case tucker versus Phipps July distinguish pinney v hunt Ch d SC cite Ves the  spoliation in this case be clear prove be sufficient to entitle the plaintiff  to come here in the first instance for a decree without put he to the trouble  and expense of cite the defendant into the spiritual court the bill be bring  by the plaintiff suggest that his wife father have by his will leave a legacy  of fifteen hundred pound to the plaintiff wife his daughter and that the  defendant William Phipps have destroy or conceal the say will and therefore  pray he may be decree to pay the plaintiff fifteen hundred pound and interest  the defendant put in three answer in the first he admit the will as set forth  in the bill but make d mention of any insanity in the testator in the three  answer deny he ever have any such will and say if there ever be any such he  can say whether his father be at the time of make such will of sound mind and  for the defendant it be insist that the plaintiff come here too soon for that  he ought to have cite the defendant into the ecclesiastical court where he may  have the benefit of a discovery equal as well as here atkins Lord chancellor  the point of insanity create the only difficulty for the factum of the will be  not only prove but also admit in this court the rule be not to allow a suit  against a executor for a legacy before a probate of the will contra Phipps v  steward ante atk vol smith v Atykwell post atk but in the present case the  plaintiff ought not to be put to the difficulty of go into the spiritual court  to cite the defendant because that will be give the defendant a great  advantage from his own bad act in destroy or suppress the will for here the  spoliation be I think prove so sufficient as to entitle the plaintiff to come  here in the first instance for a decree as to the spoliation consider it  general as a personal legacy where the will be destroy or conceal by the  executor and I think in such a case if the spoliation be prove plain though  the general rule be to cite the executor into the ecclesiastical court the  legatee may proper come here for a decree upon the head of spoliation and  suppression there be several case where if spoliation or suppression be prove  it will change the jurisdiction and give this court a jurisdiction which it  have not original as in the case of Lord Hundson hob where the title be a  title mere at law yet there be a suppression of the deed under which that  title accrue the plaintiff have a decree here for possession and quiet  enjoyment as the law action man be change with regard to a court of law why  may it not with regard to the spiritual court and I think the case of week  versus week which come before I some time ago a authority that it may here the  spoliation or suppression be certain fraudulent voluntary and malicious and  therefore differ from the case of pascall versus Pickering SC Ves where the  spoliation do by no mean appear to be fraudulent or malicious but rather  inadvertent do and without any bad design I think in such case of malicious  and fraudulent spoliation the court will not put the plaintiff under the  difficulty of go into the ecclesiastical court where he must meet with much  more difficulty than prove the content of a deed at law which have be lose or  secret atkins for in the spiritual court the plaintiff must prove it a will in  write and must likewise prove the content in the very word which will be a  difficulty almost insuperable and which court of law do not put a person upon  do the plaintiff must also prove the whole will though the remainder of it do  not at all belong to or regard his legacy I think if t be have be a mere  personal legacy the court under the circumstance atkins er p of this case  ought to interpose and the rather because in bring suit against a executor  this court go further in require a probate than court at law but here the case  be strong to entitle the plaintiff to a decree because the legacy be out of  real and personal estate both and as to the real estate there be no occasion  to prove the will in the spiritual court to entitle the legatee to recover his  legacy out of the real estate this will be clear the case where the charge be  only upon the real estate and though the heir be entitle to have the personal  estate to exonerate his real yet if he be make executor and have by a  voluntary and fraudulent act put the legatee under such difficulty as make it  almost impossible for he to prove the will it be reasonable to let in the  legatee to have his legacy and leave the executor to pay himself out of the  personal estate as to the insanity the defendant proof speak in general term  only to the testator be in a weak condition but compare this with the  plaintiff evidence and the manner of the defendant introduce the insanity in  his answer and the act he have do under the will the insanity be not mention  till the three answer and then very tender the plaintiff proof be very  positive as to the sanity of the testator they be the three subscribe witness  who testimony be by no mean impeach the will a reasonable one not make in  secret but several person be present the defendant have bring action and swear  himself survive executor and have act several year under the will without ever  make any pretence of insanity in the testator I be therefore of opinion that  under the circumstance of this case it be not proper to direct a trial at law  as to the sanity atkins or insanity of the testator but that the plaintiff be  entitle to a immediate decree for payment of his legacy by the defendant  notwithstanding the probate of the will have not be grant Reg lib b fol