Dr.  Pinfold's  argument  for  Burroughs.  Griffiths  as  a  creditor  cannot  oppose  the
will,  he  can  only  pray  a  constat  of  the  estate  ;  the  presumption  that  deceased  had
departed  from  the  will  arising  from  his  declining  to  execute  it  on  the  27th  and  28th
November  may  be  ousted  by  proof  of  his  intention  continuing  ;  he  declared  he  would
come  to  Burroughs's  chambers  to  execute  it.  28th,  Griffiths  took  the  will  away,  and
on  the  30th  November  he  removed  deceased  into  his  own  custody,  even  then  deceased
always  spoke  of  Burroughs  as  his  executor,  and  of  going  to  him  to  settle  his  aflfairs  ;
therefore  he  continued  in  the  same  intention.
Dr.  Hay  contr^,  for  Griffiths.  If  a  will  is  invalid  a  creditor  may  shew  it  to  be
so,  that  he  may  obtain  administration ;  a  creditor  for  that  reason  may  shew  that  a
nuncupative  will  is  not  made  with  the  formalities  required  by  the  statute ;  in  this  case
there  is  only  one  witness  who  deposes  to  the  instructions,  and  giving  them  is  the
only  act  deceased  did  in  support  of  the  will ;  but  his  refusing  to  execute  it  when  he
had  an  opportunity  both  on  the  27th  and  28th  November,  and  his  never  exe-[551]-
cuting  it  afterwards,  was  clearly  a  departure  from  it  and  rendered  it  invalid,  as  was
determined  by  the  Delegates  in  the  cause  of  Williams  and  Wynne  (vide  supra,  p.  419),
and  lately  in  this  court  in  the  cause  of  Lady  Ann  Jekyll  against  Jekyll,  as  there  is  no
act  of  the  testator  appearing  upon  the  paper,  the  Court  cannot  grant  probate  of  it
without  first  citing  the  next  of  kin.
