PREROGATIVE COURT, FEB. 25. Colvin against Fraser.-Mr. Farquhar's Will.

Sir J. Nicholl gave sentence in this important case. The party deceased was John Farquhar, esq., who died on the night between the 5th and 6th of July, 1826, a bachelor, leaving several nephews and nieces, the issue of his brother and sisters, deceased. One of the nieces, Mrs. Trezevant, daughter of the deceased's brother, was his heir-atlaw, provided she laboured under no legal disability to inherit: Mr. Fraser and lady Pole were the children of one of the deceased's sisters: Messrs. James and George Mortimer, and Mrs. Lumsden, and Mrs. Aitken, were the children of the other sister. These seven persons were the next of kin, entitled to distribution in case of an intestacy. The personal property amounted to about 500,000l., and the real property to about 60,000l. In December, 1826, administration had been granted to Mr. Fraser, which was called in by Mr. David Colvin, in November, 1827, in his character of executor under an asserted will of the deceased, which originated the present suit. The will propounded bore date the 7th March, 1814; it was executed at Calcutta, just before the deceased left India, and in duplicate. The deceased was born near Aberdeen, in 1750, and was educated at the Marischal College for the medical profession. He went to India at the

age of 19, entered the army,

was wounded, proceeded to Calcutta, and, having a taste for chymistry, superintended the manufacture of gunpowder. His undertakings were successful; and, aided by a very strict frugality, in the course of forty-five years he amassed an immense fortune. He had kept up little direct correspondence with his family. His brother had proceeded to America about the same time that he went to India; and the deceased acknowledged, in a letter to his friend, Mr. George Wilson, in 1785, that "he did not recollect much of him." With Mr. Wilson, king's counsel, he corresponded confidentially respecting all his concerns, and especially his family: a great number of these letters were before the court. In 1814, the deceased arrived in England, and took up his abode, first with sir Wm. and lady Pole, in Weymouth-street ; he afterwards took a house in Baker-street; then he resided at Gloucester-place; and in 1823, he went to the New-road, where he died. In 1815, he became a partner in Messrs. Whitbread's brewery, and also in the East India Agencyhouse of Bazett and Co., the correspondents of the house of Colvin and Co., of Calcutta. He treated also for the purchase of certain landed estates. In 1815 or 1816, he sent for and received his will from India. It seemed rather extraordinary, that in none of the conversations about his will, whether with his partners, his solicitor, his bankers, or Mr. Colvin

himself, the deceased ever mentioned that he had a duplicate of the will still remaining in India. It was a fact clear and incontrovertible, that, though one duplicate of the will was in the possession of the deceased in 1816, the other duplicate was not known to be in India in the deceased's lifetime, nor until produced under the seal of the Supreme Court, at Calcutta, five or six months after his death. In 1816, the deceased visited Scotland. Mr. Wilson, his confidential friend, who had quitted the English bar, and retired to Edinburgh, was then dead. Previous to proceeding there, however, the deceased deposited in the custody of Mr. Bland, his fellow partner in Messrs. Whitbread's house, a paper which he declared to be his will. The deceased, when he gave him the

man,

paper, observed, take care of it, for if any thing happens to me, that is my will.' After his return from Scotland, the deceased received back this paper from Mr. Bland. There

was no reason to doubt the sincerity of the deceased on this occasion, or that the paper was his will received from India, for there were then no traces of any other will. Then here was the original will taken out of the envelope in which it had been received, and put into another, so that at least there were two envelopes, and this was not an immaterial circumstance in the case; and, moreover, here was the will traced back again to the deceased's own possession. Whilst in Scotland, he made inquiry about the professors and their emoluments, and the state of education in that country, respecting which the court had the testimony of Professor Davison, who deposed that, in conversation, the deceased

repeatedly said he had made a will, but did not know if it would be valid. Here was no intimation of the terms and contents of the will, though some doubts of its validity. Nothing more was heard of the will, or of any testamentary act, till October, 1821: for though the deceased did talk in loose and general terms respecting the subject of education in Scotland, he specified no plan, nor mentioned his intention of doing any thing by will.

The deceased went on

with his speculations, sometimes with profit, sometimes with loss, and in purchasing estates. Mr. Drake, his solicitor, deposed to a conversation in 1818, when the deponent suggested that he should make a will, or republish his will if he had made one, as real property, purchased after the date of a will, would not pass thereby, but would go to the heir-at-law. The deceased replied · -"My heir-atlaw, Mr. Drake, is a vagabond in the back settlements of North America." Here, then, the deceased was informed, that an afterpurchased estate would not pass by the will he had made; and Mr. Drake had intimated doubts respecting the legal capacity of his heir-at-law to inherit real property in this country. The deceased, however, took no step till three years after, in October, 1821, when, being on the point of going to Paris, in company with Mr. Phillips, the auctioneer, a hasty transaction took place at the house of Mr. Colvin. The deceased produced the Indian will, and, whilst the carriage was waiting at the door, altered the will, and executed a testamentary instrument, disposing of the East Mark estate, which he had purchased, to Mr. George Mortimer. The exact extent of

himself, the deceased ever mentioned that he had a duplicate of the will still remaining in India. It was a fact clear and incontrovertible, that, though one duplicate of the will was in the possession of the deceased in 1816, the other duplicate was not known to be in India in the deceased's lifetime, nor until produced under the seal of the Supreme Court, at Calcutta, five or six months after his death. In 1816, the deceased visited Scotland. Mr. Wilson, his confidential friend, who had quitted the English bar, and retired to Edinburgh, was then dead. Previous to proceeding there, however, the deceased deposited in the custody of Mr. Bland, his fellow partner in Messrs. Whitbread's house, a paper which he declared to be his will. The deceased, when he gave him the paper, observed, ——, man, take care of it, for if any thing happens to me, that is my will." After his return from Scotland, the deceased received back this paper from Mr. Bland.

There was no reason to doubt the sincerity of the deceased on this occasion, or that the paper was his will received from India, for there were then no traces of any other will. Then here was the original will taken out of the envelope in which it had been received, and put into another, so that at least there were two envelopes, and this was not an immaterial circumstance in the case; and, moreover, here was the will traced back again to the deceased's own possession. Whilst in Scotland, he made inquiry about the professors and their emoluments, and the state of education in that country, respecting which the court had the testimony of Professor Davison, who deposed that, in conversation, the deceased

repeatedly said he had made a will, but did not know if it would be valid. Here was no intimation of the terms and contents of the will, though some doubts of its validity. Nothing more was heard of the will, or of any testamentary act, till October, 1821: for though the deceased did talk' in loose and general terms respecting the subject of education in Scotland, he specified no plan, nor mentioned his intention of doing any thing by will. The deceased went on with his speculations, sometimes with profit, sometimes with loss, and in purchasing estates. Mr. Drake, his solicitor, deposed to a conversation in 1818, when the deponent suggested that he should make a will, or republish his will if he had made one, as real property, purchased after the date of a will, would not pass thereby, but would go to the heir-at-law. The deceased replied "My heir-atlaw, Mr. Drake, is a vagabond in the back settlements of North America." Here, then, the deceased was informed, that an afterpurchased estate would not pass by the will he had made; and Mr. Drake had intimated doubts respecting the legal capacity of his heir-at-law to inherit real property in this country. The deceased, however, took no step till three years after, in October, 1821, when, being on the point of going to Paris, in company with Mr. Phillips, the auctioneer, a hasty transaction took place at the house of Mr. Colvin. The deceased produced the Indian will, and, whilst the carriage was waiting at the door, altered the will, and executed a testamentary instrument, disposing of the East Mark estate, which he had purchased, to Mr. George Mortimer. The exact extent of

PREROGATIVE COURT, FEB. 25. Colvin against Fraser.-Mr. Farquhar's Will.

Sir J. Nicholl gave sentence in this important case. The party deceased was John Farquhar, esq., who died on the night between the 5th and 6th of July, 1826, a bachelor, leaving several nephews and nieces, the issue of his brother and sisters, deceased. One of the nieces, Mrs. Trezevant, daughter of the deceased's brother, was his heir-atlaw, provided she laboured under no legal disability to inherit: Mr. Fraser and lady Pole were the children of one of the deceased's sisters: Messrs. James and George Mortimer, and Mrs. Lumsden, and Mrs. Aitken, were the children of the other sister. These seven persons were the next of kin, entitled to distribution in case of an intestacy. The personal property amounted to about 500,000l., and the real property to about 60,000l. In December, 1826, administration had been granted to Mr. Fraser, which was called in by Mr. David Colvin, in November, 1827, in his character of executor under an asserted will of the deceased, which originated the present suit. The will propounded bore date the 7th March, 1814; it was executed at Calcutta, just before the deceased left India, and in duplicate. The deceased was born near Aberdeen, in 1750, and was educated at the Marischal College for the medical profession. He went to India at the age of 19, entered the army,

was wounded, proceeded to Calcutta, and, having a taste for chymistry, superintended the manufacture of gunpowder. His undertakings were successful; and, aided by a very strict frugality, in the course of forty-five years he amassed an immense fortune. He had kept up little direct correspondence with his family. His brother had proceeded to America about the same time that he went to India; and the deceased acknowledged, in a letter to his friend, Mr. George Wilson, in 1785, that "he did not recollect much of him." With Mr. Wilson, king's counsel, he corresponded confidentially respecting all his concerns, and especially his family: a great number of these letters were before the court. In 1814, the deceased arrived in England, and took up his abode, first with sir Wm. and lady Pole, in Weymouth-street; he afterwards took a house in Baker-street; then he resided at Gloucester-place; and in 1823, he went to the New-road, where he died. In 1815, he became a partnerin Messrs. Whitbread's brewery, and also in the East India Agencyhouse of Bazett and Co., the correspondents of the house of Colvin and Co., of Calcutta. He treated also for the purchase of certain landed estates. In 1815 or 1816, he sent for and received his will from India. It seemed rather extraordinary, that in none of the conversations about his will, whether with his partners, his solicitor, his bankers, or Mr. Colvin