andrews contra powis sergeant inn fleet street between Hilary and easter term  for former proceed between the same party in chancery see Andrews v powys bro  p c judge delegate marquis of Tweedale earl Lincoln Wilcox bishop of  Gloucester waugh bishop of Carlisle page and Reynolds justice of the king  bench hale baron of the exchequer sir Henry Penrice judge of the admiralty dr  Tindall and dr Audley Mr Powell decease make his will the that of June by  which he appoint his nephew Mr powis executor and residuary legatee subsequent  to that videlicet on the that Feb he make another will by which he appoint Mr  Andrews nude executor and make his child residuary legatee the testator die  the that Feb and Andrews take probate of his will lee the next day and possess  himself of the estate Mr powis take out process to call he to bring in the  probate and propound the will make in favour of himself in June as the last  will of the decease and allege that Andrews will be obtain by fraud and desert  when the testator be insane and incapable to dispose by will or otherwise mrs  collyer and other relative of the decease appear and oppose both will and pray  the decease may be pronounce to have die intestate allege that he be under n  insanity previous to the make even of powis will which continue to his death  in the run of this cause in the prerogative court the original will of Andrews  dr parson dr Burnaby dr Daubeny dr Phillimore and dr Meyrick reverse so much  of the sentence of the chancery court at York as condemned Sarah Henshaw widow  and Ann Hadfield in cost but in all other respect pronounce that the judge of  the court below as well in the first as in the second instance have proceed  right just and lawful c a question characterize by the same lead feature but  infinite diversify by other circumstance from that of Henshaw and Hadfield v  Atkinson and Atkinson have be raise in Ingram v Wyatt prerog the case be  report at great length Hagg in that case sir John nchol pronounce against the  validity of the will and codicil of John Clopton a appeal be prosecute to the  delegate the cause be argue on the that and that July and on the that that and  that Jan and on that Jan the judge delegate present videlicet Mr justice  Littledale Mr justice Gaselee Mr baron Vaughan dr Burnaby dr Daubeny dr  Gostling dr Addams and dr black be equal divide in opinion give no judgement a  commission of adjunct have since be grant and the cause be again in the course  of hear it be understand that Mr baron Vaughan dr Burnaby dr Gostling and dr  black be in favour of the sentence of the prerogative court and Mr justice  Littledale Mr justice Gaselee dr Daubeny and dr Addams contra see on this  point Barton v robin prerog pick off Phill note billinghurst v mokers Phill  pask v ollat Phill canalised v Harrison Phill among the manuscript paper of  sir George lee I find a very full note in his own handwriting of the case of  Andrews v powis in which the same question be raise and much discuss before  the high court of delegate in the case be too long to be add to this note but  the importance of the point discuss will full justify I in give it a place in  the text of this work lee er p be mislay in the office whereupon motion be  make to examine the witness to the engross copy to which the court assent  before publication of their deposition the original will be find this motion  be plead in a allegation by Andrews who pray that he may be at liberty to  reexamine the say witness to the original will and to their own subscription  thereto which the court admit and powis appeal from it to the delegate as a  grievance the delegate be of opinion that the judge of the prerogative court  have do right and remit the cause some time after upon motion by powis and  suggestion that the estate be not safe in the hand of Andrews the judge decree  he shall bring into court and be subject to the further order of the court as  to the rest Andrews appeal from their decree to the delegate then powis file a  bill in chancery to oblige Andrews to lodge the estate there the Lord  chancellor king make a decree that the money shall be lodge in chancery lee in  aid of the spiritual court he have be misinform that the delegate be of  opinion that the judge of the prerogative court have no power to order it into  his court Andrews appeal from this also to the house of lord the lord confirm  the Lord chancellor decree and lord Harcourt and Trevor declare that every  ecclesiastical judge have a full power to decree any money that be under  litigation before he to be deposit for safe custody in his court the delegate  be of opinion that the judge of the prerogative court have not do right in  order the money into court because he have not sufficient evidence that  Andrews misemploy the estate and therefore they retain the cause but afterward  on more full proof require the to be lodge in the registry it appear from the  evidence on all side that the decease be a man of very odd temper great  humoursomeness and positiveness and very covetous that before the make of  powis will he be seize with a paralytic fit by which his understanding be  impair that he do extravagant action and appear sometime like a man frantic  but it do not appear that he be out of his sense at the time of the execution  of the say will which be make with deliberation and sign by witness of  reputation and credit there be duplicate of the will one part keep by the  testator and the other by the writer and proof be make that the decease  declare affection to powis at that time in order to set aside this will the  next of kin insist that he be under a absolute insanity or weakness of mind  and be not capable of do any serious act from the that Nov till his death on  behalf of Andrews will it be insist lee that he be perfect capable at the time  of make powis will which be full and duly execute and that he continue so till  his death that at the time of make the latter will he have cancel the former  by tear off the seal and throw it into the fire with a declaration that it  shall not be his will that the latter will be full execute be sign seal and  publish by the testator and subscribe by three witness that the testator  declare great dislike to all his relation and be great offend with powis for  not take a person apprentice who he have recommend to he and that he have  declare great satisfaction in the kindness and regard he have meet with from  Mr Andrews and his family and that he will reward they for it on the contrary  it be urge that Andrews have by cajolery and stratagem in persuade he to have  a lamp set up in his chamber by which the house be in danger of be fire induce  the decease to fall out with his former landlord Mr Atterbury with who he have  long lodge in order to draw he to his house that after he have so draw he to  his house he endeavour by false suggestion to alienate his affection from  powis that he and his family keep he in constant custody and will not suffer  he to be see that Andrews be only a acquaintance of the decease who while his  understanding be good have frequent declare a very ill opinion of he that  before the make of that will he have have a second fit of the palsy by which  his understanding be so much impair that he do not know his most intimate  acquaintance that he be almost utter incapable to read write hand and that  therefore his letter be always read to he that the will be whole lee write by  the executor who family be to get under it that there be no instruction for  make it prove to have be give by the testator nor do it appear in evidence  that it have be read over to the testator or that he know the content of it  that the witness to it be the executor wife who can be no witness at all a  poor barber and a servantmaid both of who have lee er p receive money or  present and have make declaration contrary to what they have depose on oath  head of the argument of the counsel for Andrews sergeant Cheshire the decease  have reason for revoke powis will one be that he have lend to powis for which  he have promise he a mortgage but have not keep his word second he continue a  partnership trade with a person he dislike three he desire he to take a  relation apprentice which he have not do be resolve to quit his lodging before  he go to Andrews and will have go to another place declare he will leave  nothing to his relation direct Andrews to write a will from the old will alter  only the executor from powis to Andrews and change the residuary legatee a  will make deliberate though without witness be a good will declaration of  witness in common discourse shall not take away the force of their deposition  a man shall not be permit to swear against what he have sign and attest the  decease recognize his will by mention it three or four day after the execution  to the barber who witness it lee dr henchman the question be whether the  decease have a animus to cause to testify tali modus whether he have a  capacity whether he free and voluntary make Andrews will it be object that the  executor write it and insist that by the civil law the will be void but in  reality it be otherwise for by that law only his legacy will have be void and  the writer subject to the penalty of the law Cormelydon de falsehood if a man  write a legacy to his son sub potestate it be void if to a emancipate son it  be otherwise by that law and in England the paternal power be not admit a  evidence to a deed be a good evidence to a will in the case of Twisden contra  townsend prerog mich term sir Thomas Twisden the executor write the will no  proof that it be read over to the decease but instruction be prove and the  court pronounce for it in Lord macclesfield will the subscribe witness deny  his hand he have custody of the will and be the only survive witness but the  will be pronounce for when a witness contradict his former deposition it be a  rule of law that height priori oath where iterable act be depose to by witness  they by the civil law be esteem contest witness dr pinfold the evidence do not  prove the will be read over to the decease but that be not essential for a  will man be good though nobody can prove that it be read to the testator dr  kinaston dr mead depose that when he attend the decease in August he be then  sensible and the apothecary depose the lee same the subscription to the  receipt exhibit agree with the signature of the will Hammond the banker swear  he will have pay any money upon view of a note sign with that hand No law  require instruction for a will nor that the will shall be read by or to  witness in the case of Herne v Johnson no instruction be give nor be the will  read over but the court be satisfy with the evidence of the subscribe witness  extrajudicial declaration though make by a man on his deathbed be not  admissible against his oath gail lib ob nu a say quid si testis post to swear  falsely laying down in person judge well commissioner swarm fanctam extra  judicialiter opposite direction affirme a sencundam attesting earlier times  subverte too little etian si ankle testimony in death point of time fanctam  sit a dr Andrew every man have a undoubted right to dispose of his estate as  be please and no court can inquire into his reason every man be suppose to  intend what he execute poverty be no objection to a witness in doubt kind  interpretation fiend be the confession of a counsel can bind a party the  confession quod si contrairo testis in private et extra examine factum in  judgment downward pull yes be factum postea yes in examine aliter to lay a  prima confessio posteriori praeforetur by no means because that simplex  alteran to swear falsely et pro judge presumption be testation probe et  sincere conscript be it that private et fort to strive to seize benevolence  ergo alteran judicialis et necessarian be ad how against the will quis to turn  the war thither to be able gail p lib ob lee er p of a proctor do because he  be dominus lawsuit the proof of disaffection to his relation be clear the fact  of powis will also stand uncontroverted the lee relation have prove that the  decease have the same odd behaviour before he make powis will as after Mr  James monk a old acquaintance of the decease and who be no friend to Andrews  swear that after the decease return from Shrewsbury he be frequent with he and  he be sane eight or ten witness agree with monk in this point he go to the  exchange receive and pay money at his banker mrs Atterbury speak to his  insanity and yet swear her husband be angry with her for disoblige the decease  because he may otherwise have do something for they therefore they suppose he  have a capacity to make a will Andrews character be unspotted the testator be  disoblige with powis for not take mrs cross son apprentice the decease be not  easy to be impose upon it have be object that if a man write himself heir he  will by the law Cormelydon de falsehood have be infamous the answer to that be  that even by that law if a man have write his emancipate son heir to any one  he will have be subject to no punishment l ff ad leg Cornel de fall the  testator recognize his will for ditcher who evidence stand unimpeached say  that Powell declare after he have make his will that he will give Andrews his  estate which declaration be a recognition of the will and be also three or  four day after it be make say to Phillips the barber who witness it barber you  be a witness to my will by which I have give my estate to Andrews and his  family if my relation dispute it with they be a honest man and speak the truth  declaration of witness be not admissible contrary to their oath in the case of  lee Creswell v Creswell in the prerog d Nov instruction give for a will the  writer draw a will from it and another contrary which he give the testator and  be sign it and the writer be a witness to it afterward he will have appear as  a witness to prove the forgery but the court will not admit he since he have  sign the paper as a witness and reject the allegation set forth this matter in  the case of bird and bird v Wollaston delegate Feb three witness to a will two  swear to the testator capacity at the time of execution the other contrary the  court reject his evidence Mr fazakerley the will itself import a animus to  cause to testify there be many instance in chancery of commit man as lunatic  upon evidence only that they can not manage their own affair there be two  positive subscribe witness to the factum of the will who must be perjure if  the fact be otherwise which the court will be tender of declare without full  evidence direct prove the contrary extrajudicial declaration be allow by all  judge to be the slight evidence the statute of fraud be make to prevent fraud  in make of will and do direct that no evidence shall be receive to prove a  nuncupative will after six month unless the nuncupation be reduce to write in  six day after the death of the testator there may be fraud as well in set  aside as in constitute of will and the admission of evidence to prove frequent  declaration make a long time ago tend to that purpose sir Edward Becher Lord  mayor Mr Linyer common sergeant and other of reputation prove Mr Andrews good  character lee head of the argument of the counsel for powis will Mr Lutwyche  fraud be proper cognisable in the delegate No instance where chancery have  interpose to set aside a will for a personal estate on account of fraud but  that court always have declare it do belong to the spiritual court if we have  not the full force of our evidence here we can have it any where in the case  of Bransby and Herridge Bransby make his father executor by fraud and false  representation of the father Herridge persuade he to revoke it and by a new  will to appoint he executor the will contain land and therefore as to the land  the chancery set it aside on account of the fraud and declare Herridge a  trustee for the personal estate to the use of the father by which the  ecclesiastical jurisdiction be save and the probate continue unnerved this  matter be now under appeal to the lord Andrews persuade the decease to do what  will occasion a quarrel between he and his landlord that he may draw he to his  own house the decease come under the incapacity for make a will mention b  Swinburne part sect it appear that he be almost if not total incapable to read  write and therefore be lee er p in the nature of a blind man a see sir George  hay judgement in Barton v robin Phill note a who will ought to be read over to  he before witness swim part sect b he that be blind may make a nuncupative  testament by declare his will before a sufficient number of witness but he can  make his testament in write unless the same be read before witness and in  their presence acknowledge by the testator for his last will and therefore if  a write be deliver to the testator and he not hear the same read acknowledge  the same for his will this be not sufficient for it may be that if he shall  hear the same he will not own it Swinburne pt II S b but there be no proof of  lee read this will of Andrews to the decease it appear from a interrogation  put to one of the witness that Phillips the barber be ask whether he have not  give a note for lend to he by Andrews answer yes but it be only for a blind Mr  reeves powis will be make deliberate while the testator be sane not every  small degree of understanding be sufficient for make a will but the testator  ought to have a sound and dispose mind when a devise be extraordinary some  reason ought to be show why testator be induce so to do decease use expression  of strong dislike to Andrew the time for take cross son apprentice be not come  when Andrew will be make therefore that be no reason for disaffection to powis  Powell make a general order to Hammond to pay Andrews what money he shall  demand which order be make soon after he come to Andrews house and be a proof  that he be insane or gross impose on it be say that if a man only subscribe  his will without witness it be good but that be only where there be no  suspicion of fraud the will in favour of Andes be not read to the decease and  he can not read it himself therefore he can not certain know the content any  degree of sanity be not sufficient for make a will marquis of Winchester case  coke Rep f it be the lee constant practice in commonlaw court to admit proof  of declaration make by witness contrary to their evidence on oath dr strahan  dr mead and the apothecary only talk with the decease about his illness and he  be able to give account of that so can a child of six or seven year old the  old man be in custody of Andrews and his family for some of they always attend  he wherever he go some of his friend particular Mr Thomson be refuse see he on  pretence he be not well observation be make by Andrews people on all letter  from powis in order to reflect on he and diminish the decease affection to he  and some of his letter conceal by Andrews it appear from Andrews own witness  as well as powis that he be in low circumstance when the decease come to live  at his house which may be a inducement to he by any mean to acquire to his  family this great estate the general order to Hammond to pay to Andrews on  demand be within a month after Powell come to his house so that the management  of the decease begin as soon as he have get he into his custody Andrews prove  the will the day after Powell die and enter on the estate immediate be enter  the probate in all the public office and by that mean take up a large sum  after the probate be call into the prerogative court on commencement of this  suit and upon that a order be make upon he by the court to bring in No  declaration of powis in favour of Andrews previous to his will in the case of  sand and Floyd contra Pearsen a sand and Lloyd v pierce and pierce pick off  that January delegate present at the sentence Mr justice Tracy Mr baron price  dr clement dr reins dr page dr Phipps and dr strahan a pick off lee Mr roll  make his will by which he give his estate to his daughter pierce the will be  duly execute and witness and he before the witness declare it as his will  after his decease mrs pierce refuse to prove it because her husband shall not  be benefit with who she be at variance and then be propound it it appear full  that the testator be insane and that though he have publish it proper mrs  pierce have tutor he and teach he what to say the will be set aside the be  able to say yes or No be not a sufficient capacity comb case more be Rep f dr  sayer where there have be insanity the degree of evidence be different powis  will be reasonable because he be nephew of the decease duplicate be make of  the will and one be in the custody of the testator himself but this latter lee  er p will have always be in Andrews custody decease declare he have make powis  his heir speak kind of he even after andrews will be make his affection to  Andrews grow accord to the witness in five or six week time dr Harwood be  interrogate what the decease say to he concern his relation or will on his  first examination he say nothing of disaffection though not interrogate to  that point he swear the decease be displease with powis Andrews be swear to  the probate of his will by dr Harwood to who he make a present at that time of  for mourning on account of the doctor be lee old acquaintance with the decease  in October precede Andrews will Powell declare he will give the great part of  his estate to powis minor till a certain age can dispose though they can do  common thing and answer common question soundness chin be necessary in a  testator d lib title Swinb part sect nu Mr Hamilton a man who design to act  honest will take care to have witness of figure and reputation when the  testator execute powis will he declare to the witness who he have make  residuary legatee the civil law direct that a testator shall write the name of  his heir himself or declare it to the witness c de testamen l in pv Inst de  testamen order Herbert and lownds car chancery case Oct Mr Bland make his will  in favour of his child when he grow weak Lowndes a scrivener persuade he to  make a will and deed in favour of he much evidence that the testator be weak  the court decree that he be not absolute insane yet since there be fraud and  management the deed shall be set aside and order Lowndes shall not execute the  will without his coexecutor in the case of Ainsworth and pollard ibidem p and  of Maudley v Moudley ibidem p will and deed be set aside on account of  management of weak person Fraser contra duke of Devonshire Lord harry  Cavendish make certain deed in his last sickness full execute and no proof of  insanity but Lord chancellor Cowper say a man in so weak a condition can not  have a understanding adequate to what he be about and therefore lee decree  that the deed be void and the decree be confirm by the lord but by hale baron  those deed be set aside because they be not execute pursuant to the power  reserve to he and it be on that account Lord Cowper say it do appear that he  have not a mind adequate to what he be about Mr strange there be three point  before the court powis will Andrews will or a intestacy the same degree of  capacity be necessary to revoke as to constitute a will the case of frost v  Hendrey Mod foe in the draught for powis will blank be leave for the name of  the executor which the testator fill up but have write the name ill he dislike  it and order new one to be draw and then in the presence of the subscribe  witness have the blank fill up with the name of powis as executor and  residuary legatee one draught keep by himself the other by Baldwin who write  or procure they to be write all the instruction pretend for Andrews will be  only to get the name of dr Harwoods child to who as it be pretend the decease  do desire to leave legacy notwithstanding which the name of those child be not  insert in the will head of the argument of the counsel for mrs collyer and  other of the relation of the decease who contend for a intestacy dr Paul the  king advocate the decease declare to his brother Jeremy when he be die that he  will be a father and a uncle to his child frequent give present to mrs collyer  daughter to Jeremy from Nov lee when he have his paralytic fit he do no act as  appear from the evidence that require judgement in he lie up a dividend  warrant in his closet and do not know what he have do with it but say it be  steal from he and say he can dispose of no money without the advice of his  nurse who attend he powis apply to Murray the old man keeper to procure he a  will and apply to the decease for a deed of gift it do not appear that the  decease himself read the instruction take by Mr baldwin decease attempt to  fill up the blank be not able to do it attempt to fill up the second draught  though he know he be not able to do it before which show a want of  understanding he can not read which proceed from want of understanding only  because there be no proof he have lose his sight so weak in mind that no  prudent person will trust he with fire the time lee er p he go from atterbury  so frantic in his behaviour that Mr Reece will not receive he as a lodger when  he leave atterbury can not reckon with Atterbury for what he owe for his  lodging go to mrs Roger his milliner with who he be well acquaint but do not  know her take Thompson a man of sixty year of age and tall for a little lad of  about fourteen or fifteen he that write himself heir be infamous per tot title  c de his who Himself add in writing a testator must have soundness chin comb  case more be Rep foe executor charge with forgery clear as to the punishment  for that but the will set aside because the testator be not sane Duarenus disp  nu Phillips the barber declare if evidence be want against a person who be  under a criminal prosecution at the lee old Bailey he will lend a oath to  stitch he up declare he have sign powis will for Andrews when the testator be  out of his sense a bribe person no good witness extra de testib cap ff de  falsehood leg and Nepos de monte albano nu bartolus super know ff de fall when  a witness be interest he be not to be admit if a man think though false he  have a right of commoning he can be admit at commonlaw to prove a commoning  the case of gore will in the delegate the attorney who draw the will swear the  testator read it over and another witness swear he sign it prove contra he be  so weak he can not write nor be able to read his sight be distemper with the  jaundice the delegate pronounce against the will Hester Gordon her will in the  prerog a small piece of paper sign as it seem by Gordon be propound as her  will it do not appear who write the body of ft she have thereby give her  estate to two of her child in prejudice of a three but assign a reason in the  paper why she disinherit the other videlicet that she have give her for her  marriage portion No proof of this will further than the subscription the court  pronounce against it the party do not appeal in the case of young and young in  the delegate Byne a fleet parson swear he marry the patties afterward make a  affidavit that he have swear false before and that he have be bribe to do it  the delegate have no regard to his former deposition in the cause in the case  of Twisden contra Townshend the will be read over to the testatrix in the  presence of lee the witness and she declare to other she have make sir Thomas  Twisden her executor in the case of lady Bridget Osborne she swear she have  never be marry to William hall the parson allege to have solemnized the  marriage swear he have not marry they but the marquis of Carmarthen her  brother swear she have confess her marriage to he and it be prove the parson  declare he have strong compunction of mind for a great offence upon this  evidence the delegate pronounce for the marriage Mr lee such proof be to be  admit in all case as be suit to the nature of the case there be not sufficient  evidence to pronounce for powis will the exceptive evidence to Andrews will be  so strong that the will stand on comparison of hand only a declaration of a  witness may be receive to contradict his evidence in the case of wood v cozen  Sheffield make his will three witness to it one swear express to his capacity  and the due execution of it another be a legatary and so repel the three swear  he be not capable he have before swear the contrary in chancery the court have  no regard to his evidence but affirm the will on proof by one witness of the  due execution this case be now before the lord king v hay king b hay forge a  bind bring a witness to prove it and recover upon it afterward that same  witness be admit by c I Raymond to prove the forgery and upon that evidence  and other circumstance only he be convict thereof there be no expression of  disaffection to relation lee till he become insane in public instance of  insanity in may immediate precede powis will which be make in June to prove  that the testator have not a legal capacity to make a will and that the  witness to Andrews will be not sufficient he cite Swinb on will part sect nu  part sect nu Godolph part cap nu Swinb part sect nu Godolph part cap nu cap nu  those only be to be esteem good witness quorum fides non vacillate ff de test  lib l lee er p reply for Andrews will dr henchman in point of time death a man  may revoke by a less solemn instrument Swinb part sect in the case of duke of  Somerset and sir John Jacobs a pick off d January a there be three schedule  imperfect in their disposition and without executor they do not revoke the  complete will for want of perfection the testator in this case be not blind  for he sign the will and therefore have capacity to write and it appear in  evidence that he go to his closet and fetch a receipt from among other paper  which he can not have do if he have be incapable to read the subscription to  the will be prove by Hammond on a comparison of hand and that be a genus to  make good though not the best dr mead have swear that the decease give he such  a account of his distemper that he prescribe from it and also that he believe  he be capable to make a will lee in the case of Medlicot and Murford a will be  write by the executor and no instruction nor read prove one of the witness  swear he believe the sign to the will be his hand the will be pronounce for  incontinence be a objection to a witness covarruvias practical conclusion lib  cap nu when the decease tear the seal from powis will he say take notice of  what I have do I have now cancel my former will the rest of Andrews counsel  speak on the reply to much the same purpose per curian after a long and full  hear for several day of counsel on all side the court be very unanimous of  opinion that powis will be the true last will of the decease and that the will  in favour of Andrews be null and void and condemned Andrews in cost this  judgement be give on the that Feb at sergeant inn in fleet street N B a  attempt be make to have examine Andrews wife as a witness to the will and a  will be pray before the Condelegates at doctor Commons on that point but it be  afterward waive