desirous that the expenses incurred up to that time by the petitioners in preparing for the trial, should be allowed to the petitioners as costs in the cause. The prayer was, that the order of the 25th of January, 1832, directing the issue, and that of the 27th of November, 1832, substituting the trustees as plaintiffs, might be discharged; and that the costs of and relating to the issue, and of the said application and consequent thereupon, might be costs in the cause as between solicitor and client, the petitioners thereby undertaking to admit the validity of the will and codicil of the said testator, and submitting to have the trusts thereof performed and carried into effect under the direction of the Court. This petition came on for hearing, together with the cause, upon further directions, on the 14th of February, 1833, when a decree was made in the cause and on the petition, which after stating that the defendant Mary Anne Meryweather the heiress-at-law, and customary heiress of the said testator, by counsel consented that the orders of the 25th day of January, and the 27th day of November, 1832, should be discharged, ordered those orders to be discharged accordingly. It further declared, that the will and codicil were well proved, and it ordered that they should be established, and the trusts thereof be performed and carried into execution. The costs were directed to be taxed, and to be paid in the manner as sought by the petition. In 1845, a petition was presented to Parliament for a private Act authorizing building leases to be made of part of the land devised, and was signed by (among others) Mr. and Mrs. Meryweather. An Act for that purpose passed accordingly, and the rights of Mrs. Meryweather and her heirs were excluded from the saving clause. On the 13th of January, 1851, Mrs. Meryweather obtained upon motion before the late Master of the Rolls, an order giving her leave to present by her next friend a petition of rehearing of the decree of the 14th of February, 1833, and afterwards presented a petition of rehearing, intituled in the matter of the private Act as well as in the cause, but not stating the Act in the body of the petition. On the 29th of May, 1851, the trustees moved before the present Master of the Rolls, to discharge the order of the 13th of January, 1851, and that the petition of rehearing might be taken off the file. His Honour thereupon ordered that the petition should be taken off the file. From that order Mrs. Meryweather now moved, by way of appeal. TURNER 0. TURNER. [ 31 ] TURNER v. TURNER. [ *29] [ *30 ] file a petition of rehearing, presented by Mary the wife of William S. Meryweather, who were two of the defendants. The bill was filed on the 3rd of October, 1829, by the infant children of the petitioner Mrs. Meryweather, seeking to establish the will of their grandfather, Mr. William Turner, whose heiress-atlaw and customary heiress Mrs. Meryweather was. By the will freehold and copyhold estates were devised upon certain trusts under which the infant plaintiffs were interested. Mrs. Meryweather and her husband joined in their answer, and thereby admitted the due execution of the will. They had received Mery weather, and a legacy of 500l., bequeathed by the will to Mrs. On the 25th of January, 1832, the cause came on for hearing, On the 27th of November, 1832, an order was made substituting the trustees of the will as plaintiffs in the issue. From this order of substitution Mr. and Mrs. Meryweather had unsuccessfully appealed. On the 5th of February, 1833, no trial of the issue having taken place, Mr. and Mrs. Mery weather presented a petition in the cause to have the order for it discharged. This petition contained the following allegations: That the testator was, at the time of the execution of his will and codicil, under the influence of persons hostile to Mr. and Mrs. Meryweather, who, taking advantage of his impaired state of mind, compelled him to make such will and codicil. That the petitioners had been guided throughout the before-mentioned proceedings in opposing the said will and codicil, from a deep sense of injury, and from the conviction of the necessity for them to clear their characters from the imputations conveyed by the will and codicil, more particularly as the said testator had therein directed that the guardianship of the petitioner's children should be removed from them; that the petitioner's said children had always lived with them on terms of the greatest affection. That the testator had directed the payment of the said annuity of 500l. to Mrs. Meryweather, in a way degrading to the feelings of herself and her husband; but that the petitioners had, at the urgent request of the three adult children who were plaintiffs, consented and agreed to withdraw all further opposition to the will, the adult children being willing and desirous that the expenses incurred up to that time by the petitioners in preparing for the trial, should be allowed to the petitioners as costs in the cause. The prayer was, that the order of the 25th of January, 1832, directing the issue, and that of the 27th of November, 1832, substituting the trustees as plaintiffs, might be discharged; and that the costs of and relating to the issue, and of the said application and consequent thereupon, might be costs in the cause as between solicitor and client, the petitioners thereby undertaking to admit the validity of the will and codicil of the said testator, and submitting to have the trusts thereof performed and carried into effect under the direction of the Court. This petition came on for hearing, together with the cause, upon further directions, on the 14th of February, 1833, when a decree was made in the cause and on the petition, which after stating that the defendant Mary Anne Meryweather the heiress-at-law, and customary heiress of the said testator, by counsel consented that the orders of the 25th day of January, and the 27th day of November, 1832, should be discharged, ordered those orders to be discharged accordingly. It further declared, that the will and codicil were well proved, and it ordered that they should be established, and the trusts thereof be performed and carried into execution. The costs were directed to be taxed, and to be paid in the manner as sought by the petition. In 1845, a petition was presented to Parliament for a private Act authorizing building leases to be made of part of the land devised, and was signed by (among others) Mr. and Mrs. Meryweather. An Act for that purpose passed accordingly, and the rights of Mrs. Meryweather and her heirs were excluded from the saving clause. On the 13th of January, 1851, Mrs. Meryweather obtained upon motion before the late Master of the Rolls, an order giving her leave to present by her next friend a petition of rehearing of the decree of the 14th of February, 1833, and afterwards presented a petition of rehearing, intituled in the matter of the private Act as well as in the cause, but not stating the Act in the body of the petition. On the 29th of May, 1851, the trustees moved before the present Master of the Rolls, to discharge the order of the 13th of January, 1851, and that the petition of rehearing might be taken off the file. His Honour thereupon ordered that the petition should be taken off the file. From that order Mrs. Meryweather now moved, by way of appeal. TURNER v. TURNER. Dec. 19, 20, 22. [ 32 ] [ 33 ] [34] [ 43 ] March 19, 20. [ *11 ] Mr. Bethell and Mr. Villiers for the appellant. Mr. Roundell Palmer, Mr. Wright, and Mr. Hardy for the Mr. Rolt and Mr. J. V. Prior, for other respondents. Mr. Bethell, in reply. Their Lordships [directed that the petition should be restored to the file and] intimated that to save expense they were willing themselves to hear the petition of rehearing, if all parties desired it. On these days the petition of rehearing came on to be argued. Mr. Bethell and Mr. Villiers, in support of the petition. Mr. Roundell Palmer, Mr. Wright, and Mr. Hardy, for the trustees. Mr. Rolt and Mr. J. V. Prior for other respondents. THE LORD JUSTICE KNIGHT BRUCE: This case comes before the Court under extraordinary circumstances. It is not necessary to say whether, when there is an adjudication of the validity of a will of freehold estate after or without a trial at law, in a case in which the heir-at-law is a married woman, that adjudication can be questioned, on the ground that she was a married woman at the time, by her heir or by herself, after the coverture shall have determined. Cases of that description we desire to leave totally untouched, considering that this is not one of them. Subject to any observations which those opposing the present application are desirous of making, we consider at present that this is a case in which there has not been substantially an adjudication upon the will, inasmuch as the husband retired from that question when he had charge of the wife's interest. He, for himself and his wife, retired not on the ground that the will was good-not on the ground that if the contest proceeded the result would be favourable to the will, but on the ground that though the will was a bad one, there were reasons and inducements which led him, the husband, having the conduct of the cause, to think it was better that the will, though a bad will, should be established. And we are at present disposed to think, subject to what we may hear, that it ought to be left open to the wife or her heirs hereafter to make what she or they can of that point; but that, during the life of the husband, the estate is effectually bound, so that, during his life, he being, if the will is bad, tenant by the courtesy, there cannot be a trial. Subject, therefore, to dealing with this case more unfavourably to those who support the application, after hearing those who oppose it,-if they shall desire to be heard,— what we at present propose to do is to vary the decree or order of the 14th of February, 1833, by striking out the words expressing the consent of Mrs. Meryweather, and inserting at the end of it the following words: "This decree or order is to be without prejudice to any suit or question which may be instituted or raised as to the validity of the said will after the death of the said William Stevens Mery weather, and accordingly the said Mary Ann Mery weather, her heirs and assigns, are to be at liberty to institute, prosecute, or make any suit, proceeding, or application, which she or they may be advised, after the death of the said William Stevens Meryweather, for the purpose of recovering the real estate of the said testator, on the ground that he left the said Mary Ann Meryweather his heiress-at-law, and of disputing the validity as to real estate of the said will." Mr. Roundell Palmer, Mr. Rolt, Mr. Wright, Mr. Hardy, and Mr. J. V. Prior for the respondents. Mr. Villiers, in reply. THE LORD JUSTICE KNIGHT BRUCE: We have declared our opinion that without the consent of those opposing the present application nothing can be done to try the validity of the will during the life of the husband. The only question which, though probably difficult, was whether liberty should be reserved to dispute it after his death it is a question theoretically of importance; in this case, I believe, practically of none. THE LORD JUSTICE LORD CRANWORTH: This is a case which, though we believe it practically to be of no importance at all, opens a number of very difficult and somewhat curious questions, namely, as to the rights of a husband as dominus litis in a suit in which his wife's inheritance is interested. There seems to be very great authority for saying (and all convenience, |