Vice-Chancellor's Court, ...
im r. E7 A jir statect tte platitills in this case to be the representa- tves of the real-and personal estateof a certain devisor end the. the defendante were the perwoas to wbom. bequests anld deviaMt bad-b.,aL made by him. The devisor made, in the year 1814 a 'wiU by which he disposed of the estate he then postessea - and this will was duly executed in the manner rcquired by law for pbasing real estates. 5 made another will in the year 1818, bv which, he 1 ade a difeteunt disponition of hir property, and this will also appeared upon the face of tt to be executed with all the prescribea legal formalies. The family of the devisor were, however, aware that the signatures of the attesting witnesset had not been affixed to the will in the piene of the devisor, bat had, in fact, been added after his Ldeath. The executors had propounded the will of I818 in the Ecdesiastical Court, and had obtained probate thereof as the last will of the de- ceased. They were, tberefbre, unquestionably in possession of the personai estate; and the present suit was instituted by them in order to procure the decision of the Court as to which was the w?ll of the devisor with respect to his real estate. The beir at law, who was- one of the defer,dants, insisted that the will of 1818 was inoperative, an. account of the inaccuracy of the attestations: the will of 1814, he' admitted, had been duly executed, bnt the testator bad since written upon, mnterlined, and altered that will irn so many different places as amounted to a cancellation of it. The e=ecu- tors being uinable to discharge the trusts of the wiil, and to proceed to a sale for the purpose of making a due distribution of the effccts, hecause the objections which werc raised to both wills prevented them from making a title to a purchaser, came to ask the Court to direct an issue for the purpose of trying which of the wills was the valid one. M11r. ROUrPELL, for the heir-at-law, denied that either of the wills I could be established, and objected to the issue az praved by the bill. ThIe VICE-CHANCELLOR said, that under tbe bill as it stood now, thie C(ourt couldl not grant the issue prayed * but as a slight amendment would be sufficient to enable it to do so, and as it was desir.hle for all parties to obtain the decision of the disputed point at as little expense as possible, he thought it weuld be better for the defendants to consent to the necessary amendmentts, and he would then direct such an issue as would answer the purpose. Mr. Ro u PELL proposed to obviate the difficultv, and to give the executors a shorter ar4d better opportinity of trying the question by, bringing an ejectnent at the suit of the hsir-at-law. The executors would be obliged to defend such an action under one or both of their wills, and thus their validity would at once he tried. But as a con- dition for this, lie must stipulate that the bill must be dismissed aainst the heir-at-law. The VICF-CHANcEL.LoR could not dismiss the bill. The exe- cutors, although the will was in dispute as to the real estate, had proved its validity so far as S rsonslty was concerned. An ac- count must be taken before the Hster of the latter estate. lie, how- ever, suggested again, that for the benefit of all parties concemed asr issue of devrsomit ncl nots should be tried. This would indude aEl the questioas in d.ispute, and would decide wbether either, and, if either, which of the wills could subsist. After a short conference, the couisel on both sides agreed to this proposal, and the issue was accordingly directe. VICE-CRA^NcC,o,T' .ORTnT- xr- --- DOVEnL V. 'EALDS A.n I flT T V -