burrow against Griffiths and hall prerogative court byday after Hilary term  February that it be not competent to a creditor to dispute the validity of a  will where no person who have a right to oppose a will appear the court be not  bind ex duty to call upon the next of kin to appear discuss Menzies v Pulbrook  curt dr pinfold for Burroughs James Strangeways Esq die rd December leave a  testamentary paper date that November direct his debt to be pay and give the  residue of his estate to Samuel Burroughs Esq master in chancery and appoint  he executor the paper be not write or execute by decease we be before the  court with affidavit to prove the instruction for write say paper and the  decease intention in order to obtain a probate Griffiths be the decease  apothecary and claim to be a creditor in the sum of hall likewise lee claim to  be a creditor but have not make oath of his debt decease be relate to Mr  Burroughss wife decease declare to peel his great affection to Burroughs and  send he to know whether Burroughs will take the executorship that November  Burroughs send his clerk Mr Roman to tell decease he will accept of be his  executor decease then give instruction to Roman for draw his will he go home  and draw it and in the afternoon carry it to decease who read and approve it  but say it be almost dark and he will sign it next day that Roman come again  decease say when he be better he will come to Burroughss chamber and execute  it that November Griffiths go to decease ask the nurse if decease have make a  will she say a paper be draw Griffiths bid her bring it to he she do and he  take it away with he the next day Griffiths take decease away from his lodging  in Chancerylane and put he into lodging at Doormans near Exeter exchange there  decease declare almost daily that Burroughs shall u be his executor Griffiths  write another will in which Dorman be executor but decease refuse to sign it  Griffiths have no right by law to oppose the will as a creditor dr hay for  Griffiths we as a creditor take out a citation against the next of kin to  accept or refuse administration to decease as die intestate or to show cause  why administration shall not be grant to Griffiths a creditor may show defect  in a will in order to prove a intestacy to make way for a administration to be  grant to he Dorman be a relation to decease lee affidavit for Burroughs  Magdalen Hess deponent be intimate with decease Burroughs assist he in his  lawsuit decease have great affection for Mr Burroughs who be his near relation  believe decease intend to give his effect to Burroughs John Roman Thomas  Wilkinson John Roman say Burroughs send deponent in November to tell decease  Burroughs consent to be his executor decease then desire deponent to draw his  will for he and give he instruction that his debt shall be pay and Burroughs  to be his executor if he will take the trouble and to have the residue  deponent write say instruction and then draw the will agreeable to they and  carry it in the afternoon to decease and take Wilkinson with he decease read  it in presence of deponent and Wilkinson decease say he understand the content  and desire deponent will call the next day about noon and he will then execute  it about two at noon next day that November deponent and Wilkinson go again to  decease the decease then say he be sorry to give they so much trouble but he  will come when he be better to the chamber meaning Mr Burroughss chamber and  execute it there deponent never see decease afterward believe he approve the  will because be do not object to it decease afterward be remove to another  lodging Wilkinson depose the same as Roman say decease read over the paper and  say he understand the content of it decease be very weak Ann fear deponent be  nurse to decease at Chancerylane in November decease tell lee Mr peel he be  desirous to make his will and Mr Burroughs his executor that November Roman  make a will for decease bring it and leave it on the table with decease  deponent put it in a drawer that November Griffiths lee er p ask deponent  where the will be and bid deponent fetch it to he deponent do so without  decease knowledge and he put it in his pocket and carry it away deponent  afterward ask he for it but he will not give it her George Dorman grocer that  November decease be bring to deponent house he never go out afterward decease  while at deponent house express great regard for Burroughs and say he want to  go to he to settle his affair and say to that effect the day he die very  believe decease intention be to make Burroughs his executor George Dorman John  Roman George Dorman say Griffiths take lodging at deponent house for decease  on the that November he be bring to deponent house in a chair say Griffiths  tell deponent decease twice ask in his passage where they be carry he very  believe he be remove by Griffiths to prevent his execute say will have often  hear Griffiths say he be resolve to prevent decease execute say will for he  will not have Burroughs for his paymaster Griffiths keep say will till decease  be dead Griffiths tell deponent he will arrest decease for his debt but  deponent beg he not if decease have live a day long Griffiths will have remove  he from deponent house decease frequent say he want to go to settle his affair  believe decease lee think he shall recover he die sudden John Roman say he  receive the will from Dorman George Dorman Elizabeth Winterburn Winterburn say  decease be bring to Dormans by Griffiths decease daily talk of go to Mr  Burroughs to settle his affair deponent one day look he in his room to prevent  his go he not be fit to go abroad Griffiths write a will for decease in which  Dorman be executor be and Dorman go to decease with it and Griffiths read it  to decease decease tell deponent with great vehemence that he shall have go  mad if he have sign it for Mr Burroughs be to be his executor Dorman say  Griffiths write say will of his own accord without decease knowledge decease  refuse to sign it and be angry with Griffiths deponent daily hear decease  declare his intent to make Burroughs his executor Joshua peel gentle deponent  be solicitor for decease in his law suit that November last videlicet  Griffiths tell deponent decease be very ill deponent go to decease and advice  he to make his will decease intimate he shall be glad if Mr Burroughs will be  his executor deponent tell decease he will acquaint Burroughs therewith he  desire deponent will deponent do that day tell Burroughs who express a regard  for decease and say he will send to he that November deponent meet Griffiths  and tell he he suspect he have be endeavour to get decease to make a will  deponent deny he say to Griffiths sure master Burroughs can it be endeavour to  get a will from decease or that Burroughss name be lee mention believe  Griffiths prevail on decease to go to Dormans affidavit for Griffiths Thomas  Griffiths decease be indebt to deponent l that November last mrs Hess tell  deponent decease be go from his lodging and ask deponent if be know where he  be deponent inquire and find he be at church in Chancerylane that November  deponent meet peel who tell deponent somebody have bring a will to decease and  be wonder anybody shall do so deponent say he know nothing of it peel reply  sure it can it be master Burroughs deponent ask the nurse about the will and  she give it deponent and after he have read it he return it to the nurse who  put it into the drawer deponent go again that day to decease and decease say  he want to go to some other lodging deponent ask he if he will go to Mr  Dormans he say yes and ask if Dorman will receive he and keep he from sign  deponent bid nurse give he the will and deponent take it away with he deponent  receive a message from decease to desire Dorman to come and fetch he and soon  after deponent receive a message from decease to come and accompany he to  Dormans that November deponent propose to decease to make his will decease say  he will if deponent will be his executor deponent excuse himself but advice he  to make Dorman executor deponent copy the will wherein Burroughs be make  executor only put in Dormans name instead of Burroughss deponent bring it to  decease and he say he will consider lee of it can swear to the word of that  conversation lee er p Act read Caesar Griffiths proctor allege that decease  refuse to execute the will in favour of Burroughs and be dead intestate have  hear pile Dorman and Burroughss wife be decease relation but know not in what  degree pray citation against they dr pinfolds argument for Burroughs Griffiths  as a creditor can oppose the will he can only pray a constat of the estate the  presumption that decease have depart from the will arise from his decline to  execute it on the that and that November may be oust by proof of his intention  continue be declare he will come to Burroughss chamber to execute it that  Griffiths take the will away and on the that November he remove decease into  his own custody even then decease always speak of Burroughs as his executor  and of go to he to settle his affair therefore be continue in the same  intention dr hay contra for Griffiths if a will be invalid a creditor may show  it to be so that he may obtain administration a creditor for that reason may  show that a nuncupative will be not make with the formality require by the  statute in this case there be only one witness who depose to the instruction  and give they be the only act decease do in support of the will but his refuse  to execute it when he have a opportunity both on the that and that November  and his never execute lee it afterward be clear a departure from it and render  it invalid as be determine by the delegate in the cause of William and win  vide above p and late in this court in the cause of lady Ann Jekyll against  Jekyll as there be no act of the testator appear upon the paper the court can  grant probate of it without first cite the next of kin judgment sir george lee  I be of opinion a creditor have only a right to have a constat of the decease  estate to see whether there be asset sufficient to pay the debt but can not  controvert the validity of a will for it be indifferent whether he shall  receive his debt from a executor or a administrator and if a creditor be admit  to dispute the validity of a will it will create infinite trouble expense and  delay to executor and therefore I hear dr hay objection to the will rather as  a friend curio than as counsel for Griffiths ndly I be of opinion since nobody  who have a right do appear to oppose the will that the court be not oblige ex  duty to order a citation to issue to call the next of kin if there be evidence  enough to satisfy the court that the paper before I be the will of the decease  I be sufficient find to grant probate to the executor rdly I be of opinion the  affidavit sufficient prove this will the law do not require more than one  witness to prove instruction and they be prove by more than one witness but in  few case the decease voluntary give the instruction send to Mr Burroughs to  know if be lee will be his executor Mr Burroughs do not see or influence he be  read the paper know the content and declare both on the that and that November  that he will execute it though he decline do it then after that time it be not  in his power for both the will and the testator himself be in the custody of  Griffiths who endeavour to get a will from he which the decease refuse to  execute and during the whole time he be in custody to the very day of his  death be constant declare a permanency of the same intention in favour of  Burroughs which differenced this case extreme from the case that have be cite  for in those case there be no declaration to show a continuance of intention  after the testator have decline execute they and therefore I pronounce for the  will and decree probate to Mr Burroughs I observe that only three relation to  the decease be mention in the act two of who have clear knowledge of the will  to wit Dorman who have make several affidavit in the cause and mrs Burroughs  wife to the executor and yet they do not think proper to oppose the will that  creditor have not any title by law to administration that they be only grant  to they by the practice of the court when nobody else appear to accept they  that griffith behaviour have be so have and his affidavit be contradict in so  many in particular by the other affidavit that if the decease have die  intestate I will not have trust he with the administration if any other person  will have take it but with respect to cost I give only l S d the common cost  of a motion because under the circumstance of the case the court can not have  grant probate unless the will have be lee prove by affidavit and therefore Mr  Burroughs have not be put to any extraordinary expense by griffith opposition  lee er p pit against Fendall and jones prerogative court caveat day march that  the renunciation of a executor reject dr Simpson for pit Roland pit die a  widower march devise a leasehold and freehold estate to Leonard pit my client  by his will date that Dec and give the residue of his estate real and personal  to William Fendall and William Jones in trust to raise money to pay his debt  and legacy and mortgage and to discharge encumbrance on the estate give to  Leonard pit and then in trust to convey the remainder to his son Elijah pit  and make Fendall and Jones executor he leave duplicate of his will in their  custody they have not take probate but never renounce and have act as executor  Leonard pit in file a bill in chancery to establish this will and to have the  estate devise to he discharge from the encumbrance the executor appear and  assent to the will be establish the matter be refer to a master pit be entitle  to cost but there must be a legal representative of decease before cost can be  decree in January pit cite Fendall and Jones to accept or refuse probate or to  show cause why administration may not be grant to a three person to  substantiate proceed in chancery that citation be return and they do not  oppose such administration but find that will not answer our purpose we  afterward take out a citation to show cause why they shall not be lee compel  to take probate on account of their have act as executor we shall show they  have intermeddle for they assent to and order Elijah pit to take possession of  the real and personal estate of decease and join with he in release a debt due  to decease from one fling they have assent to a legacy a leasehold estate for  year be bequeathe to pit on which decease have charge a mortgage for a term of  year they join with pit in take a release from the mortgagee and assent to its  be convey to pit they have join with Elijah pit the residuary legatee in  convey real estate which by the will be make equitable asset we have affidavit  to verify these fact they have none to contradict they Jones have give a proxy  of renunciation in which he do not deny have act dr hay contra for Jones  Fendall be dead the question be whether Jones be oblige to take probate that  January he be cite to accept or refuse probate or to show cause why  administration to substantiate proceed in chancery shall not be grant Jones  appear bring in the will and declare he have no objection to such  administration be grant afterward he be cite again to take probate he do not  appeal whereupon he be excommunicate but it be do irregular without a schedule  c the court declare it void a special proxy of renunciation be exhibit by  Jones the foundation of the motion be that Jones have act as executor but we  shall insist he have not Fendall and Jones be make trustee by decease will to  pay debt c and then to pay the residue to Elijah lee pit decease son Jones in  a few day after decease death deliver his duplicate of decease will to Elijah  pit who take possession of the effect that be a evidence Jones never intend to  act as executor he act as a residuary legatee in trust but not as executor  affidavit ex part pit Leonard pit that February decease die that march make  Jones and Fendall executor and residuary legatee in trust for his son who by  consent of the executor as deponent very believe possess himself of decease  effect that march Jones read decease will and by consent of the executor  Elijah pit enter on decease estate executor act as such in join with the son  in purchase land of fling on which there be a mortgage to decease to secure a  debt of due from fling to decease which the executor allow he to retain as  part of the purchase money and give fling a discharge for the say as if it  have be pay they join with the mortgagee to convey a term to deponent on the  leasehold estate devise to deponent by the will they have keep the will in  their custody dr Simpson argument we shall show what act by law amount to act  as executor to oblige they to take probate they may assent to a legacy and  receive or discharge before probate roll abridgement assent to a legacy  subject a executor to a devastavit in case there be not sufficient asset  acquit or release a debt be act more Anderson enter on a term for year be act  in this case the executor have assign a term Wentworth off ex say lee er p  assign a term be act when a executor lee have act he can renounce Godolph  discovery can Jones Mod vent levinz in that case though administration be  grant the ordinary may revoke it and compel the executor to take probate off  ex f suit against administrator he plead in bar that there be a executor hold  a good plea these executor assent to the devise of the leasehold estate to  Leonard pit and join in make the devise effectual without such join by they  that estate will have be liable to the creditor their assent as trustee will  not discharge the estate from the creditor they be devisees of the real estate  for payment of debt which be therefore equitable asset fling owe decease  nobody but executor can give he a discharge for that debt the law will presume  they act as executor dr pinfold same side in six year time since the testator  death somebody must have act none but the executor can act because they have  not renounce Elijah pit can not take possession of the effect but by assent of  the executor Jones deliver the will to he and assent to his act fling estate  mortgage to decease for Elijah pit buy that estate and the executor release  that debt more be Rep Stokes and porter case a acquittance of a debt of l be  hold to be a administer prerog Hudson and short the executor intermeddle in  some slight particular hold he can not renounce but must take probate none of  our fact be contradict dr hay and smalbroke for Jones we admit the law as cite  but insist Jones have act only as lee a trustee not as a executor and  therefore can be compel to take probate his consent that the son as residuary  legatee shall act be not a act himself but a decline to act as executor it  will be hard and unreasonable to compel he to take on he the burden of the  executorship against his will by which he may be involve in lawsuit for his  life JUDGEMENTSIR george lee I observe it be admit on both side that Jones  have act under the decease will and as he be both trustee and executor and  have not renounce the law will presume he have act in his superior capacity  that of executor but in this case the matter do not rest on presumption for he  have clear act as executor in discharge the debt due from fling which he can  not do as a trustee but must therein act as executor and have thereby  determine the option be original have of take on he the executorship or not I  therefore reject his renunciation and assign he to take probate of decease  will by the that of April a