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ing in its procedure to the Common Law, but also, in all respects where it could be done, resembling the other in its principles.
The general subject of the court and its practice we do not propose here to discuss. It is our intention only to touch upon one point, and that is, the mode of treating or administering the subject of costs which obtained under certain conditions in the Prerogative Court, and which has been, inter alia, invocated into the new court, as we have seen.
In the Prerogative Court a wholesome equity prevailed upon the subject of costs, after sentence given for or even against a will or codicil. This equity might be claimed, and would be allowed to a next of kin or to an executor, under circumstances which, in a common law court, would have brought upon either a condemnation in the costs of the other side. An ousted next of kin might impugn the execution of a will, the capacity of a testator, or his freedom from control or importunity; upon any of these suggestions, he might impose upon an executor a searching curial inquiry into all the circumstances preceding, attending, and following the preparation and execution of a will. He might set up, in antagonism to the will, an array of facts which would call for a rebuttal, or at least an explanation. He might do all this, and fail in obtaining sentence against the will. And yet the court would not only not visit him with the executor's costs, but would give him all the costs of that unsuccessful opposition out of the testator's personal estate.
Again, an executor might set up (or as it was called propound) a will or a codicil, which the court, upon better information than the former possessed, might pronounce against. And yet the executor's costs would be allowed him out of the estate. This was a practice of the Prerogative Court constantly acted upon, and never liable to be misunderstood by the judge or the practitioner. The principle which underlay this practice may be formulized thus:-It was an assumption that a man might set up a will, and that a man might dispute a will, without necessarily, in case of failure, being culpable of such conduct as should make it requisite or desirable that he should be punished with costs; for costs are,
VOL, VII. NO. XIII.
undeniably, as much a punishment to the one party as they are an indemnification to the other. The court supported this assumption, by holding that the matters and circumstances attending the preparation and execution of a will might be entirely out of the personal ken of either executor or next of kin; and that, independently of the instrument itself, all necessary information might have to be gained from other persons, who might colour, garble, or altogether withhold from the interested inquirer all that vitally concerned him, and that he most wanted to know. An inquiry made by such a person, under such circumstances, the judge knew to be always useless, and generally impracticable.
This state of things, in the opinion of the court, plunged the party into an inopia consilii, disabling him as well from inquiring accurately, as from deciding justly, upon his own case, from which the court only could relieve him, by making the inquiry as well as pronouncing the decision for him. But as the court made the inquiry for him on general principles, and for the protection of society, it followed that the court should relieve him from the consequences of costs, if his conduct in promoting the inquiry was marked by no more than a just regard to his own legitimate interests. And this was the practice of the court which we are now considering
Dr. Tristram, in his excellent little treatise upon the practice of the Probate Court in contentious matters, lays down Four Canons upon this subject. He says—"Where a party bas unsuccessfully contested the validity of a will, and his case comes within one of them, he will be entitled, subject to certain limitations which will be mentioned, to costs out of the estate.
"1. When a party has been led into the contest, whether as plaintiff or defendant, by the state in which the deceased has left his
papers. “ 2. When there is reasonable doubt as to the testator's testamentary competency at the time of the execution of the will.
“3. Where a party, principally benefited by the will opposed, has been guilty of improper acts, which have exposed him to the suspicion of fraud or undue influence in procuring its execution.
“4. Where a case, from its peculiar circumstances, pre-eminently calls for investigation."
To these four we will venture (sit venia) to add5. Where a legal doubt exists as to the execution of the will.
These canons are so startling to a mind habituated to the study of the common law only, that we think our readers will require us to prove, as well as illustrate, them by excerpts from the reports of Doctors' Commons. We will do so from the most accessible reports, illustrating each canon in its order. We will then first cite cases in illustration of the First Canon :
In The Countess de Zichy Ferraris v. The Marquis of Hertford and Others-(2 Notes of Cases, p. 263). An allegation propounding unattested testamentary papers as codicils, on the ground of their being incorporated with the will, was rejected by the court. The expenses were directed to be paid out of the estate on all sides.
In Townley v. Watson (3 Curt., p. 770), obliterations of legacies were held to be valid as revocations. The court gave the legatees, who were opposing parties, their costs out of the estate.
In Bunny v. Hemsted (3 Notes of Cases, p. 599), certain papers, apparently inconsistent with themselves, were pronounced for, the next of kin opposing. Sir Herbert Jenner Fust directed the expenses on all sides to be paid out of the estate; observing, “It is a very proper case to be brought before the court."
The Second Canon may be illustrated by the following cases :
In Waring v. Waring (5 Notes of Cases, p. 324), a will was pronounced against on the ground of insanity. The court gave the executors propounding it their costs out of the estate. • In Borlase v. Borlase and Others (4 Notes of Cases, p. 140), a will and codicil were opposed on the ground of insanity, but a lucid interval was proved. The court gave the next of kin their costs out of the estate, observing, “I think, at the same time, that these ladies were fully entitled to put the party upon proof of the papers, that the question was one of difficulty and doubt, and I am of opinion that they are entitled to have their expenses paid out of the estate.”
In the cases of Mudway v. Smith, The Executors of Mudway deceased, v. Croft Committee of Wicks, a lunatic (2 Notes of Cases, p. 459), the court pronounced for a will of a lunatic having lucid intervals, on evidence that it was executed in a lucid interval. The court gave the next of kin her costs out of the estate, observing, “ Under these circumstances, I am clearly of opinion that the costs must be paid out of the property, as the case is one which required to be sifted.”
In Frere v. Peacock (1 Robertson, p. 456), a will was opposed on the ground of insanity, but was pronounced for. The court gave the next of kin his costs out of the estate.
With regard to the Third Canon, we will cite Jones v. Godrich (3 Notes of Cases, p. 510). Here a will was pronounced for, but circumstances being proved showing that the transaction on the part of the executors was tainted, the judicial committee said,
“ We think this litigation was fully justified,” and gave the next of kin her costs out of the estate.
The following are illustrations of the Fourth Canon :- Keating v. Brooks and Others (4 Notes of Cases, p. 273). Here one of the attesting witnesses to a will deposed that her name was forged, and that the paper propounded was not that which she had subscribed ; and the other attesting witness deposed the contrary. The court upheld the will, but gave the next of kin their costs out of the estate. The court said, “ It is better that the costs should come out of the estate. Mr. Keating is the writer of the will himself."
Again, in Gregory v. Her Majesty's Proctor and Others (4 Notes of Cases, p. 643), the court pronounced, “ After much hesitation and doubt, those were the papers intended by the deceased to have operation as bis will, and that he executed in compliance with the act.” Here the court gave all parties their costs out of the estate.
In Coventry v. Williams (3 Notes of Cases, p. 172), a paper was propounded by the executor, and probate was refused of it. The court gave the executor his costs out of the estate, was necessary to propound it."
In James v. Roberts, West, and Others (3 Notes of Cases, p. 324), an executor and an intervening party propounded a will as revived, but the court held the contrary. The court gave the costs of all out of the estate.
In Payne v. Trappe (5 Notes of Cases, p. 485), the court did the same thing under the same circumstances; and so, also, in Neate v. Pickard (2 Notes of Cases, p. 409).
In Symons v. Tozer (3 Notes of Cases, p. 55), the will of a testator was pronounced for, though it was made at a late period of his life, and contained a disposition totally at variance with a former will, and repugnant to a motive recorded in that will. But the opposing next of kin obtained a decree for his costs out of the estate. The judge said, “My opinion is, that the case required to be investigated, and that the party opposing the will, from the circumstances stated, is entitled to his costs out of the estate. The facts of the case required investigation."
In Wood and Others v. Goodlake, Help, and Others (1 Notes of Cases, p. 160), of which most persons have heard more or less, the confusion lay at the door either of the testator or his executors. The judicial committee, in giving judgment, said, “ We think it reasonable and proper, in this case, that the costs of all the parties, as well here upon the appeal as in the court below, should be paid out of the estate.”
Lastly, in Hudson v. Parker (3 Notes of Cases, p. 250), when a will having been pronounced against for defective attestation, all parties' expenses were decreed out of the estate.
We come now to the Fifth Canon. In Leech and Others v. Bates, (6 Notes of Cases, p. 708), two codicils were pronounced for, the witnesses deposing against their execution, but the presumption being for it from other circumstances. The court gave the costs of both parties out of the estate.
In Brooks, formerly Reeve, v. Kent (1 Notes of Cases, p. 100), the question raised was as to the construction of the 1 Vict., c. 26, B. 21, upon alterations made by the testator in his will. The judicial committee of the Privy Council directed “all costs to be paid out of the estate.”