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should remain doubtful, the scale should descend in favour of the executor. It was clear from the former will, that the deceased meant to give the legatee not a watch, but a particular watch, and, therefore, the legatee must shew that his intention had changed, and if the matter still remain ed doubtful, the executor would have the right of election subject to equitable restraints. The Court could only pronounce for the legatee if it should be satisfied that the gold watch was the one intended. In case of doubt or leaning to the contrary, the executor would be entitled to the preference. They then contended, that it was not the deceased's intention to give the gold watch, because he had it not in use as an ordinary watch, particularly at the making of the will, but having acquired it as property, he was desirous of converting it into money, and though he wore it occasionally, he constantly offered it for sale. His original intention was not to give valuable property to this nephew, but memorials of regard, family remembrances, rather than pecuniary profit, and this was manifest not only from his former will, but also from the articles associated with the gift of the watch, the gun, and manuscript book. There was no proof that the gold watch was the identical watch the deceased intended to give to this nephew, and nonconstat that the declaration of his intention to give that watch to a nephew of his might not relate to some other nephew. The legatee had therefore failed to make out his case, and they trusted the Court would pronounce for the

sufficiency of the tender of the silver watch, with costs.

Sir John Nicholl stated the circumstances of the case, and the point in issue between the parties. On the one hand, it appeared that the gold watch was a very valuable one, taken by the deceased in satisfaction of a debt, and that he had often tendered it for sale; but these circumstances were not conclusive, as it appeared, on the other hand, that the deceased, after acquiring the gold watch, constantly wore it, and only used the silver one when the gold one was sent to be repaired. It was sent to Oxford for that purpose in December, 1812, and not returned until the 7th August, 1813, when he desired his niece to take care of it, and gave her particular directions about winding it up, and it was much more likely when he made his will so soon afterwards, that he thought of this gold watch which he esteemed so much more than the silver one. The executor had brought forward the former will, contending that because the deceased had specified the silver watch in that will, that must be the watch he meant to give when he had not so specified it; but the Court was of opinion, that an opposite construction was to be put upon this circumstance: he meant to give the best watch he then had, having two inferior ones; but having afterwards acquired and used the gold watch, that would rather seem to come under the description he then used, of "my watch," and that expression to have been used in contradiction to "my brother Luke's watch." If he did not mean the gold watch,

he

:

he ought, and it was most likely he would have so expressed himself; or the common interpretation would be that it was the gold one that had thus become more peculiarly his, by purchase, and by having superseded the silver one in use but there was, besides, his declaration that he did not mean to wear it, but to give it to his nephew: this observation distinctly applied to the gold watch; the only question then would be, who was the nephew intended? and that was answered by the words of the bequest. Whatever therefore might have been his intention previously, it was evident that after acquiring the gold watch, that was the one he meant to give to his nephew, the party now claiming. The Court therefore pronounced for the gold watch claimed, with

costs.

Prerogative Court, Doctors' Commons.-Ryan and others, by their Guardian, v. Ryan.-This was a question as to the interest of parties claiming a right to the letters of administration of the effects of Philip Ryan, Esq. late of the city of Copenhagen, deceased.

He died at Hudson's Hotel, Covent-garden, in June 1808, leaving a widow, several children by a former marriage, and one by the latter, the parties in the present proceeding. The letters of administration were claimed on the one hand by the widow, and on the other by the children of the former marriage, denying the validity of the latter one, on the ground of the former wife being still living.

The evidence in support of the

widow's claim fully established the facts of the two marriages, and also that the first wife and the deceased, being domiciled in the kingdom of Denmark, had entered into a contract of separation, in which it was stipulated (amongst other things) that both parties should be at liberty to marry again with the consent of the King of Denmark, which the laws of that country empowered him to give. An act of divorce was accordingly obtained from the King; and the authenticity of this act, and its being, by the laws of Denmark, an effectual dissolution of the marriage contract between parties, subjects of that country, was proved by the evidence of some of his Danish Majesty's ministers, and persons conversant with the laws of that country.

No opposition was offered; aud Sir John Nicholl observed, that the shape in which the case presented itself imposed no necessity on the court to examine the grounds of nullity. The divorce was effectual, as a divorce a vinculo matrimonii, according to the laws of Denmark; and it was therefore not necessary to inquire whether the grounds of it would be sufficient here, as it was established that the parties were domiciled in that country: nor was it necessary to inquire whether such a divorce could invalidate a marriage had in England, if set up in a suit between the parties themselves. The present was only a case of interest; the fact of marriage was apparent, and not denied; the legal presumption was, therefore, in its favour. Semper præsumitur pro matrimonio,

and

con- Forbes Hunter Blair, Esq. banker, Edinburgh.

and this presumption was firmed by evidence. The Court, therefore, must pronounce for the interest of the widow, and decree the administration to her; but he I wished it at the same time to be distinctly understood, that such a decision could afford no precedent in matrimonial cases where similar question might be raised. Decision accordingly.

a

Jury-Court, Edinburgh, Nov. 1. -The Right Hon. James, Earl of Fife, against the Trustees of the deceased James, Earl of Fife.This important and extraordinary case-viz. whether the will of the late Earl, conveying certain estates in Scotland to trustees, the rents of which amount to 20,0001. a year, were to accumulate for the purpose of being invested in other estates, for an indefinite period, ought to be reduced, on account of certain informalities when the deed was signed, and the alleged blindness of the late Earl-occupied the court since Tuesday morning till eight o'clock last night. All the Judges were present every day, viz. the Lord Chief Commissioner, Lord Pitmilly, and Lord Gillies.

The following were the Gentle men of the Jury:—

William Dunlop, Esq. spirit dealer in Edinburgh.

Alexander Smith, Esq. banker in Edinburgh.

George Wauchope, Esq. merchant in Leith.

William Trotter, Esq. upholsterer in Edinburgh.

James Pillans, Esq. merchant in Leith.

Sir John Hope, of Craighall, Bart.

David Skirving, Esq. farmer, East Garleton.

William Calder, Esq. merchant in Edinburgh.

Andrew Bonar, Esq. banker in Edinburgh.

Alexander Charles Maitland Gibson, of Cliftonhall, Esq.

Sir John Dalrymple, of Cousland, Bart.

The Lord Advocate, in an cloquent speech, which lasted above two hours, opened the case for the pursuer. A great number of witnesses were then examined for the pursuer, which occupied the Court till-half-past ten on Tuesday night, when they adjourned.

On Wednesday the Court met again a little after ten o'clock, when Thomas Thompson, Esq. in a very able speech, which lasted upwards of three hours, stated the case for the defenders: the examination of the witnesses on that side of the question then commenced, and did not finish till near eleven o'clock at night, when the Court again adjourned.

Yesterday the Court met at the usual hour, when John Clerk, Esq. replied in a most able and ingenious speech for the pursuer.

The Lord Chief Commissioner, in a most luminous manner, then summoned up the whole.

The Jury, after being enclosed for three hours, returned with their verdict, which was read by Sir John Dalrymple, their Chancellor.

The following are the issues. which were appointed to be tried, with the verdict of the Jury there

on ;

1st. Whether

1. Whether at the date of the deeds under reduction, viz. on the 7th of October, 1808, James, Earl of Fife, deceased, was totally blind, or was so blind as to be scarcely able to distinguish between light and darkness? And whether the said Earl was at that time capable of reading any writing, written instrument, or printed book? And if, at that time, he could discover whether a paper was written upon or not;

Find, That James Earl of Fife, at the date of the deeds under reduction, viz. on the 7th of October 1808, was not totally blind, though he could scarcely distinguish between light and darkness. The said Earl was at that time incapable of reading anywriting, written instrument, or printed book. He could not at that time discover whether a paper was written on or not.

2d. Whether the said deeds were read over to the said Earl previous to the said Earl's name being put thereto; and if so, in presence of whom? And if read over to the said Earl, as aforesaid, whether they were all or any of them read to him at one and the same time, or at different times? And if at different times, whether they were deposited and kept in the room in which they were read, during the whole period which elapsed from the commencement of the reading till the name of the said Earl was put to them as aforesaid, or where they were deposited?

Find, That the said deeds were read over previous to the said Earl's name being put thereto, in presence of Stewart Soutar, and Alexander Forteith Williamson, or one or other of them. It is not proven whether they were all

read to him at one and the same time, or at different times. There is no proof whether they were deposited and kept in the room in which they were read, during the whole period which elapsed from the commencement of the reading till the name of the said Earl was put to them, as aforesaid, or where they were deposited.

3d. Whether the said Earl's name was put to the said deeds, or any of them, by having his hand directed to the places of signing, or led in making the subscription? Or if the said Earl was assisted; and if so, in what manner he was assisted in making his subscription?

Find, That the said Earl put his name to the said deeds, by feeling for the finger or fingers of another person on the spot for signature, and was no otherwise assisted than as above described.

4th. Whether the said Earl put, or attempted to put, his name to the said deeds, or any of them, at one and the same time; or whether any period of time intervened? And if there was any interval or intervals of time between the said acts, whether the said deeds, and all of them, were in the possession or custody of the said Earl, or were in the possession or custody of any other person during such intervals of time?

Find, That the said Earl put his name to the said deeds at one and the same time.

5th. Whether the said Earl put his name to the deeds under reduction, in presence of the two instrumentary witnesses, or either of them? or did acknowledge his subscription to them, or either of

them?

them? or at what period he made such acknowledgment?

Find, That the said Earl put his name to the deeds under reduction, in presence of one instrumentary witness, viz. Alex. Forteith Williamson: but it is not proven that the said Earl did aeknowledge his subscription to George Wilson, the other instrumentary witness.

6th. Whether the said Earl was, until the dates of the deeds under reduction, or at a later period, a man remarkably attentive to, and in the use of transacting every sort of business connected with his estates, and in the practice and habit of executing, and in fact did execute, deeds of all sorts connected with his own affairs, by subscribing the same with his own hand, and without the intervention of notaries?

Find, Proven in the affirmative. 7th. Whether the said Earl took means to ascertain that the deeds under reduction, alleged to have been signed by him, were conform to the scrolls of deeds prepared by his agents under his special direction, and what were the means he took to ascertain the same?

Find, That the only means which the said Earl took to ascertain that the deeds under reduction were conform to the scrolls or deeds prepared by his agents, under his special directions, were his having heard the deeds read over to him.

The Gentlemen of the Jury were allowed to go home each night by consent of the parties.

Prerogative Court, Doctors' Commons.-Glencross and Little, v.

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Underhill and others.-This was a suit as to the validity of the will of John Johns, of Ilfracombe, in the county of Devon, deceased. He died on the 20th of December, 1815, possessed of about 80001. personal property, and leaving two natural children, and several cousins, his nearest relatives. He left two testamentary papers. The first of them, No. 1, was a regularly executed will, dated the 4th of September, 1801. will he made a provision for the mother of his children, and, after some pecuniary legacies, gave the bulk of his property to his two natural children, and appointed Messrs. Glencross and Birt, two particular friends of his, executors; but there was written across the back of it the words Cancelled, and another made out." The paper No. 2, was the draft of a will prepared for the deceased from instructions, in February, 1805, but never executed. It gave away a greater sum in legacies than the prior will, but disposed of the residue in the same manner between the deceased's two children, and appointed the same executors. No.1. was propounded on the part of the children by Messrs. Glencross and Little, as their guardians (the executors having renounced), and opposed by Mr. Ambrose Bowden Johns, one of the cousins, contending for an intestacy, upon the ground of the cancellation of No. 1, and the non-execution of No. 2. It appeared from the evidence that the deceased was formerly first clerk to the Commissioner of His Majesty's dock-yard at Plymouth, and resided there with his mother, but was superannu

ated

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