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Wills and Probate - From: 1200 To: 1799

This page lists 108 cases, and was prepared on 02 April 2018.


 
 CASE XLII 10 Jac Hob 29 Cowndon's Case; 1220 - [1220] EngR 69; (1220-1623) Jenk 294; (1220) 145 ER 214 (B)

 
 14 Jac Cr 417 Saunders v Esterby, Hob 216, v Collateral Assumpsit, Collateral Promises Must Be Put In Writing By 29 C 2, Cap 3; 1220 - [1220] EngR 167; (1220-1623) Jenk 336; (1220) 145 ER 244 (D)
 
Case XXXII 26 H 8, 3, Four Times Adjudged, Gavelkind, Rent [1220] EngR 357; (1220-1623) Jenk 205; (1220) 145 ER 138 (E)
1220


Land, Wills and Probate
Rent is grantecl out of gavelkind land to A. in fee; the rent follows the nature of the land, and shall be shared among male heirs.
[ Commonlii ]
 
4 Mar Dyer, 150 Br Cases, 186 Devise, Authoprity and Poyar [1220] EngR 517; (1220-1623) Jenk 215; (1220) 145 ER 147 (B)
1220


Land, Wills and Probate

[ Commonlii ]

 
 Murray v King's Advocate; SCS 18-Feb-1502 - [1502] Mor 1346
 
A v B [1534] Mor 16219
10 Jul 1534
SCS

Scotland, Wills and Probate, Family
Ane bastard deceissand, and leivand behind him bairnis Iauchfullie gottin of his bodie, beand of les age and pupillis, without ony tutor testamentar, left be thair father to thame, in his testament or latter will, the King may give to thame ane tutor, because thay cannot have ony agnat or kinnisman of the fatheris side.
[ Bailii ]

 
 Earl of Errol v N; SCS 3-Mar-1541 - [1541] Mor 1347
 
A v B [1541] Mor 3851
30 Jul 1541
SCS

Wills and Probate
In what cases Executors may make Payment
[ Bailii ]

 
 Duncan Dundas, Donatour, v James Moffet; SCS 24-Mar-1546 - [1546] Mor 1343
 
Marion Learmont v George Home [1561] Mor 3829
8 Jun 1561
SCS

Wills and Probate
An executour may renunce the office of executrie in presence of ane Judge, except he, as executor, has intromitted with ony gudis or geir pertening to the deid; for in that cais he may not renounce, because res non est integra.
[ Bailii ]
 
Edward Seymor's Case [1572] EngR 126; (1572-1616) 10 Co Rep 95; (1572) 77 ER 1070
1572


Wills and Probate

[ Commonlii ]

 
 The Case of Thetford School and Co; 1572 - [1572] EngR 419; (1572-1616) 8 Co Rep 130; (1572) 77 ER 671

 
 The Countess of Argyle v Tenants of Dollar, and The Earl of Argyle; SCS 19-Dec-1573 - [1573] Mor 327
 
Browns Case [1581] EngR 13; (1581) 4 Co Rep 21; (1581) 76 ER 911
1581


Land, Wills and Probate
A copyholder dies, leaving a son and a daughter by one venter, and a son by another venter ; the premises being in lease for years by licence ; the eldest son dies before admittance; held that the daughter should inherit, not the son. Held also, lst, That though a copyholder has, in judgmerit of law, but an estate at will, yet custom has so established his estate that it is descendible, and his heirs shall inherit, and so his estate is not merely ad voluntatem domini, but ad voluntatem domini secundum consuetulinem manerii. 2nd. That since custom has created such inheritance, the descent shall be directed according to the rules of the common law, as in the case of uses: but it does not partake of the collateral qualities of descent of other inheritances; not being assets, nor subject to dower or curtesy, without a special custom, nor tolling entry by descent cast. 3rd. That the heir before admittance may enter, and take the profits; and there may be a possessio fratris, and his surrender is good, but without prejudice to the lord's fine.
The Lord may enter on his copyholder for non-performance of his services : but if he ousts him without a cause, the tenant may have trespass.
AIienation by a copyholder is a disseisin of the lord, and a forfeiture of his estate.
A copyholder cannot have a writ of false judgment on an erroneous judgment against him, but may sue to the lord by petition.
A surrender may be on condition reserving rent.
Grants by copy by bishops bind their successors, and the King, when the temporalties are in his hands, and the grantee may have aid of the King.
The admittance of a particular tenant is the admittance of the remainder-man, but without prejudice to the lord's fine.
An admittance to a copyhold may be pleaded as a grant.
A copyhold in fee is but a particular estate.
[ Commonlii ]
 
Hyde v The Dean and Canons of Windsor [1597] Cro Eliz 552
1597


Contract, Wills and Probate
Executors will not be liable for the non-performance of a contract where the services or performance to be provided by the deceased are personal.


 
 Minister of North Berwick v Home; 1600 - [1600] Mor 560
 
Buchanan v Campbell [1601] Mor 1353
1 Jun 1601
SCS

Scotland, Wills and Probate
Lands or goods of a bastard, or person deceasing without heirs, pertain not to the Lord of Regality, unless specially expressed in his infeftment
Mr Johne Dalzell, and Susanna Buchanan his spous, havand be gift of our Soverane Lord, the escheit of all guddis and dettis, whilk pertenit to umquhile----Campbell, dochter to the said Susanna and umquhile Colene Campbell, bastard son to Archibald Erle of Argyll, procreat betwixt the said Susanna and the said Colene, as ultimas haeres to the said dochter deceiss, and without ony lawful airs, pursuit the Laird of Caddell, as aire be provision to the said umquhile Colene, for the soume of ane thousand punds, whilk the said Colene, be contract, had obligit him, his heirs and successors in his lands, to pay to the air's femell to be gottin betwixt him and the said Susanna, the soume of ane thousand pundis.-It wes alledgit, That his donatour could have no action upone his Majestie's gift, becaus the lands to the whilk Caddell succeidit, lay in the Regaltie of Argyll, and the persons dwelt thairin; and sua the gift appertenit to the Erle of Argyll be verteu of his regalitie.-It wes ansrit, That the gift of thingis falland be deceis of personis havand na lawful aires of thair awn blude as ultimus haeres, could not pertene to the Lord of Regalitie be the general privilege of regalitie, unles he wer infeft in that privilege per expressum, the sam being sua great ane richt, and sua deulie belanging to the King's crowne, that it could not be comprehendit under ane general disposition of regalitie.--Which reply the Lords sand relevant, and in respect thairof, repellit the exception.--Next it it wes exceptit, That this soume could not pertene to the donatour, becaus nather the King nor his donatour could be in ane better cais, as ultimus haeres, nor the defunct; and the defunct could never have had richt to the soume controverted, unles sche had been aire to hir father, becaus it wes providit to the aires-femell, and sche not being aire femell, had na richt; and consequentlie the King, as ultimus haeres, could have na richt.-It wes ansrit, That the provision wes consavit in favour of the bairns femell; and albeit sche wes not servit aire, yet the successour to the lands wes ordanit, be contract, to pay that soume for her provision, and the King had succeidit in her richt.--The Lords repellit the alledgeance, and sand that the donatour had richt.
[ Bailii ]
 
Vynior's Case [1609] 8 Co Rep 81b
1609


Wills and Probate
A declaration by his testator that his will will be irrevocable is ineffective.
[ ]

 
 Sibbald v Greig; SCS 18-Feb-1612 - [1612] Mor 1354
 
Barrett v Barrett Het 34; 124 ER 321
1629

Richardson CJ
Wills and Probate
To constitute waste the damage must be prejudicial to the inheritance. The law will not allow that to be waste which is not in any way prejudicial to the inheritance. When a husband said she shall not commit waste, it was not his intention to restrain her from that which the law allows.

 
Aynsworth v Pollard [1635] EngR 2; (1635-36) 1 Rep Ch 101; (1635) 21 ER 519 (B)
1635


Wills and Probate
That Thomas Hall deceased, having only one Child the Plaintiff, made his Will, and three Executors in Trust, for the Use of the Defendant Mary Pollard, whom he intended to have married ; and by his Will, after Debts and Legacies, gave the Residue of his Estate to his Executors, in Trust for the said Mary Pollard : That two of the Executors declared by their Answer, That the Trust was for the said Mary Pollard, but the third Executor declared, He conceived the Trust was for the Plaintiff, and that the said Hall declared no Trust in him for the said Mary Pollard.
That it being doubtful to which of them this Trust is, it was referred to a Judge, who certified.
That he conceives, That in Extremity there is no Trust proved according to the Will, but it appearing that the said Mary Pollard was a lewd Woman, and had abused the said Hall, This Court, in Respect the Trust was not proved according to the Letter of the Will, think it not fit to relieve the said Mary Pollard on her Bill, for the Surplus of the said Hall's Estate, this Court much disliking that the Estate of the said Hall should be given away from his own Child to the said Mary Pollard, who hath and had an Husband living at the Time of the said Will, and dismissed Pollards Bill.
[ Commonlii ]
 
Offley v Jenney And Baker [1647] EngR 1; (1647) 3 Rep Ch 92; (1647) 21 ER 738 (B)
19 Oct 1647


Wills and Probate

[ Commonlii ]

 
 Smith v Vanger Colgay; 1653 - [1653] EngR 1821; (1653) Cro Eliz 384; (1653) 78 ER 630 (C)
 
Cartwright's Case [1653] EngR 418; (1653) Godb 246; (1653) 78 ER 143 (C)
1653


Wills and Probate

[ Commonlii ]
 
Stubbs v Rightwife [1653] EngR 1896; (1653) Cro Eliz 102; (1653) 78 ER 360 (B)
1653


Wills and Probate
An executor de son tort cannot plead in abatement that he is administrator and not executor.
[ Commonlii ]
 
Alexander v Alexander [1669] EngR 8; (1669-70) 2 Rep Ch 37; (1669) 21 ER 609 (C)
1669


Wills and Probate
The Suit is to discover the Estate of Richard Alexander deceased, which is come to the Defendant's hands, to satisfy a Debt of £300 due to the Plaintiff from the said Richard Alexander.
The Defendant insisted, That the Plaintiff ought not to have ReIief in this Court, in regard the Assets in the Defendant's hands were legal Assets, and nothing appeared, but that the Plaintiff had her proper Remedy at Law, having not proved any Thing more to be in the defendant's hands than was confessed in the Defendant's Answer.
But the Plaintiff insisted, That this Court hath directed Accounts in Cases of this nature to avoid Circuity of Action, and further Charge and Trouble of Suits ; and that this Court being possess'd of the Cause, and the Parties at Issue on Proofs, the same was as proper for this Court, as at Common Law.
This Court ordered Precedents to be searched, where this Court hath directed Accounts and given Relief in this Case, and the Cause coming to be heard on the Precedents and Merits thereof, and the Plaintiffs insisted, that there is sufficient Assets of the said Richard Alexander come to the Defendant's hands, to satisfy the Plaintiffs Debt with Overplus.
This Court decreed the Defendant to come to an Account for the Estate of one Blackhall, unadministered.
[ Commonlii ]
 
Butler and Al' Contra Coote and Al [1670] EngR 54; (1670) 3 Rep Ch 54; (1670) 21 ER 726 (B)
26 Oct 1670


Wills and Probate

[ Commonlii ]
 
Calverd And Others, Executors and children of the deceased by Anne Their Mother And Guardian v Calverd Esq And Carter, Executors of Peter Calverd [1673] EngR 85; (1673-1681) Fin H 443; (1673) 23 ER 241 (A)
1673


Wills and Probate

[ Commonlii ]
 
Cowpland, Cowpland, Appleton, Hicks, Otterborn, and Others v Carter [1673] EngR 71; (1673) Fin H 31; (1673) 23 ER 17 (B)
1673


Wills and Probate

[ Commonlii ]
 
Gibbons v Dawley [1674] EngR 31; (1674) 2 Chan Cas 198; (1674) 22 ER 909 (B)
1674


Wills and Probate
Testatment - Discretion - Distribution
[ Commonlii ]
 
Westcott v Cottle [1675] EngR 1764; (1675) 1 Rolle 380; (1675) 81 ER 549 (B)
1675


Wills and Probate
Si error lou infant executor appiert per atturnie.
[ Commonlii ]
 
Southward v Millard [1675] EngR 1535; (1675) March NR 135; (1675) 82 ER 445
1675


Landlord and Tenant, Wills and Probate
In an ejectione firme, the defendant pleaded not guilty. Upon which a special verdict was found. Nicholls possessed of a term for 1000 years, devised the same to E. his daughter for life, the remainder to John Holloway, and made Lowe the husband of the daughter his executor and died : John Holloway devised his interest to Henry and George Holloway, and made Oliver and others his executors and died ; afterwards Lowe spake these words : If E. my wife were dead, my estate in the premisses were ended, and then it remains to the Holloways. E. died, the executors of John Holloway made the lease to the plaintiff, and Lowe made the lease to the defendant, who entred upon the plaintiff who brought ejectione firme; and whether upon the whole matter the defendant were guilty or not of the trespass and ejectment supposed, the jury referred to the Court : and the points upon the case are two. First, whether the words spoken. by Lowe the executor be a sufficient assent to the devise or not: admitting that it is, then the second point is, whether this assent came in due time or not, as to the interest of John Holloway in the remainder, because he died before the words spoken which should make the assent; and as to that, the point is no other, but that the legatee dieth before assent to the legacie, whether aeserit afterwards came too late, or that the legacie shall be thereby lost or not, that is the question : and by Justice Mallet, it is a good assent, and that in due time, and here some things ought to be cleared in the case. First, that the devise to John Holloway in the remainder is good by way of executory devise. Secondly, that the devise by John Holloway to Henry and Gaorge is a void devise, because but a possibility. Thirdly, that the assent to the first devise is an assent also to him in the remainder. And lastly, that if an executor enter generally, he is in as executor arid not as devisee: all which are resolved in Lampetts and in Matthew Mannings case. Now these cases being admitted, the question is, whether that Lowe the executor here hath made a sufficient declaration, to take the term as devisee in the right of his wife, or not : for he hath his election to take it as executor, or all the right of his wife ; and as I conceive he hath made a good election to have it as legatee in the right of his wife.
[ Commonlii ]
 
Smallbone v Philip Brace, Executor of Diana Reresby, And Thomas Crompton Esq [1677] EngR 77; (1677) Fin H 303; (1677) 23 ER 166 (B)
1677


Wills and Probate
Where a Legatee shall not abate in Proportion, there being not sufficient to discharge all the Legacies.
[ Commonlii ]
 
John Edwards An Infant, By Richard Couchman His Guardian, Plaintiff; Robert Jorden, Defendant [1677] EngR 45; (1677) Fin H 317; (1677) 23 ER 173 (B)
1677


Wills and Probate
Action by infant beneficiary against father's executor for account of estate.
[ Commonlii ]
 
Salter Widow and Administratrix Salter v Dr George Stradling others [1678] EngR 62; (1678) Fin H 398; (1678) 23 ER 217 (B)
1678


Wills and Probate
Devise of a lease
[ Commonlii ]
 
Exton, Burton, And Others, Creditors of Late St John v St John Widow and Blanch, and ohers [1678] EngR 57; (1678) Fin H 368; (1678) 23 ER 202
1678


Wills and Probate

[ Commonlii ]
 
Foot and Other Creditors of Gustavus Venner Gent, Deceased v Clerke The Elder And Younger, And Venner Administratrix of Gustavus Venner [1678] EngR 54; (1678) Fin H 358; (1678) 23 ER 196
1678


Wills and Probate

[ Commonlii ]

 
 Earl of Winchelsea v Norcliff and Al; 1680 - [1680] EngR 88; (1680-1687) 1 Vern 403; (1680) 23 ER 545
 
John Robinson And Fawknor, In A Bill of Review v Nathaniel Noel, And Other Children of Martin Noel Deceased, On The First Bill Exhibited By The Said Children [1683] EngR 17; (1683) 2 Chan Cas 145; (1683) 22 ER 887 (B)
1683


Wills and Probate

[ Commonlii ]

 
 Bull v Palmer; 1685 - [1685] EngR 522; (1685) 3 Keb 643; (1685) 84 ER 928 (B)
 
Stretchly and Vermuden (No 2) [1685] EngR 3076; (1685) 3 Keb 712; (1685) 84 ER 968 (C)
1685


Wills and Probate

1 Cites

[ Commonlii ]
 
Stretchy And Vermuden (No 1) [1685] EngR 3077; (1685) 3 Keb 723; (1685) 84 ER 974 (B)
1685


Wills and Probate
Executors
1 Citers

[ Commonlii ]

 
 Grahame v Marquis of Montrose and James Fenton; SCS 1-Mar-1685 - [1685] Mor 16887

 
 Watts and others v Crooke; PC 1690 - [1690] EngR 31; [1690] Shower PC 108; (1690) 1 ER 74
 
Bertie and Ux v Dom Faulkland, Term Hill [1698] EngR 8; (1698) 3 Chan Cas 129; (1698) 22 ER 1008
1698


Wills and Probate

[ Commonlii ]
 
Thomas v Thomas [1705] EngR 61; (1705) 2 Vern 513; (1705) 23 ER 928
6 Nov 1705


Wills and Probate

[ Commonlii ]
 
Hoskins v Hoskins (1706) Pr Ch 263
1706


Wills and Probate
The rule against double portions applied so that a larger gift by will would be totally adeemed by a later and smaller inter vivos gift.
1 Citers


 
Arthur v Bokenham [1708] 11 MOD RAP 148
1708


Wills and Probate
Supervening insanity will not revoke a will made when the testator was of sound mind.
1 Citers


 
Chapman v Salt (1709) 2 Vern p 646
1709


Wills and Probate
A gift in a will to a married woman was adeemed by a later gift by the testatrix of a note for the same sum to her husband. It had been objected that the note was to one and the legacy to another but evidence was received that the note was intended to satisfy the legacy.
1 Citers


 
Theodosia Skirme Widow, Executrix of Thomas Skirme, Executor of William Wogan, So He Was Executor of Dame Mary Wogan, The Widow And Administratrix of Sir William Wogan, And Also Executrix of Viscountess Purbeck v Meyrick [1710] EngR 43; (1710) 2 Com 700; (1710) 92 ER 1275
2 Apr 1710


Wills and Probate, Trusts

[ Commonlii ]
 
Theodosia Skirme Widow, Executrix of Thomas Skirme He Husband, Who Was Executor of William Wogan, So He Was Executor of Dame Mary Wogan, The Widow And Administratrix of Sir William Wogan, And Also Executrix of Viscountess Purbeck v Myrick [1710] EngR 43; (1710) 2 Com 700; (1709) 92 ER 1275
2 Apr 1710


Wills and Probate

[ Commonlii ]
 
Katherine Moniepenny, Widow v John Brown, and Isabel His Wife [1711] UKHL Robertson_26; (1711) Robertson 26
15 Apr 1711
HL

Scotland, Wills and Probate
A testament executed in extremis reduced, where the testator's hand was supported and assisted in writing the latter part of his name.
[ Bailii ]
 
Adam Cockburn of Ormiston, One of The Senators of The Court of Justice, and Dame Ann His Wife v John Hamilton of Bangour, A Minor, By His Curators [1712] UKHL Robertson_32; (1712) Robertson 32
28 Mar 1712
HL

Scotland, Wills and Probate
Lis finita - After extracting a decreet, with a reservation therein of several point, the objection of Lis finita and that these points were not contained in the original summons, is sustained by the Court, but reversed upon appeal.
Funeral expences. - In a question between the heir and the assignee of the executrix of a Lord Justice Clerk, 250 l., being modified, as sufficient for funeral expences, the judgment is reversed.
Prescription. - Furnishing to the funeral did not form such a continuation of accounts as to bar the triennial prescription of accounts incurred before the death of the deceased.
Subject Confirmation. - The Court having refused to allow to the assignee of an executrix in a question with an heir served cum beneficio, the expences of an action before them relative to the right of confirmation between the executrix and the father of the heir served cum beneficio, the judgment is reversed.
[ Bailii ]
 
Douglas As Assignees of Douglas Douglas v Montgomerie, Paterson, and Others, Creditors [1714] UKHL Robertson_99; (1714) Robertson 99
18 Jun 1714
HL

Wills and Probate
Fiar - An estate being settled by an heiress to her husband and herself in conjunct fee and life-rent and the heirs to be procreated between them in fee, whom failing to the husband, his nearest lawful heirs and assignees; the husband was fiar.
Donatio non praesumitur - The fee taken up by a daughter as heir to her father, where a disposition had been made to a Ion (dceased), upon which infeftment had followed, but never cloathed with possession nor recorded.
Adjudication - A charge being given to a son to enter heir to his uncle and mother, and adjudication being led thereon; but the father being afterwards found to be fiar, the first adjudication is reduced.
The said son refusing to subject himself to his father's debts, has no title to quarrel the adjudication led of his father's fee.
[ Bailii ]
 
Day v Trig (1715) 1 PW 286
1715


Wills and Probate
The testator had made a testamentary gift of his freehold houses in Aldersgate Street, when he had only leasehold properties there, the word "freehold" was rejected. The court stated that it would not have done this if there had also been freehold houses there, but in that case it was satisfied that it was the testator's intention to pass some houses there.
1 Citers


 
John Murray of Conheath v James Murray His Younger Brother, Trustee for Elizabeth Maxwell Their Mother [1715] UKHL Robertson_144; (1715) Robertson 144
28 Jul 1715
HL

Scotland, Land, Wills and Probate
Fiar - The proprietor of an estate, burdened with apprisings, dying, leaves two lifters, whose husbands enter into a submission for themselves, and as taking burden upon them for their wives, with a person who had or appeared to have right to some of these apprisings; by the decreet arbitral, they are decreed to be conveyed to the husbands and their wives, the husbands paying the price; the wives were fiars of these apprisings, and not the husbands
[ Bailii ]

 
 Dolman v Smith; 1716 - [1716] EngR 14; (1716) Prec Ch 456; (1716) 24 ER 204
 
David Gregory of Kinnairdy v James Anderson Grazier In Aberdeen [1716] UKHL Robertson_178; (1716) Robertson 178
24 Jun 1716
HL

Family, Wills and Probate, Scotland
Donatio inter virumet Uxorem - During the subsistence of a marriage a wife and her sister, who have an equal right to a bond, convey the same to the husband. He afterwards makes his will, appointing his wife executrix and universal legatee, for behoof of the grandchildren. After the death of the husband, the grant formerly made by her to him was not revocable as a donatio inter virum et uxorem.
Prescription - The prescription of 40 years not to be counted, from the date of an assignment of a bond, but from the time of receiving the money thereon.
Onerous cause - An assignment of a bond, bearing to be for onerous cause, from the circumstances of parties as executrix and trustee, found not to prove the onerous cause of the assignment in a question near 50 years from the date thereof.
Trust - A discharge granted by an executrix to a manager for her under a will, who had a salary, or all his receipts and intromissions, in general terms, was not sufficient to discharge him from the intromission with a bond, which the deceased disponed to the widow, his executrix, for the good of his grand-children.
[ Bailii ]
 
Andrew Porteous In Deboig v Thomas Fordyce, and Janet Scott His Wife [1716] UKHL Robertson_183; (1716) Robertson 183
26 Jun 1716
HL

Wills and Probate
Cautioner - A person who had, without confirming, intromitted with his father's effects, which were left to him by will for payment of debts, is, upon application of the creditors, ordained to intromit with the effects upon inventorying the same, and finding caution to make the same forthcoming: he accordingly finds caution, and upon a subsequent application for summary intromission with some of the effects, the Court refused the same, and ordained him to confirm the testament and prosecute in common form; but he neither inventoried the effects, nor confirmed the testament: the cautioner was liable for the whole goods intromitted with.
Proof - A debt against this cautioner substantiated by the oath of the intromitter in another cause.
[ Bailii ]
 
Sir Matthew Jenison v Lord Lexington [1719] EngR 43; (1719) 1 P Wms 555; (1719) 24 ER 515
1719


Wills and Probate, Landlord and Tenant
J. S. lessee of land to him and his heirs for three lives, assigns the whole estate, reserving a rent to him and his executors, and dies ; his executors, and not his heir, are entitled to the rent.
[ Commonlii ]
 
Rex v Saunders (1719) 93 ER 452
1719


Wills and Probate

1 Citers


 
John Campbell, of Calder, Esq v Ruth Pollock, Alias Campbell [1720] UKHL Robertson_324; (1720) Robertson 324
7 Jun 1720
HL

Trusts, Wills and Probate
Personal and transmissible - A sum appointed by a father to be paid to a son, his heirs, executors, or assignees, at a day certain, was transmissible by the son, though he died before that day.
Pactum Illicitum - An estate is fetded by a father upon his son and his heirs, reserving a life-rent to a certain amount, and by the son's marriage contract the estate is declared to be of a certain annual value: two years after the marriage the son by a deed declares that the estate was not worth so much per annum, but that this was done to please the wife's friends, and he grants bond to pay or allow the father to charge a sum upon the estate for provisions to his younger brothers and fitters, which should be in full of legitim: this was not contra fidem tabularum nuptialium.
Implied Discharge - After granting this bond, the fiar made a new disposition of the estate to the son, in same terms with the marriage-contract; but this was not a discharge of the bond, allowing the father to charge the estate with childrens' provision
Fiar absolute limited - In a son's marriage-contract it is covenanted, on the part of his father that lanas and hereditaments of a certain annual value were to be fettled and assured so as that the same should come to and be vested in the eldest son of the marriage, and other lands and hereditaments to remain to the son's use, reserving the father's life-rent of part: the son was fiar, and by his bond bound the heirs of the marriage.
[ Bailii ]
 
Falconer v Dame Elizabeth Falconer, Ramsay, Archer, Minister of The Gospel At Laurencekirk, or Conveth, and Mortimer [1721] UKHL Robertson_377
4 Jun 1721
HL

Wills and Probate
Presumption. -
Two mortifications for educating children at a parish school, are found in the grantor's repositories after his death; the one bore date four years after the other, but was in same terms with the first, with this alteration only, that a larger sum was mortified, and a greater number of boys to be educated: the Court having found that both subsisted as distinct deeds; the judgment is reversed.
The Court having also refused a proof by the instrumentary witnesses, of the donor's intention; their judgment is reversed, and liberty given to examine the instrumentary witnesses.
[ Bailii ]
 
Jeffs v Wood and others [1723] EngR 25; (1723) 2 P Wms 128; (1723) 24 ER 668 (B)
1723
CA
Sir Joseph Jekyll MR
Wills and Probate
Jeffs senior had made a will appointing his son Jeffs junior as his executor and leaving a legacy of £500 to his nephew Wood, who was indebted to the testator in a smaller sum. Wood was made bankrupt after the testator's death, but before the legacy had been paid. Held: Sir Joseph Jekyll MR directed the executor to pay Wood the balance of the legacy after retention by the executor of the full amount of Wood's debt to the testator.
1 Citers

[ Commonlii ]
 
Alexander Murray, of Broughton, Esq; v George Bullerwell, Gentleman [1723] UKHL Robertson_436; (1723) Robertson 436
12 Feb 1723
HL

Scotland, Wills and Probate
Process - In a competition between two persons, claiming to be heirs to an estate, the inquest refused to retour either of them. One of the parties in an action of reduction and declarator, calls the other as a defender; a third claimant now craves to be admitted, as a defender in this action, stating himself to be in the same degree of propinquity with the other defender, which the pursuer acknowledged. The Court having refused to admit this third party as a defender in that action, the judgment is reversed, ex parte.
[ Bailii ]
 
William Nisbet of Dirleton v Janet, Jane, and Willielmina Nisbetd Erski [1727] UKHL Robertson_594; (1727) Robertson 594
7 Mar 1727
HL

Wills and Probate
Legitim - Husband and Wife - Provisions to Heirs and Children - Bonds
Portions to children in a contract of marriage if not so expressed, do not exclude their right of legitim.
Upon a wife's renouncing her thirds, by the contract of marriage, the division of the personal estate is bipartite, one half legitim, the other half dead's part.
Provisions to children, in this case, do not come off the whole head of the executry as a debt; but they are first to impute the legitim in payment of these portions, and take the rest as a debt from the deads' part if necessary.
Bonds fall under legitim
[ Bailii ]
 
Lucas v Lucas [1729] EngR 364; (1729) 2 Lee 576; (1729) 161 ER 445 (B)
13 Nov 1729


Wills and Probate
Administration granted to a wife, under a special power from her husband, who was beyond seas.
[ Commonlii ]
 
Loder v Loder and Others [1730] EngR 285; (1730) Sel Cas T King 356; (1730) 25 ER 437
8 Jun 1730


Wills and Probate

[ Commonlii ]
 
Crawford, Commonly An Infant, By John Crawford, etc v Viscount of Garnock, and His Creditors; and others [1735] UKHL 1_Paton_167; (1735) 1 Paton 167
28 Apr 1735
HL

Wills and Probate
Tailzie - Title to pursue - An heir under an entail, which was not properly recorded, having possessed without inserting in his infeftments the fetters of the entail, and contracted debts; the next heir (who had made up his titles in the same manner,) brought an action to have it declared that these debts were chargeable on the estate, and that he might lawfully sell a part of it in order to pay them. It was found that he had no power to sell,-the right of the creditors to bring proper actions for affecting the estates being reserved.
[ Bailii ]
 
John, Earl of Breadalbane v William Innes, George, Lord Reay, Et Alii [1736] UKHL 1_Paton_181; (1736) 1 Paton 181
11 Feb 1736
HL

Scotland, Wills and Probate
Foreign - A Scotchman dying in England, where his will was duly proved by the executor therein nominated, it was found that an executor-creditor could not recover in Scotland a debt due upon a bond to the deceased.
Oath of Party - Privilege- A claim of debt against a Peer being referred to his oath, the Court of Session found that he was not entitled to have his examination taken upon honour. This point was not expressly decided in the House of Lords.
[ Bailii ]
 
Prudham v Phillips [1737] EngR 54; (1737) Amb 763; (1737) 27 ER 490
1737


Wills and Probate

[ Commonlii ]
 
Lassells Raymond Ironmonger, An Infant v Edward Lassells, Christopher Lethivallier, Executor And Trustee of The Will of Edward Lassells [1737] EngR 171; (1737) West T Hard 143; (1737) 25 ER 864
26 Oct 1737


Wills and Probate

[ Commonlii ]
 
Bickley v Dorrington [1737] EngR 182; (1737) West T Hard 169; (1737) 25 ER 877
12 Nov 1737

Lord Hardwicke LC
Wills and Probate
A bill was brought by creditors, and by one of the residuary legatees of the testator, against his executors, the other residuary legatee, and the former partner of the testator to recover from the former partner money owing to the estate. Held. Lord Hardwicke LC said that the bill was totally improper as against the debtor, and inconsistent with the principles of law and the rules of the court: "No action or suit can be brought against a debtor to the estate but by the executor or personal representative of the testator. The whole management of the estate belongs to him. The right of it is vested in him, and cannot be taken from him by creditors or legatees. If he release a demand and is solvent, it is a devastavit in him, and he is personally answerable for the sum released. In cases of collusion or insolvency it may be proper to come here for satisfaction against the debtor; but there must always be some special case . ."
1 Citers

[ Commonlii ]
 
Shudal v Jekyll (1742) 2 Atk 516
1742


Wills and Probate
Whether ademption takes place is settled by identifying the testator's intention. Despite the need to rely upon documents, oral evidence has been "constantly admitted in all these cases".
1 Citers


 
Chetwynd v Fleetwood and Others [1742] EngR 59; (1742) 1 Bro PC 300; (1742) 1 ER 580
17 May 1742
PC

Land, Wills and Probate
In what case an heir is bound toperform his father's covenant though he is neither his personalrepresentative, or claims any part ofhis realestate, except what is settled upon him in strict settlement, and in whichhis fater had only an estate for life.
[ Commonlii ]
 
Rosewell v Bennet (1744) 3 Atk 77; [1744] EngR 1730; (1744) 26 ER 847
1744

Lord Hardwicke
Wills and Probate
Where the rule against double portions is held to apply, the effect of the later gift inter vivos, does not cause a revocation of the will, but rather brings about a position in which, to the extent of that later gift, there has been an acceleration of the enjoyment of the provisions of the will.
1 Citers

[ Commonlii ]

 
 Haws v Haws; 26-Jun-1747 - [1747] EngR 120; (1747) 3 Atk 524; (1747) 26 ER 1102 (B)
 
Sibthorp v Moxton [1747] EngR 193; (1747) 1 Ves Sen 49; (1747) 27 ER 883 (B)
10 Nov 1747


Wills and Probate
A woman by will forgives a bond-debt to her son-in-law, and desires her executor to deliver up the bond to be cancelled ; this held not to be lapsed by his dying before the testatrix.
1 Citers

[ Commonlii ]
 
Seeman v Seeman [1752] EngR 169; (1752) 1 Lee 181; (1752) 161 ER 67
22 Dec 1752

Sir George Lee
Wills and Probate
The testator had made his will in August 1735 leaving several pecuniary legacies. At some time some of those legacies had been obliterated. He died in 1751. One of the disappointed legatees challenged the will on the grounds that the obliteration had been made after the testator's death or before his death but after he had lost full testamentary capacity. Held: The obliterations had been made in the testator's lifetime but after he had lost full testamentary capacity, and: "I likewise thought that it was not necessary that the deceased should be in his senses at the instant the alterations were made; it was sufficient that he was fully in his senses when he directed the alterations to be made, and that they were made in his lifetime; in the case of Garnet v Sellars, Delegates, the only questions were whether the deceased was in his senses when he gave instructions for his will; and whether the will was reduced to writing before the testator was dead; and the court being satisfied on those two points, pronounced for the will without enquiring whether he remained in his senses during the time the will was writing."
1 Citers

[ Commonlii ]
 
Sutton v Smith And Others [1753] EngR 50; (1753) 1 Lee 275; (1753) 161 ER 102 (B)
26 Feb 1753


Wills and Probate
Where there is no doubt as to the factum of a will which contains no disposition of the residue, the Court of Probate cannot pronounce the deceased to be dead intestate as to the residue.
[ Commonlii ]
 
Ellis v Smith, Et E Contra [1753] EngR 78; (1753) Dick 225; (1753) 21 ER 254 (E)
18 May 1753


Wills and Probate

[ Commonlii ]
 
Minty Alais Misita v Gould And Montgomery [1753] EngR 105; (1753) 1 Lee 414; (1753) 161 ER 153 (A)
16 Jul 1753


Wills and Probate

[ Commonlii ]
 
Moore, Formerly Hacket v Hacket And Others [1755] EngR 28; (1755) 2 Lee 86; (1755) 161 ER 273 (B)
22 Jan 1755


Wills and Probate

1 Citers

[ Commonlii ]
 
Moore, Formerly Hacket v Hacket [1755] EngR 56; (1755) 2 Lee 147; (1755) 161 ER 294 (A)
30 Apr 1755


Wills and Probate
The will was executed in conformity to instructions, established, though the testator had become incapable before the will was read over to him. William Hacket, deceased, made his will, dated 27th May, 1754 : his wife executrix and residuary legatee ; left several children by a former wife ; William Hacket, his eldest son, opposed this will, but afterwards gave up his opposition, and the case was heard ex parte. This last will was as to the general purport conformable to a former will, and was made only to provide for a child which was born after making the first will. Held: The court pronounced for the will, there being no opposition, on the basis of evidence proving the testator had full testamentary capacity at the time he gave instructions for his will and that the will propounded conformed to those instructions even though the will was not read over to the testator and he had lost full testamentary capacity before he executed it.
1 Cites

1 Citers

[ Commonlii ]
 
Charles Cajetan Count Leslie, Leopoldus Count Leslie, Eldest Son, Anthony Leslie, Second Son, and Charles Count Leslie, Third Son, of The Said Count Charles Cajetan Leslie v Peter Leslie Grant, and His Curator, Ad Litem (1763) 2 Paton 68; [1763] UKHL 2_Paton_68
2 Feb 1763
HL

Administrative, Wills and Probate
Alien - Proof.-
A person, a natural born subject of England, had issue born abroad before the 7 Anne (Naturalization act), out of the ligeance of the King. This son had issue, Count Anthony Leslie, also born out of the ligeance of the King; Question of law submitted to the whole judges of England: Whether Anthony was capable of inheriting land estates in Scotland? Held unanimously, on full consideration of the statutes, that Anthony Count Leslie, was to be deemed an alien, and not capable to inherit such estate-That the statutes extended only to the children of a natural born subject of the first degree, and not to the grandchildren, and Anthony's father not being a natural born subject of England, but an alien born abroad, before the passing of the 7 Anne, he could take no benefit.-Proof rejected in consequence of diet not being regularly intimated in terms of commission issued.
[ Bailii ]
 
Alexander Burnet, Charge Des Affaires At The Court of Berlin v Sir Thomas Burnet, Bart [1766] UKHL 2_Paton_122; (1766) 2 Paton 122
30 Apr 1766
HL

Scotland, Wills and Probate
Succession - Adjudications - Destination - Heirs Whatsoever - Confusio.- Adjudications were purchased up by the heir succeeding to an estate specially destined to " heirs male." He took the conveyances of these adjudications to himself and his "heirs whatsoever." Held, that when the estate descended to an heir male, different from the heir of line, or heir whatsoever, that the heirs of line were not entitled to succeed as such, to the adjudications; and that these, as collateral and accessory rights, had accrued to the family estate, and were not now a separated estate, but extinguished confusione in the person of the heir male.
[ Bailii ]
 
Mrs Pringle and Robert Andrews and Mark Pringle v John Pringle of Crichton [1767] UKHL 2_Paton_130
29 Jan 1767
HL

Wills and Probate
Deathbed - Faculty to Burden - Testament.- A party disponed his whole estate to his heir-at-law, under a reserved power or faculty to burden at any time during his life, with provisions to younger children. By a codicil bearing no date, but executed ten months before his death, he altered this disposition so as to diminish the fund for the heir; and granted also an heritable bond of provision for £1000, in terms of his reserved power to burden, nine days before his death: Held that these deeds were reducible on the head of deathbed; but reversed in the House of Lords.
[ Bailii ]
 
Mrs Eupham Hamilton, Widow of Charles Hamilton, Esq, and Bethia and Charlotte Hamilton, Their Daughters v Archibald Hamilton, Esq of Rosehall [1767] UKHL 2_Paton_137; (1767) 2 Paton 137
5 Apr 1767
HL

Scotland, Wills and Probate
Heir and Executor - Apparency - Rents.- Held, reversing the judgment of the Court of Session, that the executors, and not the heir of a party who died in possession of an estate on apparency, was entitled to the arrears of rents unuplifted at her death.
[ Bailii ]
 
Bibin v Walker (1768) Amb 661; [1768] 27 ER 429
1768


Wills and Probate
The will contained a clause devised land 'which he had before given to A' over to B in the happening of an event. Held. The clause operated as a devise by implication to A.

 
Dufour v Pereira (1769) 1 Dick 419; (1769) 2 Harg Jurid Arg 304; [1769] EngR 63; (1769) Dick 419; (1769) 21 ER 332
1769

Lord Camden LC
Wills and Probate, Trusts
The court was asked as to the validity and effect of a single joint will. Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: “The parties by mutual will do each of them devise, upon the engagement of the other, that he will likewise devise in manner therein mentioned. The instrument itself is the evidence of the agreement; and he, that dies first, does by his death carry the agreement on his part into execution. If the other then refuses, he is guilty of a fraud, can never unbind himself, and becomes a trustee of course. For no man shall deceive another to his prejudice. By engaging to do something that is in his power, he is made a trustee for the performance, and transmits that trust to those that claim under him." and "There is no difference between promising to make a will in such a form and making his will with a promise not to revoke it"
1 Citers

[ Commonlii ]
 
John Chatto, Esq, An Infant, and His Administrator-At-Law v William Baillie, Esq [1770] UKHL 2_Paton_243
26 Mar 1770
HL

Wills and Probate
Succession - Heirs.-
Import of Term " Heirs," as used in a destination.
[ Bailii ]
 
Margaret and Elizabeth Duncan v Francis Fowke [1773] UKHL 2_Paton_290
5 Feb 1773
HL

Scotland, Wills and Probate
Vesting of Legacies.- Circumstances in which legacies held to vest.
[ Bailii ]
 
St John v Bishop of Winton [1774] EngR 31; (1774) 1 Cowp 94; (1774) 98 ER 985
1774


Wills and Probate, Land
One possessed of three species of estates in the county of H. viz. one by articles wholly executory, another executory in part and a third (being an advowson) completely executed by a recent conveyance, devises to his wife as follows: "All the manors, messuages, advowsons and hereditaments in the county of H, for the purchase whereof I have already contracted and agreed, or in lieu thereof, the money arising by the sale of my real estate in the county of L. ;" (with directions for completing the contracts). The advowson, the purchase of which was completely executed before the making of the will, shall pass.
[ Commonlii ]
 
Greenwood v Greenwood [1776] 3 Curt App
1776

Lord Kenyon
Wills and Probate
"If he had a power of summoning up his mind, so as to know what his property was, and who those persons were that then were the objects of his bounty, then he was competent to make his will."
1 Citers



 
 Gallant And Another v Bouteflower; 26-Nov-1781 - [1781] EngR 113; (1781) 3 Doug 34; (1781) 99 ER 525 (C)
 
Taylor v Popham (1782) 1 Bro CC 168; 28 ER 1059 LC
1782


Wills and Probate
PT, in his lifetime granted two annuities to his son and there being subsisting accounts between them by his will he gave him an annuity of £600 on condition that he should within three months execute a release of all demands on his estate. The release tendered including the two annuities granted during his life, PT the son did not forfeit his annuity of £600 by refusing to execute it, but a release settled by the master omitting those annuities being tendered and refused. Held: He had forfeited the annuity under the will.
1 Citers


 
Beckford v Beckford [1783] EngR 64; (1783) 4 Bro PC 38; (1783) 2 ER 26
28 Apr 1783
PC

Wills and Probate, Agency
A. by will devises all his estates to his eldest son in tail male, with remainders over ; part of the property consisted of an estate in Jamaica, and therefore the testator added the following clause: " And E recommend to my executors, that all sugars, rum, and other plantation produce that is sent to the port of London, be consigned to the house of Collet, Evans, and Co. until such time as any of my sons shall set up in the business of a sugar factor ; then my desire is, that the consignment may pass through his or their hands."
C. a natural son of the testator's, set up the business of a sugar factor, during the minority of the devisee, and accordingly got the consignments upon the devisee's coming of age, C. accounted with him, but insisted on being entitled to his commission not only upon the produce which he had actually sold, but also upon the produce which had been consigned to him, but was not then arrived in the port of London. Held, that the words of the above clause were not imperative, or amounted to words of bequest in favour of C. but were recommendatory only. Held also, that C: was entitled to a commission only upon what he had actually sold, and not upon what was only consigned, but not delivered to him. DECRETAL ORDPR of Chancery
[ Commonlii ]
 
Arthur Sinclair of Masilapatam, Esq v Margaret Young, Wife of James Gordon, Younger of Cairston, and George Andrew, Writer In Edinburgh, Her Curator [1787] UKHL 3 - Paton - 64
20 Mar 1787
HL

Wills and Probate
Succession to Adjudications - Interest - Heritable or Moveable. - Whether the accruing interest in an adjudication belongs to the heir or executor? Held, in a question of compensation, that the interest accumulated and accruing, in an adjudication, is heritable, and belongs to the heir, and therefore did not fall under the husband's jus mariti.
[ Bailii ]
 
Miss Jane Whitefoord, Only Surviving Child of The Deceased Bryce Whitefoord v James Whitefoord, Esq [1788] UKHL 3 - Paton - 101
15 Mar 1788
HL

Wills and Probate
Succession - Fiar - Infeftment - Dispensation Clause - Prescription. - A father conveyed his estates to his heir male, whom failing to his eldest daughter. The heir male, after the death of the father, succeeded, but died without issue; having, previous to his death, conveyed the estates to a remote relation of the same name: Held, that as fiar, he was entitled so to convey the estates, notwithstanding the destination over in favour of the daughter. Objection to sasine, that the dispensation clause, granted by the Crown, making infeftment on one part of the lands good for the whole was inept, these lands being held of different superiors. Objection repelled, prescription having run upon the title. Affirmed in the House of Lords, without prejudice to any challenge appearing on the face of the sasine of the lands of Kirkbryde; said reservation being of consent of parties.
[ Bailii ]
 
Attorney-General v The Painter-Stainers Company [1788] EngR 210; (1788) 2 Cox 51; (1788) 30 ER 24 (B)
31 Oct 1788


Wills and Probate, Charity
On further directions - Where an intention appears in a testator to give the whole of a fund to a charity, the objects whereof are not sufficient to exhaust the whole, the Court will apply the residue as nearly to the testator's designation as it can. But such defects will not be supplied without some such intention appearing to guide the Court, which cannot go so far as to dispose of a fund merely on seeing a general intention in the testator to die testate as to the whole
[ Commonlii ]
 
Caffrey v Darby [1789] EngR 325; (1789-1817) 1 Ves Jun Supp 619; (1789) 34 ER 948 (C)
1789


Equity, Wills and Probate
As a general rule, executors must get in the property of the testator by all possible remedies.
1 Citers

[ Commonlii ]
 
Attorney General v Buller [1789] EngR 93; (1789-1817) 1 Ves Jun Supp 513; (1789) 34 ER 898 (J)
1789


Wills and Probate, Charity
Unless the context of a will evince a different intent, trust estates will pass under a general devise.
[ Commonlii ]
 
George Billinghurst And Others [1789] EngR 1074
1789


Wills and Probate

[ Commonlii ]

 
 Hassal v Smithers; 1789 - [1789] EngR 1185; (1789-1817) 2 Ves Jun Supp 289; (1789) 34 ER 1098 (C)
 
Lord Walpole v Lord Orford [1789] EngR 1464; (1789-1817) 1 Ves Jun Supp 393; (1789) 34 ER 842 (B)
1789


Equity, Wills and Probate
The court was asked, where there were two inconsistent wills, to which of them a later codicil must be held to refer.
The equitable maxim, voluntas testatoris ambulatotia est usque ad mortem, operates so that an instrument which appears to be and is in the form of a testamentary disposition, yet, if it claims to be irrevocable, can only operate as a deed and not as a will.
1 Citers

[ Commonlii ]
 
Andrews v Partington (1791) 3 Bro CC 401
1791


Trusts, Wills and Probate
Unless the contrary intention is expressed, where at the time of the trust, the class of beneficiaries is not identified, it will close as soon as the first member becomes entitled to take his share.

 
Chandler v Thompson [1792] EngR 469; (1792) Hob 265; (1792) 80 ER 411 (D)
1792


Wills and Probate

[ Commonlii ]
 
In The Matter of Martha Brown, Ex Parte Newton Wallop [1792] EngR 3157; (1792) 4 Bro CC 90; (1792) 29 ER 794
26 Jul 1792


Wills and Probate

[ Commonlii ]
 
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