The Express.
London, England, 1861-07-12 00:00:00

ab) Intrlligtnct.

COURT OF PROBATE AND DIVORCE.
JOLT 11.
BMETHUBST V. TOMI.Dit AND °THUM-JUDGMENT.

Thia was a demurrer to the pleas of the defendants, which
had been argued some time ago, and on which the court
now gave judgment.

Sir C. Cromwell said it would homily material to consider
the last plea of the defendants. Theiwill ran as follows
" This is the lest will and testament of me, Isabella Benka,
now residing at No. 10, Alma-villas, Richmond, in the
county of Surrey, spinster. I give and bequeath to my be-
loved friend, Miss Jenkins, of Walthamstow, Essex, my
brooch, set with brilliants and pearls, and coulain-
ing the hair of my late father ; and as to all my real
and personal estate and effects whatsoever and wheresoever
and of what nature and kind mover the same may be, I
give, devise, and bequeath the same unto my sincere and
beloved n-iend, Thos. Smethurst, Dr. of medicine, now also
of No. 10, Alma-villas, Richmond aforesaid, for hie own
use absolutely and for ever." It then appointed Smethurst
sole executor. The plea of the defendants was that after
the alleged executiou of the will, and after the decease of
the testatrix, namely, on the :10th of Nov., 1859, Smethurst
was convicted. of a certain felony (bigamy), and was sen-
tenced to a year's imprisonment. It was also pleaded that
the specific legacy of the brooch had been renounced by Miss
Jenkins, hut it was not material to consider that circum-
stance. The only question was, could • felon be an executor,
and could be claim probate of • will after hie conviction
There was very little to be found iu the books on this
subject, but the authorities clearly established these propo-
sitions :—let. That when • will bad been mule, and no
executor appointed, the ordinary could not exer-
cise any discretion as to granting or refusing probate ; but
that, if he refused the grant, it must be upon the ground of
some legal disability recognised and allowed by the 00M131011
law, and not by the canon law only. 2ndly. That • person
appointed executor, notwithstanding...conviction for felony,
and notwithstanding au outlawry or attainder, might still be
an executor, and exercise all the rights of one. This
showed that the office nas not forfeited by outlawry or
attainder, and where a testator was himself an executor the
subsequent felon executor would represent the original tes-
tator. The only question upon which any doubt could be
entertained, was whether au executor having been convicted
of felony after the testator's death, was in a condition to
ask for probate ! His rights as executor were derived from
the will and not from the probate. Before probate was
issued he was in possession of all the testator's goods, and
might bring trover or detenue. But for such things as lay in
action, although he might commence, he could not maintain
an action before probate. Ile might before probate, how-
ever, pay, receive, or release debts due to his testator. His
rights to exercise the functions of executor remaining unim-
paired notwithstanding the attainder, it was difficult to dis-
cover any satisfactory reason why the party should not be
allowed to perfect his title as executor by proving the will
He (the judge) could not find any authority for saying that
the plaintiff should not be permitted to prove the will. In
Swinburn, part 1, sec. 4, it was said, ' whosoever is con-
victed of treason or felony, as he cannot make •
testament or last will, no more is he capable
of taking anything disposed of by testament
or last will. But if • mau being attainted of felony
he admitted to his clergy I suppose that he lawfully may
be made an executor.' And it appeared by • note that a
felon not admitted to his clergy, being condemned to
death, was considered as dead in law, and therefore in-
capable of being executor— a reason which was no longer
applicable to the subject. For these reasons he (Sir C.
Creaswell) was of opinion that the plaintiff having been
appointed executor, and his office being in outer droit, and
not forfeited by the conviction for felony, was still en-
titled to exercise the rights of an executor, and had • right
to perfect his title as executor by proving in that court the
due execution of the will by which he was appointed. The
other questions in the cause, and the question whether the
will hail been improperly obtained or not, must of course he
determined hereafter.

Dr. Phillirnore, Q.C., asked for Dr. Smethurst's costs.
The Judge said that they must await the result of the
seam

BENT V. BENT AND FOOTMAN.

In this cam the petitioner had obtained a verdict against
the respondents with 1,0001. damages against Mr. Footman.
Dr. Fhillimore, Q.C., moved that the fortune of the wife
(1,6781.) might be settled upon her for her life, with apower
to dispose of so much of it as the court might think fit.
Mr. Pulling resisted the application.
air C. Cromwell said that the petitioner must place 1,0001.
is the hands of trustees, the intermit to be paid to the re•
spondent so long as she behaved well, and while she re-
mainel unmarried ; when her interest had ceased, the money
must be retained for the benefit of the children in equal
shares. The damages might be paid to the husband, and
the co-respondent must pay all the costa of the cause ;
but the decree nisi would be suspended till the execution of
the deed.

Dr. Yhilllmoro then applied on behalf of tho adulteress
for access to b r children.

Sir C. die;nriiref uaed 1 the application. With regard
to the costa of the application, the husband was to pay fur
the deed, but otherwise the court would wake no order.

INSOLVENT DEBTORS COURT.—JULY 11.
(Before the Chief Commiseioner.)
IN RE WILLIAM WOODLEY.

In this case an application was made on the part of
Messrs. Boddington, merchants, calling on the assignee to
pay a large sum of money into court. A rule was obtained
by Mr. Prentice, which now came on for argument., and
occupied the whole day.
Mr. Serjeant and Mr. Prentice, with Mr.
Cotton, of the Chancery bar, appeared for Messrs. Bodiling-
toil, who were creditors to about 14,41:01. ; Mr. Sargood ap•
peared fur the assignee.
The insolvent, Captain Woodley, of the Royal Navy,
was discharged under the act twenty years ago, and was
possessed of considerable West India property. Two large
sums were in divot. in the present rule-1,6001. received
by a consignee who was now a defaulter, and about 1,0001.
as to a Chaucery suit commenced by the assignee, and
whieb, it was alleged, was commenced through the late
Mr. Commissioner Murphy. The question's/as whether the
assignee was liable for the defalcations of the consignee.
The matter hail been before the late Mr. Commimiouer

Phillips.
The Met Commissioner has devoted some days to the
ease, which was not ommluded when the court rose.

ASSIZE INTELLIGENCE.

OXFORD OIRCIIIT.—Oxrosp, JULY 11.

The judges of assize, Mr. Justice Hill and Mr. Justice
Keating arrived in Oxford from Abingdon yesterday after-
noon, when the conuniesion was opened. This morning
they proeet.h..d to the tiouhty Hull, when Mr. Justice Hill
presided in the Crown Court, and Mr. Justice Keating in
the Nisi Prins Court

There wore only 12 cases in the calendar for trial, and
these consisted of 2 of burglary, 1 cutting and miutaing,
1 of moon, 1 of attempting to commit a rape, 2 of bestiality,
2 of obtaining goods under false pretences, 1 of stealing
cattle, 2 of petty thefts.
No case of any interest was tried to-day in either court.

MIDLAND ClRClllT.—Nornwerrom, Jute 11.
The commission was opened here yesterday evening by
Mr. Justice Wilke, who afterwards attended divine service.
The, Lord Chief Baron nut being expected until noon
to-day, Mr. Justice Willie took his seat this morning at ten
o'clock in the Crown Court, and proceeded to charge the
grand jury. •
The cane at Nisi Prins, before Mr. Justice Willes and a
common jury, were not such as to call for a report.

CROWN COURT.
(Before the Lard Chief Baron.)
CHILD MURDIBIL

Sarah Smith, 35, widow, was indicted for the wilful
murder of her illegitin.ate male child, at Wadenhoe.
Another count in the indictment charged her with canoed-
ing the birth of the child.
The prisoner pleaded guilty to both indictments, but es
she was evidently in great distress of mind his lordship
refused to receive the plea, arid told her she would be brim:flit
to.morrow
have a night to Wok ci morning to plead again. She would thus