacock (1858), 1 Sw. & Tr. 184; Keats v. Keats and Montezuma (1859), 28 L. J. P. D. & A. 57. S.C.-III. (1) Phillips v. Phillips (1844), 1 Robertson, 144; Allen v. Allen and D'Arcy (1859), 30 L. J. P. D. & A. 2. (m) Churchward v. Churchward, [1895] P. 7. 2 U |