Prerogative Court, Nov. 1...
-1 -- .-I 31LCU mlis to ric a cauie or proving, in siolemn form Of lawV, the last will andi test,noet of the late Abrahiam MonteFiore, Hsi., formerly of $tamford.hill, in thic county of 11iddlesek, butt lately deceased, at LAYOns, in France -at which Vlace, dn his retvrn to tnglandt, lie was takeni suiddenly ill on the 24th of August last, and dle(l eally on thle following morning. Thte cause was promnoted by Airs. tlenrietta Illonteflore, widow, thie relict, anid residuary legatee naumedl in- the satid will 'against AMoses Mionteflore, (the bro'- tlier), Nathian Meyer Rothshid, and'Daniiel Mlocatta, Bsqrti., three of' the executors niamedl in a formier will of' the deceasied. The allegation niow brostght In on b~air of Ir.Mnelr propounded' as the decease&si last ti'il anti testament4t a paper mark. eti C, and pleaded the circunisvance~ untid wvhichi that litper Weis iutade. It wag in the first pilace; liowever, Iteces-sary to informi the Couryt, that thlis question was broughit before it, by all parties coni- cerned , iti the nmoit armicableabhape that suich a matter could pom8isi bi'apperi and the learned couinsel wvas suire thiat hiis learned lrri~end `(Dlar. L1utashington) would agree withi him in.statiitg that thie sole intention was to htave tile benefit of thie Court's opinion upon a ca-se, certaittlY olsome difficulty,. At present he (Dr.Jennier) would only suibm-it thiat ~he alleyatitin ought to be admitlted, and( that if thle facts there in pleadedt should be duly: proved, the papier C would be entitled to the psobate of this Court. Dr. 1,181eXGO~ r, oni behalfofthie eXecut6rs named in a will eXecuted by the dleceased oni Ithe ail of' Mlay, 1820, admittedl that hiis learned friend h4ad trttly stated thtat tite case was brouglit before the Court by Parties who were perfectly amicable ; atid amonig whamn there was not the slighitest dlegree of' dlistrustl or a want otf confidence in one atiother. lit order that all their legal rights might be duly as. cerralned, and ax mnatter of necessity under the d iffisult clrcttm- stances of the eas4e, the Couirt, therefore, was called upon for its opi- nion on the validity andI eff'ect of the paper set up on th'e other sidte, The ffsrts to be statedl were briefly these-the deceased beinag pos- sessed of' a very large Property, bothi real and personal, but the pr sonalty nttch exceeding the realty, was travelling in France, 9here he was Omtae ill on the nighlt of' the 24th ot'August last, at Lyons, and died about one o'clock ott the inorniitg of the niext day, the 2,5th. Ile hail first, however, commienced the paptr C, anid wati prevented from concludingK It, as lie (Dr. L,ushingtort) would adutiit, by tite itt- tervention of deatli. The Court woaldl perceive, thierefore, tchat co'intsel in this c;ise could not at all rely on any of those argumients which were usually resorted to4n cnses of' imperfec-t testaments, to sho adprure of intention oni the part of the deceased attlte timeof h=dath wtrepet to this unfinished paper. It woultl,lowever, bear. gued,thtatsurlpaedidnot contain thiefinal andi comypleteintentions of' the deceased ; ,nd that 'were the Court to dercre probate to it, it wouild have the efflect.not of carrying into execution the last testamien- tary intentions of' the deceased, but ofidefeating those whichi he had already forinallycdeclared and recorded. The first testamnentary papeci of wh'ichi the Court or tite parties hiuti any- intimnation, was the will of' the 3d of' Slay, 1820, (iniarked A), wlhereby lie directed that the executors thierein namied should place the sum of 25,0001. in the Eniglishi fuinds for each of his twvo suns-namiely. Josepht and Na. titan Slceyer-, and his dauighter Chiarlotte ; anid 15,01181. forIllary, his daughter by a formiertitarriage, slIte htaving somne thime previously had settled upott her by the deceased 14,0001. iii the 3i per cent. consuls. The TCsidue of liis protperty, with thieexceptien of certain legacies, hie left to his wife, letnrietta illonteriore. But this will, even, could not legailly convey hiis real estates. (consisting of NSrOAit.ipark f'arm, and the Brightoni farin, in the countv ot'Sussex,) which he lmad pur. clitased about eight years previously fotr the paper, being signed by only one witness, could niot convey thec really, of' whichl the deceased was pOssessed at tue thane of his death). The paper then proceededl to dlevise certain legacies to the Jews' Synagogue, to puildic chtaritie);, &r., and appointed four executorr-.-his wife, IIenrzietta Alonteflore, Ihis brother, AMosies, atid N. Al. Rothischild, oend Daniel Alocatta, Esqrs. At several imiies between MNay, 1820, and Autgust, 182'2, and previouslIy to hisi realizing all the immetnse property now before the Cort dcased p)urchased anidinvested in tiifrereat English securities in the names of each of' his children, Joseph, Nathaniel, Cltarlotte, anid liouisa (the latter htyving been born subsequently to the wiil of' Mlay, I8MO), and as a provision for themn, rso muchl of' Englishi stock as would amiount to l0,t00oi. sterling eachi. This was done prevI- ously to l1iii mnarriage withi Alirs. Henrietta Mlonteflere. and at the saine time he inivested in his own name, and that of htis daughiter by the first marriage,, tiete 14,0"I1 3 per cents.. It 'ens betsveen tite latter end of 183, an the beginning of thie year 1824, that the de- ceased wrote the papers niow brouighit in andi Marked D, E, and F. By one of thie.c, miade at a tinle wvhen he anticilpated thie birth of' atiother chiid, it seas certainly very clear that lie m-eanit a depairture of some sort or other t'rom the wvill of' Mlay, 1820; for after reciting that he was already blessed withi five childlren, for eachl of whomx lie hiad iavested in the l'unds to tuie amTount of 10,0001. sterling, iie be- quneathedl, in the event of his death, to AMrs. Mlontet'iore his house in Starnford-hltl, and a1so hisg farm, called WVoTtli-park, until sudli time as his eldlest s-on should be of age to initerit it ; to hi s second( son his other estates in Sussex ; anti in case he should not survive the ciiild thien about to be born, lite des5ired that its portion shioulti be dlouble, in order to miake it about equal to that which hiad been alreadv settled oni eachi of its brothers andl sisters. These papers (D), E, antIlF further bequieathed to his wife 6,0001. a year, until his sons and dagtesholhaetaid each of thent a certain age ; aind af'ter that everit, instead of 6,0001., 4,0001. per aninum, with powver to will away at her decease stock it) the amount of 100,0001. He devisecd certain trusts, and spoke of hiis wife as sole exectutrix buit whether this intenitioni applied only, to the stock, or to the WhLole property, counsel coxttd not determTine. All this undoubtedly proved a chiange of intentiont from the will of S1ay, 18-20 ; but paper C was by no meants sufficienit to he taken for Cthe ilitimafton of so dlecitlled a chiange as the cleceasedl evidlently dlesireti to intimate. The Court ivoulti observe, that after all these last. namned bequests sliould have been execuited, there woulul still remaini a large fartuine to be dispiosed of. Sitch was the statecof the deceased's testamientary papers, wlten, beinig at Lyons, on his retuirn to Eng. laiiti from France, af'ter hiaving been foe somTe monthis in a danigerous4 state ol'illness, he became sen,sible, ott tIle 24thi of August last, about live flours before his dislton,ofitsi approachi ; andA lie saidl to one Louis Mazzara, whlo accottipanieI filmi on hisjotiriey-'.' M1aszzira, yout mutt promise me that mny body shall be transferretd to lonidoni if'ter my dleath." 11azzara hiaving promisedl compliance, deceased addetd, " I wish something Ce be given to poor Wlilliam thtis yovng man is very clever, anti it may assist himn." This was a Illiam WVoodley, whio was his servant, and to whiom he spoke of' giving, 1,0001. ; but hbe gave no further directions on stiat head, only in. qesiring of Airs. lontefiore wlhat wages Woodley received I' Two physicians having presenitly arrived to p-ass Cthe night wvithi him, de. ceased satl( to Dr. MSartin; (one of thiei) andl Sazzara, and taking Ctien, both by the handsq, " My frietids, I take you tor witnesse.-i tltat I made about fotir years ago"-- nod theni lie stoV'edan asked Slazzara whiat was lthe French for " will," and being toild, he plroceedted-1" Yes, yes; MY ' testaMent' four years ago; but I do not wish it any longer. I dlo away withi it, and I wishl to maRke anothier. I leave to my sot, Joseph, the farmn of Wortht.park ; anitl to my son Nathaniel, tile farm at Brigltton.'" Dr. Martens then in. terrupted hiim by representtiug tiat it would be better to put dowvi hlis intenCions in writing, lIe coniplied with this; and the paper B was written by Iiim attendant Mlazcara, in presence of all the parties, in Freiich ; and then it was read over both to and( by thie deceased, wvho next desIred WVoodley to wrrite it in English,whicb Woodley accord. ingly dlid ; the samnebeing paper C, whilch was prepared precisely pur- suant to deceased's dictation), except the words " tWS is nty lastwil and testantent," whichi Wiootlley adided of his owrn accord amat. ter of form. Paper C ran thus-" I leave iny son Joseph Sonteflore WIortth.park.fainv andI to mny son Natbianfel, the Brighton farm and all my other property I leave anid bequeath to my deaLr wife, lienrietta IMVontetiore. This is my lasit will atid testa- inient. I w-.---" (rncomplete.) Deceased having approved the paper, was by hifs Edesire raised up in bed, and-imade an attempt to take a pen antl write something on it himself but' from bodily weaknessi was iticapable of doing so, beym thle letters " I v." Hie then took some wine, and renewed'his efforts; but becoming quite exhausted by continued convulsions, was inca- pable of writing. -ie theni uttered in English either the word "1and," or 11 I wish," whenl he wais seized with a violent spasmn that sgo affected his organs of speech that the few words he could utter in F'rench and English were incomprehensible by those around him; and after repeatedly testifying a desire to do something mnore to the paper (C), even wheni speechless, lie expired. 'T'he learned counsel finall conteded t at aertC did isot even fulfil the evidlent inteit. lion ofdecesedat tis astperiotl of his life, as in the case of the 1,001.to oodey;that It was not likely lie meant to reduce the portonsof is hilren, or to g:ive so enorimous a residue to his wife, and hereore he Curt wouild reject it. Dr.JEsxERandDr. PHILLIMfORE, (in the contrary, strongly contende that probate ougbt to be given to thins paper (C). Notlilng couldl be more obvious than thle unbounded, and dolbless weil. merited, confitlence which the deceased reposed in his lady; and he ihcuslenuh fel assured, that, considering the ages of his chidre, h lid lftthem an amrple provsisson for the present, whil the miht rasoably expect, from her-care and tendeiness, futue tstamntay bnefits hereafter. If the Conrt (did not give effct o tis ocuent, C, it was difficult to imagine any pos,sible stat of cicumtanes under which it would give effect to any im- perectpapr, lthugh it was a well-known nslie of law to do so us mch s pssile,where the act of Goed alone liad intervened, as in tis nstnce toprevent its conipletion. Inanswer to a question from the Judge, counsel statedl the amont f te dceaed' pspery t besomewhiere between 400,0001. at~oes,andthemagntud oftheproexty, he woulddfrsnec iN Tt5~OOO5 O - ALLNGl, ESQ. DEOEA6Vb. PREROGATIVEg COURT. Nov. 16. ,r,IU:NTItlORE AGAINST MONTEFO1RE A.ND OTIUTiS.