Boxley and French against STUBINGTON prerogative court caveat day July that  Administration cum testament fastening of the will of a marry woman make under  a power grant to the extent of that power to the person appoint by the will a  general grant the other will do you much good decree to the husband mary the  wife of William Stubington be empower by article execute before her marriage  date and August to dispose by deed or will execute in the presence of and  attest by two witness of one thousand pound of her fortune after the death of  her husband who be to receive the interest thereof during his life  notwithstanding her coverture she on the that September accord make a will  attest by two witness and appoint Boxley and French her executor and dispose  of say to several person particular she give thereof to her niece the wife of  say Boxley for her separate use and also bequeathe her wear apparel which she  have no power to do the executor propound the will which the decease husband  oppose and they produce the two subscribe witness who be stranger to the  decease do not prove identity and thereupon the executor plead that the  subscription to the will be the decease handwriting witness Joseph burst at  desire of mrs Boxley the deponent who life opposite to her go to her house and  there find a gentlewoman a stranger lee to deponent who call herself mary  Stubington the say woman then execute the will propound in presence of  deponent and William ware who be also a neighbour to Boxley say woman appear  to be perfect in her sense and deponent believe she be the decease in this  cause in it William ware go now by name of John Fernley John Fernley alias W  ware give exact the same account as burst say the person who execute the will  be a entire stranger to deponent very believe she be the decease in this cause  and she appear to be very sensible in it respondent be a barber in goodman  field deponent go by name of William ware till late when he resume his real  name of John Fernley deponent year ago take on he the name of William ware  upon a family occasion which as it relate only to himself be do not think  proper to tell his true name be John Fernley within seven year pass he have  give several receipt to his customer in the name of William ware lee er p  James The name of several plants in deponent first become acquaint with  decease he have often see her write and subscribe her name very believe the  dam mary Stubington subscribe to the will plead be her handwriting Edward  Boxley sen deponent be uncle to Boxley the executor deponent once see the  decease write her name very believe the dam subscribe to the will be write by  decease Mr Stubington in his answer which be read say he never see his wife  the decease write her name Stubington but do believe the name mary Stubington  subscribe to the will plead be write by her lee read the marriage article date  and August the will plead date that September and a former will date that  September in which decease give to mary Boxley her niece to be pay to such  person as she shall appoint for her trustee for her separate use exclusive of  her husband dr Simpson for Stubington insist that there be not a sufficient  legal proof of the factum of the will and of the identity of the testatrix  second that Boxley and French can not propound it as executor because the  decease have not power to appoint executor and three that the paper be mere a  appointment and can not be pronounce for as a will in Bridgens case a Bridgens  case be thus report in strange dominus king v dr bettesworth mandamus to grant  administration to Mr bridgem the late husband of lady Bellamont decease the  dean of the arch return that a suit have be commence before he between Mr  bridgem and a son of the decease who claim to be her executor under a will  make by her pursuant to a deed execute before marriage whereby the husband  agree she shall have power to make a will and dispose of her estate which deed  Mr bridgem have confess and thereupon sentence have be give for the validity  of the disposition but not for the executorship create thereby and thereupon a  new suit be institute by the daughter against the son and Mr bridgem for  administration with the will annex which be still depend strange a the lee  whole estate be in the wife disposal and therefore a mandamus be refuse in the  king bench but in cullum case in b r sir John strange Rep vol two p a  peremptory mandamus be grant to swear the husband administrator in that case  it be agree by article before marriage that the wife may dispose by deed or  will of a leasehold estate she make a will dispose of say estate and appoint  her mother executrix the king bench hold she can not make a executor that the  instrument be a appointment only and therefore order a peremptory mandamus to  grant administration to the husband judgment sir George lee I be of opinion  that the factum of this will and the identity of the testatrix be full and  sufficient prove second that in some case a feme covert may appoint a executor  as where a power be give her so to do as be hold in the delegate in the case  of hopegood and Delahay a Delahay v hopegood delegate d December the judge  delegate present at the sentence be Mr baton price Mr justice dorm Mr justice  Eyre dr pinfold dr strahan and dr Kynaston a but in the but a mandamus be  grant in Bridgens case in the follow year Geo on the ground that the husband  have not assent to the will and consequent do no act to exclude himself from  the right the law give he to the administration although it be admit that the  wife have a separate estate at her own disposal the case be thus report  dominus king v bettesworth to a mandamus to grant administration to the  husband be return that be wife mother have by her will give her several effect  for her separate use exclusive of the husband and to be by her dispose of as  she shall think fit she have accord make a will whereby she devise her  separate estate to trustee with who the husband be now litigate the validity  thereof in the ecclesiastical court pen which suit the dean of the arch can  not grant administration et per curian this be a insufficient return for here  be no act of the husband to express his assent to her make a will and she may  have choose in action or other right beside what be include in her mother will  in these case there must be some act do by the husband to exclude himself  which not be pretend in this case there must be a peremptory mandamus strange  the reader will find all the case which bear upon this branch of testamentary  law lee er p present case the testatrix have no lee such power give her  however that the person name executor have a sufficient interest to propound  the paper as a will and three that the act do by the decease be of such a  nature that this court can grant administration with it annex to the person  name executor that in cullum case the wife have power only to dispose of a  leasehold estate by will but she go far and appoint a executrix to who dr  bettesworth grant a general probate notwithstanding there be other effect  which she have not a power to dispose of and notwithstanding Mr cullum pray a  administration the other will do you much good which the court refuse he and  thereby deprive he of the administration of those effect which belong to he as  husband upon which ground that mandamus be grant a the temporal court only  grant a mandamus where it be clear that the right of the husband to take  administration to his wife have be infringe in other respect it leaves the  adjudication of all question as to the factum and validity of the instrument  in the first instance to the ecclesiastical court hold that it be the very  function of the court of probate to decide upon the nature of the instrument  and to say whether or not it be testamentary so far do the court of chancery  carry this principle as to repudiate the idea of the administration take for  the mere purpose of try a question in the court of chancery in rich v cockle  and rich v hull Lord Eldon say the difficulty here be how to proceed at all  for as to separate property there must be a will prove in the Commons as to  the sum of not separate property there can be no will except with the consent  of the husband a suit be institute in the ecclesiastical court call upon the  husband to say why administration of the will as to both shall not be grant he  litigate as to both contend as to the second fund that his assent be necessary  upon that question so depend in the ecclesiastical court there be no decision  whatsoever but they have take administration for the purpose of this suit No  purpose as to this suit can be answer till that question as to her will can be  decide in the ecclesiastical court sir William Scott who I have consult think  the proceed perfect incomprehensible I can here decide a question of a marry  woman as to separate property unless the will be prove in the Commons nor as  to property not separate without the assent of her husband Ves so in the case  of Hugh v turner delegate that November where sir John nchol have already  grant probate of one will of a marry woman afterward grant a special probate  of a former will and codicil to one of the executor limit only to become a  party to and to attend supply substantiate and confirm the proceed already  commence or intend to be commence in chancery and the question as to the  validity of this special probate be bring by appeal before the delegate the  court compose of Mr baron Bayley Mr justice Patteson Mr justice Alderson dr  Daubeny dr Phillimore and dr black be unanimous in reverse that decree hold  that it be the duty of the court of probate to determine which be the last  will of the decease a I therefore lee in this present case pronounce for the  paper propound as decease will so far as it be pursuant to the power of  disposition give her by the article and decree administration cum will  fastening limit sole to the she have power to dispose of to Boxley and French  as her appointees and decree a general administration the other will do you  much good to Mr Stubington the husband in case be desire it and at the motion  of his counsel order that the limit administration cum testament fastening  shall not issue under seal till after fifteen day