Page:The English Reports v1 1900.pdf/404

And in May 1743, Lawrence Davoren and James Davoren his son, filed their bill, stating, amongst other things, the will and codicil of James Davoren; and that the said John Davoron had not issue male then living, whereby Lawrence was become entitled to 3000l. upon the contingency aforesaid; and that Lawrence Davoren and James Davoren had often applied to the said John Davoren, to pay the sum of 500l. and the interest or arrears of the yearly sum stipulated by the codicil to be paid for the same, and to secure the said sum of 3000l. but that he had declined to pay the same, and wasted and disposed of the assets at his will and pleasure; and praying, that the said sum of 500l. and the interest thereof, might be paid to the said James Davoren, and the payment of the said sum of 3000l. to the said Lawrence Davoren, on the contingency aforesaid, might be well secured to them.

To this bill John Davoren put in his answer, and admitted that James Davoren died seised of an estate in fee; but said it was not considerable, and subject to the payment of many judgment debts; and possessed of a considerable personal estate, but subject also to the payment of considerable debts; and that the said James Davoren had no issue male or female, but had made his will as mentioned in the bill, and appointed defendant sole executor.—Admitted, that the said James Davoren, (who he said was always dissatisfied at the conduct of the said Lawrence Davoren) being in a weak state of health, and not of sound and perfect understanding, was prevailed on to make a codicil to his said will, and as he believed, died the next morning.—Confessed, that he possessed himself of the testator's real and personal fortune, and some terms of years, and that testator died possessed of some bond debts, and debts due on notes and account; and also possessed of a stock [19] of cattle, sheep, and horses, but that he never made any estimate thereof, but mixed the same with his own fortune; and described both the real and personal fortune to be exceedingly small, and charged with considerable debts, and that the real estate was, at the testator's death, worth only 67l. a year, and by the late fall of a life increased 37l. a year.—Said, he had, by payments and allowances made by him to Lawrence, over paid the interest money due to James.—Also submitted, that he was not obliged to give security in respect of said 3000l. legacies.—Said, he could not set forth an inventory of the assets and effects of the testator, having mixed the same with his own fortune, but admitted that he died possessed of a fortune and assets sufficient to pay his debts and legacies.

Lawrence Davoren justly conceiving that the articles of 1736, which had been so obtained from him as aforesaid, and which had never been performed or carried into execution, were void in every respect; and finding, that from the ascendancy which Edmund Hogan had obtained over John, there was no probability of his having justice done him by John, without his also proceeding in the said original suit for his moiety of his brother James's real estate under the gavel act, sued out a subpœna against said John Davoren, to elect a solicitor, and put in his answer to his said bill filed in 1732.

John Davoren, by his answer to Lawrence's bill of 1732, admitted, amongst other things, that James the testator was a Papist, and that he died without issue, and made such will as before mentioned; and said, he believed the night before his death he was of sound and disposing mind; but that on the night of his death, he by undue means (not being in his senses) was imposed upon in making the codicil thereto, which he therefore apprehended ought not to affect him.—Said, that the lands of which he died seised in fee-simple or fee-tail, were at his death only 59l. a year, out of which he paid the widow of James 40l. yearly, which left coming to the defendant 19l. a year, or thereabouts; he stated some other interests which the testator was entitled to, but said, he hoped to make it appear that Lawrence Davoren was not entitled to gavel the same with him, or at least only to the estates in fee, which he said could at most be above 19l. a year; and that the lands were, besides the 40l. to James's widow, liable to his debts. But, supposing Lawrence was intitled to an account of the profit of the estates, that he was indebted to him in 1300l. by bond, and otherwise; and that the annuity of 40l. to Eleanor, the widow of James Davoren, was a jointure charged on the real estates of James Davoren.—Also admitted, that soon after the death of James Davoren, he, as his executor, duly proved the will; and being cited by Lawrence Davoren, he lodged the codicil in the prerogative court, and admitted to have in his hands such part of the title deeds of James as were not mislaid.