Page:The English Reports v1 1900.pdf/1112

before the time limited for bringing in the same, had received at the Exchequer £150, and on the 8th and 10th of the same month, after the probate was actually brought into court, £2412 more, due for quarterly payments of the testator's annuities, at Christmas before his death, and £248 for dividends of the testator's South-Sea stock; but took no notice of such his receipts, in the inventory exhibited on the 10th of April following; and on the 17th of the same month he received £427 more, for a quarter's interest of the said annuities, due at Lady-day after the testator's death.

On the discovery of these transactions, the respondent applied to the court, and upon the 8th of May 1722, the Judge put the appellant under a monition, not to receive any interest upon, or alienate any part of the deceased's estate, pendente lite; and ordered a certificate to be made by the Register, that the probate of the said pretended will was brought into court, to prevent the appellant's receiving the interest, or transferring or alienating any of the securities belonging to the testator's estate; and in order that notice might be given thereof at the Exchequer and other places.

On the 22d of January following the appellant gave in an allegation, and moved the court, that the probate of the said pretended will might be delivered out to him, to the end he might be enabled to receive the interest and dividends of the testator's annuities and South-Sen stock, due at Christmas then last; and by his proctor offered, that the monies so to be received should be disposed of at interest as that court should direct; and prayed that the respondent might bring into court £912 10s. due for interest of the £6000 lent him by the testator, and of the further sum of £5000 for which the respondent stood bound as a surety.

The respondent thereupon insisted by his proctor, that the probate of the pretended will ought not to be delivered to the ap-[507]-pellant, but consented that the interest and dividends of the annuities and South-Sea stock might be received by the proper officers of the court, in order to be put out at interest; and that a limited administration might be granted for that purpose, pendente lite; the respondent also submitted to bring into court the interest of the said two sums, for which he stood engaged, so as the appellant would bring in the monies received by him and on the 28th of the same month, the Judge ordered that the appellant should, on the 5th of February, being the next court day, make a declaration on oath of what he had received, which the appellant having accordingly done, it thereby, and by the aforesaid inventory, appeared, that he had received out of the testator's estate, since his death, £6351 15s. 2d.

Upon a further hearing of the matter, on the 26th of February 1722, the Judge ordered the respondent to bring into court £912 for the interest of the two sums before-mentioned, on the 13th of March, being the next court day; and the appellant, at the same time, to bring into court £1000, part of the monies received by him; and when the monies should be so brought in, the same should be laid out on such securities as the court should direct, for the benefit of the parties interested.

The respondent complied, with this order; but the appellant refused to yield any obedience thereto, and appealed from the same to the Court of Delegates.—And, upon hearing the appeal on the 16th of June 1723, the delegates were of opinion, that the Judge of the Prerogative Court had not any power to order money to be brought into that court, or to direct the same, when brought in, to be placed out at interest; and therefore reversed the said order of the 26th of February.

Whereupon the respondent, on the 31st of October following, exhibited his bill in the Court of Chancery against the appellant, and the said John and Gerard Andrews his sons, and Henry Fenn and Elizabeth his wife, and others; charging, that the testator, when he was inveigled by the appellant to his house, and at and before the time of making the said pretended will, was a paralytic man, feeble in the state of his health, decayed in his memory and understanding, daily gave repeated instances of childish actions, and had not sufficient capacity to manage his affairs, or to govern himself, and was therefore easily practised and imposed upon; that the said pretended will was gained by fraud, surprise, circumvention, misrepresentation, and other indirect practices, and was not read to the testator, or not in the same words in which it was framed, or if it was, he did not understand the purport or effect thereof, nor was capable of so doing:—That the appellant, when the testator came to lodge at his house, and also at the testator's death, was in mean circumstances, and much