said is this: "If the heir sets up insanity, or any other disability against the person who made the will, and fails, he shall not have his costs as of course." So stated, the authority of Berney v. Eyre would be consistent with Lord Hardwicke's other decisions, but omitting those words "as of course," it is inconsistent. Five years later the error was corrected by Lord Hardwicke himself, in Blinkehorne v. Feast (1 Dick. 153, A.D. 1751), where the question is made to turn not on the defence but on the propriety and reasonableness of setting up such a defence, and the rule is thus laid down: "Where a devisee brings his bill to [756] perpetuate testimony, and prays relief, and brings the cause to a hearing, and the Defendant, the heir at law, insists on a trial, and the will is established, on such trial the Court hath in many instances given costs to the heir, both in this Court and at law, where he hath not been vexatious, nor guilty of tampering; because he can never afterwards dispute the will." (Per Lord Hardwicke, C., in Blinkehorne v. Feast, 1 Dick. 153.)

White v. Wilson (13 Ves. 87, 91, A.D. 1806), which might have been cited on the other side, cannot be reconciled with the rule as laid down by Lord Hardwicke. And there it is observable that Lord Erskine, C., goes further than the Attorney-General had gone in his argument against the heir; for the latter very properly admitted that the costs at law were in the discretion of the Court, and said the only question was whether the heir had a probable ground for disputing the testator's capacity to make a will; which is all we contend.

This

Grove v. Young (5 De G. & S. 38), the only case on which the Plaintiff relied beside Berney v. Eyre, was one in which the conduct of the heir had been extremely vexatious; and on that ground the decision turned. There the heir, before the institution of the suit, had taken the initiative by an action against the devisees, disputing the validity of the will. He had there had full opportunity of submitting all his facts to a jury, and had failed; and notwithstanding that failure upon bill filed by the devisee, he again set up the incompetency of the testator, and fraud and improper practice on the part of the devisee. This conduct on the part of the heir was clearly vexatious; and for such vexatious conduct Sir James Parke, V.-C., deprived him of his costs. is clear from the report (5 De G. & S. 42), where the law, as stated [757] by the ViceChancellor, is in perfect conformity with the rule for which the Defendants contend. He admits the question of costs to be a question in the discretion of the Court, and that the heir loses his costs for improper conduct, and that only. He says, "When a devisee comes to this Court for his own benefit, to have a will established against an heir at law by a decree binding him, the heir at law is entitled to put the devisee to the proof of his title; and in an ordinary proceeding the heir at law has his costs. The Court does not consider the heir at law as bound to litigate the question with his hands tied; and he is at liberty to raise any questions before the Court which may be fairly necessary to determine the validity of the will. But, on the other hand, the heir at law must suffer the usual consequence of any litigious or improper conduct on his part; and nothing would be worse than that an expectation might be entertained, that, whatever might be his conduct, an heir at law should be exempted from the ordinary consequences of improper litigation. The application of these general principles must be in the discretion of the Court." And then, after commenting upon the improper aud vexatious conduct which the heir in that case had pursued, he adds: "Where the heir improperly raises a case of insanity or incompetency of the testator, and fails, the usual consequence is, that the heir is deprived of his costs; and in this case I must refuse him the costs of the suit, including the costs of the action, and I must make the heir pay the costs of the issues as to fraud and improper practices, and of his going into evidence in support of them."

[THE VICE-CHANCELLOR. I observe that in another report of Grove v. Young, Sir J. Parker is reported to have said this: "The heir raising a case of incompetency has a right in that suit to put the devisee to the proof of his title: [758] but even in an ordinary case, where there has been no judicial investigation, the circumstance of the heir raising" (he does not say "improperly raising") "a question of the incompetency or insanity of the testator, and failing, would deprive him of his costs. This being the issue which the heir has raised as to the testator's competency, and which he has unsuccessfully raised, I must refuse him his costs of the suit, including the costs of the issue of course." (15 Jur. 1100.) Those words "of course do not appear in the authorised report.]

The authorised report may be presumed to be the most authentic; and, according to that report, the decision turned entirely upon the circumstance of the defence having been improperly made by the heir; and the Court admitted that the whole question was in the discretion of the Court.

Lastly; in the recent case of Waters v. Waters (2 W. R. 642) an heir at law, who had disputed a will on the ground of insanity, though he failed, was allowed the costs of the issue at law, as it was not shewn that he had raised the issue improperly or dishonestly. The Vice-Chancellor said the true question was whether or not the heir had improperly or dishonestly raised the question of the testator's insanity. If he had not done so, though he might have been unsuccessful, it was not a matter of course that he should be deprived of the costs of that action.

Such is the state of the authorities, and the reason of the rule is manifest. It is one thing for the heir to take the initiative in disputing the will, it is another when he is brought before the Court by the devisee seeking to have the will established. In the latter case the object of the suit is [759] to perpetuate testimony. The Plaintiff's object is to have the question of the validity or invalidity of the will set at rest at once and for ever. For that purpose he needs a real, not a sham, defence. The heir must do his utmost to dispute it. He must do his utmost then and there. He will not be allowed five years later to suggest insanity, or any other objection. He can never afterwards dispute the will." (Per Lord Hardwicke, C., in Blinkehorne v. Feast, 1 Dick. 153.) So long as he raises no objection vexatiously, unreasonably or improperly, the Court undertakes to protect him from costs. That undertaking is an unmeaning nullity, a delusion and mockery, if, after all, the heir is to fight the battle "with his hands tied" (per Sir James Parker, V.-C., in Grove v. Young, 5 De G. & S. 41), at the peril of losing all if he makes a real defence.

Besides, the conscience of the Court is to be satisfied as to the validity of the will; and if the Court abstains from taking any active steps to test its validity, it is precisely because it presumes the heir, being a party, will do his utmost; and this presumption runs through the whole of this portion of the practice of the Court.

[They then proceeded to comment upon the evidence with the view of shewing that the question of the competency of the testator was one properly put in issue by the Defendants, and contended that the Defendants were therefore entitled to their costs as well at law as in equity.]

July 13. The hearing of this cause being now resumed, THE VICE-CHANCELLOR said that he had made inquiry of the learned Judge, by whom the cause of Waters v. Waters (Vice-Chancellor Stuart, 18th June 1854) was de-[760]-cided, and had ascertained that the decision was in effect as represented by counsel at the Bar. With regard to the discrepancy between the two reports of Grove v. Young, the authorised report of that case might be presumed to have been approved of by the late Vice-Chancellor Sir James Parker, and possibly an alteration had been made by him advisedly. Upon the whole of the authorities there appeared to be in reference to the question of costs an important distinction between the position of the heir when he was the assailant, and his position when he was the party assailed; and the Court was obliged to the Defendant's counsel for calling attention to that distinction. The question of costs being in the discretion of the Court, he must call for a reply. Mr. James, Q.C., in reply.

Judgment reserved.

July 17. THE VICE-CHANCELLOR Sir W. PAGE WOOD. The sole question in this case is whether or not the heir is entitled to her costs of an issue which has been tried as to the validity of the will of her brother, Henry Roberts.

I certainly had been under the impression, from the language of Lord Hardwicke in Berney v. Eyre (3 Atk. 387), and the language which has been used on this subject in other cases, that a definite rule had been fixed that, although on the one hand the heir is absolutely entitled, as of course, to his costs, where he merely stands by on the trial of an issue, to see whether the will is well proved, yet, on the other hand, if the heir set up an opposition impeaching the competency [761] of the testator to make a will, he is deprived of his costs if he fail. However, I am quite satisfied, from the case cited from Dickens (Blinkehorne v. Feast, 1 Dick. 153), as well as the last

decision on this subject of Vice-Chancellor Stuart (Waters v. Waters, Vice-Chancellor Stuart, 18th June 1854), that it is still a matter which is in the discretion of the Court, even if the heir set up such a defence as I have mentioned. No doubt the option of the heir as to the course to be taken by him must be shewn to have been duly exercised. If it was merely a vexatious opposition on his part the heir is made to pay the costs.

What seems to me to be the fair course in this case is to try whether or not if this were the case of an infant next of kin claiming the personal estate of the deceased (in which case he would be entitled to an inquiry at Chambers whether it was for his benefit that probate should be resisted) the Court would think it right that such risk should be incurred.

Looking through the evidence with reference to the question whether or not the sanity of the testator has been established, if that point were open, I concur in the judgment as to his sanity. It is clear that all that has been proved is that the testator was a man of violent habits and character of mind, and subject to great paroxysms of passion; but this never seems to have assumed the form of lunacy. Several violent fits of delirium seem to have occurred; but, except these, there is nothing to prove he was insane. This is the effect of the evidence of all the medical men. testator was not in a condition of permanent lunacy; and I think it is proved beyond doubt that he was sufficiently quiet and competent to transact business on Sunday, the 4th of December, the day on which the will was executed.

The

[762] On the other hand, there are facts stated which made it necessary for me to read all the evidence; and if the heir had been residing at a distance, and had not been acquainted with the testator, but had only heard these facts narrated, there would have been enough to justify the Court, in such a state of circumstances, in saying that there was ground to contest the testator's sanity.

It appears that on Saturday, the 3d of December, the day before the will was executed, the medical man had recommended that persons should be in the house to prevent the testator from doing violence to himself. Some degree of delirious delusion is proved to have been manifested on that day, and also on Monday, the 5th of December, the day after the execution of the will; and, considering these facts alone, it would have been perfectly fair and right that the heir should have contested the matter.

But the facts on the other side are these: The heir resided in the town, and knew her brother, the testator, well, and was in frequent communication with him. Then there was clearly no impropriety or concealment about obtaining the will; on the contrary, on the Saturday the heir had a communication from the Plaintiff, who takes entire benefit under the will, in which the Plaintiff says she is glad that the solicitor of the deceased had recommended that the will should be made. The heir saw all that was in the note written by the solicitor, including the representation that he could not answer for the testator's being sane more than three days longer. If she had suggested any difficulty with reference to making the will, it might have been different, but she did not, although she had a frank conversation with the Plaintiff and other persons on the subject. The heir did not herself suggest that the testator was in a fit state to make a will, but she made no representation to the contrary; and I judge now, from her [763] own acts, that her impression at the time was not that her brother was unfit to make a will, on the contrary, it appears that she said she thought it right that some suggestion should be made to him to remember herself, his sister. The witness who gives this evidence is entirely disinterested in the matter.

I do not, however, rely on that alone. It appears that the heir was not satisfied with her brother's medical attendants, and thought he ought to have other advice; and accordingly Dr. Jeffreson-a physician of eight years' standing, who knew the testator well, who had voted for him at an election as one of the Board of Health, and evidently considered him a shrewd man-was called in at her express request on Tuesday, the 6th of December, and attended the deceased on that day and for some days subsequently. In his evidence he notices the fits of delirium under which the deceased then laboured. That they were mere delirium fits I think is clear upon the evidence. Dr. Jeffreson attended the testator during these fits, and, after his decease,

he came to the conclusion, when the matter of the will was spoken of, that the testator's mind was clear enough to enable him to make a will.

If I had been told in Chambers that a medical man had attested the will, and also a solicitor whose character is unimpeached, and that Dr. Conolly had also been called in, if there were no evidence before me of what he would say, yet there being evidence that the heir had the means of communicating with the testator, and sending to him another medical man selected by herself, and that such medical man had accordingly visited the deceased, and that this person had stated upon oath that the testator's mind was clear enough to enable him to make a will, I could not consider it right for an infant to resist such a case as that, unless there were strong counter evidence.

[764] Now, the evidence on the other side is that men were sent to be with the testator to prevent his hurting himself; that a post mortem examination was made, and that it appeared on such examination that the testator had structural disease of the brain for a period which included the time when he made this will. Happily the rights of parties are not affected by speculations on what may be the consequence of structural disease of the brain in these cases, for such a doctrine would be very dangerous in its effects. Dr. Jeffreson was present at the post mortem examination, and might have informed himself of the view on the subject entertained by the other medical men in attendance, and might have ascertained whether any of the persons then present would say that the testator was of unsound mind. If they had said that they could not give that opinion-if they had only said they observed some evidence of diseased action in the deceased, and the like—I should have been clearly of opinion that this contest was one which ought not to have been entered into that such a contest as to insanity ought not to have been entered into on the part of the heir.

Under these circumstances, I cannot think it right that the Plaintiff should bear any portion of the Defendants' expenses of this contest; and the Defendants having set up insanity by their answer, the right course will be that they should have no costs in this Court.

Decree establishing the will, and no costs.

[765] JONES v. WELCH.(1) July 27, 1855.

[S. C. 1 Jur. (N. S.) 994.]

Practice. Dissolution of Partnership. Lunacy. Costs.

Costs of suit for dissolution of a partnership, on the ground that the Defendant had become a lunatic, though not so found by inquisition, ordered, after decree declaring the partnership dissolved, to be paid out of the partnership.

This was a suit for the dissolution of a partnership for a term between two surgeons, who were entitled to share the profits equally, on the ground that the Defendant had become a lunatic, though not so found by inquisition.

By the decree it was declared that the partnership was dissolved as from the date of the decree, and the usual accounts were directed.

The cause now came on for further consideration, and the only question was as to the costs of the suit.

Mr. Bevir, for the Plaintiff, contended that the costs of both parties ought to be paid out of the partnership assets.

Mr. Archibald Smith, for the Defendant, that there should be no costs on either side.

It appeared, on reference to the decree on further directions, in the case of Besch v. Frolich, (2) that in that case the costs were paid out of the partnership; and the Vice-Chancellor, considering that to be the proper course, made a similar order.

(1) Ex relatione Mr. Archibald Smith.

(2) Reg. Lib. 1843, a., fo. 1749. Reported on appeal from the original decree, 1 Ph. 172.

Reports of CASES ADJUDGED in the HIGH COURT OF CHANCERY before Sir WILLIAM PAGE WOOD, Knt., Vice-Chancellor. By EDWARD E. KAY and HENRY R. VAUGHAN JOHNSON, of Lincoln's Inn, Esqrs., Barristers-at-Law. Vol. II. 1855 to 1856-18 to 19 Vict. 1856.

[1] WRIGHT v. VANDERPLANK. July 20, 23, 1855.

[Affirmed, 8 De G. M. & G. 133; 44 E. R. 340 (with note, to which add Powell v. Powell [1900], 1 Ch. 246.]

Constructive Fraud.

Undue Influence. Parent and Child. Acquiescence.
Laches. Account.

In every case of a gift to a parent by a child, shortly after the child attains majority, the Court looks with jealousy upon the transaction, more especially when the parent has, during the minority, been guardian of the child's property, and in receipt of the rents of a considerable estate; and throws upon the parent the onus of shewing plainly and unequivocally that the gift was made not in consequence of representations on his part, but by the spontaneous act of the child, and that the child had full knowledge of the nature of the deed by which the gift was effected, and of his own position and rights in reference to the property.

A deed was executed by a lady, five months after she came of age, disentailing part of her estates, and giving, for a nominal consideration, an estate for life in the disentailed part to her father, who, during her minority, had been her guardian, and in receipt of the rents of her estates. Held (obiter), that if a bill had been filed shortly after the transaction, either before or possibly after the lady's marriage, which was solemnised sixteen months after the execution of the deed, the transaction could not have been supported, the deed itself not explaining the nature of the transaction, and it not being shewn that the daughter had proper professional advice, that the nature of the transaction was explained to or understood by her, or that the gift was spontaneous or made at a time or under circumstances when she was free from parental influence.

But a bill, which, after the daughter's decease, and nearly ten years after the execution of the deed, was filed by her husband on whom her rights had devolved, praying to have the father declared a trustee of the life interest, and an account of the rents which accrued during his daughter's minority or afterwards, was dismissed on the ground of laches, it appearing (inter alia) that the Plaintiff was aware of all the circumstances previously to his marriage, and the Court being of opinion, upon the evidence, that, eight years before the bill was filed, both the Plaintiff and his deceased wife had acquiesced in the transaction.

Elizabeth Wright, before her marriage Elizabeth Vanderplank, spinster, was the only child of the Defendant, Samuel Vanderplank, and was born in February 1822.