Will-Presumption of due Execution.

To the will of T. dated in 1842, there was no clause of attestation, but there were subscribed the names of three attesting witnesses. The only one of the witnesses who survived T. deposed, that he witnessed the testatrix execute the will, but that no one else was present, and that he then told her that the presence of another witness was requisite:-Held, in the absence of evidence as to the circumstances under which the other two witnesses signed, that it might be presumed that the testatrix had acknowledged her signature in their joint presence.

Jane Thomas died on the 19th of September 1858, leaving a will, dated the 10th of October 1842, whereof she appointed her niece Jane Barnett sole executrix.

There was no clause of attestation to the will, but it was attested by three witnesses, thus::

"Witness,

Benjamin Franklyn. John Skeggs. Mary Skeggs." The last two names appeared to have been written with different ink.

Benjamin Franklyn, the first of the three witnesses, deposed that, on the day of the date of the will, the testatrix requested him to attest her signature to it; that she signed her name to it in his presence, and that he thereupon subscribed it in her presence; that after an interval of so many years he was unable to recollect exactly all the circumstances attending his so subscribing it, but that he believed the testatrix and himself were the only persons then present, and that the signatures of "John Skeggs" and "Mary Skeggs" were not subscribed in his presence; that he remembered suggesting to the deceased when he subscribed the will that another witness ought to be present, but that he had no knowledge whatever whether the testatrix afterwards acknowledged her signature to the will in the presence of the other two witnesses, or of the circumstances under which they subscribed the will.

NEW SERIES, XXVIII.-PROB. AND M.

John Skeggs and Mary Skeggs, the other two witnesses, died in the lifetime of the testatrix. John Skeggs was a person of considerable property, and an alderman of the borough of Devonport, and Mary Skeggs was his wife. Their handwriting was verified by an affidavit of two persons who had known them both for many years before their death.

No further evidence of the circumstances attending the execution of the will could be obtained.

Dr. Spinks (Jan. 13,) moved the Court to decree probate of the will to Jane Barnett, the sole executrix.-Where a will, on the face of it, appears to have been duly executed, the presumption is omnia rite esse acta, even though there should not be an attestation clause, stating that the will was executed in the joint presence of two witnesses-Burgoyne v. Showler (1). In his judgment in that case, Dr. Lushington says,-"Upon what principle ought the Court to consider a case of this description, where the will upon the face of it appears to be duly executed-where there is an attestation clause, though not quite in the strict form? I apprehend, in the first place, the presumption is omnia rite esse acta. If a party is put on proof of a will he must examine the attesting witnesses. On the present occasion there are two subscribed witnesses. If these persons were dead, the law would presume the will to be duly executed if they were utterly forgetful of all the facts, the presumption of law would be the same." If, then, Franklyn had been dead, the due execution would have been presumed. But, assuming his affidavit to be correct, his signature is unnecessary, as there are two other attesting witnesses, and the presumption is, that the will was duly executed in the joint presence of the other two.

[SIR C. CRESSWELL.-If Franklyn had been dead the presumption would have been, that the testatrix executed the will in the presence of all three witnesses, and that they subscribed it in her presence. His affidavit having displaced that presumption, does any presumption arise that the testatrix acknowledged the will in the

(1) 1 Robert. 5.

F

joint presence of the remaining two witnesses, and that they subscribed in her presence?]

Yes. Franklyn says, that when he signed the two other witnesses were not present. His signature is unnecessary, and the question should therefore be considered as if his name did not appear as a witness.

[SIR C. CRESS WELL.-There is another difficulty: the names of the last two witnesses appear to be written in different ink. That would tend to shew that they were not signed at the same time.]

on

It would be very dangerous to rely

that circumstance. The difference in the appearance of the ink might be caused by the witnesses using ink from different inkstands. The evidence of Franklyn tends to support the presumption. He says, that when he subscribed the will he told the testatrix that another

witness ought to be present. When the names of two other witnesses are found subscribed, it is reasonable to suppose that the testatrix acted on his suggestion, and acknowledged her signature in their joint presence.

SIR C. CRESSWELL.-Before I decide the question, I think the executrix, who lived with the testatrix, should make an affidavit, stating whether she knows anything about the execution of the will. I have some doubt whether, under the circumstances, I ought to act on the presumption.

Motion to stand over until an affidavit of the executrix should be filed.

two witnesses signed it. Upon consideration, I think that I may fairly presume that the will was duly executed, for the following reason:-Franklyn, the surviving attesting witness, deposes that, when he witnessed the execution of the will by the testatrix, he explained to her that the presence of another witness was requisite. Therefore, when I find the signatures of two other witnesses, not the signature of one other only, I think it may be presumed that the testatrix had understood from Franklyn that the joint presence of two witnesses was necessary, and that, acting on his suggestion, she acknowledged her signature in the joint presence of the other two persons whose names are subscribed. Probate granted.

In 1817 certain land was demised to K. for 1,000 years in trust for A. In 1852, the equitable interest in the term having previously, by various assignments, become vested in Z, K. died in America, leaving a will which was proved in America by L. his sole executor, but was not likely to be proved in this country. Z. sold his interest in the said term, but being unable to make a title for want of a personal representative to K, application was made, under section 73. of the 20 & 21 Vict. c. 77, for a grant of letters of administration to Z. of the personal estate of K. limited to the remainder of the said term. the deeds shewing the deduction of the title to the terms not having been brought into the registry, and the executor of K. not having been cited, the Court rejected the

motion.

But

By indenture, bearing date the 27th of January 1817, after reciting that Thomas Burge, or George Bennett, in trust for him, stood seised in fee simple of certain land, the said George Bennett and Thomas Burge demised the said land to Francis Keene, his executors, &c., for the term of 1,000

years, at a peppercorn rent, in trust, after the respective deceases of Thomas Burge and Sarah his wife, for such persons and such estate as William Burge, the son of Thomas Burge, should by deed or will appoint, and, in default of appointment, in trust for the executors or administrators of William Burge.

By indenture, dated the 9th of September 1819, made between Francis Keene of the first part, the said Sarah Burge, widow of Thomas Burge, then deceased, of the second part, William Burge of the third part, and William Foord of the fourth part, in consideration of 100l. paid by William Foord to Sarah Burge and William Burge, the said premises were assigned to William Foord, subject to redemption on payment to the said W. F. of the said 100l. and interest; and William Burge, in pursuance of the power vested in him, appointed the said premises, after the decease of Sarah Burge, to remain in the said Francis Keene, his executors, &c., during the remainder of the said term of 1,000 years, upon trust for W. F, until payment to him of the said 100%. and interest, and subject thereto in trust for William Burge, his executors, &c.

The said mortgage security was afterwards assigned by W. F. to J. G, to whom the principal and interest were paid in December 1825.

W. Burge died on the 29th of April 1820 intestate, and letters of administration of his effects were granted, in October 1820, to Elizabeth Burge, his relict. Elizabeth Burge afterwards married Robert Edney and died, leaving Robert Edney her surviving. William Burge left two sons, C. B. and S. B, his only children, who, together with his widow, were the only persons entitled in distribution to his personal estate and effects.

In 1832 G. Burge and S. Burge released all their right and interest in the premises, and other the personal estate of W. Burge, to Robert Edney and Elizabeth his wife, whereby and by virtue of his marriage. with the relict of W. Burge, Robert Edney became the sole person entitled to the said premises for the remainder of the term of 1,000 years.

Robert Edney died on the 21st of November 1858, having made his will, whereof he appointed G. Burge and Robert Edney

executors, who, in December 1858, duly proved it. Under the trusts of that will, the executors had sold the premises for the remainder of the term, but were unable to make a legal title for want of a personal representative of Francis Keene.

F. Keene died in April 1852, in the United States, leaving a will, whereof he appointed sole executor his son F. Keene, who was resident in the United States, and was not likely soon to return to this country. The said will of F. Keene, though it had been proved in America, was not likely to be proved in this country, and the parties interested were desirous of having letters of administration of the personal estate of F. Keene, limited to his interest in the remainder of the said term of 1,000 years, granted to G. Burge, as one of the executors of Robert Edney.

These facts appeared in the affidavits of G. Burge and Robert Edney.

Dr. Wambey now moved the Court, under section 73. of 20 & 21 Vict. c. 77, to decree letters of administration of the personal estate and effects of the said F. Keene to be granted to G. Burge, as one of the executors of the will of Robert Edney, limited to the remainder of the said term of 1,000 years in the said premises.

SIR C. CRESSWELL.-According to the usual practice, before such a grant can be made, all the deeds shewing the deduction of the title to the term must be brought into the registry. I cannot act simply on affidavits that A. assigned to B, B. to C, &c., but the deeds themselves must be brought in. It will be necessary that there should be a special grant, the preparation of which will require some nicety. The executor of Francis Keene, who has proved the will in America, should be cited.

Motion to stand over, in order that the deeds shewing the deduction of title might be brought into the registry, and that the executor of the deceased might be cited.

MATRIMONIAL. 1858.

Dec. 15.

CHERRY v. CHERRY.

In a suit for restitution of conjugal rights, the record stated that "the petitioner did in his petition allege that the respondent did, without lawful cause, withdraw herself from cohabitation, &c., and that the respondent did, in her answer, deny that she withdrew herself from cohabitation without lawful cause, and the respondent did further say she frequently suffered from the insulting, degrading, and cruel conduct of the petitioner, &c." The Judge Ordinary ruled that on this record the onus of shewing that she had lawful cause for withdrawing from cohabitation lay on the respondent, and that her counsel, therefore, was entitled to begin.

Where the questions of fact raised by the pleadings have been stated in the form of a record, the issues to be tried by the jury must be taken to be those stated in the record, although they may not be identical with those raised in the pleadings.

This was a petition, by the husband, for restitution of conjugal rights, to which the respondent put in an answer. The issues raised came on now for trial, before the Judge Ordinary and a special jury, and were stated in the record, which was as follows:

"H. C. Cherry did, in his petition presented in this cause, allege that the said E. Cherry did, on the 29th of September 1856, without lawful cause, leave his residence at Burghfield, and did, from the said day up to the date of the said petition, withdraw herself from cohabitation with him, and refused to render him conjugal rights. And Emily Cherry did, in answer thereto, deny that she withdrew herself from cohabitation with the said H. C. Cherry, as set forth in the said petition, without lawful cause; and the said E. Cherry did further say, that from the date of her marriage, to wit, the 23rd of August 1853, and up to the 9th of September 1856 inclusive, she frequently suffered from the insulting, degrading and cruel conduct of the petitioner, and more particularly on the 31st of August 1856 and the 8th of September

1856, has been compelled to obtain protection from Her Majesty's Court of Queen's Bench. Whereupon the said H. C. Cherry denied the truth of the allegations contained in the said answers, and joined issue thereon. Therefore let a jury, &c."

Maude (Wilde and Dr. Deane with him), for the petitioner.-The question is analogous to that which would arise in the common law courts, if to an action by a servant for wrongful dismissal, first, “not guilty;" secondly, "reasonable cause for the dismissal," were pleaded. It would then be for the plaintiff to begin.

[The JUDGE ORDINARY.-The plea of 'not guilty" makes all the difference.]

Mrs. Cherry denies that she withdrew, and also that the withdrawal was without lawful cause.

[The JUDGE ORDINARY.-"And" is not in the record. All that is stated in the record is, "that in her answer she denied that she withdrew without lawful cause."]

When the pleadings are referred to, it appears that she puts in issue both the withdrawal from cohabitation, and also alleges. that she had lawful cause for so doing.

[The JUDGE ORDINARY.-I cannot refer to the pleadings. The issues have been settled in the record, which must be taken to be a correct statement of the issues raised by the pleadings. It must be taken to have been settled by the solicitors with care (1). In the record there is no denial of the withdrawal from cohabitation.]

Mrs. Cherry denies that she withdrew without lawful cause, that is tantamount

(1) Whenever questions of fact are directed to be tried before a jury, the issues are in pursuance of section 38. of the Divorce Act and Rule 22. stated in the form of a record, and settled by one of the Registrars. At the trial counsel should be furnished with a copy of the record, and should state the issues from it, and not from the petition, answer, &c. From inadvertence, however, counsel are seldom supplied with the record, and have, in consequence, had repeatedly to open the pleadings in a rambling way, which has called forth the animadversion of the Court on the neglect to furnish them with a copy of the record. The evidence must also be confined to the issues raised on the record.

to a plea of not guilty. Suppose no evidence was given, the petitioner ought to succeed, and therefore is entitled to begin. He referred to Mercer v. Whall (2).

Huddleston, Dr. Robertson and Coleridge, contrà.-The answer in effect alleges that Mrs. Cherry had a lawful cause for withdrawing from cohabitation. By the practice of the Ecclesiastical Courts, the respondent in a suit for restitution of conjugal rights, setting up cruelty in answer, had the right to begin. It would not be sufficient simply to deny that the respondent withdrew without lawful cause; that would be too vague, but the cause should be specified.

The JUDGE ORDINARY.-I think that, substantially, the affirmative of the issue is on the respondent. The meaning of her answer I take to be this: she does not deny that she withdrew from cohabitation, but, admitting the withdrawal, denies that it was without lawful cause, and then goes on to specify what that lawful cause is. She, therefore, is entitled to begin. That would be in accordance with the practice of the Ecclesiastical Courts at the hearing of suits for restitution of conjugal rights, in which, when the marriage was denied, the onus lay on the spouse withdrawing from cohabitation, of shewing that there was a lawful cause for so doing.

not

The counsel for the respondent accordingly began (3).

In Stoate v. Stoate, which was a suit by the wife for a judicial separation on the ground of cruelty and desertion, at the trial (Jan. 31, 1859) the respondent's counsel proposed to call witnesses to prove unchaste conduct on the part of the petitioner since the marriage, but was not allowed by the Judge Ordinary to do so, no such issue having been raised by the record.

(2) 5Q.B. Rep. 447; s. c. 14 Law J. Rep. (N.S.) Q.B. 267.

(3) In Hayward v. Hayward (July 13, 1858,) which was a suit by the wife for restitution of conjugal rights, transferred to this Court from the Court of Arches, the fact of marriage was not disputed, but an allegation was given in by the husband, setting forth grounds for resisting the suit. At the hearing, the Judge Ordinary ruled that the counsel for the respondent should begin, such having been the practice in the Ecclesiastical Courts where the marriage was not in dispute.

Dissolution of Marriage-Practice-Return of Citation necessary before Hearing when Personal Service has been dispensed with-Commission to examine Witnesses20 & 21 Vict. c. 85. s. 47.

The citation must be returned to the registry before a petition for dissolution can be set down for hearing, such return being necessary in order to preserve evidence that the proper steps have been taken.

The petitioner in a suit for dissolution of marriage sent out citations for service on the respondent and co-respondent, who had gone to Australia. Efforts having been made to discover and serve them without success, personal service was dispensed with. The solicitor in Australia employed to effect service having omitted to return the citations to this country, the Judge Ordinary refused to allow the petition to be set down for hearing until they should be returned, but, as the only proof of the adultery was the evidence of persons living in a brothel, to avoid the risk of their not being forthcoming in consequence of the hearing being delayed, allowed a commission to issue at once to take their evidence, under 20 & 21 Vict. c. 85. s. 47.

In this, which was a suit for dissolution of marriage on the ground of the wife's adultery, the Judge Ordinary dispensed with personal service, it appearing from the affidavits that the respondent and corespondent had gone to Australia, and that ineffectual efforts had been made to discover and serve them (1). The citations, which had been sent out to Australia for been personal service, had not sent back.

Dr. Swabey (Dec. 20, 1858) moved the Court to direct the mode in which the petition should be proved.-It has been stated in the registry that the citations must first be filed. If they must be returned from Australia, some months must

(1) See Cook v. Cook and Quaile, ante, p. 5.