notice, including all inquiries made, was done by the husband alone. The attempt to shew that the wife had obtained knowledge of what was requisite and had tutored the husband as to the notice he should give with a view to concealment wholly failed. The wife swore that on her only visit to the registry the proper officer was absent, and she got no information from any one. If this was untrue, the officer who gave her any information might have contradicted her. If it was true, the husband, when he went to the registry and gave the notice, must in all probability, have acted without the wife's concurrence, for they were both ignorant before he went of the details that would be required, and would have hardly concurred in a common design to falsify them. If these conclusions are warranted by the evidence, the marriage would be valid though tested by the decisions applicable to marriages by banns. For the suppression of a dormant christian name was held, by Lord Stowell, in Pouget v. Tomkins (1), not to constitute an undue publication of banns; and even if it did, the concurrence of both parties in that suppression would be necessary to annul the marriage under the provisions of the statute. I must notice one further feature in this case before I conclude. At the time of the marriage, although the husband was a minor, there was no person in existence who had the legal right to assent to or dissent from its celebration. Suppose, then, it had been celebrated by banns, could the Court have held it invalid for want of the true names being published? I very much doubt it. It does not very distinctly appear whether, in all the cases in which the marriage of a minor has been held void, there has been a dissenting parent or guardian; but the reason of the thing would seem to demand that there should have been the absence of such consent. If this be not so, the further question might be asked, What if the parents had actually consented? Would the absence of such a publication of names as would be likely to give them notice of the intended marriage be sufficient to annul that marriage if they had all along been parties to it and given their consent? It is not necessary to decide this matter in the present case; it is enough to have glanced at it. If my previous conclusions

are correct, this marriage was a valid one; and the Court so pronounces it.

Attorneys-Thomas White & Sons, agents for R. B. B. Hawkins, Woodstock, for petitioner ; Purkis & Perry, agents for Dayman & Walsh, Oxford, for respondent.

MATRIMONIAL.

1868. May 5. Alimony-Wife Subpœnaing Husband in Support of Petition-Rule 86.

ANDERSON v. ANDERSON.

A wife may subpœna and examine her husband in support of her petitio for alimony.

An answer having been filed to a petition for alimony pendente lite, an application was made under Rule 86. for an order that the husband should attend for the purpose of being examined. This application was refused. Notice was subsequently given that witnesses would be examined in support of the wife's petition, and the husband was subpoenaed as a witness on her behalf. On the motion for alimony,

Searle, for the wife, called the husband as a witness.

G. Browne. It is not competent for a wife to call her husband as a witness in support of her petition for alimony. If she can do so, Rule 86, which empowers the Court to order his attendance for the purpose of being examined, is unnecessary.

The JUDGE ORDINARY.-If the husband is ordered to attend under Rule 86, his attendance is for the purpose of being crossexamined on his answer; but if he is subpoenaed by the wife, it is for the purpose of being examined, and she adopts him as her witness. As he is a competent witness on the question of alimony, the wife has clearly a right to subpoena him if she thinks fit to do so.

The husband was then sworn and examined.

Attorneys-Taylor, Hoare & Taylor, for petitioner; J. Keily, for respondent.

Will-Evidence-Declarations by Testator-Revocation by later Will not forthcoming-Intestacy.

Verbal declarations or written statements made by a testator in and respecting the making of his will, preceding or accompanying acts done by him in relation thereto, are admissible in evidence in order to shew the quality and nature of such acts.

his

Deceased made a will in 1840, and in 1867, while on a visit to a friend, he employed himself much in writing, and stated he was writing out his will, and he gave friend a paper-writing which, he said, was a copy of his will which he was going to execute. Shortly after he duly executed a will, which, however, could not be found. The paper-writing revoked all former wills: -Held, that the will of 1840 was revoked by a will made in 1867, which, not being forthcoming, must be presumed to be revoked by destruction, and an intestacy was decreed.

The plaintiff, Cuthbert William Johnson, propounded the will of the Rev. Charles Lyford, late of Albion Road, Queen's Road, Dalston, Middlesex, clerk, who died on or about the 29th of July, 1867. The will propounded bore date the 22nd of June, 1840, and in it the plaintiff was named executor.

The defendant, Henry Giles Lyford, pleaded that on the 3rd of January, 1863, the deceased duly executed another will, by which the will, dated the 22nd of June, 1840, was revoked. No trace of this lastexecuted will could be found, nor was there any evidence of its destruction. The earlier will was found sealed up amongst papers belonging to the deceased's mother, who died in 1866.

On the 3rd of January, 1863, Charles Lyford, who was at that time curate of St. Barnabas, Pimlico, was at the house of a Mr. Morey, a surgeon, and employed himself much in writing; he stated he was writing out his will, and that he intended to sign it in the presence of witnesses. Before leaving Mr. Morey's house he handed. to him a paper, which he called a copy of his will, and said it had been written by NEW SERIES, 37.-PROB. AND M.

himself at the same time and place as the will itself. According to this copy, he revoked all other wills by him at any time made, and appointed as executors and residuary legatees, James White Morey and his wife, Clara Morey. Subsequently, Mr. Morey received from the deceased the following letter:

Saturday evening (the post-mark was the 5th of January, 1863).-My dear Morey. After leaving you I went to Masters, where I duly signed my will in the presence of Wakeling and Brown, who have also signed as witnesses. I have taken the liberty of putting yourself and wife in as my executors. You will, I hope, excuse this making use of you. In case of my death, the said will shall be found in a box in the cupboard, in my bedroom, which is nearest the window. If I move, I will try and recollect to let you know where the said document is to be found. Love to you both. In haste, yours affectionately, Charles Lyford."

There was evidence given that a will was executed by the deceased in January, 1863, but not as to its contents, unless the declaration and letter of the deceased were admissible.

Dr. Spinks and Dr. Swabey appeared for the plaintiff.

A. Staveley Hill and Searle, for the defendant.

The case was heard on the 17th of April, and on the 23rd of June

SIR J. P. WILDE gave judgment as follows:-Charles Lyford made his will on the 22nd of June, 1840. About the month of January, 1863, he made another will. On the 29th of July, 1867, he died. After his death due search was made for the will of 1863, which, so far as the evidence goes, he had kept in his own possession, but it was not to be found. The question in this suit is, whether there is sufficient legal evidence as to the contents of this second will. It was proved by Mr. Morey that, on the 3rd of January, 1863, the testator was at his house; that he was writing a great deal; that Mr. Morey was in and out of the room; that the testator told him he was making his will; that he read the will aloud to him; that the testator handed Mr. Morey an envelope, which he said contained a copy of it, and which

K

he wished Mr. Morey to take care of; and, finally, he left the house saying that he meant to execute the will on his way home that evening, at Mr. Masters's, the publisher. That he did execute a will at Mr. Masters's shop about that time was distinctly proved by the two witnesses to it, who were in Mr. Masters's employ; and if the Court is at liberty to receive in evidence the above verbal statements of the testator as to his will, and intention respecting the execution of it, there can be no difficulty in arriving at the conclusion that the copy given to Mr. Morey contains the substance of the will which he executed at Mr. Masters's. But it was contended that these verbal statements of the testator were not admissible in evidence; and the case of Quick v. Quick (1) and some others were cited.

I am of opinion that the evidence was admissible. The verbal declarations or statements made by a testator in and about the making of his will, when accompanying acts done by him in relation to that subject fall within the well-known principles of the general law of evidence, and have always been admitted, although not made on oath. It would often be impracticable to judge of the quality and nature of the acts done, if the statements of the person doing them immediately preceding or accompanying those acts were excluded from view. Suppose the will, instead of being executed at Mr. Masters's house, had been executed in an adjoining room at Mr. Morey's, in the presence of witnesses, but in the absence of Mr. Morey himself. Could it be contended that the previous conversation with Mr. Morey could have been excluded? There would, no doubt, in such a case be no positive proof that the will of which the testator had been talking to Mr. Morey in one room was the same will that he executed before the other witnesses in the next room, but to exclude the evidence of what had taken place would be to preclude the Court from judging whether it was so or not. A further piece of evidence was tendered in the form of a letter written by the testator to Mr. Morey, a day or two after the 3rd of January, saying that he had made his will and appointed Mr. Morey executor, an office which he begged Mr. Morey to accept.

(1) 3 Swa. & Tr. 442; s. c. 33 Law J. Rep. (N.S.) Pr. M. & A. 146.

There is sufficient evidence, as I have already said, to establish the contents of the will without this letter, but if not, the letter was in my judgment also admissible, in so far, at any rate, as it related to the fact of the testator having appointed an executor, and the request that Mr. Morey would consent to fill that office; for this, too, was in the nature of an act done by the testator, and a declaration accompanying it. The Court, therefore, holds that the contents of the will of January, 1863, have been proved, and from these contents it appears that it revoked all former wills. The consequences of this state of things are most unsatisfactory, for as the will of 1863, which had revoked all former wills, was not to be found after the testator's death, the law presumes that it was itself also revoked by the testator. And the Court is constrained to pronounce for an intestacy. So long as the law thus permits wills solemnly executed to be revoked by the presumptions arising from their disappearance, and so long as the law forbears to prescribe any definite place of deposit for a man's will, the real and true intention of testators will be open to frustration by accident or design. It may have been so in this case, although there is no evidence to throw the slightest suspicion of misconduct upon anybody in relation to it. Still, such cases as this bring forcibly to light the jeopardy in which all wills stand which are not deposited where they are sure to be found, and safe from the possibility of foul play. There was no reason in this case to suppose that the deceased designed to alter or suppress the will of 1863, and, in all probability, it has failed to take effect through mere mischance, from which a more careful custody would have protected it. While the law remains in its present state as to revocation by destruction, the custody of a will is as important as its due execution, and no pains should be spared to secure it.

As the case stands, I must pronounce that the deceased died intestate.

On the application of Counsel, the COURT ordered that the costs of both sides should be paid out of the deceased's estate.

Attorneys-Cookson, Wainwright & Co., for plaintiff; Smith, Fawdon & Low, for defendant.

The deceased left behind him three executed wills, each of which in fact revoked the previous one. The last will was propounded by the executors named in it against the next-of-kin. The executors of the first will obtained leave to intervene to propound their will, and to plead, as regarded the last will, that it was not duly executed, that the deceased was not of testamentary capacity at the time he signed it, and that it was obtained by undue influence and fraud :Held, that the executors of the last will could not as such propound the second will as well as their own, merely to prove that it revoked the first will, and therefore deprived the executors of the first will of any interest in the estate of the deceased.

The plaintiffs Joseph Kingsworth Parton and William Page, as executors, propounded the will of the deceased, dated the 20th of March, 1867; the defendant Mary Ann Johnson, the niece and one of the next-of-kin of the deceased, pleaded that such will was not duly executed in accordance with the statute, and that on the day it bears date the deceased was not of sound mind, memory and understanding, and she gave notice under the 41st rule (Rules and Orders 1862) that she only intended to cross-examine the witnesses produced by the plaintiffs. A replication having been filed, on the 12th of May, 1868, the Court directed that the cause should be heard before itself without a jury. On the 2nd of June James Benstead Johnson and William Bills, as executors of a previous will of the deceased, dated the 18th of January, 1858, applied for and obtained leave to intervene and to propound the will under which they were appointed executors. On the 6th of June they filed and delivered to the plaintiffs and to the defendant a declaration propounding the will of the 18th of January, 1858, and on the same day pleas to the plaintiff's declaration denying the due execution of the will of the 20th of March, 1867, and the testamentary capacity of the deceased at that time, and alleging that it was obtained

by undue influence and fraud. On the 18th of June, the plaintiffs, by an order on summons, obtained leave to plead to the declaration of the interveners that the will of the 18th of January, 1858, was revoked by the will of the 20th of March, 1867, but the Judge rejected the plaintiff's application for leave to plead in addition that the said will of the 18th of January, 1858, was not duly executed according to the statute, and that it was revoked by an intermediate will, dated the 25th of October, 1865. This will of October, 1865, had no revocatory clause, but was inconsistent in its provisions with the will of January, 1858. The sole executor and residuary legatee under it died in the lifetime of the deceased.

Bayford, on behalf of the plaintiffs, applied for leave to propound the will of the deceased, dated the 25th of October, 1865, or to plead such will to the declaration of the interveners, in addition to the pleas by them already pleaded, so that such will may be in issue in the suit.Where parties intervene they must do so in reference to a particular testamentary paper, or generally on the question, what is the will of the deceased? In the first case they must have an interest in the decision as to that particular document; but these interveners have not, for their interest was put an end to by the will of the 25th of October, 1865. If the general question is in issue, all the testamentary papers ought to be before the Court, but there is no one interested in propounding the will of October, 1865.

Searle appeared for the interveners.

SIR J. P. WILDE.-The plaintiffs cannot plead to the declaration of the interveners any other plea than they have done, because they have no interest in destroying or establishing the will of January, 1858, and for the same reason they cannot propound the will of October, 1865. The next-of-kin are the only persons interested to take such a course. I cannot allow another person having no interest to propound the will of October, 1865, because the next-of-kin do not think proper to do so. I must reject the motion.

Proctor-R. W. Jennings, for plaintiffs; attorneys, Redpath & Holdsworth, for the interveners.

When contentious proceedings in a testamentary suit are referred by the Court of Probate to a county court, the Court of Probate has no further jurisdiction, except by way of appeal, over such proceedings.

Edward Macleur, the plaintiff, propounded the will of Mary Hewitt, of Birmingham, Warwickshire, widow, deceased, which was opposed by the defendant, John Macleur. The proceedings commenced in the Court of Probate, in London, but on its being proved to that Court that the personal estate did not amount to 2007, the pleadings were transmitted to the Judge of the county court for Warwick, who, on the 9th of July, 1868, made a decree that the plaintiff was entitled to probate of the will of the deceased, and condemned the defendant in the costs.

Pritchard moved the Court of Probate to confirm such decree, and to order the defendant to pay the costs.

Searle, for the defendant, opposed the motion as unnecessary. He cited Lealley v. Veryard (1).

SIR J. P. WILDE. -By the 59th section of 20 & 21 Vict. c. 77, in any contentious matter arising out of an application for probate or administration, if it be shewn to the Court of Probate that the state of the property and place of abode of the deceased were such as to give contentious jurisdiction to the Judge of a county court, the Court of Probate may send the cause to such county court, and the Judge thereof shall proceed therein as if such application and cause had been made to and arisen in such Court in the first instance. Up to the time, therefore, that the Court made the order, which transferred this case to the county court of Warwick, it had complete jurisdiction over it, and if it had been

(1) 35 Law J. Rep. (N.s.) Prob. & M. 127.

asked to do so might have made an order in reference to the costs incurred in this Court; but from the time that the proceedings were removed from this Court it had no longer any jurisdiction or power to decree costs; that power was given to the county court, and if the Judge had thought proper he might have condemned the defendant to pay all the costs from the beginning of the contentious proceedings. This application must be rejected, with costs.

Attorneys-Walker, Twyford & Belward, agents for G. F. Butt, Birmingham, for plaintiff; H. C. Barker, agent for G. W. Prescott, Stourbridge, for defendant.

PROBATE.

1868. July 14, 28.

Will

In the goods of MAY.

Revocation by second Will Revival of first Will by Codicil.

By the 1 Vict. c. 26. s. 22, in order that a codicil should revive a will which in any manner has been revoked, it must shew an intention to revive the same :-Held, that such intention will not be shewn by a mere reference to such will by date, but the codicil must contain express words referring to a will as revoked, and importing an intention to revive the same or a disposition of the testator's property inconsistent with any other intention, or some other expression conveying to the mind of the Court with reasonable certainty the existence of the intention in question.

John May, late of Twickenham, in the county of Middlesex, gentleman, deceased, died on the 2nd day of March, 1867. On the 11th of January, 1860, he executed a will, which had been prepared by his solicitors, Messss. Farnell & Briggs. By this will he left the whole of his property for the benefit of his daughter and her children, and he appointed John Kebbell Gwyn, Francis Sherborn and William Withers trustees and executors. On the 18th of August, 1860, the deceased, being a widower, married again, and on the day of his marriage executed another will, in substance exactly