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In Gaze v. Guze (2 Notes of Cases, p. 230), the execution of a will, on the point of legal acknowledgment of the signature, was unsuccessfully disputed by a next of kin. The will being pronounced for, the judge said, “I also think, the question being created by the act of the deceased, that the other parties' expenses should be paid out of the estate."
In Hooley and M Quiggin v. Jones and Jones (2 Notes of Cases, p. 61), the execution of a will was contested. The court was of opinion that the evidence was not sufficient to support the will, and pronounced against its validity, but gave the executor who propounded the will his costs out of the estate.
In Burgoyne v. Showler (3 Notes of Cases, p. 208), a will was. opposed on the ground of defective execution under the statute, but was pronounced for. The costs of the next of kiu were decreed to be paid out of the estate.
In all these cases we trace the general principle, that there are sets of circumstances in which the unsuccessful opponent or propounder of a will, as having a right to call for inquiry (which, to be effectual and satisfactory, must be curial), or being under the obligation to support the will, has an equity which entitles him to the costs of his inquiry. It is established in these cases that costs, if they are to be considered a penalty, should be levied from the person wbo made the inquiry necessary-viz., the deceased; for the contest has arisen through his own act, or an exceptional condition in himself, or a difficulty in the application of the statute. In all these cases we have a recognition that a suit respecting the validity of a will, is not to be regarded in the same light as that which lies at the instance of a creditor against his debtor. The plaintiff and defendant in the will cause have no assimilation to the plaintiff and defendant in the action for debt, and the reason is obvious. In the will cause the plaintiff and defendant are both instituting an inquiry—are each endeavouring to arrive at truth out of a tangled web of discordant facts; the result of this inquiry they know not, and for the result they should not be personally liable.
It seems almost superfluous to speak of the good which must
result from the operation of such a principle as this when judiciously applied. It relieves an innocent man from a weight of costs under which he might sink, and it enures to the benefit of society, by encouraging an inquiry into all cases that require it.
We have thus seen the principle of the Prerogative Court, both in the abstract and in the concrete; both in the formula and in its application. It appears to us to be a principle worthy of conservation, and the legislature has been of the same opinion, by enacting its preservation-leaving, of course, its application to the judge. It undoubtedly kept the old court on its legs, in spite of a lame and vicious procedure, by securing to it the public respect.
A year has passed since Sir C. Cresswell undertook the most arduous task that can fall to the lot of man- the formation of a new court; and the legal world knows how well he has acquitted himself of that labour. Crevit enim cum amplitudine rerum vis ingenii.
The judge of the Probate Court, however, has set his face sternly against the equitable principles of costs now under discussion. It is tabooed in his court; and this valuable inheritance, transmitted to that court for the use of the public, may possibly be lost from disuse. We regret that the learned judge has exiled equity from a court which the legislature intended should have it. On this point he has thrown back the tide of equity, and left his court in all the dryness of common law. Hence we have a purely common law court, when the legislature contemplated a mixed one. This is retrogression. Judicial inquiry into will cases should be encouraged, for there is no class of cases where villany is more rife; and there is no kind of villany which can less stand the brunt of an inquiry, for the simple reason that to support a bad will many bad men must combine.
Again, an inquiry of this kind is most needed by those who are least able to pay its costs_namely, the poor and disinherited. To tax these persons with costs, in all cases where they fail of success, without regard to the nature and degree of their opposition, is not to discourage, but to annihilate inquiry, and to encourage for succeeding generations the perpetration of fraud,
by making will cases a good preserve and a sure find for malversation.
This is not merely the question of the attorney getting his livelihood. It is a question whether a compatriot, having a grievance against a dead man, shall be mulcted in a penalty to a living man, because he has demanded and obtained an inquiry into the grounds and circumstances under which that loss has occurred. The question, Who shall pay the costs? is not merely a question, Who shall pay the attorney?
But a graver sub-question is involved in it. We will even say, according to precedent, that no sympathy is required for the attorney. We will laugh at him, with the mock sympathy of the poet, who says or sings
“ Miser homo est qui sibi quod edat quærit et ægre invenit,
Sed ille est miserior qui et ægre quærit et nihil invenit !" Moreover, the injustice is obvious of withholding a benefit from the world because some few do not deserve it; and such a negation is palpably unnecessary, when it is considered that the arm of the law is always strong to reach the really peccant individual. It is like physicking a crowd for the distem per of one man. To repeal a use because of a possible abuse, should be as indefensible in law as it is inconsistent with sound ethics. It may be said that this is done to discourage litigation ; but here we have a clear fallacy. It is no province of the law to discourage litigation purely and simply. It is the duty of the courts to discourage unjust and vexatious litigation only. If all just and unjust litigation be punished alike, society is punished in the persons of the innocent for the fault of a few individuals. Under the influence of such a practice, Wood of Gloucester's case would never have received its great and world-wide adjudication, or any adjudication at all; and it must never be forgotten that that adjudication transferred immense property to miserabiles persone-persons without funds to go to war with on their own charges. fusal to allow costs will kill inquiry in the bud; it will engender morbid dissatisfaction in families, which an inquiry would have
removed or alleviated ; and it will restrain within the narrowest compass the operation of the act of parliament.
We regret that so distinguished a judge, and so able a reasoner, should have taken a course so counter to the practice of Dr. Lushington and Sir Herbert Jenner Fust; and we think that the learned judge cannot have approfondi the full logical consequences of his exceptional practice.
ART. IV.—Shakespeare's Legal Acquirements Considered. By
JOHN LORD CAMPBELL, LL.D., &c., in a Letter to T. PAYNE COLLIER, Esq. London: John Murray, 1859.
ARLY one winter's morning this year, there was great consternation perceived among
grave and thoughtful men who obey daily their sad destiny, which condemns them to pass and repass for an allotted period the south gateway of Lincoln's Inn—that gateway we mean which the frugal Benchers now piece off, and let out to a bookseller. The cause of this emotion was obvious. Large placards, in blood-red letters, were adhering to this bookseller's window, with this query printed in the boldest and most unabashed type, “Was Shakespeare an Attorney's Clerk? By John Lord Campbell.” Hardly any query could have seemed to the sage pedestrians at first sight so pointless and wild as this. Many had for years been familiar with modest advertisements wafered on these windows, to the effect that various masters wanted clerks, "respectable, sober, clever,” &c. &c., and that clerks with irreproachable hands (so far as writing at least extended) would accept of masters on easy terms. Hurried memoranda, also, might continually be seen stuck up as to bunches of keys lost late the previous evening under circumstances not mentioned, or occasionally as to a bank-note, of no use except to the owner, because the number was known, and the registered title thereto vitiated by an official caveat. It was of every day's experience that the loss of deeds, wills, and docu
ments, supposed to have been either left by a country attorney in a cab, or dropped in a square (but eventually discovered in a tavern in Fleet-street, or safe at the office at home), were advertised in this quarter. But that an unexpected question, combining the ideas of Shakespeare, Lord Campbell, and Attorneys' clerks, should here be put forth and in this startling fashion, seemed like a practical joke.
Was Lord Campbell to be literally supposed to have asked or answered the interrogatory here printed in the blood-stained type ? Had the passers-by seen propounded in like words and figures, such a question as--" IS TITMOUSE TO BE THE NEXT MASTER IN LUNACY ?” or, “SHOULD A NEW STATUTE COMMISSION (AS EFFICIENT AS THE LAST ONE) BE AT ONCE APPOINTED ?” we believe that less astonishment would have been felt.
The next step after astonishment is, to the candid mind, naturally investigation. In this instance the latter process has led us to the result, that a little book, and we may say a little amusing book, has certainly been made and published by Lord Campbell. It would appear that Lord Campbell had “a little leisure during the long vacation" of 1858, and, in obedience to a “peremptory” request of Mr. Payne Collier, his lordship undertook the duty of throwing out a few hints on the subject referred to in the placard, for the especial use of the well-known editor of our great dramatist's works; the writer having however, besides, another very natural, not to say national, motive for the labour; for, says the noble and learned author, “I myself must derive some benefit from the task.” He believed, in fact, that the mental effort of reading the plays (or studying Mrs. C. Clarke's concordance) would, for a while, draw from his “mind the recollection of the wranglings of Westminster Hall.” “In literary pursuits,” confesses the candid and enthusiastic judge, "should I have wished ever to be engaged ;” which assertion, being made in English, he quite unnecessarily proves after the orthodox fashion of ancient legal commentators, by a quotation in Latin :-
“Me si fata meis paterentur ducere vitam