« AnteriorContinuar »
ary bounty to her more consider- ing expressed a wish that he able. The extracts from the diary should not have the search and contemporaneous with the will, collecting of his papers, (no doubt formed the strongest picture the on account of his considering him Court could have of the deceas from the conversation they had ed's feelings and intentions, and had rather inimical to the intermanifested the greatest improba- ests of Miss Price) had in his evibility that he should destroy the dence satisfactorily acquitted himwill with the intention of leaving self from such an insinuation.her wholly unprovided for ; and Upon the whole of the case, therethe endorsement on the will ad- fore, the Court wis impressed dressed to her was a strong confir- with a strong moral conviction, mation of his adherence to it, even after the most careful considerato the extent of a desire to put it tion, that the presumption of law out of his power to revoke it. He was sufficiently repelled by the continued to express the senti- circumstance in evidence, and that ments of regard he entertained the deceased did not destroy the for her down to his death; re- will, but died with the impression cognised by the expression of on his mind, that it would ope"all, all is your's" even in his rate afterwards, and that he had dying moments, and by making taken sufficient means to ensure the copy of it, and depositing it its having that effect. The valiamongst her letters, took the dity of the will was accordingly greatest precaution to prevent the pronounced, and a probate de possibility of his intentions being creed of the copy in short-hand defeated. The book left open in and translation, limited until the Juis study did not of itself shew an original shall be found, and intention of making a new will brought into the registry. sufficiently to destroy the effect of The counsel for Mr. Worthingthe evidence alluded to. The will, ton then moved, that the Court indeed, might still be found, as would direct his costs to be pait it very commonly happens that out of the estate, on the ground persons from excessive precau- of the deceased having by his con. tion place things so securely duct led his relations to believe that they know not afterwards that his testamentary disposition where to find them themselves. would be to a very different effect; The deceased died at Worthing, and thereby under the circumand his papers were afterwards stance of the original not having brought to town. The will might, been found, imposed upon then therefore, have been lost or mis- the necessity of investigating the laid in the confusion of the re- matter by the present proceeding. moral; for as to its having been Sir John Nicholl observed, that intentionally destroyed, there was the case had not been conducted no foundation for such a suppo- in such a manner as to show the sition. Mr. Marston, against opposition to have been compulwhom it was levelled from the sory on the part of Mr. Worthingcircumstance of the deceased have ton. It was only under very ex
traordinary circumstances that the It appeared from the evidence Court could direct costs to be paid in support of the will, that the out of an estate. Under all the deceased had been a haberdasher, circumstances of the case, had the but had retired from business to letters which Mr. Worthington lodgings in Camden-street, Islingthought necessary to introduce ton. He had called at the office been merely annexed to the inter- of Messrs. Creswell and Adams, rogatories on the cross-examina- in Doctors Commons, and given tion of Miss Price's witnesses, the instructions for the will, which Court might have recommended, was accordingly prepared, and on though it would not then have the following day, being the 5th gone the length of directing the Oct. 1805, he called and executed costs to be paid ; but as Mr. W. it. He then took it away with had gone on to plead them with him, deposited it in a bureau in other matter, and examined fresh his sitting room, and subsequentwitnesses in support of that plea, ly made some memoranda on the certainly the present prayer for back of it relative to his funeral, costs could not be acceded to.- the nature of his property, &c. Miss Price would exercise her He was also proved to have enown discretion voluntarily to pay tertained a great regard for his them.
house-keeper, Mrs. Greenough,
not only for her attentions to himYapp v, Sanders and Others.-- self, but also on account of her havThis was a proceeding relative to ing been an intimate friend of his the validity of the will of the late deceased sister. In September 1809, Mr. Robert Morgan, late of Cam- he experienced a paralytic attack, den-street, Islington, deceased. which deprived him of the use of
The will was dated the 5th of his right side, and affected his October, 1905, and, after giving speech, and mental faculties.e several specified legacies, be- From this time his health graduqueathed the residue of his pro- ally declined, and his mental eaperty to a Mrs. Greenough, who pacity declined with it, until he resided with him in the capacity was at length reduced to a state of house-keeper, and appointed of the greatest imbecility, both of Mr. Thomas Longford, of Isling- body and mind. In this state, on ton, and William Yapp, esq. Lom- the 6th of June, 1810, having bard-street, executors. The will been wheeled in his chair from had, however, been subsequently his bed room into his sitting room, torn by the deceased, but the and there accidentally opened his pieces were preserved, and it was bureau, he took out his will and now propounded, on the part of tore it to pieces, and at the same Mr. Yapp, on the ground that the time threw down some bank notes, deceased, at the time of tearing it, one of which was afterwards found was not in a state of mind to within side the fender by the fireknow the nature of the act he was place. Mrs. Greenough coming committing, and it was opposed in, and observing what he had by four cousins of the deceased, been doing, apprized bin of it, daiming as his next relations. but he replied only by a childish
laugh, laugh, and soon afterwards burst scious of what he did. The law into tears. Mrs. Greenough com- was clear, that the same degree municated the circumstance to of capacity was necessary to resome other persons in the house, voke as to make a will, and the by whose advice a medical gentle- question in the present case was man in the neighbourhood was therefore reduced to one fact, sent for, and they jointly interro- whether the deceased was or was gated the deceased; but to all not at the time in the state of their questions, though opposite mind that had been described and contradictory, he answered He then alluded to the evidence by the same vacant affirmative; of four of the witnesses upon this and by the general tenor of his point, and observed that they conconduct completely convinced cluded with stating their full conthem of his incapacity. The viction of the deceased's incapapieces of the will were then sealed city; but they stated the facts upon up in an envelope, and preserved which they came to that concluin their exact mutilated state, un- sion, and upon the examination til after the deceased's death, of those facts, the Court could it which happened in the month of but think that they had come to it November, 1813.
rightly. This impression was No evidence was adduced in confirmed by the opposing parties contradiction to this, on the part having given no plea to resist the of the next of kin, whose Coun- effect of this evidence, and by the sel admitted the sufficiency of the evidence of the same witnesses proof to sustain the case of the upon their cross-examination.supporters of the will. They con- The will itself contained expres. tended, however, that the circum- sions of the deceased's regard for stances of the case were such as the person he had made his resinot only to justify, but absolutely duary legatee, for her kindness to call for a solemn investigation and attentions to his deceased sisbefore the Court, to satisfy its ju- ter. These attentions, it appeardicial conscience in giving opera- ed, were continued to himself tion to an instrument presenting down to the very time of his itself to notice under such, at least, death, and produced, as their naequivocal circumstances. They tural consequences, the regard trusted, therefore, that the next of which he had often expressed for kin would be protected in this her. The result of the evidence necessary act of duty, by the was, therefore, such as not only Court's directing their costs to be to justify, but to make it the duty paid out of the estate.
of Counsel to take the course they Sir J. Nicholl recapitulated the had, in admitting its sufficiency circumstances of the case, and ob- for the establishinent of the will, served that the act of tearing was, by repelling the presumption of certainly of itself, a revocation of its having been torn Animo Caxthe will, but then it was said to cellandi. An application was, howhave been done by the deceased ever, made for costs, and made when in a state of mind uncon- certainly in very conciliatory terms.
But the Court must be on its admissibility of an allegation guard against being led into any pleading two testamentary papers undue indulgence in the exercise as codicils to the will of William of its power in this respect : a Looker, formerly of Great Carpower so rarely called into action,' ter-lane, Doctors' Commons, but that it was hardly known to exist late of Islington, and belonging until so declared by a recent de- to the Excise-office, deceased. cision of a higher tribunal. It - The deceased had duly exewas to be considered, whether cuted his will, dated 18th of July, the opposing parties in this case 1807, and by it disposed of his had done nothing more than what property amongst his family, to they could not possibly avoid; the exclusion only of his eldest but he apprehended that they had. son, Henry William Looker. Affidavits as to the particular cir- The first codicil, dated 20th of cumstances of the case might have April, 1810, was merely a recogbeen filed, with proxies of consent nition of his having in his will from the next of kin, which would intentionally omitted the name of have been sufficient for the pro- his eldest son, and, in complibate's passing in common form: ance with the vulgar notion, gave but the parties had thought fit, him one shilling lest he should for their own satisfaction, to put dispute the will. To this codithe executor to the proof of the cil there was a clause of attesta. will in a more sulemn form; they tion, but no witnesses. had certainly the right of doing The second codicil purported so, but then it was to be exercised to express an intention of making on their part, at their own expense. several alterations in the will, the There was yet another consider- principal one of which was, to ation, that though the parties leave the testator's daughter 100l. were in a humble sphere of life, per annum, and his house and yet they had, under the will, a furniture for life, stated his being fand, out of which their expenses described of two different places might very well be paid : there of residence in his different stocks was a legacy of 1000l. 3 per cent. at the Bank, which would rendconsols. bequeathed amongst four er it necessary to specify both of them; so that to accede to the when the alterations should be present application, would be, in made, and concluded with various effect, to condemn the residuary other memoranda as to the power legatee in costs. The will was, of trustees, the mode of substitherefore, pronounced for, and tuting others for such as might the application for costs rejected, die, the amount and particulars leaving it to each party to pay of this stock, &c. This Codicil. their own costs.
was without date, but signed by
the deceased. PREROGATIVE COURT, DOCTORS' The 3d codicil consisted of some COMMONS.
memoranda in pencil, on the back
of the 1st, to the same effect as Chalmers v. Catherwood and Others. those on the ed ; and there were This was a question upon the also some other papers or memo
randa, (one of which was taken always against them, and that it out of the deceased's pocket-book) must be shewn, in the present expressive of an intention of mak- case, that the deceased had made ing siinilar alterations in the will. up his mind to the revocation of
The allegation now offered in the will which they purported to support of those papers pleaded revoke. He then described the the contents of the will as far as nature and purport of the papers, regarded the exclusion of the eld- and of the allegation in support of est son, and the bequest of an an- them, which, he observed, stated nuity of 921. with certain parts of but little in explanation of them; the furniture to the daughter dur- and it was, therefore, evident, that ing life, the deceased's signature the case must depend principally to the first codicil, and handwriting upon the appearance and nature of the whole of the second, and of the papers themselves. The his having kept them in his desk will was a very formal one, and at the Excise office, until within a had all the appearance of having short time of his death, when he been drawn up by some professed brought the will and first codicil man. The deceased must, therehome, and they were afterwards fore, have been well aware of the found in a chest of drawers, sealed modes in which a testamentary up in an envelope, and the second disposition should be drawn. The codicil loose in his desk. It also first codicil, being of no legal ef, pleaded several parole declarations fect, would be sufficiently disposed of the testator to the effect of the of under the general rule of law, alterations in favour of his daugh- which presumes every unfinished ter, and his general capacity until paper not to be intended to ope. his death, which was occasioned rate. The second codicil was a by his being run over by a carriage mere draft or sketch of one to be on the 24th November, 1814. prepared, if subsequently approved
The admission of this allegation of; and the third, written in pep. was opposed on the ground that cil on the back of the first, was the circumstances detailed in it evidently a mere memorandum. were not sufficient to rebut the He inclined therefore to the view presumption of law arising from of them taken by the counsel in the appearance and import of the objection, and considering them papers themselves, that they were as wholly inoperative, established merely memoranda and sketches the will, but pronounced against of alterations to be subsequently the codicils, and rejected the al. ma:le in his will, and never in- legation. tended by the deceased to operate in their present imperfect form. Higgin and Harrison, 1. Har
Sir John Nicholl observed, that rison.—This was a similar question the general principles upon which upon the validity of a testamentary unexecuted papers brought before paper, pleaded as a codicil to the the Court were to be considered, will of William Parke, Esq. forwere too well known to require merly of the Hermitage-house, detail. It was sufficient to say, Jamaica, but late of Gower-street, that the presumption of law was Bedford-square,