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purchase of all their right and interest in the said lands; and accordingly, by indentures of lease and release, dated the 25th and 26th of October 1681, the said Rice and his wife, in consideration of £450, did release to the said Thomas Arthur, all their right and title to the said lands, and also assigned to him their said bend debt: and upon the execution of these deeds, the original will and codicil were delivered over by Rice to the said Thomas Arthur.
On the 3d of July 1690, Thomas Arthur died leaving the said Dympna his mother surviving; who thereby, under the above letters patent, became solely seised of all the said lands, and she accordingly continued to hold the same till her death, which happened on the 8th of June 1691, having previously made her will, dated the 18th of May 1691; whereby she devised the said lands to her daughter (the respondent) Christian Arthur and her heirs.
In 1702, the said Christian intermarried with the respondent John Arthur; and by articles dated the 14th of July 1702, made previous to that marriage, it was agreed that the said lands [571] should be conveyed to the respondent Dennis Daly and his heirs, to the use of the said John Arthur and Christian his intended wife, and the survivor of them, and the heir of such survivor: and by indentures of lease and release, dated the 15th and 16th of March 1713, the said lands were settled and conveyed accordingly.
Christian Rice, the widow of Dr. Arthur, being dead, and the two years after her death being expired, the appellant in Michaelmas term 1714, exhibited his bill in the court of Chancery in Ireland against all the respondents; stating the will and codicil of Dr. Arthur, the decree, certificate, and letters patent granted to Rice and his wife, and the occasion of their obtaining the original will and codicil, and delivering the same to the said Thomas Arthur; and praying a discovery thereof, and to be decreed to the title and possession of the said lands.
The respondents John Arthur and his wife, by their answer to this bill, insisted upon their title to the lands in question, under the articles of 1644, the decree, certificate, and letters patent granted to Dympna and Thomas and their heirs; the marriage-articles of 1702, the settlement of 1713, in pursuance thereof; the long enjoyment of the premises going along with this title, and that they were purchasors for a valuable consideration: they also said they did not know or believe, that Dr. Arthur was ever married to the said Mrs. Rice; or that he ever made any such will or codicil, or that the same was ever delivered to the said Dympna, or her son Thomas, or that they (the respondents) knew where the same were: and they further insisted, that the date of the pretended codicil being the 2d of January 1674, was one day after the said Dr. Arthur's death; he dying on the 1st of January 1674.
The respondent Dennis Daly claimed no other title than as a trustee for the respondents Arthur and wife, under their said marriage-settlement.—And the other respondent Darcy Hamilton claimed the lands under a lease from the respondents Arthur and wife, made in 1713 for 31 years, at a yearly rent of £80.
On the 27th and 29th of November 1717, this cause was heard; when the proof offered on the part of the appellant was, the order of the Prerogative Court for delivering the original will and codicil to Rice and his wife, and for exemplifying the same; the exemplification thereof, and the original receipt given by the said Rice and his wife; the said several certificates and patent, and other proofs of the said will and codicil: that the same, instead of being returned to the Prerogative Court, as they ought to have been, were given up by Rice and his wife to the said Thomas Arthur, when he purchased their interest in the said estate, and by him or his representative suppressed or cancelled; and that possession went [572] along with, and under the said will, to Dr. Arthur's widow and her said second husband Rice, without the least disturbance from the said Dympna, or any claiming under her.—But the court not suffering these proofs to be read, ordered that the bill should stand dismissed with costs.
The appellant therefore appealed from this decree; insisting (C. Phipps, R. Raymond), that he had made all the proof of the said will and codicil, which the nature of the case would admit of, by producing the said exemplification thereof, the order for delivering the originals out of the Prerogative Court to the said Rice and his wife, and their receipt for the same; the deposition of Richard Burke, Esq. then a clerk in the said Prerogative office, who positively swore, that he engrossed the said exemplification from the said original will and codicil, that it was a true copy thereof, and that the same