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![handle is hein.slavery/ssactsengr0229 and id is 1 raw text is: SMEE V. BRYER [1848]
£3000, together with the interest upon it, except about £890, has been paid
under orders of the Court, partly on payment of loans on the plantation, partly on
advances to the Appellants, but principally in payment of costs of the suit of the
various parties to the record.
Some of these payments appear to have been made by orders, before the hearing
of the cause, the particulars of which are not stated, and which are not the subject
of appeal. It is impossible for us to deal, therefore, with this part of the case, by
any substantive order. The only orders appealed from, are, the original decree of
the 5th of September, 1843, and the [403] order on re-hearing on the 27th and
28th January, 1846, confirming the former decree.
The decree so confirmed, after declaring that the money is to be treated as
real estate, directs the payment out of it of the costs of various parties ; and with
respect to payments made under that decree, we can deal with them, and, as far as
we may think right, order them to be refunded; but, as regards the other sums, we
have no authority to interfere. Considering all the circumstances of this case,
we think we cannot allow the Plaintiffs in this suit any costs out of the fund in
question, and, upon the whole, we think, that the proper order would be, to reverse
the decrees complained of, to declare that the compensation-money in question was
subject, as personal estate, to the disposition of the testator's Will, and belonged
to the Appellants as specific legatees; and, that the fund still remaining in Court
ought to be paid to them, and to declare, that no costs ought, by the said decrees,
to have been awarded out of the said fund, to. any of the parties in the cause, and
that all such sums as have been, under the said decrees, or either of them, paid to
any such parties, or their solicitors, other than the Appellants, ought to be refunded,
and to remit the case to the Court in Jamaica, with directions to give effect to
these declarations. In order to prevent any misapprehension of what takes place
here, it will be proper to add a declaration with respect to other payments, al-
leged by the Appellants to have been improperly made out of the fund: their Lord-
ships, upon the present proceedings, have no jurisdiction to consider them; and
any order made by Her Majesty upon this appeal, will be, therefore, without pre-
judice to the [404] right of any of the parties, in case any proceedings should be
taken by the Appellants, for the recovery of such monies.
[Mews' Dig. tit. CONVERSION AND RECONVERSION, A. 3, APPLICATION OF
DOCTRINE, d. Act of Parliament; tit. EXECUTOR AND ADMINISTRATOR,
XII. PROCEEDINGS BY OR AGAINST, i. Liability for Costs, 3. In equity, b. Of
Executor or Administrator; tit. SLAVERY and SLAVE-TRADE; tit. WILL, IV.
EXECUTION, A. 1. Under the Statute of Frauds. S.C. 13 Jur. 197; see Frewen
v. Frewen, 1875, L.R. 10 Ch. 612, n.].
ON APPEAL FROM THE PREROGATIVE COURT OF CANTERBURY.
WILLIAM SMEE,-Appellant; ARTHUR BLEWERT BRYER,-Respondent *
[July 8 and 17, 1848].
The words signed at the foot or end thereof, in the 9th section of the Statute
of Wills, 1 Vict., c. 26, are to be construed strictly.
Therefore, where a holograph Will, written on a sheet of foolscap paper, the
dispositive part of which ended on the third side, leaving, at the foot or end
of the third side, a space sufficient to have received the signature of the
deceased, and also that of the two. attesting witnesses, if not accompanied by
a formal attestation clause, was signed, with an attestation clause, in the
middle of the fourth side, no, part of the Will being immediately above it:
Present: Lord Brougham, Lord Langdale, the Right Hon. Dr. Lushington, and
the Right Hon. T. Pemberton Leigh.
VI MOORE, 403](ViewImageLocal?handle=hein.slavery/ssactsengr0229&div=1&collection=&method=preview&ext=.png&size=3)