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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 proceedling 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, 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 dedeceased 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 - 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 oppoHendy, 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, 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
memory memory of so eminent a man) By his will, dated August 24, attend to his own in the hurried 1809, he appointed his brothers, manner manifested by the paper George, Robert, and Caryer Sherin question. The nature of the ard, executors and trustees, and alterations themselves shewed that gave them 1000l. to be divided he intended them to operate; the amongst them in case they should language was such as would be accept the trusts. · By a codicil, used in more formal instruinents, dated the 30th of August, 1809, and for every one of the altera- he revoked the appointment of his tions there was a strong reason brother Robert as an executor, and assigned in the allegation. He appointed in his stead, his wife; then entered into a detail of them, and the attestation to this instrudrawing inferences to this effect. ment expressed, that it was signed, The name, seal, and attestation &c. by the testator, “ as part of were also all left perfect. All his last will and testament.” these circumstances, then, led to By a second codicil, dated Dethe inference, that he considered cember 5, 1812, he made an al. he had altered his will sufficiently teration to this effect :-" I Philip for the alterations to take effect, Castel Sherard, of Upper Harleyand this was confirmed by his de- street, have made a Will some claration in Oct. 1810, of having time ago, in which I appointed done so when displeased with his my brothers George Sherard, eldest daughter's marriage, and Robert Sherard, and Caryer Sherby his never having declared an ard, trustees and executors for the intention of proceeding to make purpose of carrying that my will another will, though he lived a into execution. I do now appoint sufficient time for it; and as his my friend Sir Simon Haughton death was not stated to have been Clarke, baronet, a trustee and sudden, his last illness was most executor, for the purpose of carlikely gradual enough to suggest rying my said will into execution, to him the nccessity of so doing, instead of my two brothers Robert had he intended it.
Sherard and Caryer Sherard, as The alterations, therefore, if he is more conversant with my proved under the circumstances affairs than they are, and I invest stated in the allegation, must be him with all the powers and rights considered as part of the will, al- which I had in the beforementioned tering pro tanto to the extent they will invested Robert Sherard and express. The allegation was ac- Caryer Sherard with, for the pur. cordingly admitted to proof. pose of executing my will; and
my intention is, that my brother Sherard and Sir Simon Haughton George should remain trustee and Clarke, bart. v. Sherard.—This was executor, and that Sir Simon a question as to the appointment Haughton Clarke be joined with of executors under the will of him only. And I hereby revoke the Rev. Philip Castel Sherard, the appointments of Robert Sherlate of Upper Harley-street, Mid- ard and Caryer Sherard as trusdlesex, deceased.
tees and executors, but wish all
the rest of my will to be put in tion in the second codicil, that the execution, and considered as my testator's brother, George, should last will and testament.''
remain an executor, and Sir SiIt was contended, on the one mon Haughton Clarke be joined hand, that the construction to be with him only, did not by the put upon the second codicil was, word "only" necessarily shew a that the deceased did not mean revocation. In interpretation, the that it should revoke the appoint- Court must hesitate in giving a ment of Mrs. Sherard as an ex- positive meaning to every word : ecutor; that had he so intended, and that this had no such positive he would have made the revocation meaning was to be inferred from in the same strong terms as those what followed—the express revoby which he had in the 1st codicil cation of the appointment of the revoked the appointment of one of two brothers without revoking his brothers, and not in words of that of the wife. By confirming a remote and doubtful implica- the rest of his will, the deceased tion ; and that by confirming had also confirmed his wife's ap“the rest of his will, he had con- pointment. There were three exfirmed the appointment of Mrs. ecutors throughout, the deceased Sherard, that appointment form- always contemplating ing part of the rest of his will." appointment.
There appearing, On the other hand it was argued, then, no revocation either in exthat when two testamentary pa- press terms or by necessary impers contradict each other, it was plication, the court directed Mrs. held as a rule of law in courts of Sherard to be joined in the pro. construction, that the latter should þate with the other executors. operate; that the latter paper, or second codicil ių this case, being Henshaw and Hadfield v. Atkinson by implication contradictory to and Atkinson. For many days the former as to the appointment this very important cause bad of executors, must operate singly been under discussion before a in that respect, and as making no Commission of adjuncts, commention of Mrs. Sherard, pro- posed of the following learned bate must be granted without judges : The Hon. Mr. Baron her.
Wood, the Hon. Mr. Justice BaiSir John Nicholl observed, thăt ley, the Hon. Mr. Justice Dallas, the question was, whether the ap- the Hon. Mr. Baron Richards, pointment of Mrs. Sherard was Dr. Burnaby, Dr. Daubeny, Dr. revoked. The appointment was Phillimore, and Dr. Gostling. It made by a very formal instru- was a question as to the validity ment, and its revocation must of the will and codicils of the late therefore be in express terms, or Mr. Henshaw, of Oldham, in by necessary implication. It was Lancashire, who died worth near evidently not expressly revoked ; 150,0001. and the question therefore was, The will bore date in Novemwhether it was so by necessary ber, 1807; the two first codicils implication, which, he was of in January, 1908; the third in opinion, it was not. The direc. May following, and the fourth in