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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 be 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 recog. been 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 codi. the 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 eosts 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 meme
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 similar 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 fayour 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 eridently 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. made in his will, and never in- legation. tended by the deceased to operate in their present imperfect form. Higgin and Harrison, v. 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.
The deceased had, whilst in Ja and Sir John Nicholl was of a maiea, duly executed his will, ap- similar opinion as to their being pointing his brother, Charles Parke, merely memoranda, contemplative Esq. and John Higgin and George of some future testamentary disHarrison, Esqrs. executors and position, but never intended to guardians of his children. operate in their present form.
He afterwards came to England, He therefore pronounced against and resided in Gower-street, Bed- them, rejected the allegation, and ford-square, where he died sud- granted the probate of the will denly, being found dead in his bed only. on the morning of the 27th of April, 1813. Search being made Hendy and Hendy, by their Guarby the executors, they, in the diane, v. Hendy and Others. This drawer of a book-case, found a was a proceeding relative to the marble covered book with a piece validity of the will of Thomas of paper round it, fastened by wa Hendy, late of the Haymarket, fers, on opening which, they found deceased, which was propounded it to contain in the deceased's on the part of Thomas and Charhandwriting a copy of the will in lotte Hendy, minors, two illegiJamaica. Eleven other papers timate children of the deceased, were found in the same drawer, and the residuary legatees named three of them tied up with the in it, and opposed by William copy of the will, and the rest Hendy, the deceased's brother. loose. These papers being all in The widow and the other brothers a very informal and imperfect state, and sisters were also cited to beand several of them operating to come parties to the proceedings, the prejudice of three of the but did not appear. defendant's children, who were It appeared, that the deceased minors, the executors deemed it was a master carman in the Haynecessary to take the opinion of market. He died on the 11th of the Court upon their validity. January, 1814, leaving a widow,
An allegation was, therefore, from whom he had been separated now offered on the part of Samuel for many years, and several relaBaldwin Harrison, Esq. the exe- tions. He had also two illegicutor named in one of them, plead timate children, who resided with ing the circumstances before stated, him, and possessed a considerable with the addition of certain decla portion of his regard and affection, rations of the deceased to Mr. one of whom is since dead. He Harrison, to the effect of the alte- had repeatedly declared his intenrations which the papers alluded tion of providing for them by to, but which he delayed, first, un- will to Mr. John Darbon, of Kingtil he had seen his professional street, Marylebone, and other advisers, and afterwards until the friends of his; and accordingly, arrival of a friend from Jamaica, some time in August, 1813, made which never occurred.
his will, in his own handwriting, The same objections were urged appointing Mr. Darbon to be exto those papers as in the last case; ecutor, and giving him all his
property, property, in trust for the two ing that he did not rightly underchildren, with the exception of stand them, desired that they two guineas to himself for a ring, might be read again, which, whilst and a legacy of 201. to his wife. Mr. Darbon was doing, he sudAbout the latter end of August, denly snatched them from him, being very ill, he sent for Mr. and refused to return them; obDarbon, and upon his entering serving, with an oath, that “ rathe room, took the will from a "ther than return them, he would small drawer or desk, and deli- “ suffer himself to be hanged." vered it to him, saying; “ I will Mr. Darbon returned home, and be obliged to you to take care of whilst the contents of the will and this instrument, which is my will, the letter were fresh in his meand put it in your iron chest, for mory, reduced them into writing, in case of my death my drawers and these papers were exhibited might be ransacked.” It was en- properly verified on oath. He closed in an envelope, sealed with then went with a police officer to a masonic seal, and addressed, to Mr. Hendy's, who denied all know“Mr. John Darbon, wine-cooper, ledge of the will and letter. He Marylebone-street,Golden-square. was taken before the Magistrates The Will of Thomas Hendy.” at Marlborough-street, but perMr. Darbon accordingly deposited sisting in his denial, was bound it in his iron safe, where it re- over to answer for the assault at mained until the deceased's death. the Quarter Sessions. He had On the morning afterwards (12th afterwards several interviews with of January) Mr. William Hendy, Mr. Darbon, in the course of which the brother, having called upon he acknowledged that he had deMr. Darbon, he returned the call, stroyed the papers, expressed the taking with him the will, and a greatest contrition for his offence, letter he had received from the and intimated his intention of de. deceased in the November between stroying himself. Mr. Darbon the making of the will and his represented to him the dreadful death, to this effect :-“ Mr. Dar- nature of such a crime, but in “ bon, I have seen my brother, vain, for a few days afterwards he " William Hendy, with whom I threw himself into the Thames, « have had a great deal of talk having previously made an ineffec« respecting the two children. I tual attempt upon his life with a “ would wish you to take him by pistol. The rest of the evidence went “ the hand, he being a man of principally to prove that the will “ business, and having more time had been in existence, by persons " to spare than you, and he and who had seen it in the possession 6 his wife will take the children of Mr. Darbon, sealed and en“ under their care. This, I beg, dorsed in the manner described, “' in case of my dying. I remain, and that the deceased had often “ your's, sincerely, Thomas Hen- expressed himself in terms con“ dy." Mr. Darbon read this firmatory of it and its contents. letter and the will to Mr. William Nothing was offered in oppo. Hendy, who expressed great dis- sition, and satisfaction at thein, and, pretend- Sir John Nicholl, alluding to
the leading circumstances of the said he was going to town for case, was of opinion that they that purpose, and on his return were fully proved, and he had said he had made the alterations he therefore no hesitation in pro intended. After his death one of nouncing for the validity of the the wills of Feb. 5, 1803, was substance of the will, as contained found in a closet of which he kept in the affidavit of the children's the key, amongst other papers of guardian. He also observed that importance, with several alteraMr. Darbon had acted in a manner tions on it in the deceased's handhighly creditable to himself in writing, such as the striking taking the active part he had to through the amount of some of obtain justice for the children the legacies, and the names of under circumstances certainly of some of the children, and substisome difficulty.
tuting others, and confirming
another will he had made, merely Shadwell and Shadwell v. Shad- relating to some trust property in well. This was a question on the his name at the Bank. admission of an allegation, plead. The admission of the allegation ing certain alterations in the will pleading these facts, was opposed, of Lancelot Shadwell, Esq. late of on the ground that they were not Lincoln's Inn, and Upper Gower sufficient to repel the presumption, street, Bedford-square.
that the alterations were delibeIt appeared that the deceased rative merely, and not intended was an eminent conveyancer, and to operate by the deceased; and died on the 1st January last, pos- in support of this argument, the sessed of various estates and of counsel relied much on the cirpersonal property to the amount cumstance of the deceased being of about 23,000l. He left a wi. the eminent conveyancer he was, dow and thirteen children, seven in consequence of which, as they by his former wife, and six by the contended, he must have been so last. He had, on the 5th of Fe- alive to the consequences of having bruary, 1802, duly made his will, his will in so imperfect a state, as attested by three witnesses. Se- to render it very improbable that veral alterations, however, had he shouid do so if he really meant since taken place in his family the alterations upon it to take circumstances. Four children had effect. been born, two of whom are now Sir John Nicholl thought a very living : his eldest daughter had different inference was to be drawn married against his wishes : two from the professional knowledge of his sons had died abroad, and of the deceased. He knew very the nature of his property was well that mere verbal alterations much altered. He had in con- would be sufficient as to any besequence repeatedly expressed his quests of personal property; and intention of altering his will, par- it was very likely that he who was ticularly on account of his daugh- so much engaged with the business ter's marriage; and one day when of others should (without meanat his country house at Plaistow, ing to cast any reflection on the