BITTLESTON by her guardian against clark prerogative court Michaelmas term  November that a party can propound instruction as the last will of a testator  in the same cause in which sentence have be give as to a will propound for  there can be two definitive sentence in the same cause see p ante dr hay for  Bittleston John clark die that February leave a widow Ann clark and Thomas and  Elizabeth Bittleston his nephew and niece and next of kin he be seize with a  palsy on that February and lose his speech and sense will of that February be  propound by the widow the executrix therein name the court be of opinion upon  the evidence that decease be not in his sense on that February when say  propound will be execute and therefore pronounce against it and that the  decease so far as appear be dead intestate and assign the widow to declare  whether she will accept administration in that cause the instruction for say  will be plead and exhibit and Mr green the writer be examine to they sentence  against this lee will be give on d July and Cheslyn clark proctor be assign to  declare whether she will accept administration he can now do nothing else but  instead of declare he desire leave to propound those instruction in this same  cause which be unprecedented and it will be very dangerous to allow it after a  examination already have and publish upon those instruction dr pinfold same  side they have a opportunity to have propound this paper but they make their  option to set up the execute will and must abide by that a poor man may be  harass out of his right by plead different will successive pick off butler and  Paymenter l lee in after sentence be give against a will Paymenter will have  set up another of a former date but the court will not suffer he dr Simpson  and dr bettesworth for clark the instruction be plead in the former cause only  as a circumstance to give strength to the will in give sentence the court say  he can not take notice of the instruction so as to pronounce for they as a  will because they be not propound as such and it will be very hard that the  widow by mistake in propound a wrong paper shall be bar from a possibility of  set up the real mill we can not propound this paper of instruction and the  execute will too we admit the general rule that the same fact can be plead  over again but this paper be now offer to visit to look upon it be then plead  as a exhibit it be now offer as the decease lee last will and any legatee may  propound it judgement sir George lee I be of opinion Cheslyn be not at liberty  now in this cause to propound the instruction for he stand assign to declare  whether his client will accept the administration sentence be give in this  cause as to the will propound and another will can not be set up in the same  cause for a man may leave twenty different testamentary paper and it will be  strange if the executor shall be at liberty to propound they successive one  after another for then suit will be endless and there will be twenty distinct  definitive sentence in the same cause which will be absurd and impossible a  legatee can set up a will after it have be litigate between the executor and  next of kin and pronounce against unless he can show the party agree to set  aside the will by fraud or collusion and so the delegate hold in the case of  Lewis and Bulkeley lee and note but a legatee if he be afraid the executor  will not do justice may intervene for his interest pen a suit these  instruction can be propound in this cause but the widow may take out another  citation against the next of kin in a new cause to see these instruction  propound as decease last will and prove by witness and then the question will  come proper whether she can propound they after have set up a former will  which be pronounce against I say I do not mean to give a determination now  upon that point but I incline that she can not for she have make her option  and have propound lee er p the execute will when she may lee have propound  these instruction and therefore do not at that time look upon they as the  decease will if they have come to her knowledge since that suit the case will  have be different but as the instruction be plead and examine to in that  former cause it will be very dangerous to suffer they to be examine to again  and will be very vexatious to the next of kin to be harass with successive  suit and therefore I reject Cheslyns petition and again assign he to declare  whether his client will accept administration clark appeal but never prosecute  the appeal wherefore the delegate remit the cause the remission be exhibit in  the prerogative that session Trinity term that June and I assign Cheslyn to  accept or refuse the administration by the next court