Page:The English Reports v1 1900.pdf/1079

divided between his said four sons, William, Robert, John, and Charles, and made his wife Dame Ann executrix.

Sir William Hedges, being on his death-bed, and intending more effectually to secure the said £3000 to his said sons John and Charles, but not as an advancement for them within the custom of London, or to deprive them of their shares of his personal estate under that custom; did, on the 5th of August 1701, (being only two days before his death,) direct, that the bond from the Mercer's Company to him for the said £3000 should be delivered up, and another bond taken for the same sun, in the name of Sir James Bateman; and this being immediately done, he directed Sir James to keep that bond for the appellants John and Charles; and, on the same day, Sir William gave his said daughter Susannah £4000 in Bank bills, saying, that he gave her them, in lieu of the £4000 which he had given her by his will.

Soon after this transaction, and on the same day, Sir William was visited by one Mr. Nicol, a gentleman at the bar, and brother to Dame Ann his wife; and, being desired by Sir William to take his will, and insert therein the name of his son Robert, whose name was in some part of it omitted, the will was for that purpose, and that only, produced; but Mr. Nicol being told, that the bond from the Mercer's Company had that day been delivered up, and another taken in the name of Sir James Bateman, in trust for the appellants John and Charles; and that Sir William had also given his daughter Susannah £4000 in Bank bills, in lieu of the £4000 given her by his will; he (Nicol) without any direction from Sir William Hedges, or even acquainting him with what he was going to do, and without the least intention of prejudicing the children (who were his own nephews) by so doing, took pen and ink, and drew a line through those words in the will, which gave the £3000 in the Mercer's Company to the said John and Charles, and the £4000 to the said Susannah; saying, that the same being so given as aforesaid, ought not to stand in the will. He then acquainted Sir William with what he had done, and his reason for doing it; and desired him to republish his will, which he accordingly did, wholly relying on Mr. Nicol's judgment; and on the 7th of the same month of August 1701, the testator died.

[459] The appellant Dame Ann proved the will; but the respondents being then abroad, no account was, or could be stated or settled till their return, which was about twelve months afterwards; when Dame Aun gave them an account of the whole of Sir William's personal estate, and in what manner he had disposed of it, both by his will and otherwise, and particularly informed them of the transaction relative to the £3000 bond; and after stating a fair account of such personal estate, which the respondent William kept by him for several months to look over, and then returned without objection; it appeared, that the clear residue thereof, exclusive of the said £3000 being divided into four equal parts, amounted. for each fourth part, to the sum of £2518 12s. 5d. And this sum each of the respondents received, about a year and a half after the testator's death, and gave receipts for the same accordingly.

But the respondent William having on some occasion, about four years afterwards, further examined the account of his said father's estate, discovered that there was still due to him, in respect of some small particulars, more than he had already received £36 15s.; the executrix therefore, on the 2d of May 1705, paid him the same, and he thereupon, by a receipt of that date, setting forth how that £36 15s. became due, acknowledged that the same was by him received, in full of all demands out of Sir William Hedges's estate. In December following, the other respondent, Robert, made a demand of £25 more than he had received; and the executrix having accordingly paid him that sum, he, by a receipt of the 18th of that month, stating how this further sum became due to him, acknowledged the payment thereof, in full of all demands out of his said father's estate.

But notwithstanding these several payments and receipts, the respondents thought proper in Michaelmas term 1706, to exhibit their bill in Chancery against the appellants; insisting, that the #3000 due from the Mercer's Company, and given to them by Sir William Hedges in his life-time as aforesaid, was either a full advancement to them out of his personal estate, and that therefore they ought not, by the custom of London, to have any share of the orphanage part of such personal estate; or if not an advancement, and they could be entitled to any share of such orphanage part, yet