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![handle is hein.slavery/ssactsengr0110 and id is 1 raw text is: MRETEMEYER V. OBERMULLER [1837-38]
the parties benefited by the Probate; but which condition, after the Probate had been
granted, the Appellants refused to perform.
III. Because upon the pleadings and proofs, no other sentence ought to have been
pronounced but that which has been appealed from.
[92] Elizabeth Nicol, the wife of the Appellant, died pending the Appeal.
Dr. Lushington and Mr. Rennalls, for the Appellant.
Mr. Burge, Q.C., and Dr. Addams, for the Respondent.
Sir Herbert Jenner, after stating the facts of the case, observed that their Lord-
ships were of opinion that the Probate of the testamentary paper in question ought
not to have been revoked; that it was admitted that the proof of the paper had been
obtained, not only with the concurrence, but at the instance of all the parties, among
whom was the Respondent's husband; and that unless fraud or circumvention in
the obtaining the Probate was satisfactorily proved, the admission of the paper to
Probate was conclusive: that though it might be true, as urged by the Respondents,
that the proof would not have been allowed to be made, but upon the condition of the
parties concurring in the arrangement for the division of the property, yet that as
they were all connusant of their interests, and acted deliberately and advisedly, and
without fraud, the circumstance of the agreement not being carried out as some of the
parties contemplated, was no ground for varying a decree of the Court of Probate,
which could only be reversed upon the clearest proof of fraud and circumvention in
procuring it. Their Lordships were therefore of opinion, that the Decree of his
Excellency the Governor, sitting as the Court of Ordinary, must be reversed, and the
Appeal allowed.
[Mews' Dig. tit. WILL, vii. PROBATE AND LETTERS OF ADMINISTRATION, e. Revocation
and Alteration of Grant.]
[93] ON APPEAL FROM THE SUPREME COURT OF BERBICE,
WILLIAM CHRISTIAN RETEMEYER,-Appellant; JAN FREDERICK OBER-
MULLER,-Respondent * [Dec. 2, 1837; Feb. 6 and 8, 1838].
The terms of the 11th rule, see. 25, of the Orders in Council of 20th June 1831
[Stat. R. and 0. 1899, pp. 1672, 1674], for allowing appeals from British
Guiana, Trinidad, and St. Lucia, if the security given is completed within
three months from the date of the petition for leave to appeal, are prohibitory
on the Court, and cannot be waived by the consent or subsequent appearance
of the Respondent to the appeal. Their Lordships, under the circumstances,
however, upon a petition for leave to appeal, notwithstanding the default,
being presented, advised the allowance of such appeal [2 Moo. P.C. 98].
A claim and demand in convention having been filed by an executor against the
heiress-at-law and legatee, concluding that the intromissions in his qualities
of executor, guardian, and attorney, should be declared to be in every respect
good and proper accounts, and that the legatee should be bound and con-
demned to receive over such accounts, and to give a legal discharge and
exoneration; and the Defendant having put in an answer in convention, with
a declaration and demand in re-convention, requiring distinct accounts in the
form therein specified,-the Court rejected the demand of the Plaintiff, and
condemned him to render the accounts in the form required by the Defendant.
The Plaintiff having been compelled by process of gyzeling to make presenta-
tion of the accounts, was subsequently summoned before the Roll Court, in
accordance with the practice then, newly established; and having made default
of appearance, he was ordered to be attached: and notwithstanding he objected
to the proceedings as irregular, execution was levied, and his goods placed in
Custodia Regis, to abide the sentence of the Court. The Defendant having
presented a petition to assess the pecuniary value of the sentences obtained
Present: Lord Brougham, Mr. Baron Parke, Mr. Justice Bosanquet, and the
Chief Judge of the Court of Bankruptcy [Sir Thomas Erskine].
938
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