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![handle is hein.slavery/ssactsengr0371 and id is 1 raw text is: 1 SP. ECC. & AD. 105.
(105] IN THE GOODS OF THOmAS SiITH, Deceased. Prerogative Court of
Canterbury. Nov. 5, 1853.-A testator duly executed his will, appointing his
wife, H. S., universal legatee for life. She dies. He then marries her sister,
and afterwards dies. The Court refused to grant probate of the said will as
- unrevoked by the incestuous marriage upon an affidavit of the facts, without
the pretended widow having been first duly cited.
[S. C. 18 Jur. 180.]
T. Smith died on the 16th of February, 1852, having duly executed his will on
25th April, 1837, in which he named T. H. and W. W. executors and universal
legatees in trust, and directed them to convert the whole of his personal property
into money, to invest the same in the funds, to pay the interest thereof to his wife,
Hannah, during her life, at her decease to his daughter-in-law, Eliza Tugwood, during
her life, and at her death, to his grandchildren absolutely.
His said wife, Hannah, and W. W. died in his lifetime, and T. H. survived the
testator, but died without having proved the will.
On the 6th May, 1850, the testator was married to Elizabeth Flavell, widow, who
is still living.
An affidavit of J. S., an old and intimate friend of the testator, and of his wife's
family, to the. effect that Elizabeth Flavell is the natural and lawful sister of the
testator's first wife, Hannah, was brought in with the certificates of the two marriages
annexed.
Counsel now moved the Court to decree letters of administration (with the said
will annexed) to be granted to the said Eliza Tugwood, and submitted that there was
sufficient proof of the nullity of the second marriage, and that, consequently, the said
will was not thereby revoked.
Sir John Dodson. What is stated may be perfectly true, but it is a matter of too
great importance for the Court to decide upon the single affidavit which is before it.
J. S. certainly states himself to be an old and intimate friend of the parties, and swears
that the second wife was the natural and lawful sister of the first. In that case no
doubt the marriage is null and void, and the will remains in force; still, I apprehend,
the Court cannot, upon the evidence before it, entirely ignore the fact of the second
marriage, and grant this motion without having the widow, or the pretended widow,
cited. It may be true that she has been informed of this application, and has refused
to make an affidavit of her own incest; but I think the Court is bound to require
official notice to be given to her, and to have her cited, to shew cause why letters of
administration, with the said will annexed, should not be granted.
Proctors for Eliza Tugwood, Thomas & Capes.
[106] IN THE GOODS OF DAVID DOWNER, Deceased. Prerogative Court of
Canterbury, Nov. 23, 1853.-Testator, having duly executed his will, became
afterwards of unsound mind; and while in that state destroyed it. Having
partially recovered he expressed regret, and gave directions for the preparation
of another will to the same effect. Before this was prepared, he destroyed
himself. Probate granted of the unexecuted draft of the original will.
[S. C. 18 Jur. 66.]
)avid Downer, late of Watford, in the county of Hertford, destroyed himself by
drowning, on the 10th April, 1853, and at the coroner's inquest held upon his body a
verdict of temporary insanity was returned.
The deceased was married on the 16th November, 1846, and in the month of
October, 1850, being then of perfectly sound mind, gave instructions for his will to
Henry Fellows, his brother-in-law, a farmer, near Watford, and requested him to
prepare it in accordance therewith. But Mr. Fellows, deeming it right to have
professional assistance in the matter, gave the instructions, with the concurrence of
the deceased, to his own solicitor, Mr. Clark, who thereupon dreiv a will in accordance
therewith, giving the whole of the property of the deceased to his wife, Ann Downer,
and appointing her and Mr. Fellows executors. This will was duly executed on the
27th October, 1850.
In the spring of 1851, the deceased began to shew symptoms of derangement of
intellect, which continued to increase until the deceased was generally believed by his
friends and relations to be of unsound mind.
On a Monday evening in the month of October, 1851, the deceased being at the
IN RE SMITH](ViewImageLocal?handle=hein.slavery/ssactsengr0371&div=1&collection=&method=preview&ext=.png&size=3)