Page:The English Reports v1 1900.pdf/635

trustee, entered into possession of the testator's real estates, of the yearly value of £6000 and received the rents and profits thereof; but litigated the validity of the said will and some codicils thereto annexed, and opposed the proving of the same in the prerogative court, to which suit the appellant as one of the next of kin of the testator was made a party, and had notice and summons served upon her, or her agent; and thereupon the will was propounded by Baker, and several witnesses were examined to prove the validity and due execution thereof; and afterwards, the Marquis appealed to the Court of Delegates from a gravamen. William the last Marquis of Powis, by his will, dated the 28th of April 1747, appointed Lord Montjoy, James Travers, John Allen Pusey, and William Goostrey executors, and thereby devised to them and their heirs, all his castles, manors, and real estate, in trust for such person or persons, and for such uses, intents, and purposes, as he by any codicil to his will, executed in the presence of three or more credible witnesses, should declare and appoint. And afterwards by a codicil, dated the 6th of February following, he appointed the said trustees, by and out of the rents, profits, and produce of his real and personal estates, or by sale or mortgage of a sufficient part thereof, to raise money sufficient to pay his debts, legacies, annuities, and funeral expences, and the expences of the trust; and [357] he gave the residue of such rents and profits to the respondent, the Earl, then Lord Herbert, for his life, and after his decease, to his first and other sons in tail male.

On the 8th of March 1747, and pending the principal cause in the Ecclesiastical Court, the last Marquis died, leaving the Honourable Barbara Herbert, spinster, his niece and heir at law, who afterwards intermarried with the respondent, the Earl of Powis.

As soon as it became known that the last Marquis had made such disposition in favour of the respondent the Earl, it occasioned great surprise to the family, he being no way related to the deceased, nor ever had any friendship, correspondence, or personal acquaintance with him; and Lord Montjoy having renounced the executorship, Travers, Allen, Pusey, and Goostrey proved the will, and possessed all the personal estate of the testator to a great amount, and entered upon and received the rents and profits of part of his real estate, and permitted the respondent, the Earl, to enter upon and receive the rents and profits of the residue.

After the death of the last Marquis, Travers, Allen, Pusey, and Goostrey, with the approbation of the Earl, carried on the suit against Baker in the Court of Delegates, relating to the validity of the will of the Marquis, the father; and by threatening to put the laws in execution against Baker as being a Papist, and actually prosecuting him thereon, they prevailed on him to assign his legacy of £1000 to the respondent, and to renounce the probate of the will and codicils; but not till the respondent, the Earl, had solemnly promised Baker to pay the appellant's said annuity of £200 and the arrears thereof, which Baker had much at heart, the appellant's father having, upon his death-bed, earnestly recommended to him the payment thereof; and thereupon administration, with the will and codicils annexed, was, on the 11th of May 1749, granted to the respondent the Earl of Powis, as assignee of the said James Baker, for the said legacy of £1000 without notice given to the appellant or her agents of the proceedings, though the appellant had a preferable right to such administration, not only as the eldest daughter and next of kin of the first Marquis, but as devisee of the said annuity of £200, and had the appellant been apprised of such proceedings, she could by law, and would have prevented it, and been herself the administratrix, and thereby been in possession of the personal estate of her father, to the amount of £37,900, which was sufficient to have paid all her father's debts, and her annuity of £200, with an overplus of £13,900 and upwards, which then would have been under the management of the appellant; and the executors of the Marquis the son consented, that the will and codicils of the Marquis the father should be established, all which proceedings were had without any notice being given to the appellant, by the respondent the Earl.

The appellant having been thus deprived of the administration for want of notice, soon after presented a petition to his Ma-[358]-jesty King George II. for a commission of review, and to rehear the cause; the consideration of which petition his Majesty was graciously pleased to refer to the Lord Chancellor; and