Dr.  Hay  contrk,  for  Jones.  Fen  dall  is  dead ;  the  question  is  whether  Jones  is
obliged  to  take  probate ;  8th  January,  1753,  he  was  cited  to  accept  or  refuse  probate,
or  to  shew  cause  why  administration  to  substantiate  proceedings  in  chancery  should
not  be  granted.  Jones  appeared,  brought  in  the  will,  and  declared  he  had  no  objection
to  such  administration  being  granted ;  afterwards  he  was  cited  again  to  take  probate :
he  did  not  appear ;  whereupon  he  was  excommunicated  ;  but  it  being  done  irregularly
without  a  schedule,  &c.,  the  Court  declared  it  void.  A  special  proxy  of  renunciation
is  exhibited  by  Jones ;  the  foundation  of  the  motion  is  that  Jones  has  acted  as
executor ;  but  we  shall  insist  he  has  not.  Fendall  and  Jones  were  made  trustees  by
deceased's  will  to  pay  debts  &c.,  and  then  to  pay  the  residue  to  Elijah  [555]  Pytt,
deceased's  son.  Jones  in  a  few  days  after  deceased's  death  delivered  his  duplicate  of
deceased's  will  to  Elijah  Pytt,  who  took  possession  of  the  effects ;  that  is  an  evidence
Jones  never  intended  to  act  as  executor ;  he  acted  as  a  residuary  legatee  in  trust,  but
not  as  executor.
Affidavit  ex  parte  Pytt.
