The Sun.
London, England, 1839-12-10 00:00:00

Mr. GIRDLESTONE—NO, only the validity of the fifth
codicil. By his will, which was made on the 2d of
May, 1834, Mr. Day appointed Mr. William Under-
wood, Mr. William Croft, and Mr. Pinder Simpson, his
executors, and bequeathed several legacies and annuities.
By a codicil of the same date he directed that his execu
tors should invest such a sum of money as would realise
3,0001., for the endowment of certain almshouses, built
by him in his lifetime, and he also bequeathed a further
sum of 100,0001. to his trustees, upon trust, to found
a charitable institution, to be called " The Blind
Man's Friend." Mr. Day afterwards made four
codicils to this will, and a fifth, dated the 22d
of September, 1836, appointing Mr. Frederick Dufaur,
the appellant in this case, one of his executors, and
that codicil was the one now in dispute. The
testator died on the 22d of October, 1836, having be-
come, in the opinion of his medical attendants, for
some days previous to, and at ;he date of; the sth co-
dicil, quite incompetent to make any testamentary dis-
position, or to appoint an executor. Upon this ground
a suit was instituted in the Prerogative Court to set
aside the codicil. Letters of administration, pendente
We, were granted to Mr. John Simpson, a son of one of
the executors, for the purpose of receiving the rents,
interest of monies, attesting and paying debts, and
conducting the business of the testator. On the 29th
of June the suit came on to be heard in the Preroga-
tive Court, and Sir H. Jenner decided that the testator
was not in a testamentary frame of mind at the time of
making the last codicil, and granted probate to the will
and four first condicils, and rejected the codicil ap-
pointing Mr. Dufaur an executor. From this judg-
ment Mr. Dufaur appealed.
Lord BROUGHAM—Then, although the will and the
first four codicils are not disputed, the bequests made by
them are in abeyance until the question upon the sth
codicil is decided ?

Mr. GIRDLESTONE—Just so. The letters of admi-
nistration pendente lite ceased with the termination of
the suit in the Prerogative Court, and the consequence
is, that the property is locked up, and the executors
are unabla to apply any part of it to the relief of the
numerous objects of the testator's bounty, although
they have no other means of support, and are therefore
suffering great want. There were thirty-seven annui-
tants under the will, whose annuities amounted alto-
gether to the sum of 84,0001. Mr. Day had left
10,0004 to each of his three natural children, and, as
the money out of which those legacies were to be paid
had not been received, the children had been left with-
out any allowance for maintenance or education. The
charity for the blind also could not be established, and
the trustees were empowered to allow from 10/. to 15/.
per annum to each poor person belonging to the alms-
houses, which, of course, they could not do until probate
was obtained.

Lord BROUGHAM—You have made out a sufficient
case, but we have great difficulty in fixing a day, for
one of the Learned Judges who generally attends at
this board is obliged to go on a Special Commission
into Monmouthshire ; and although we may probably
be able to get Lord Lyndhurst to attend, it is doubtful
whether he can do so•during these sittings.
It was ultimately arranged that the appeal should
be heard on the first day of the sittings after Hilary
term.