276 



ANNUAL REGISTER, 1814. 



papers, and knew not afterwards 

 what was become of it, until he 

 accidentally found it, on making a 

 earch by desire of the professional 

 persons concerned in the cause. 

 The rest of the evidence went 

 principally to the degree of regard 

 entertained by the deceased for 

 the parties interested ; his recog- 

 nition to his family and others in 

 conversation of his will and its 

 contents ; the acquiescence of the 

 wife and relations in it for so 

 many years ; and Carnsew's de- 

 clarations of animosity to the exe- 

 cutor, on account of his enforcing 

 payment of a debt due from him 

 by legal proceedings. 



It was contended, on the part of 

 the next of kin, that no part of 

 the evidence, in support of the 

 will, was sufficiently strong to 

 weigh against the positive evidence 

 of Carnsew, as to the deceased's 

 total incapacity, and, therefore, 

 the decree of the Court below, 

 founded upon the proof of that 

 fact, ought to be affirmed. 



On the other hand it was ar- 

 gvred, that Carnsew was not en- 

 titled to credit ; and setting his 

 evidence aside, the evidence of 

 Dr. Hall's good character and 

 hand-writing, corroborated by the 

 collateral facts of the case, was 

 sufficient to uphold the will, and 

 justify a reversal of the decision 

 appealed from. 



Sir John Nicholl recapitulated 

 the circumstances of the case. He 

 observed that the party now im- 

 peaching the validity of the will 

 was the niece of the testator's 

 widow, had lived with her until 

 her death, and had acquired, by 

 dfed of gift from her, the same 

 interest that she had herself in the 

 property in question under the 



will. She must, therefore, have 

 obtained an ample knowledge of 

 the circumstances connected with 

 the making of the will, and have 

 had the same motives for insti- 

 tuting a judicial inquiry into them. 

 By not having done so, however, 

 for so many years, every presump- 

 tion of law arising from thence 

 was as strong against her as it was 

 in favour of the act impeached. 

 Mr. Carnsew was the only one of 

 the subscribing witnesses now alive 

 who could give any distinct ac- 

 count of the transaction in ques- 

 tion. He was a witness, common 

 to both parties, they being equally 

 entitled to call for his evidence. 

 That evidence was most material 

 in the present case, and must, 

 therefore, meet with the most ri- 

 gorous scrutiny, as, if he was to be 

 believed, there was an end of both 

 wills. It was, however, by no 

 means to be concluded, on the 

 other hand, that if he was dis- 

 credited, the will must necessarily 

 be established. The Court must 

 form its judgment on that point 

 from the whole circumstances of 

 the case, and their probability and 

 concurrence with each other, as 

 there had been cases, as observed 

 by the Counst^l, in which wills 

 had been establi.'>hed against the 

 evidence of a very numerous body 

 of witnesses, all speaking in de- 

 rogation of their own act. A 

 contrary position would be griev- 

 ous in the extreme, and lead to 

 the grossest instances of fraud, by 

 witnesses conspiring together, and 

 agreeing in one imiform and posi- 

 tive narration of fact. He then 

 entered into a minute examination 

 of Carnsew's evidence, and con- 

 trasted one part of it with another, 

 and the whole with the evidence 



