any of the parties are to be at liberty to apply &c. [See Usual Directions, No. XIX. ante.] Coomes v. Elling, L. C. 2d March, 1748. Reg. Lib. A. 1747. fol. 512. S. C. 3 Atk. 676.

No. XI.

INQUIRY WHERE MISTAKE IN DESCRIPTION OF FUND.

This Court doth order that it be referred to Mr. A. one &c. to inquire and state to the court, whether Faith Taylor the testatrix, in the pleadings in this cause named, had standing in her name in the books of the Governor and Company of the Bank of England, at the time of making her will, and of her death, 1000l. five per cent. annuities, and in case she had not such bank annuities standing in her name at the respective times aforesaid, then he is to inquire and state to the Court what annuities or stock the said testatrix had standing in her name in the books of the Governor and Company of the Bank of England, at the time of the making of her will, and of her death. And the said Master is to inquire and state to the Court, what annuities or stock were meant by the said testatrix, by the description in the will of 10007. five per cent. stock. And the said Master is to state any matter specially to the Court, at the request of either party. And for the better discovering of the matters aforesaid &c. [See Usual Directions, No. I. ante.] Fardy v. Musto, V. C. 17th June, 1823. Reg. Lib. A. 1822. fol. 2268.

No. XII.

INQUIRY WHERE MISTAKE IN DESCRIPTION OF LEGATEE.

[The bequest was in trust for such of the children of the testator's late aunt, Diana Walker, as should be living at the time of his decease, and for the issue or descendants, who should be living at the time of his decease, of such of the children of his said aunt as should have died in his lifetime.

He had no such aunt.]

It is ordered that the said Master do inquire and state to the Court what person the said testator meant by the description of his late aunt Diana Walker, and what children of such person were living at the testator's death, and what issue or descendants were living at the time of the said testator's death of such of the children of the person aforesaid, as died in the said testator's lifetime. And, in case the said Master shall find that any of such children, issue, or descendants, who were living at the said testator's decease, have since died, then he is to inquire and state to the Court, who are their personal representative or representatives. And for the better discovery of the matters aforesaid &c. [See Usual Directions, No. I. ante.] Shearman v. Jennett, M. R. 29th January, 1825. Reg. Lib. B. 1824, fol. 436.

NOTE.

See Masters v. Masters, 1 P. W. 425. Beaumont v. Fell, 2 P. W. Baylis v. Attorney-General, 2 Atk. 239.

141.

3 Bro. 312.

4 Ves. 769.

Abbot v. Massie, 3 Ves. 148.

Hunt v. Hort,

Norman v. Morrell,

G

DECREES RESPECTING REAL ASSETS.

No. I.

DIRECTION FOR ESTABLISHING WILL.

His Lordship doth declare that the will of the said testator Benjamin Haskins Stiles, is well proved, and ought to be established, and the trusts thereof performed, and doth therefore order and decree the same accordingly. Gibson v. Stiles, L. C. 18th July, 1741. Reg. Lib. A. 1740. fol. 550.

No. II.

WHERE WILL ADMITTED.

His Lordship declared that the will of the said testator being admitted by the said defendant Philip Herbert, his heir at law ought to be established, and the trusts thereof performed, and doth order and decree the same accordingly. Loder v. Halett, L. C. 3d April, 1741. Reg. Lib. B. 1741. fol. 305.

NOTE.
Establishing Will.

At law it is sufficient to examine one witness to prove a will, if he can prove the due execution of it, unless it is impeached. See Peake's Evidence, 401. But in equity, on proving the will against the heir, all the witnesses must be examined. Bootle v. Blundell, 19 Ves. 505. S. C. Coop. 137. Ogle v. Cook, 1 Ves. 177. Townsend v. Ives, 1 Wils. 216. Bullen v. Mitchell, 2 Price, 491. In Powell v. Cleaver, 2 Bro. 504. Lord Thurlow seems to have doubted the rule. But in Bootle v. Blundell, supra, Lord Eldon affirmed it. And the same rule applies to the trial of an issue, dev. vel non. S. C. 19 Ves. 494. Coop. 136. But it seems that the rule does not apply where the will is not wholly, but only partially in question, S. C. 19 Ves. 505.

The rule, however, admits of exceptions; as in the case of the death of one of the witnesses. See case by Lord Hardwicke, cited from Mr. Joddrell's Notes, 19 Ves. 505. And see Townsend v. Ives, 1 Wils. 216. (in which the rule is stated to be that all the witnesses, if living, must be examined.) So in the case of the absence of one of the witnesses abroad, proof of his hand-writing was held sufficient. Lord Carrington v. Payne, 5 Ves. 411. And see Billing v. Brooksbank, cited 19 Ves. 505. And this has been since acted upon. Anon. Ex. Rel. Mr. Tinney. But see Fitzherbert v. Fitzherbert, 4 Bro. 231. Grayson v. Atkinson, 2 Ves. 460. So where one of the witnesses had become insane. Bernett v. Taylor, 9 Ves. 381. And see Currie v. Child, 3 Camp. 283. So where one of the witnesses had not been heard of for many years, and could not be found. James v. Parnell, 1 Turn. 417. M'Kenire v. Fraser, 9 Ves. 5. And see Cunliffe v. Sefton, 2 E. R. 183.

In equity it is also necessary to prove the sanity of the testator. Harris v. Ingledew, 3P. W. 93. Wallis v. Hodgeson, 2 Atk. 56.

Where the proof is defective, liberty will be given to exhibit interrogatories to supply the defect. See Decree for cause to stand over &c. No. II. post.

Where the proof, though not formal, is satisfactory to the Court, the trusts of the will will be directed to be carried into execution, without declaring the will well proved. See Binfield v. Lambert, 1 Dick. 337. Fitzherbert v. Fitzherbert,

Bird v. Butler, Ib. note.

4 Bro. 231. Wood v. Stane, 8 Price, 615.

Formerly, where the heir at law was abroad, or not to be found, the Court (as in the case of informality in the proof of the will,) directed the execution of the trusts without declaring the will well proved. See French v. Baron, 1 Dick. 138. S. C. 2 Atk. 120. Stokes v. Taylor, 1 Dick. 349. Cator v, Butler, 2 Dick. 438. Braithwaite v. Robinson, Ib. 439. note. But the Court will declare the will well proved notwithstanding the absence of the heir. Bannister v. Way, 2 Dick. 599. Williams v. Whinyates, 2 Bro. 399. The heir, however, will not be bound by this declaration. See Lord Redesdale, 140. So where the heir makes default the Court will declare the will well proved. See Decrees by Default &c. No. I. Note (1.) post. So where he declines an issue. 2 Cox, 225.

Jackson v. Barry,

Where the heir admits the will the Court will establish it, without

declaring it well proved. Loder v. Hallett, No.II. supra. Ithel v. Bean, No. X. post. Lord v. Calton, No. IX. post. That the admission of a femê covert answering separately under an order for that purpose is sufficient. See Codrington v. Earl of Shelburne, 2 Dick. 475. That the admission of an adult heir will not bind his infant heir. See Cartwright v. Cartwright, 2 Dick. 545.

That where the heir states the execution of the will as to his belief only, the will must be proved. See Potter v. Potter, 1 Ves. 274. Whether, in other cases, the belief of the defendant is a sufficient ground for a decree. Q. See Potter v. Potter, supra. Hill v. Binny, 6 Ves. 738. Com. Dig. "Chancery" T, 7.

No. III.

DECREE IN SUIT BY BOND CREDITOR (1), WHERE ASSETS LEGAL.

[The plaintiff's annuity was secured by bond].

His Honor doth think fit, and so order and decree that it be referred to Mr. A. one &c, to take an account of the said intestate Francis Barefoote's personal estate, come to the hands of the said defendant, or to the hands of any other person or persons by his order, or for his use. And the said Master is also to take an account of what is due to the plaintiff for the arrears of his annuity, and of all other the said intestate's debts and funeral expenses. And it is ordered and decreed that the said intestate's personal estate be applied in payment of what shall be so reported due to the plaintiff, and of his other debts and funeral expenses, in a course of administration. And in case the said intestate's personal estate shall not be sufficient for that purpose, then the said Master is to take an account of the rents and profits (2) of the real estate of the said intestate received by the said defendant, or by any other person or persons by his order, or for his use, and thereout the said plaintiff and the said intestate's other specialty creditors are to be paid what shall be remaining due to them as aforesaid. And in case the said rents and profits shall not be sufficient, then it is ordered and decreed that the said