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III BROWN.
HAMPDEN v. HAMPDEN [1709]

in the testator's books, it was said, that if that were the case the respondent could have no benefit by the decree, and consequently the appellant had no reason to complain of it; but that, howsoever the appellant ought not to make such an objection, and much less ought he to profit by the default of his testator, who kept all the partnership accounts; and it was by those very accounts, and no other, that the appellant was to be charged.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and the decree therein complained of, affirmed. (Jour. vol. 18. p. 463.)


Case 4.—Edmund Hampden,—Appellant; Richard Hampden,—Respondent [31st March 1709].

[Mews' Dig. xv. 645. Followed, on point as to presumption, in Williams v. Williams, 33 Beav. 306.]

[A. being examined as a witness touching the existence of the will of B. it was objected that he was an interested witness, because the testator owed him money, and having charged his estate with the payment of his debts, the witness had no remedy, unless the pretended will was established; but this debt appearing to be a mortgage made by the testator's ancestor, the objection to A.'s competency was over-ruled; because his security could not be effected, let the event of the cause, as to the will, be what it would. J. S. the heir at law of A. artfully obtains the original will of A. from the executor and devisee, and, by suppressing it, lays claim to the whole real estate; on a bill filed, the court declared, that the contents of the will, thus suppressed, ought to be most strongly presumed against the defendant, and to be taken, as stated in the plaintiff's bill; because, if the bill were otherwise, it was in the defendant's power to make it so appear, by producing the same if he thought fit; and therefore it was decreed that the plaintiff should bold and enjoy the estate, until the defendant produced the will, and further order.]

1 Wms. 733. Viner, vol. 13. p. 540. ca. 1.

Previous to the marriage of Edmund Hampden and Elizabeth his wife, the father and mother of the present parties, certain lands at Great Missenden, in the county of Bucks, were settled on the husband and wife for their lives, with remainder to the first and other sons of the marriage in tail; remainders over.

Edmund the father being, in the year 1692, greatly involved in debt, prevailed with the appellant, his eldest son, to join in suffering a recovery of the settled estate, for the purpose of raising money by mortgage to discharge the debts: this was accordingly done; and though the particular uses of that recovery are not stated, yet it seems probable, from the circumstances of the case, that the father was made tenant in fee.

On the 24th of August 1701, Edmund Hampden the father died, having first made his will, and thereby devised all his real estate to the said Elizabeth his wife, and her heirs, etc. and also [551] bequeathed to her all his personal estate, and made her sole executrix.

Soon after the father's death, the appellant, who was a solicitor in Chancery, went to Missenden to see his mother; and, having desired to see his father's will, the same was shown to him, when, without expressing any dislike to it, he insinuated that it ought to be proved in the Prerogative Court, and that to save his mother the trouble and expence of a journey to London for that purpose, he would take the will with him, and procure it to be duly proved there: and, under this pretence, the appellant actually got the will into his custody.

Repeated applications were made to the appellant, by and on the behalf of his mother, to restore the will, but without effect; and he taking an unfair advantage of this circumstance, laid claim to the whole estate as the heir at law of his father; and, upon an allegation of his having died intestate, the appellant exhibited his bill in Chancery against the mother, for an account of the rents and profits, and against the mortgagees for a redemption. But the mother, instead of answering his bill, made an

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