The Sun.
London, England, 1862-07-09 00:00:00

SMETHURST V. TOMLIN.

Sergeant Ballantine applied to the Court that
the costs incurred in the recent hearing of this
cause might come out of the estate. He said that
his lordship would have in recollection the par-
ticulars of this case. Dr. Smethurst propounded
the will of Isabella Bankes, as sole executor. A
question was raised as to his ability to do so, as he
was charged with the murder of the testatrix, and
was afterwards tried and found guilty of felony.
His lordship held that these charges did not bar his
right to prove the will. Mr. Tomlin was the
brother-in-law of the deceased, and opposed on be-
half of the next of kin. Dr. Smethurst must have
known that all the circumstances would be investi-
gated, and could not reasonably complain that all
the facts should be sifted to the bottom. Miss
Louisa Bankes, the sister of the deceased, gave evi-
dence in the cause, and spoke to the relationship
which subsisted between her sister and the plain-
tiff. It was not necessary to go further into the
matter ; and the object of the present application
was simply to appeal to the discretion of the Court
as to whether, under the circumstances detailed at
the trial, the costs should not come out of the
estate. One of, the pleas was that the will was
obtained by undue influence, and the defendant
might have put upon the record that the plaintiff
had been indicted for the murder of the testatrix,
but, as the Queen's pardon had been granted, it was
thought advisable not to insert such a plea. In a
case of such importance, and affecting the interests
of the next of kin, Mr. Tomlin was bound to act as
he had done, and he would not have done his duty
if he had neglected to institute an inquiry into the
circumstances under which the will was executed
Dr. Phillimore said the jury found for the will
after a very short deliberation, thereby showing the
opinion they had formed of the case. There was
no reason why the rule and practice of the Court
should not be followed in this as in other cases.
His lordship said he was of opinion that the costs
of the demurrer should come out of the estate. The
same principle did not, however, apply to the costs
incurred by the trial. He did not think these
should come out of the estate.

THE MARQUIS OF WESTMEATH V. THE MARCHIONESS OF

WESTMEATH AND CHAPMAN.
Dr. Spinks moved that the decree nisi which had
been made in this suit on the 27th of March last,
for dissolution of marriage, on the ground of the
respondent's adultery with the co-respondent,s4ould
be made absolute.

There was no appearance by the respondent or
co-respondent.

The-decree was made absolute accordingly.
GRANT V. GRANT.
Au application had been made in this cause on
the Ist inst. on behalf of the executors of the peti-
tioner (deceased) to enable the children to proceed
with the suit by their guardians. The petitioner
had instituted a suit for dissolution of marriage
against his wife, and a decree nisi had been pro-
nounced. The petitioner having died after the
granting of the decree nisi and before the time for
its being made absolute, the question raised for' the
decision of the Court was, whether or no the chil-
dren of the marriage, being involved in the conse-
quences of the suit, might not proceed in the name
of the executors appointed under the will, or
whether or no the suit had not abated for this pur-
pose by the death of the petitioner, or whether a
decree nisi should be taken as final.
Dr. Phillimore, Q.C., appeared for the executors;
Dr. Deane, Q.C., for the respondent.
His Lordship, in pronouncing judgment, said
that the application depended entirely upon the
construction that was to be put upon the statutes
regulating the authority of the Court. The 22d
and 23d Victoria gave the Court certain powers to
provide for the wife and children by interim order,
or to make permanent provision upon the decree
being made final. As the authority of the Court
did not arise until the decree absolute should have
been pronounced the decree absolute only could be
regarded as final. The suit must therefore be con-
sidered to have abated by the death of the peti-
tioner.