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and shewed further, that appellant's cause, together with respondents cause against him, and the executors of the said Robert, were heard before the late Lord Chancellor Somers, 3rd March, 1698, and that it was then ordered that the said Henry Cane should be examined upon interrogatories, for discovery of the draft of, and instructions given by testator for said will; and that a trial at bar was directed to try the validity of the said will, and that said Henry Cane was accordingly examined, and pretended that as soon as the will was published, the instructions and draft were burnt or torn, and that thereupon appellant thought fit to wave the trial and admit the will; and that the causes were again heard, 14th June, 1699, and appellant's bill dismissed; but provision was made as to the lands devised to the testators said half brothers and their respective heirs; and that appellant submitted to such provision and bequests; and that said Henry Cane died since the decree, and by his will devised his pretended interest in Dormer's estate to his sons, respondents, Henry, Charles, Matthew, and John Cane, and made said Henry and Charles his executors; and that said Peregrine Bertie also died, and by his will devised his pretended interest to the respondents, Anthony Henley and Mary his wife, and Bridget Bertie, said Mary and Bridget being daughters and co-heirs of the said Peregrine, and made Bridget his executrix; and appellant insisted he was aggrieved by the decree of dismission, and that he was well intitled to the relief prayed by his bill. (William Whitlock.)

The respondents on the other hand made this case: That Robert Dormer, Esq. was seized in fee of a real estate of near 1700l. per annum, and contracted debts [132] to the amount of 8000l. beyond the value of his personal estate, and made his will of the import stated by appellant, and moreover, that he left a legacy of 5l. to appellant, and willed that all bis debts should be paid by his executors; and that the four executors proved the will, and took upon them the payment of the debts; and that appellant had brought his bill to recover the whole estate, suggesting that the will was obtained by fraud, and when testator was not compos mentis, though in other parts of his bill he seemed only to aim at the surplus, on pretence that it was devised in trust for him, and ought to enure to his benefit as heir at law; and stated that appellant was but testator's cousin germain; and that he might and ought to have gone to a hearing on the constructions of the will without any examination, but instead thereof examined many witnesses to set aside the will, which obliged respondents to examine, on their part, to support the will; and that it was fully proved that testator greatly respected his executors (three of whom were his own uncles) and that appellant had quite lost his favour; and that he had got leave to add an interrogatory to examine one Smith and Mason as to Cane's discourses touching the will, and afterwards, by surprize, and without notice, obtained the order of 6th February, 1698, for enlarging the interrogatory so as to extend it to testator's discourses, and to re-examine Smith thereto; which last order was three days afterwards, after long debate, discharged the court, being satisfied that no such examination, on enquiry, ought to be permitted in relation to a will in writing, and that Smith had been before examined at the commission to that very matter; and that on the hearing at appellant's instance, the court directed the validity thereof to be tried at law, and that Mr. Cane, who drew it, should be examined on interrogatories, for discovery of the draught, and instructions, which he was, and appellant afterwards declined the trial, and admitted the will, and, 14th June, 1699, brought the cause to be heard as to the pretended trust: Whereupon, and upon reading the will and proofs, and long debate, the court declared they saw no cause to give the appellant any relief, and dismissed his bill; which dismission respondents insisted was just and equitable, and that there could hardly be found words which more expressly excluded any idea of such a trust, presump-[133]-tion, or implications, as appellant aimed at, than the words made use of in this will: and further insisted that the order of the 6th February was justly discharged, for that it was not consonant to the laws and statutes of this realm, that any examination or parol-proof should be admitted to alter the construction of a written will concerning lands, and that it was against practice, and would be of dangerous consequence to all men's estates, and a great inlet to perjury, if witnesses once examined were permitted to be re-examined to the same matters. (Hen. Poley.)