status, had not been infringed by Mr. Adam's removal from the Mauritius.

Lord BROUGHAM:-It is the opinion of all their Lordships that the case is one of great hardship, and that they are only compelled, and with much reluctance and regret, to give the judgment now pronounced, on the ground of the peculiar provisions of the French law, which has been communicated to them, after much delay and uncertainty, somewhat unexpectedly, in a way that leaves no room for doubt. They desire this expression of their opinion to accompany their judgment, and they trust that it may be available towards the relief of the party, by being represented in the proper quarter.

1837.

In re ADAM.

11, 12, & 13 December 1837.

A caveat hav

ing been entered, and a

in the Pre

rogative

Court, to op

pose probate

of a Will, on

the alleged

GEORGE ANDREW ARMSTRONG, a Lieutenant

en general in His Majesty's army, formerly of the suit instituted city of Hereford, but late of Cheshunt Park, in the county of Herts, died on the 19th of November 1834. Previous to his death, and on the 25th of October 1834, he duly made and executed his last Will and testament, in writing, in the presence of three witnesses, whereby he gave and devised the whole of his undue influ- estate, real and personal, to his wife, Mary Esther Armstrong, excepting a legacy of 1,0007., which he sufficient tes- bequeathed to his brother, the Rev. William Archibald

ground of its

having been obtained by fraud, and

ence, when

the testator

was not of

tamentary

capacity, judgment

was given in

Armstrong.

The deceased died without children, leaving the favour of the Respondent, Mary Esther Armstrong, his lawful

Will, and the parties op

posing it

were con

demned in

costs: Held,

on appeal, by

Present:-Lord Brougham, Mr. Baron Parke, Mr. Justice Bosanquet, the Chief Judge of the Court of Bankruptcy, Sir John Nicholls, and Sir Herbert Jenner.

the Judicial Committee, that the judgment admitting the probate ought to be affirmed; but that, as the circumstances of the case warranted the caveat and proceedings taken, the plaintiffs below ought not to have been condemned in costs, which were ordered to be paid out of the estate; but no order made respecting the costs of the appeal,

widow and relict, and the Appellants, William Archibald Armstrong and Harriet Ann Armstrong spinster, his brother and sister, and next of kin, the only persons entitled to his estate and effects, in case he died intestate, and William Archibald Armstrong, his heir-at-law.

A caveat was entered on the 3d December 1834, against probate of the Will passing on behalf of William Archibald Armstrong and Harriet Ann Armstrong; and a decree, obtained at the instance of Mrs. Armstrong, the widow, for the next of kin of the deceased, to see the Will propounded in solemn form.

Various scrips having been brought in, and the condidit pleading the due execution of the Will in the usual form; an allegation, consisting of 34 articles, was brought in on behalf of the next of kin, alleging a case of fraud and conspiracy, and that the Will had been obtained from the deceased by undue means, and when he was not of testamentary capacity. To this allegation Mrs. Armstrong, the widow, gave in her personal answers, and proved various exhibits to contradict the same. Numerous witnesses were also examined on either side; and the allegation having been reformed, and further answers and evidence admitted, the Judge (Sir Herbert Jenner), on the 28th July 1836, by his interlocutory decree, pronounced for the validity of the Will propounded on behalf of Mrs. Armstrong, the sole executrix, and decreed probate thereof to her accordingly, and condemned the Rev. Archibald Armstrong and Harriet Ann Armstrong in costs.

From this decree the Rev. William Archibald Armstrong and Harriet Ann Armstrong appealed to His Majesty in Council.

1837.

ARMSTRONG

v.

HUDDLE

STON.

5 Feb. 1838.

Dr. Addams and Mr. C. Austin (for the Appellants.)

Sir William Follett, K. C. and Dr. Lushington (for the Respondents.)

The facts of the case upon which the decision turned are fully stated in the judgment.

Lord BROUGHAM:

This case, which comes by appeal from the Prerogative Court of Canterbury, a paper of the late General Armstrong has been admitted to probate, by which he bequeaths, with a very trifling exception, his whole property to his surviving wife, the present Respondent, who has since married a gentleman of the name of Huddleston.

This paper was admitted to probate, after very full discussion, after very voluminous pleadings, after many issues of fact had been raised upon those pleadings, and after a great many witnesses had been examined upon those issues of fact; upon part of the pleas, issues were raised, wholly collateral to the main issue, uncalled for by the facts of the case, and serving rather the purposes of vexation to the feelings of the parties, and of putting those parties to expense, than any purpose connected with the cause. The learned Judge in the Court below expressed a strong opinion upon that part of the case, in which the Court concurs. But, leaving out of view for the present those collateral matters, thus unnecessarily introduced into the cause, it is the opinion of their Lordships, after full consideration, and after hearing the whole matter, most ably argued here, that the Court below came to

a right decision upon the main subject, of admitting

1838.

V.

to probate the paper in question, although, as to ano- ARMSTRONG ther part of the decision to which the Court arrived, their Lordships hold a different opinion.

The first question raised, was, whether this paper ought to be admitted to probate. In resisting the application for probate, the course taken by the present Appellant was, to set up a case of conspiracy, the parties to which were the persons benefiting by the Will,-Mrs. Armstrong, now Mrs. Huddleston, the testator's widow, and her father and mother, Mr. and Mrs. Russell, together with several other persons, whom it would be impossible to absolve from the guilt of a participation in that conspiracy, if we were of opinion that the defence, resting upon the conspiracy alleged, was well founded.

Now it appears to us, that without entering into the particulars of the case, that even, upon the testimony which was offered in support of the charge, the case of conspiracy entirely fails. It seems enough, in my judgment, to displace it, that we should advert to the material evidence of Mr. Cleave, the solicitor, who must be perjured again and again, through the course of his testimony, who must have made himself a party to this fraud, and who must have become not only a party to the conspiracy, but a principal conspirator, if the charge of conspiracy and fraud could be supported. Mr. Cleave was connected with the family in no other way, but by the professional relation in which he stood to General Armstrong. He was a solicitor of respectable station at Hereford, a clerk of the peace for that county, which vindicates of itself the respectability of his professional station. He had been long employed by the General, while he resided at Here

HUDDLE

STON.