Bishop v. Shillito, cited in Hornblower v. Proud, 2 Ex parte Birmingham Gas Light and Coke Company, De free, Q.C. and Doria, appeared for the bank, who claimed to be eritled to whatever lien E. Lindsay possessed. He had a right to retain the ship until all the bills were paid, and the bank was also entitled to have the ship as security for the outstanding bills in their hands, without being compelled to complete the purchase. That was the common case of Ex parte Waring, and there was no necessity that there should be a double insolvency. The bank was entitled to the equities both of E. Lindsay and Marshall, Osborne, and Co., and to prove against both estates, and to take the composition under the one and the instalments under the other. They cited Powles v. Hargreaves, 22 L. T. Rep. 137; 3 De G., Ez parte Parr, Buck. 191; Ex parte Perfect, 1 Mont. 25; Ex parte Prescott, 1 M. & A. 316; Bank of Ireland v. Perry, 25 L. T. Rep. N. S. 845; Ex parte Smart, 28 L. T. Rep. N. S. 146; L. Rep. 8 Be Barned's Banking Company, 31 L. T. Rep. N. S. The CHIEF JUDGE.-After the very long argument that I have heard, it is satisfactory that one can bring the case back to a very simple shape. It appears that Lindsay agreed to build a ship for Messrs. Marshall, Osborne, and Co., for 7600ì. If he build the ship they are to pay him 76007., and if they do not pay him 76007. the ship must remain his. That 76001. has not been paid. Then, upon what ground could anyone claim to have any interest in the ship? It is one entire contract, and the substance of it is that which I have stated. The ship is, of course, proceeded with progressively; there is a stipulation for payment by way of advances as the ship proceeds. There is a stipulation that, to the extent of these advances, the parchasers shall have a lien on the ship. But all that is overridden by the general universal stipulation that, until you pay Lindsay 76001. that ship is not Messrs. Marshall, Osborne, and Co.'s, nor any interest in the ship. They can claim nothing. Now, it seems to me that that disposes of the question altogether, because, unless that state of facts can be shaken, the case of Ex parte Waring cannot be resorted to, and no other principle of law need be resorted to. Lindsay is to build the ship, and, as in the course of building, expenses are incurred from day to day, as the ship proceeds advances are to be made. The agreement is so plain and so clear that it is impossible to have any doubt whatever on the subject. The 4th clause, namely, that upon which the learned judge of the court below relies most, is that which has furnished, to a great degree, the arguments I have listened to on the part of the respondent. It is this, that the vessel shall, from the time of giving, or paying the first instalment by Messrs. Marshall, Osborne, and Co. to Lindsay, belong and be deemed in every respect, and for every and all purposes, to be the property of the said Messrs. Marshall, Osborne, and Co., to the extent of their advances. The meaning of that one knows well enough is to prevent any outside claim from being 'made upon the ship. Then, for [BANK. the better identification of the said vessel, it is agreed that certain marks shall be put upon this vessel as soon as the keel is laid; but all this shall be subject, nevertheless, to the builder's lien for any unpaid instalment. There is a stipulation for the period within which the ship shall be completed, and there is expressed in the agreement the periods at which bills are to be given as the ship proceeds; and there is, moreover, this express agreement, that all the bills given during the construction of the vessel are to be retired by Messrs. Marshall, Osborne, and Co. at the completion of the transfer, so that, although bills for 60001., or any other sums, were to be given before the completion, yet when the vessel was completed, and when its delivery was asked for by the purchasers, the whole sun must have been paid to Lindsay. That is the very essence of the contract. And then what takes place is this: 1001. are paid, and at certain periods bills of exchange are given for other sums. These bills of exchange are discounted by the bankers in the most ordinary course of trade; there was no suggestion, no stipulation that these bills were given on the security of the ship, al hough the bills do, on the face of them, mention the ship the building, but without the remotest intention on the part of anybody, discounter, drawer, acceptor, or anybody, that there should be any connection between the moneys advanced on the security of the bills and the ship in course of .uilding. It has been suggested, on the authority of Ex parte Waring, that the holders of these bills were entitled to a lien on the ship. What part of the ship, I ask? because it goes only to the extent of the advances. That is clear in the stipulation. What part of the ship, then, are they entitled to? The ship is to be one entire substantive thing, and to be the builder's, notwithstanding what I have read that it should belong to the purchaser to the extent of the advances. It is the property of the builder until he is paid. The bankers say, that inasmuch as there has been a double insolvency and a double right of proof, they are entitled to apply the principle of Ex porte Waring to this case. In my opinion, nothing can be more foreign to the principle of Ex parte Waring than the case now before me. The case of Ex parte Waring proceeds, not upon any favour to the billholders, but upon the equitable rights subsisting between the parties to the bills. The holders are disregarded for all purposes of legal claims, but in order, as Lord Eldon said-and that is the very marrow and point of his decision to work out the equity between the persons liable in a matter in which they are both interestcd, but in which neither of them can claim the property, it must be realised for the benefit of the holders, to whom both are under an obligation to pay a share. There the equity is clear, and if there be any balance it is to be proved for in the ordinary way by the billholders. What has that to do with this case? What equity subsists here? There are no equities, no legal rights that the purchaser of the ship can claim until he has paid 76001. What can he do, although there is this stipulation in the 4th clause of the agreement? Can he sell any part of the ship thus said to belong to him? Could he interfere with what any assignee or contractor might do for the completion of the ship? The object and intention of that clause is perfectly obvious. Everybody knows it is to prevent the operation of the order and disposition clause, and consequently it is not infrequent that such a stipulation is made. It can, however, have no force with respect to the completion of the ship. With respect to the double insolvency, I quite agree that it is possible, as has been suggested to me, that assignees or other persons might lay their heads together and practise a fraud on persons holding bills. I have not the least reason to say that any such thing has been done here, and I find nothing whatever resembling it. What is the state of circumstances? Mr. Marshall became insolvent. He is unable to pay his debts, and summons his creditors together, and they agree to take 58. in the pound; the billholders are bound by that agreement to the extent of Marshall's debts and his liability upon the bills. What is Mr. Marshall's position? Here is a ship in course of building, of which a small part, less than one half of the agreement price, has been paid off, and the bills which had been given have been discounted. All that he could by any possibility do was to pay the difference and insist upon Marshall the ship being completed for him. had not the means of completing the ship by paying the difference between the sums advanced by him, which certain right belonged to him, and the value of the ship. To relieve himself of the burden of this contract, he gives notice to the builders that he abandons the contract. He was free by means of the composition resolution, and he declines to have any responsibility whatever. Suppose it had been otherwise, and that his right and his interest in the contract, which revested in him by the composition, had been sold in any way, and he had bargained with anybody to sell his interest, would anyone say that the bankers, who had stipulated for nothing, and who knew of nothing, for so I must take it, had a lien ? Marshall might have entered into such a contract. Nobody can dispute that he did enter into an arrangement or engagement, whatever it might be called. That is perfectly clear on the facts. In my opinion, the case of Ex parte Waring contains law which has been very often misunderstood, but the principle of which has never been questioned. It has no sort of application to this case. If it had it would be directly in favour of the respondent, because the equitable and legal right arising out of the contract could not be arranged upon any other terms than the parties resolve. I decline to bind myself by any opinion now as to what device may be resorted to and with what success on the subject of Ex parte Waring; but in this case I find it clear and distinct that after Marshall's insolvency, and when he abandons the contract, the trustee of the bankruptcy of Lindsay, acting in discharge of the simple duty which was incumbent upon him, and, perhaps, more than his duty, has furnished money to complete the ship, and the ship being completed, it is a part of Lindsay's estate not to be affected by any transaction arising out of the bills, and not to be affected by the principle of Ex parte Waring in the slightest degree; but that by reason of the original contract, if it had stood alone, and by reason further of the conduct of Marshall, who was able to deal with and dispose of his own property, and in that view of the bankrupt's estate and that alone, the trustee is entitled to the proceeds of this ship, and that there is no ground whatever for the claim, which the bankers make, because they are the holders of the bills. The order of the court below must be discharged. [BANK. Solicitor for appellant, G. B. Wheeler, for H. S. Sewell, Newcastle-upon-Tyne. Solicitor for the respondent, S. R. Hoyle, agent for Hoyle, Shipley, and Hoyle, Newcastle-uponTyne. Monday, March 8. (Before the CHIEF Judge.) Ex parte STEBBING; Re STEBBING. Bankruptcy petition-No notice of, to debtor-Ex parte adjudication annulled-The Bankruptcy Act 1869, ss. 8 and 125, § 12-The Bankruptcy Rules 1870, rr. 60, 61, 65, 266, 267-Practice. The Bankruptcy Rules 1870, rr. 266, 267, do not dispense with the usual and proper evidence being adduced in support of the application for adjudication, and notice thereof to the debtor. An adjudication obtained under those rules, upon the ex parte application of a creditor, will be annulled. THIS was an appeal from an order made by the Registrar of the Colchester County Court, sitting as judge. Kelvedon, Essex, farmer and cattle dealer, filed a George Hutley Stebbing, of Easthorpe, near petition for liquidation in the Colchester County Court, on the 22nd Jan. 1875. At the first meeting, held on the 13th Feb., an offer was made to pay a composition of half-a-crown in the pound to the creditors. This offer not being accepted, the meeting was adjourned to the 20th Feb., and again adjourned to the 6th March. On the 19th Feb. the London and County Bank, who were creditors of Stebbing to the amount of 13837. 148. 3d., presented a bankruptcy petition against him under the 267th Bankruptcy Rules 1870, the act of bankruptcy being the filing of the petition for liquidation. The same day the bank, alleging that Stebbing was making away with his property, applied to the registrar to adjudicate him bankrupt, which was done accordingly. The bankruptcy petition was not served upon Stebbing, and he had no notice of the proceedings until the next day, when the adjourned meeting of his creditors was held. Upon the hearing of the bankruptcy petition petitioning creditor's debt, and the petition was before the registrar, no proof was given of the only supported by the ordinary affidavit verifying its contents. Stebbing appealed against the adjudication. De Ger, Q.C. and Robertson Griffiths, appeared for the appellant.- The adjudication being ex parte, was void upon two grounds. The bankrupt had received no notice of the proceedings, and there was no evidence upon the file of the peti tioning creditor's debt. They referred to the Bankruptcy Rules 1870, rr. 61, 65. The evidence upon which the adjudication was made was also disputed. [They were then stopped by the court.] Finlay Knight, for the respondent, contended that the proceeding being under Rules 266, 267, the objections did not apply. The adjudication was made upon evidence that the bankrupt removing his goods. He referred to was Re Stanton, cited in Roche and Hazlitt on Bank. ruptcy, p. 432. The CHIEF JUDGE.--I do not for one moment desire to throw any doubt upon the power of the court to adjudicate a debtor bankrupt under the H. OF J..] FULTON AND OTHERS v. ANDREW AND ANOTHER. 266th and 267th Bankruptcy Rules; but a man must not be adjudicated bankrupt behind his back and without notice. Those rules do not dispense with proper proofs being adduced in support of the creditor's application for an adjudication, or with notice of the proceedings being served upon the debtor. There is enough here to satisfy me that the proceedings have been irregular, and, therefore, the adjudication must be annulled, but it is not a case in which to give costs. Adjudication annulled accordingly. Solicitors for the appellant, Evans and Eagles. Solicitor for the respondents, H. Philbrick, agent for Philbrick and Middleton, Colchester. House of Lords. Reported by C. E. MALDEN, Esq., Barrister-at-Law. Feb. 9 and 16. (Before the LORD CHANCELLOR (Cairns) and Lords Testamentary suit-Issues-Testator's knowledge of contents of will—Reading over—. -Evidence-Misdirection-Pleading-Particulars. There is no positive and unyielding rule of law, that if a will has been read over to, or read by a capable testator, he must necessarily be taken to know and approve of the whole of the contents of it; but the fact must be determined by the evidence in the particular case. In a case in which a jury found that a testator was of sound mind and understanding, and knew and approved of the contents of his will, but did not know and approve of the contents of the residuary clause: Held (reversing the judgment of the court below), that a rule to set aside the verdict, on the ground of misdirection on the part of the judge who tried the case in not bringing the above-mentioned alleged rule of law to the notice of the jury, should be discharged. Atter v. Atkinson (20 L. T. Rep. N. S. 404; L. Rep. 1 P. & D. 665), and Guardhouse v. Blackburn (14 L. T. Rep. N. S. 69; L. Rep. 1 Prob. & Div. 69) explained. THIS was an appeal against a decision of the Judge of the Probate Court (Lord Penzance) granting probate of the will of one Hugh Harrison, of Appleby, in Westmoreland, who died in July 1870. The residue of his property was given entirely to the respondents, Andrew and Wilson, who were appointed executors. The appellant Fulton, as guardian ad litem of his children, the other appellants, who were the nephew and nieces of the testator, entered a caveat, for the purpose of contesting the validity of the will. A trial of fact before a jury was ordered, and six issues were directed: First, whether the will was duly executed; secondly, whether the deceased was of sound mind and understanding at the time of executing it; thirdly, whether the execution was obtained by the undue influence of the plaintiffs (respondents); fourthly, whether the execution of the residuary clause was obtained by their undue influence; fifthly, whether at the time of the execu Vol. XXXII., N. S., 805. [H. OF L. tion of the will the deceased knew and approved of the contents thereof; and, sixthly, whether the deceased, at the time of the execution, knew and approved of the contents of the residuary clause. These issues were tried before Mellor, J., at the Westmoreland Spring Assizes 1872. The jury found the first and second issues in the affirmative; the third and fourth in the negative; as to the fifth, they found that the testator did know and approve of the contents of the will; and as to the sixth, that he did not know and approve of the contents of the residuary clause. The verdict was accordingly entered for the plaintiffs (respondents) on the five first issues, and for the defendant (appellant) on the sixth. A motion was made in the Court of Probate to set aside this verdict and have a new trial, or to set aside the verdict in the sixth issue, on the ground of misdirection. The judge made the rule absolute to enter the verdict for the plaintiffs (respondents), and probate was granted of the whole will, including the residuary clause. From this decision the present appeal was brought. Herschell, Q.C. and Edwards, Q.C., for the appellants, argued that the jury having found that the testator did not know and approve of the contents of the residuary clause, the court ought to have decreed probate of the will without that clause, and was not justified in treating the finding as a nullity, but if satisfied that there had been a misdirection, ought to have ordered a new trial. We say there was no misdirection, as there is no such inflexible rule as is contended for on the other side, and the Wills Act has made no alteration. They cited Barry v. Butlin, 2 Moo. P. C. 482; Allen v. Macpherson, 1 H. of L. Cas. 191; Atter v. Atkinson, 20 L. T. Rep. N. S. 404; L. Rep. 1 Guardhouse v. Blackburn, 14 L. T. Rep. N. S. 69; Newburgh v. Newburgh, 5 Mad. 364; 1 Williams on Executors, 7th edit., p. 352; Harter v. Harter, 27 L. T. Rep. N. S. 858; L. Rep. 3 In the Goods of Duane, 6 L. T. Rep. N. S. 788; 31 L. J. 173, Prob., Mat. & Adm. ; 2 Sw. & Tr. 590. The Solicitor-General (Sir J. Holker, Q.C.) and Fooks, Q.C., for the respondents, contended that the jury having found that the testator was of sound mind at the time of the execution of the will, and it being proved that it had been read over to him, they had found everything they were entitled to find under the particulars delivered with the fifth and sixth issues in favour of the respondents; and that the testator must, as a proposition of law, be taken to have known and approved of the contents of the whole will. Feb. 16.-The LORD CHANCELLOR (Cairns) gave the following judgment.-My Lords, this appeal which was argued before your Lordships some days since, arises out of a proceeding in the Court of Probate instituted for the purpose of challenging the validity of the will of Hugh Harrison, of Ivy House, Appleby, in the County of Westmoreland, who died on 11th July, 1870, his will being dated the 11th of the previous June. On examination of the case it appeared to be accompanied by peculiar circumstances. For the purpose of determining the questions which Lad H. or L.] FULTON AND OTHERS v. ANDREW AND ANOTHER. been raised with regard to the validity of the will, certain issues were directed by the Court of Probate; which were tried before Mellor J. at the Westmoreland Assizes. The issues were these: First, whether the will was duly executed; secondly, whether the testator was of sound. mind, memory, and understanding; thirdly, whether the execution of the will was obtained by the undue influence of the respondents; fourthly, whether the execution of the will so far as it related to the residuary clause was procured by the undue influence of the Respondents; fifthly, whether the deceased at the time of the execution of the will knew and approved of the contents of the will; sixthly, whether the deceased at the time of the execution of the will knew and approved of the contents of the residuary clause. The respondents were the persons propounding the will; they were the two executors named in it, and they were also the residuary legatees, and were not related in any way to the testator. The jury upon these issues found the first four in favour of the respondents, that is to say in favour of the will. Then, with regard to the fifth and sixth issues, they found that the testator knew and approved of the contents of the will with the exception of the residuary clause; but that as to the residuary clause, he did not know and approve of its contents. Now I may point out to your Lordships that the Court of Probate having decided in the first instance that this was a case in which it was proper to take the opinion of a jury with regard to the residuary clause as distinct from the rest of the will, and the jury having found that the testator did not know or approve of the contents of the residuary clause, it is clear that the mode of ascertaining that question of fact which has been adopted by the Court of Probate was satisfied. The verdict of the jury was returned, and that verdict must stand, unless it could be set aside on a ground which must have gone either to the fact that improper evidence had been received, or that proper evidence had been rejected, or that the verdict was against the evidence, or that the learned judge had misdirected the jury. Upon those grounds the finding of the jury might have been chailenged, and a new trial directed; but no qualification having been made at the trial, no leave to take any other course having been reserved, or indeed having been asked for, it would, as it appears to me, have been quite impossible in this state of things to have changed the verdict found by the jury against the residuary clause, into a verdict sustaining it. In that state of things this notice of motion was given by the respondents in the Court of Probate: "The court will be moved by counsel for the plaintiffs for a rule nisi calling upon the defendants" (the present appellants) "to show cause why the verdict should not be entered for the plaintiffs; and the probate of the will of the said Hugh Harrison deceased should not be delivered out, notwithstanding the finding of the jury upon the fifth and sixth issues, upon the ground that by reason of the particulars delivered by the defendant under these issues the jury have upon the second issue determined the only material question raised under the said fifth and sixth issues in favour of the plaintiffs, or why a new trial should not be granted on the ground that the verdict was against the weight of the evidence, and for misdirection." That is a notice for a rule nisi branching in two directions, the one [H. OF L. to enter the verdict in favour of those who propounded the will, the other for a new trial. That having come before the learned judge, I find that this order was made. A rule nisi was granted"The judge having read this notice of motion, and heard counsel, ordered that the plaintiff's do on the first day appointed for hearing motions in this court in Trinity term, show cause to the satisfaction of the court why the verdict of the jury empanelled to try the issues raised by the pleadings in this cause should not be set aside, and a new trial granted thereof, or why the verdict of the said jury on the issue whether the deceased in this cause knew and approved of the contents of the residuary clause in the said will propounded should not be set aside by reason of misdirection." The rule applied for having gone to the entering a verdict against the verdict of the jury, the rule which was granted does not adopt that view, but is granted merely to show cause why there should not be a new trial either on the ground of the verdict being against evidence, for that must be the meaning of the first part of the rule, or secondly upon the ground of misdirection. I will not pause at this moment to consider what was done on the argument of that rule, but the result was that the order of the Court of Probate was made which is now under appeal before your Lordships. "The Judge having heard counsel on behalf of the defendants and plaintiffs made the rule absolute to enter a verdict for the plaintiffs," but the rule had not been granted for any such purpose," and pronounced for the validity of the last will and testament of Hugh Harrison the deceased in this cause, bearing date the 11th June, 1870, and of which probate was granted in the month of August 1870, and made no order as to costs, and directed that probate should be given to the executors." I own, my Lords, that I have great difficulty in understanding how this order came to be made. It appears to me to have been made under some forgetfulness or misapprehension as to what was the purpose for which the rule nisi had been granted. Certainly even if the learned judge had been satisfied that there was a verdict against evidence, or that there was misdirection,. either of those considerations ought to have resulted in an order for a new trial, and not in the entering of a verdict for the plaintiffs. In point of form therefore I should submit to your Lordships that it would be impossible to maintain this order. But then arises the question, What course ought now to be taken by your Lordships? And I apprehend that your Lordships will ask yourselves the question, sup posing you had been sitting upon the argument of this rule, what opinion would your Lordships have arrived at with regard to the allegation that there was here a verdict which was against evidence, or that there was here a verdict which had been obtained after a direction had been given by the learned Judge which was erroneous in point of law. I certainly found myself, and I think that your Lordships found yourselves under some difficulty in dealing with that question, having regard to the fact that there was not sub. mitted to your Lordships upon the papers before you any note of the direction of the learned judge, or of the summing up of the evidence given before him. The parties, however, were permitted by your Lordships to supply a copy of the shorthand writer's notes of what passed at the trial, and those H. OF L.] FULTON AND OTHERS v. ANDREW AND ANOTHER. notes have been considered, I think, by all your Lordships. My Lords, looking at those notes, which I have read with great care, it appears to me that nothing whatever fell from the learned judge on the occasion of the trial which could be said to amount to a misdirection of the jury upon any question of law. I find that the learned Judge with great care went through the whole of the evidence; he pointed out to the jury what had been deposed in the evidence before them, and what had been the arguments of the learned counsel on each side; he remarked upon the matters connected with the making of this will, and connected with the instructions which had been given for the will upon two different occasions; upon the form which those instructions had assumed; upon the circumstance that one of the persons propounding the will, one of the residuary legatees, had employed his brother, a solicitor, for the purpose of preparing the will from these instractions; he remarked upon the variance which occurred between the instructions which were stated to contain the directions of the testator, and the will as submitted to the testator for execution; and he having directed the attention of the jury to all these matters, and pointed out to them that the Court of Probate desired to hear from them their opinion as to the consciousness of the testator with regard to the contents of the whole of the will, and also separately with regard to the contents of the residnary clause, the jury returned the verdict to which I have already referred. I should be of opinion that in that there was nothing which could be called misdirection in the proper sense of the term. But it appears to have been argued in the Court of Probate, and it was argued very strongly at your Lordships' bar, that there occurred at the trial a misapprehension on the part of the learned judge as to what was stated to be an absolute and fixed rule of law, and that because the learned judge had not laid down before the jury that absolute and fixed rule of law, with regard to the judging of the validity of a will, there was a species of non-direction on the part of the learned judge, which amounted to misdirection, or, that if it was not so, still that there was a finding of the jury in the face of evidence which ought to have led to a different conclusion. The rule of law which is said not to have been sufficiently considered is this. It is said that it has been established by certain cases to which I will presently refer, that in judging of the validity of a will, if you find that the testator was of sound mind, memory and understanding, and if you find further that the will was read over to him, or read over by him, there is an end of the case; that you mast at once assume that he was aware of the contents of the will, and that there is a positive and unyielding rule of law, that no evidence against that presumption can be received. My Lords, I should in this case, as indeed in all other cases, greatly deprecate the introduction or creation of fixed and unyielding rules of law which are not imposed by Act of Parliament. I think it would be greatly to be deprecated that any positive rule as to dealing with a question of fact should be laid down, and laid down now for the first time, unless the Legislature has imposed that rule in the shape of an Act of Parliament. But now let us see what is the authority for the imposition of such a fixed and unyielding rule of law. Before looking at the two cases which were cited I will take the [H. OF L. liberty of reminding your Lordships of the law which has been laid down in general terms as to the mode of dealing with testamentary instruments like the present, where persons who are strangers to the testator, and who themselves have obtained or conducted the making of the will, are the persons benefiting by it. In the well known case of Barry v. Butlin (2. Moo. P.C. 482) Parke B., delivering the opinion of the Judicial Committee said this: "The rules of law according to which cases of this nature are to be decided, do not admit of any dispute so far as they are necessary to the determination of the present appeal; and they have been acquiesced in on both sides. These rules are two; the first that the onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. The second is that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased. These principles, to the extent that I have stated, are well established. The former is undisputed; the latter is laid down by Sir John Nicholl in substance in Paske v. Ollatt (2 Phill. 323), Ingram v. Wyatt (1. Hagg Ecc. 388) and Billinghurst v. Vickers (1. Phill. 187,) and is stated by that very learned and experienced judge to have been handed down to him by his predecessors, and this tribunal has sanctioned and acted upon it in a recent case." That recent case was the case of Baker v. Batt (2. Moo. P.C. 317). Now, my Lords, bearing in mind the general principles there enunciated, let me direct your Lordships attention to the two cases occurring in the Court of Probate, and heard before the very learned judge from whose decision the present appeal comes, which were referred to in the argument of this ease. The one is the case of Atter v. Atkinson (L. Rep. 1. P. & D. 665; 20. L. T. Rep. N.S. 404.) in which there is a report of a charge of Lord Penzance to a jury. In that case the jury it appears were discharged, and could not agree upon a verdict, but this is the portion of the charge which was referred to. I should state that that was a case in which, as here, a solicitor who was, I think, a stranger to, at least not a relative of, the testatrix, was the residuary legatee under the will, but the will was prepared, and the execution of it obtained from the testatrix by another solicitor. Lord Penzance there addresses the jury in these terms, "The question of fact is, Did Mrs. Newcome really ever read over the contents of this document? If you are satisfied that she read it, then as a proposition of law I feel bound to direct you that she must be taken to have known and approved of its contents. If, being of sound mind and capacity, she read this residuary clause the fact that she afterwards put her signature to it is conclusive to show that she knew and approved of its contents. Reflect on the contrary proposition. Suppose that a long will with a number of complicated arrangements is read to a competent testator and is executed by him, if we were permitted some time after his death to enter into a discussion as to how far he understood and |
