1822. Trinity Term. EVANS v. KNIGHT and MOORE. has been resorted to, to exclude such as might tend to support it. The medical gentlemen who attended the deceased are twice had to the solicitor's chambers, and interrogated as to their opinion of his capacity; and this eight years after his death. Dr. Outram is apprized by one of the relatives, whom he was professionally attending, a twelvemonth before his examination, what was contemplated, in consequence of their discovering that the deceased was not married to Hewitt-namely, "the setting aside the deceased's will, which, they said, had been made while the deceased was delirious." This sort of, all but, tampering with witnesses, frequently communicates a bias; and renders the Court a little jealous as to mere matters of opinion, deposed to from recollection, especially after a long interval, by witnesses, however respectable, upon whom it has been practised. Again, if the witness Smith is to be believed, applications were made in another quarter, of a still less warrantable description. He deposes to having been present with Edward Manwaring, when a Mr. Barker, the solicitor for the next of kin, "was extremely urgent with him, the said Edward Manwaring, to call upon him, and told him, in deponent's presence and hearing, that he was sorry the other party had got him first-that Mr. Roberts could not find out his direction-that if they could have got him first, they would have managed to keep him out of the way at all events, and so to have weakened their opponent's case. Mr. Barker then asked Manwaring if the signature to the will was of the deceased's hand-writing; to which Manwaring replied that it was; and that no power on earth should induce him to say otherwise. And he said further, that Roberts knew it as well as he, Manwaring, did. Subsequent to this, several letters came from Mr. Barker to induce Manwaring to go to him; and Manwaring begged that he might be refused, if Mr. Barker should call; and he requested of the deponent to go to Mr. Barker, and tell him, that he, Manwaring, would not come to him." In justice to the professional gentleman employed for the next of kin, the Court abstains from giving full credence to this account; as the matter of the charge coming out upon interrogatories to Smith, a witness, upon the allegation given in support of the character of Manwaring, no opportunity has been afforded him of explaining or denying it. Lastly, four of the seven witnesses produced to the testator's incapacity are on the very verge of incompetency, as being the children of parties entitled in distribution; and, consequently, as having a derivative interest in setting aside the will. As to the exclusion of evidence tendered by the other party, witness the double attack on Manwaring (a), on his general character and his particular evidence; arising too out of transactions very remote in point of date, and quite unconnected with the subject of the suit. Witness, too, the objection to the competency of Hannah Roberts (b), on the score of an interest in (a) Vide page 138, ante. (6) Hannah Roberts, wife of John Roberts, was produced and examined on the part of the executors. Subsequent to her evidence being taken, an allegation was given for the next of kin, pleading, "that the paper-writing propounded, purported to contain amongst other things a bequest in the following words:"I give unto my dear wife, Mary Moore, my house, No. 19, Tottenham Court Road, in the county of Middlesex, for the re 1822. Trinity Term. EVANS v. KNIGHT and MOORE. 1822. Trinity EVANS 17. KNIGHT and MOORE. the event of the suit, acquired long subsequent to the death of the testator; so that her evidence in favour of the will, now (in a manner) rejected by the Court, would have been unexceptionable, had the question of its validity been gone into, recenti facto. Witness, again, the objections urged to the affidavit of Mr. Moore, the solicitor who prepared the will, being introduced into the cause (a). All which I would be understood to signify by these observations, is, that if parties choose to contest mainder of the term therein:-that after the death of the deceased (to wit) in August, 1818, Mary Moore (or Hewitt, so calling herself) by virtue of a certain indenture, or deed of gift, assigned or set over the said house and premises, No. 219, Tottenham Court Road, for the remainder of the term then to come and unexpired therein, and all her right, title, and interest therein, under and by virtue of the said bequest, to certain persons, in trust for her use and benefit, during the term of her natural life; and from and after her decease for the use and benefit of her children, as therein mentioned: and from and after the respective deaths of her children, then to and for the absolute use and benefit of Hannah Roberts (formerly Hewitt, she being Mrs. Moore's (or Hewitt's) sister) or her assigns." Consequently that she, the said Hannah Roberts, bad, at the time of her examination, a contingent interest in the said house and premises; by reason of which she was an incompetent witness, as having an interest in the event of the cause. This allegation was admitted, without opposition on the part of the executors. Upon the evidence, however, there was no proof whatever that the witness had any knowledge of the deed pleaded against her, at the time of her examination; on the contrary, there was every reason to believe that she was then wholly ignorant of it. But the proofs of this last not being quite satisfactory, and the counsel for the executors not pressing for its reception, the evidence of Hannah Roberts, under the circumstances, was taken as rejected. (a) Vide note (a), page 251, post, wills, under such circumstances, and by such means, they must be content to do it at their own peril. Such then is the general character of this proceeding; and the question for the Court's determination is, whether these pretended instructions were fraudulently obtained from the deceased while in a state of delirium and incapacity. I apprehend there is no medium: it is not resolvable into a case of erroneous impressions, as to the state of the deceased, on the part of those privy to, and connected with the transaction. The adverse case, indeed, set up is, that the transaction, throughout, was bottomed in fraud, and has been sustained by perjury. It even appears that suggestions have been thrown out of forgery, as if the date and signature to the will were not, as alleged, of the hand-writing of the deceased. This was suggested to Manwaring, as appears by the answers of Smith to the 3d interrogatory, in part recited above; and is also suggested in the answers of the parties to the allegation propounding the will. And the witness, Hewitt, deposes to having been shewn a letter from a nephew of the deceased to Mrs. Browne (formerly Moore, or Hewitt), in which he asserted "that the deceased's pretended will was a forgery; that she, Browne, and Hewitt, had perjured themselves; and that if they knew no better, he would teach them." The circumstances of this case hardly require, perhaps, a preliminary statement-that where mental aberration is proved to have shewn itself in the alleged testator, the degree of evidence necessary to substantiate any testamentary act depends greatly on the character of the act itself. If it purports to give effect only to probable intentions, its validity 1822. Trinity Term. EVANS v. KNIGHT and Moore. 1822. Trinity Term. EVANS v. KNIGHT and MOORE. may be established by comparatively slight evidence. But evidence, very different in kind, and much weightier in degree, is requisite to the support of an act, which purports to contain dispositions contrary to the testator's probable intentions, or savouring, in any degree, of folly or phrensy. What then are the features, and what is the character, of the testamentary act, set up in the present case? It is precisely such a disposition as natural affection would dictate. The testator bequeaths by it his whole property, in equitable proportions, to his wife and children. If, in truth, the mother of these children were not his lawful wife, this rather increases, than repels, the presumption in favour of the act. In addition to natural affection, it rendered some measure of the sort absolutely incumbent on the deceased, in point of moral duty; as his intestacy in that case would have left this mother and her children wholly destitute, and unprovided for. But the conformity of these bequests with the deceased's probable intentions does not rest upon their accordancy with natural affection, and moral duty, merely; they are conformable with the deceased's constant and repeated declarations, spoken to by both sets of witnesses, as to the disposition of the major part of his property, that consisting of the leasehold houses. There is no evidence, indeed, of any precise declarations of the deceased as to his intentions with respect to the residue; but to whom was it probable that this should be bequeathed but to his children? Now the presumptions in favour of a will of this description are strong, and it is capable of being supported, according to what I have already observed, on comparatively slight evidence. What the |