brown case John andrews appellant thomas powys respondent that February Mews  dig v xv a will of a person be prove in the spiritual court but the executor  of a former will bring a bill in equity to discover by what mean the latter  will be obtain and whether the testator be not incapable or impose on and to  have a account of the personal estate to this bill the defendant demurrer  because it belong to the spiritual court only to determine upon the validity  of will of personal estate and the sanity or insanity of the testator demurrer  overrule viner vol p can vol p can can Eq can ab can can Mr John Powell of  London merchant who have acquire a great personal estate to the value of pound  and live and die a bachelor be about Christmas seize with a fit of the palsy  and soon after his recovery order several letter to be write to the respondent  his nephew at Salop for who he entertain a great affection desire he to come  to London and assure he it shall be a profitable journey the respondent accord  come to London in may when his uncle express great pleasure and satisfaction  at his arrival and acquaint he that he intend to make his will and settle his  estate and within a few day after he accord give instruction to Mr Edward  baldwin with who he have a long acquaintance to draw his will and after the  same be prepare and deliberate peruse and consider by the testator two part  thereof be transcribe by his direction and blank space leave for the name of  his executor and residuary legatee which he with his own hand fill up with the  respondent name and then take the transcript along with he and desire Mr  baldwin to meet he in the city on the that of June when as he declare he  intend to sign his say will and will get two other person of good credit and  repute to be witness thereto but the testator afterward observe that the  respondent name which he have write in the blank space be not in so fair and  legible a character as he wish occasion by a tremble of his hand which he have  be trouble with ever since his palsy fit he send back the transcript to Mr  baldwin desire he to prepare two other part thereof and meet he at the time  before appoint this be accord do the testator on the say that of June duly  sign and publish duplicate of his will in the presence of the say Mr baldwin  and of messrs atwell and Hammond two eminent banker in London and the same be  seal up in brown er p separate cover the testator take one of they and deliver  the other to Mr baldwin to be keep by he by this will the testator give to his  niece mary cross pound to her child that shall be live at his death pound to  his niece Martha Powell pound and all the residue of his real and brown  personal estate to the respondent and make he sole executor in August follow  the testator go to the respondent house at Salop where he stay above two month  and intend to stay much long but Mr atwell his banker with who he have near  pound in cash happen to die he be call up to London on that occasion and the  respondent attend he thither but in the journey the testator be seize with  another fit of the palsy the respondent be oblige within a few day after to  return into the country but in November follow he come again to London to  visit the testator who continue to express the same affection for he as before  or great and as a fresh instance thereof be inform that the respondent have a  sudden occasion for pound he voluntary lend he that sum and press he to take  more and he likewise frequent send the respondent wife considerable present in  December the respondent return again into the country and then the appellant  observe that the testator after his last fit of the palsy be much impair in  his memory and understanding find mean to inveigle he from his lodging in the  city of London where he have reside above twenty year to go and lodge at the  appellant house at Westminster and have get possession not only of the  testator person but also of his effect the appellant manage he as he think fit  and rare suffer any of his relation or other to revisit he and when they do  they be never permit to be alone with he at this time the testator be so  feeble that he can not walk without support and so weak and impair in his  memory and understanding that he frequent mistake one person and thing for  another and although the respondent never do any act to disoblige the testator  yet the appellant use great endeavour to misrepresent the respondent to he and  intercept several of his letter within a month after the appellant have thus  get the testator to his house he prevail with he to make another will date the  that of February whereby he give to his niece mary cross and her child and to  his niece Martha Powell the same legacy as be give by the former will to the  child of Mr John Harwood pound apiece to the respondent child pound apiece and  the residue of his estate real and personal to the appellant child John and  Gerard Andrews and Elizabeth since marry to Henry Fenn share and share alike  and make the appellant sole executor though neither he or his child be at all  relate to the testator this pretend will be of the appellant handwriting and  the subscribe witness thereto be Frances the appellant wife Robert Philips a  ordinary barber and Margaret Roger a menial servant in the family and although  the testator lie speechless and in a languish condition for above a week  before he die yet the appellant never give notice thereof to any of the  testator friend or relation but upon his death which happen on Sunday the that  of February the appellant go early the brown next morning and with great  expedition procure a probate of the pretend will in common form out of the  prerogative court of Canterbury before any of the testator relation have  notice of his death or have a opportunity of enter a caveat against such  probate the appellant have thus procure a probate immediate cause the same to  be register at the exchequer where the testator have several long annuity to  the amount of pound per and and also at the SouthSea house where he have above  pound capital stock But speedy application be make to the prerogative court a  decree be on the d of the same month obtain for the appellant to bring back  the say probate and upon the return of the citation the judge assign the  appellant to bring the probate into court on the d of march then next which be  do accord and on the that of April follow he exhibit a inventory pursuant to  the judge order the respondent afterward discover that the appellant after be  serve with process to bring back the say probate videlicet on the d of march  be the very day brown er p before the time limit for bring in the same have  receive at the Exchequery pound and on the that and that of the same month  after the probate be actual bring into court pound more due for quarterly  payment of the testator annuity at Christmas before his death and pound for  dividend of the testator SouthSea stock but take no notice of such his receipt  in the inventory exhibit on the that of April follow and on the that of the  same month he receive pound more for a quarter be interest of the say annuity  due at ladyday after the testator death on the discovery of these transaction  the respondent apply to the court and upon the that of may the judge put the  appellant under a monition not to receive any interest upon or alienate any  part of the decease estate pendent light and order a certificate to be make by  the register that the probate of the say pretend will be bring into court to  prevent the appellant receive the interest or transfer or alienate any of the  security belong to the testator estate and in order that notice may be give  thereof at the exchequer and other place on the d of January follow the  appellant give in a allegation and move the court that the probate of the say  pretend will may be deliver out to he to the end he may be enable to receive  the interest and dividend of the testator annuity and SouthSea stock due at  Christmas then last and by his proctor offer that the money so to be receive  shall be dispose of at interest as that court shall direct and pray that the  respondent may bring into court pound S due for interest of the pound lend he  by the testator and of the further sum of pound for which the respondent stand  bind as a surety the respondent thereupon insist by his proctor that the  probate of the pretend will ought not to be deliver to the brown appellant but  consent that the interest and dividend of the annuity and SouthSea stock may  be receive by the proper officer of the court in order to be put out at  interest and that a limit administration may be grant for that purpose pendent  light the respondent also submit to bring into court the interest of the say  two sum for which he stand engage so as the appellant will bring in the money  receive by he and on the that of the same month the judge order that the  appellant shall on the that of February be the next court day make a  declaration on oath of what he have receive which the appellant have accord do  it thereby and by the aforesaid inventory appear that he have receive out of  the testator estate since his death pound S d upon a further hear of the  matter on the that of February the judge order the respondent to bring into  court pound for the interest of the two sum beforementioned on the that of  march be the next court day and the appellant at the same time to bring into  court pound part of the money receive by he and when the money shall be so  bring in the same shall be lie out on such security as the court shall direct  for the benefit of the party interest the respondent comply with this order  but the appellant refuse to yield any obedience thereto and appeal from the  same to the court of delegate and upon hear the appeal on the that of June the  delegate be of opinion that the judge of the prerogative court have not any  power to order money to be bring into that court or to direct the same when  bring in to be place out at interest and therefore reverse the say order of  the that of February whereupon the respondent on the saint of October follow  exhibit his bill in the court of chancery against the appellant and the say  John and Gerard Andrews his son and Henry Fenn and Elizabeth his wife and  other charge that the testator when he be inveigle by the appellant to his  house and at and before the time of make the say pretend will be a paralytic  man feeble in the state of his health decay in his memory and understanding  daily give repeat instance of childish action and have not sufficient capacity  to manage his affair or to govern himself and be therefore easy practice and  impose upon that the say pretend will be gain by fraud surprise circumvention  misrepresentation and other indirect practice and be not read to the testator  or not in the same word in which it be frame or if it be he do not understand  the purport or effect thereof nor be capable of so doing That the appellant  when the testator come to lodge at his house and also at the testator death be  in mean circumstance and much brown er p involve in debt and that he have  apply a considerable part of the money receive by he towards payment of his  own debt and squander away other part thereof in a expensive and pompous  funeral for the testator and by extravagant present under pretence of mourning  particular pound brown to the surrogate when he obtain the probate and by a  expensive way of live and set up a equipage that the money so receive by the  appellant be in danger of be lose and that some of his child be  infants Wherefore the respondent by his say bill pray the aid of the court to  compel the appellant as be only in the nature of a trustee under the pretend  will to bring into court the money receive by he and the tally and order of  the exchequer and other security and book of account relate to the testator  estate that the same may be secure and preserve for the benefit of the person  who shall appear to be entitle thereto and that the appellant may be enjoin  from receive any more of the testator estate and from alienate or dispose of  the same till the matter in question shall be final determine and that a  receiver may be appoint to receive the interest and produce of the estate to  the end the same may be put out at interest and improve as to so much of this  bill as seek to impeach the last will of the say Mr Powell whereof the  appellant be name executor relate to his personal estate on pretence of  insanity or that the same be not duly make or publish or as pray that the  appellant may give a account of the book of account tally and order of the  exchequer security or of any part of the testator personal estate or as seek  to compel the appellant to bring into court any of the book of account or any  security or other personal estate of the testator or to restrain the appellant  from receive any part of the say personal estate or to have a receiver appoint  thereof the appellant demurrer and for cause of demurrer show that it do not  appear or be suggest in the bill that the respondent have any probate of the  will of which he claim to be executor grant by any ecclesiastical or other  court and be no way entitle to commence any suit in the say court of chancery  as executor and have not by his bill any way entitle himself to any account of  the say personal estate And for that it appear by the say bill that the  prerogative court have grant to the appellant the probate of the last will of  the say Mr Powell whereof he be appoint executor and for that the sanity or  insanity of the say Mr Powell and the due execution of a will relate to  personal estate sole belong to the jurisdiction of the ecclesiastical court  and the appellant by his answer deny in general term all manner of fraud  circumvention misrepresentation or other indirect mean and practice and say he  do not know or believe that the testator be at his decease seize of or entitle  to any real estate either in law or equity upon argue this demurrer before the  Lord chancellor Macclesfield on the that of December his lordship be please to  overrule the same and the next day upon the respondent motion his lordship be  please to order that the appellant shall forthwith upon oath bring before Mr  Holford one of the master of the say brown court all the exchequer order and  tally security book of account note paper and write which he have in his  custody or power relate to the testator estate and shall also within three  week bring before the say master all the money which by the inventory  affidavit and declaration make and exhibit in the prerogative court appear to  have be receive out of the testator estate except pound and that the master  shall appoint a receiver to receive and get in the say testator estate and to  bring the same before the say master and that the appellant shall be enjoin  from receive any more of the estate until further order and that the money  which shall be bring before the say master shall be place out at interest on  government on other good security upon the affidavit of the appellant not be  to be find the Lord chancellor on the that of January follow order that leave  a copy of a writ of execution of the say order of the that of December at the  appellant house and another with his clerk in court shall be deem good service  which be serve accord and the appellant not have produce the say security and  money before the master as appear by the master certificate his lordship on  the that of the same month be please to order that the sergeant at arm attend  the court shall immediate take the appellant into his custody and bring he to  the bar of the say court brown er p to answer the say contempt and that the  appellant shall be enjoin from transfer or dispose of any annuity tally or  order in the exchequer or any capital stock in the public company or other  estate or effect of the testator and that notice thereof shall be forthwith  give at the Excheque and to the bank of England SouthSea eastindia and other  company and to such person as have any of the testator estate and effect or be  debtor to his estate upon a certificate make by the sergeant at arm that the  appellant can not be find so as to be take the Lord chancellor on the that of  January be please to order that a commission of sequestration shall issue to  sequester the appellant real and personal estate till he shall comply with the  say order of the that of December and the court shall make further order to  the contrary which sequestration accord issue and by virtue thereof the  appellant good at his house at Westminster and Isleworth be actual sequester  whereupon the appellant appeal from these order of the that and that of  December and the that and that of January insist I Darnall h henchman that by  the constant usage and know law of this realm it belong only to the  ecclesiastical court to determine upon the validity of a will relative to  personal estate and more particular whether the testator be sane or insane and  whether such will be duly make and publish or not that it do not appear nor be  so much as suggest by the respondent bill that he have any probate of the will  by which he pretend to brown be executor or have even propound such will in  the prerogative court as in fact he have not but on the contrary it appear by  the respondent own bill that the appellant have a probate of the will wherein  he be name executor grant he by the proper court and the same still stand  unreversed that no account ought to be demand in a court of equity of a  personal estate to which the plaintiff by his bill can show a good and legal  title or that he have a lawful demand upon or interest in such personal estate  but this the respondent have not do nor can he by the law of the realm do it  till the validity of the will of which he claim to be executor be determine in  his favour by the ecclesiastical court and in case the will whereof the  appellant be make executor shall continue to be establish it can not be  pretend that the respondent have any sort of pretence to any part of the  estate and therefore the demurrer ought at least to have be allow till it  shall appear that the will whereby the appellant be make executor be not valid  that the several matter for which relief be pray by the respondent in the  court of chancer be not only within the jurisdiction of and cognisable by the  ecclesiastical court but a suit and proceed be actual depend in that court  when the respondent bill be exhibit and if both court shall be allow to  proceed at the same time it may occasion a contrariety of decree or  determination in the same matter that it may also be of mischievous  consequence and give great encouragement for groundless and vexatious suit if  in case where any person die leave a considerable personal estate and have  make a fair and legal will in write it shall be Allowable for any one of his  kindred upon a nude allegation that he die intestate or be non sane to exhibit  a bill in chancery and suggest a dispute to be depend in the ecclesiastical  court touch such will and then pray a account and that the whole estate may be  bring before a master till the dispute be determine that the order of the that  of December contain in effect a decree upon a motion and carry the matter far  against the appellant than can reasonable have be expect have the cause be at  hear for the appellant can be charge with no more than payment of the money in  his hand and deliver up the security and a general account direct to see what  be in the hand of the party but here be a positive order which ascertain the  sum of money to be pay and that gum to depend upon the proceed in the  ecclesiastical court that as the testator have by his will make the appellant  executor and thereby entrust he with the care and management of his estate no  order ought to have be make to divest he of that trust unless there have be  some evidence of the estate be in danger or of the disability of the party or  a wilful waste of the same but of which there be not the least evidence before  the court at the time of make this order that the testator will whereby the  appellant child be residuary legatee be his last will and prove as such must  be take to be a good will till brown the contrary brown er p appear and it  will be very hard and unreasonable in case this will shall stand valid as  there be no doubt it will that their share shall be lodge in a master hand  without their consent or be hear and receiver put upon they to the great  diminution of the estate and for which no adequate satisfaction can be make  they that the appellant be effectual prevent by the ecclesiastical court from  receive any more of the estate he be under a monition and certificate have be  order to the proper office for that purpose and as the two last order appeal  against be find upon the two former if those be not right find the other must  fall of course shall it be object that though there be no legal or proper  evidence of the appellant have receive any money contrary to the say monition  or that the money be unsafe or in danger in his hand at the time of make the  order of the that of December yet by the appellant not comply with that order  and stand out in contempt even to a sequestration the want of such evidence be  supply it be answer that not to mention the speed in obtain those order almost  all within the compass of a month when the appellant be absent and without any  personal service these subsequent accident will not be proper foundation to  warrant the reasonableness of the order at the time of make they but the  appellant acknowledge that he be the less Willing to comply with these order  in hope of obtain relief from they upon this his appeal and shall it be  further object as it be suggest in the respondent bill that the appellant have  draw in the testator to conceive a causeless displeasure against his relation  it be answer that if the cancel will for which the respondent be contend have  stand none of the testator relation who be pretty numerous will have be the  better for it except the respondent for the legacy to they be the same in the  cancel will as in the last will videlicet only to mrs cross and mrs Powell the  daughter of the testator old brother but at the time of make both will the  testator have a young brother and two sister alive and four niece the daughter  of his second brother who have not one farthing give they by either of the  will so that it appear the testator have no intention of give his estate to  his relation as such but only consider two of they as friend on the other side  it be only say p York t Lutwyche that the order be just and consonant to the  rule of equity and therefore ought to be affirm and the appeal dismiss with  exemplary cost accord after hear counsel on this appeal it be order and  adjudge that the same shall be dismiss and the order therein complain of  affirm jour vol p after six year litigation in the ecclesiastical court and a  hear which last seventeen day before the court of delegate that court on the  that of February unanimous pronounce a definite sentence in favour of the  first will and in consequence thereof the court of chancery on the that of  march followings order all the money security etcetera which have be bring  before the master to be pay and deliver to the plaintiff Powys The defendant  the child of Andrews afterward petition the king for a commission of review to  rehear the cause in the court of delegate but upon the report of the Lord  chancellor that no special or particular reason for grant a review have be  assign and prove his majesty be please to order that no commission of review  shall in this case be grant register lib b p