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to answer the said contempt; and that the appellant should be injoined from transferring or disposing of any annuities, tallies, or orders in the Exchequer, or any capital stock in the public Companies, or other estate or effects of the testator; and that notice thereof should be forthwith given at the Exchequer, and to the Bank of England, South-Sea, East-India, and other Companies, and to such persons as had any of the testator's estate and effects, or were debtors to his estate.

Upon a certificate made by the Serjeant at Arms, that the appellant could not be found, so as to be taken, the Lord Chancellor, on the 20th of January 1723, was pleased to order, that a commission of sequestration should issue, to sequester the appellant's real and personal estate, till he should comply with the said order of the 19th of December, and the court should make further order to the contrary. Which sequestration accordingly issued, and by virtue thereof, the appellant's goods at his houses at Westminster and Isleworth, were actually sequestered.

Whereupon the appellant appealed from these orders of the 18th and 19th of December, and the 14th and 20th of January, insisting (J. Darnall, H. Henchman), that, by the constant usage and known laws of this realm, it belongs only to the Ecclesiastical Courts, to determine upon the validity of a will, relative to personal estate; and more particularly, whether the testator was sane or insane, and whether such will was duly made and published, or not. That it did not appear, nor was so much as suggested by the respondent's bill, that he had any probate of the will, by which he pretended to [510] be executor, or had even propounded such will in the Prerogative Court, as in fact he had not; but, on the contrary, it appeared by the respondent's own bill, that the appellant had a probate of the will, wherein he was named executor, granted him by the proper court, and the same still stood unreversed. That no account ought to be demanded in a Court of Equity, of a personal estate, to which the plaintiff, by his bill, cannot shew a good and legal title, or that he hath a lawful demand upon, or interest in such personal estate; but this the respondent had not done, nor could he by the laws of the realm do it, till the validity of the will, of which he claimed to be executor, was determined in his favour by the Ecclesiastical Court; and in case the will, whereof the appellant was made executor, should continue to be established, it could not be pretended, that the respondent had any sort of pretence to any part of the estate; and therefore the demurrer ought at least to have been allowed, till it should appear, that the will whereby the appellant was made executor, was not valid. That the several matters for which relief was prayed by the respondent in the Court of Chancery, were not only within the jurisdiction of, and cognizable by the Ecclesiastical Court, but a suit and proceeding was actually depending in that court, when the respondent's bill was exhibited; and if both courts should be allowed to proceed at the same time, it might occasion a contrariety of decrees or determinations in the same matter. That it might also be of mischievous consequence, and give great encouragement for groundless and vexatious suits, if, in cases where any person dies, leaving a considerable personal estate, and having made a fair and legal will in writing, it should be allowable for any one of his kindred, upon a nude allegation that he died intestate, or was non sane, to exhibit a bill in Chancery, and suggest a dispute to be depending in the Ecclesiastical Court, touching such will; and then pray an account, and that the whole estate may be brought before a Master, till the dispute be determined. That the order of the 19th of December contained, in effect, a decree upon a motion, and carried the matter farther against the appellant than could reasonably have been expected, had the cause been at hearing; for the appellant could be charged with no more than payment of the money in his hands, and delivering up the securities, and a general account directed to see what was in the hands of the parties; but here was a positive order, which ascertained the sum of money to be paid, and that sum to depend upon the proceedings in the Ecclesiastical Court. That as the testator had by his will made the appellant executor, and thereby intrusted him with the care and management of his estate, no order ought to have been made to divest him of that trust, unless there had been some evidence of the estate being in danger, or of the disability of the party, or a wilful wasting of the same; but of which there was not the least evidence before the court, at the time of making this order. That the testator's will, whereby the appellant's children were residuary legatees, being his last will, and proved as such, must be taken to be a good will, till [511] the contrary