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Wills and Probate - From: 1800 To: 1849

This page lists 128 cases, and was prepared on 02 April 2018.

 
Warriner v Rogers LR 16 Eq 340
1800

Sir James Bacon VC
Trusts, Wills and Probate
(Year unknown) The donor wrote on pieces of paper that her servant was to have certain property on her death, but these documents did not amount to a valid will. Held: The gift was imperfect as these documents did not constitute a valid declaration of trust.
1 Citers


 
Muckleston v Brown (1801) 6 Ves. 52
1801

Lord Eldon
Wills and Probate, Equity
'Let the estate lie where it falls.'
1 Citers


 
Watson v Mary Foxon [1801] EngR 456; (1801) 2 East 36; (1801) 102 ER 281
13 Nov 1801


Wills and Probate
Under a limitation (after estates for life to A. and B.) of "all and every the said premises to all and every the younger children of 3. begotten or to be begotten, if more than one equally to be divided amongst them, and to the heirs of their respective body and bodies as tenants in common, &c. and if only one child, then to such only child and to the heirs of his or her body issuing; and for want of such issue" ('devise of) "the said premises to C. N. &c."' (with several limitations over). "' And for want of such issue," then testator divided the said premises between several branches of his family. Held that cross remainders were to be implied between the younger children of B. from the apparent intention of the testator from the whole of the will, notwithstanding the use of the word respective in such devise.
[ Commonlii ]
 
Alsager v Rowley [1802] EngR 128; (1802) 6 Ves Jun 748; (1802) 31 ER 1289
16 Mar 1802

Lord Eldon LC
Wills and Probate
Lord Eldon LC said: "The established rule of the Court is certainly . . that in ordinary cases a debtor to the estate cannot be made a party to a bill against the executor: but there must be, as the cases express it, collusion or insolvency. That very principle admits, that, if there is solvency, the executor must pay: if there is collusion, both are liable . . Lord Hardwicke there in the judgment [Beckley v Dorrington] does not state any thing as to negligence. That is in the argument by the Counsel; and in Newland v. Champion (1 Ves. sen. 105) delay in the representative is also stated as one of the special cases, as well as collusion: but no notice is taken of the former in the judgment. If the general principle will not allow you to bring a bill against both the executor and a debtor in the given case, the same principle will apply to the case, where you bring a bill against the executor and a creditor improperly paid by the executor: that is, that, if there is no collusion, or special case, if the executor is not insolvent, he stands the middle man, responsible to the residuary legatee for the property, misapplied by paying a man as a creditor, who was not a creditor, as in the other case for the property outstanding in a debtor."
1 Cites

1 Citers

[ Commonlii ]
 
- - - - - - v Harvery Executrix of Sir Job Harvery [1803] EngR 388; (1803) T Raym 153; (1803) 83 ER 82 (A)
1803


Wills and Probate
In debt. The defendant pleaded a joint judgment against the testator, and Erasmus Harvey who is now alive, and that he had not assets beyond the said judgment to satisfy. The plaintiff demurs ; and adjudged for the plaintif, because the lien survives, and the executrix not liable.
[ Commonlii ]
 
Raphael v Boehm [1805] EngR 379; (1805) 11 Ves Jun 92; (1805) 32 ER 1023
12 Dec 1805


Wills and Probate

[ Commonlii ]
 
Simmons v Gutteridge [1806] EngR 379; (1806) 13 Ves Jun 262; (1806) 33 ER 292 (B)
24 Dec 1806


Wills and Probate
The Examination of an Executor under the usual Decree for an Account ought to contain an Interrogatory whiether he is indebted to the Testator : the debt from himself being assets. Liberty was therefore given upon the suggestion of Co-defendants. Legatees, without Affidavit to exhibit an Interrogatory for that purpose ; not to go into an Account : which must be the subject of a distinct Bill.
[ Commonlii ]
 
Rowe v - - - - Dec [1806] EngR 378; (1806) 13 Ves Jun 261; (1806) 33 ER 292 (A)
24 Dec 1806


Wills and Probate
Examination de bene esse, where the Witness is above the age of 70, or is the only Witness to a particular fact. Refused upon Affidavit of the Agent to his informtation from the Witness, that he can prove the fact, and belief, that no other person can prove it.
[ Commonlii ]
 
Middleton v Dodswell [1806] EngR 377; (1806) 13 Ves Jun 266; (1806) 33 ER 294 (B)
24 Dec 1806


Wills and Probate

[ Commonlii ]
 
Walton v Walton [1807] EngR 341; (1807) 14 Ves Jun 318; (1807) 33 ER 543
20 Jul 1807


Wills and Probate, Trusts
A Paper, proved as a Will, reciting the Marriage Articles of the testator's daughter with A; confirming those Articles; and directing, that all the testator's property and effects shall be vested in A. preferable to any executor or administrator upon and after the testator's decease for all and every the purposes of his said agreement expressed or intended. The Probate, obtained by A. as Executor, conclusive; and he was held not a trustee for the next of kin upon parol evidence of Declarations, subsequent to the Will.
[ Commonlii ]

 
 Lester v Garland; 8-Aug-1808 - (1808) 15 Ves Jun 248; 33 ER 748; [1808] EngR 326; (1808) 15 Ves Jun 248; (1808) 33 ER 748
 
Sandford v Vaughan And Others [1809] EngR 24; (1809) 1 Phill 39; (1809) 161 ER 907
1809

Sir John Nicholl
Wills and Probate
The court heard a plea regarding a number of testamentary papers left by Sir John Chichester. In relation to the fifth paper Sir John Nicholl observed: "Where an unfinished draft is propounded, it must be shown that the deceased was prevented, by invincible necessity, or by the act of God from completing it. A person certainly may, in the last moments of his life, so recognise a testamentary paper written twenty years before, as to give it effect and validity, without any formal execution: the length of time during which it had continued unfinished would not of itself be sufficient to induce the rejection of such a paper, although it would create a circumstance of strong presumption against it." Sir John then expressed the view, based on the facts alleged in the plea, that the claim to propound the fifth paper was unlikely to succeed. Although he gave the parties permission to amend this allegation was not proceeded with.
1 Citers

[ Commonlii ]
 
Sandford v Vaughan [1809] EngR 23; (1809) 1 Phill 128; (1809) 161 ER 935
1809


Wills and Probate

1 Cites

[ Commonlii ]
 
Billinghurst v Vickers, Formerly Leonard [1810] EngR 5; (1810) 1 Phill 199; (1810) 161 ER 960; [1810] EngR 555; (1810) 1 Phill 187; (1810) 161 ER 956
23 Nov 1810

Sir John Nicholl
Wills and Probate
(Ecclesiastical Court) The opinion of the Court has already been given on the principal part of this case. It has been stated that the first part of this will, which was alleged to be in the handwriting of the deceased, is sufficiently proved ; but that there is a failure of proof as to the appointment of the executor and the disposition of the residue. The Court took time to deliberate respecting the proof of two legacies, viz. 400l 3 per cents. to a maid servant, and 500l to the executor Mr. Billinghurst. Considering that the capacity of the deeemed was extremely doubtful at the time of execution; that there is a total absence of proof of any instructions for these legacies, or anything which could be considered as a substitute for instructions ; that these legacies are in the handwriting of one of the legatees; that the whole transaction is a conducted by the two interssted parties ; it would be extremely dangerous to accept declarations, however probable and circumstantial, made by those very persons after the deceased’s death, as any and the only evidence to supply the want of instructions, being wholly unsupported by any sort whatever of testamentary declarations, or of recognitions made by the deceaaed himself. The safer course is to adhere to the rule ; that when the capacity is doubtful at the time of execution, and there is no evidence of instructions, especially where the act is done through the agency of the party interested, the proof of mere execution is insufficient. I pronounce, therefore, for that part of the will which is in the deceased’s handwriting, and that the executor has failed in proof of the rest.
1 Citers

[ Commonlii ] - [ Commonlii ]
 
The Attorney General v Price [1810] EngR 575; (1810) 17 Ves Jun 371; (1810) 34 ER 143
26 Nov 1810


Charity, Wills and Probate
Devise to A and his heirs; with a direction, that yearly he and his heirs shall for ever divide and distribute according to his and their discretion amongst the testator’s poor kinsmen and kinswomen, and amongst their offspring and issue dwelling within the County of B. £20 by the year. This is in the nature of a charitable bequest ; and, the Will being made in 1581, was sustained; and inquiries directed as to the poor relations dwelling within the county of B.
1 Citers

[ Commonlii ]
 
Tugwell v Heyman (1812) 3 Camp 298
1812


Wills and Probate
Where executors in an estate do not make arrangements for the funeral of the deceased, but have sufficient assets to do so, they are responsible to indemnify any other person arranging for a proper and proportionate funeral under what is considered to be an implied promise.

 
Murray v Jones (1813) 3 Ves & B 313
1813


Wills and Probate
A gift over in the event of a prior legatee having only one child takes effect if the prior legatee has no child.
1 Cites

1 Citers


 
D'Aguilar v Drinkwater [1813] EngR 541; (1812-1813) 2 Ves & Bea 225; (1813) 35 ER 305
4 Aug 1813


Wills and Probate

[ Commonlii ]
 
Selkrig v Davis (1814) 2 Rose 291
1814


Wills and Probate
Rules in Hotchpot
1 Citers


 
Beckett And Another, Assignees of Mary Gould, Widow, A Bankrupt, v Harden And Another [1815] EngR 26; (1815) 4 M & S 1; (1815) 105 ER 735
1815


Wills and Probate
A devise to JB of all his plantations, lands, tenements, negroes, slaves, cattle plantations, stock, utensils, and hereditaments in the island of St. Kitts, to hold to JB, his heirs, executors, &e., according to the nature and quality thereof, to the use that W. B. should have one clear annuity or rent-charge of l501. for his life, to be issuing out of said plantations, &c., and subject. to and chargeable as aforesaid to the use of J. B., his heirs, executors, &e. according to the nature and quality of the premises, Codicil, reciting the death of W. B. devised the said annuity to trustees in trust for M. G. for life, to be raised out of his said plantations and estates, and paid in same manner and with like remedies as directed in favour of W. B. Second codicil revoked that part of first in which he had given to M. G. l501. per ann., and instead thereof he gave 201. per ann, to M. G. for life. Third codicil revoked that part of will in which he devised to J. B. all his estate and property in St. Kitts, and declared the same void, and gave and bequeathed the said property to 5. P. in fee. Held that the annuity given to M. G. by the 1st codicil was not revoked by the fast codicil, nor reduced by the 2d codicil, the 2d codicil not being executed according to the Statute of Frauds, which is in force in the said island of St. Christopher.
[ Commonlii ]
 
Sutton v Drax (1815) 2 Phill 323
1815


Wills and Probate, Costs

1 Citers


 
Paske v Ollat [1815] EngR 1050; (1815) 2 Phill 323; (1815) 161 ER 1158 (C)
15 Nov 1815

Sir John Nicholl
Wills and Probate
(Ecclesiastical Court) The will was written by the testator's attorney and contained a bequest in his favour. Held: The will was upheld. Sir John Nicholl said: "the law of England requires, in all instances of the sort, that the proof should be clear and decisive: the balance must not be left in equilibrio; the proof must go not merely to the act of signing, but to the knowledge of the contents of the paper. In ordinary cases this is not necessary; but where the person who prepares the instrument, and conducts the execution of it, is himself an interested person his conduct must be watched."
1 Citers

[ Commonlii ]
 
Moore And Metcalf v De La Torre v Moore [1816] EngR 245; (1816) 1 Phill 375; (1816) 161 ER 1016
23 Jan 1816


Wills and Probate

[ Commonlii ]
 
Alexander Fraser Tytler, Commonly Called Lord Woodhouselee, Caroline Craig, An Infant (By Her Next Friend), And James Ker, On Behalf of Himself And All The Other Legatees Named In The Will of Sir J H Craig, Deceased v Sir Hew Dalrymple etc [1817] EngR 344; (1817) 2 Mer 419; (1817) 35 ER 1000
13 Mar 1817


Wills and Probate

[ Commonlii ]
 
Methuen v Methuen [1817] EngR 585; (1817) 2 Phill 416; (1817) 161 ER 1186
23 Jun 1817

Sir John Nicholl
Wills and Probate
Sir John Nicholl said: "In the court of probate the whole question is one of intention: the animus testandi and the animus recocandi are completely open to investigation."
1 Citers

[ Commonlii ]
 
James and Another v Allen and others [1817] EWHC Ch J10
30 Jun 1817
ChD

Wills and Probate, Charity
The testator left a bequest in trust for such 'benevolent purposes' as the trustees might unanimously agree upon. Held: The word 'benevolent' when coupled with another was not sufficient to restrict the trusts to charitable purposes and it failed.
[ Bailii ]
 
Joseph James, And Hannah His Wife v William Allen And Others, and The Attorney-General [1817] EngR 609; (1817) 3 Mer 17; (1817) 36 ER 7; [1817] EWHC Ch J89
30 Jun 1817
ChD

Wills and Probate, Charity
Bequest in trust for such "benevolent" purposes, as the Trustees in their integrity and discretion may unanimously agree on; not to be supported as a charitable legacy; the word "benevolent" not being to be restricted to the sense of "charitable" so as to authorize the Court to say that the application of the property must be confined to such objects as are, strictly speaking, objects of charity. Therefore void for uncertainty, and distributable among the next of kin.
Elijah Waring, by his Will, after devising to his Niece the Plaintiff Hannah James for her life certain farms and lands therein described, and after her decease to her four daughters in fee, and making certain specific bequests of personal property to the said Plaintiff, gave to his Executors (the Defendants W. Allen, and J. Allen, and W. Matthews deceased) £200 each, in consideration of their taking upon themselves the trusts of his will, and then proceeded as follows:
"Lastly, touching all my personal property whatsoever and wheresoever not before disposed of, subject to whatever expences may be incurred relative to the "execution and fulfilment of this my will, I give and bequeath the same to my friends the aforesaid William Allen, Joseph Allen, and William Matthews (whom I constitute and appoint the Executors of this my Will), and to their Executors and Administrators, in trust to be by them applied and disposed of for and to such benevolent purposes as they in their integrity and discretion may unanimously agree on."
The Plaintiffs, by their bill, prayed that the will might be established, except as to the residuary bequest, and that such residuary bequest might be declared void; charging that the disposition was void for uncertainty.
Sir S. Romilly, Trower, and Phillimore, for the Plaintiffs, contended that this case was the same in principle with that of Morice v. The Bishop of Durham "(9 Ves. 399), and referred to Brown v. Yeall (7 Ves. 50, n.).
Hart and Spence, for the Defendants (the surviving Trustees and Executors), attempted to distinguish the cases. "Benevolence" is technically a word of charity; but, when coupled with another (as in Morice v. The Bishop of Durham with the word "liberality"), it loses its technical sense, and is to be judged of by its acceptation in common language. It was on this ground that His Honor decided in the case referred to. But, when the word stands alone, as in the present case, it is to be construed according to its technical meaning.
The Lord Chancellor, in the same case, observed that Brown v. Yeall did not apply; for that was for a particular purpose; here, if a valid devise at all, it is for general purposes.
Lovat, for the Representatives of the deceased Trustee. Mitford, for the Attorney-General.
The Master of the Rolls said: "I certainly did not conceive, that, in the case of Morice v. The Bishop of Durham (9 Ves. 399) it was merely by the addition of the word "liberality" that the trust was rendered uncertain, and therefore incapable of being carried into execution. "Liberality" is, no doubt, distinguishable from "Benevolence," but Benevolence is also distinguishable from "Charity." For although many charitable institutions are very properly called "Benevolent," it is impossible to say, that every object of a man's benevolence is also an object of his charity. Nor do I see how the required concurrence of three persons in the selection of the objects does, by any necessity, exclude the appropriation of the property to purposes very different from any that are specified in the Statute of Queen Elizabeth (stat. 43 Eliz. c. 4), or that have been held to be within the analogies of that statute. In the case before referred to, it was attempted, in the argument on the appeal, to maintain that, although the bequest should be held to be void so far as it was made for purposes of "Liberality," yet it ought to be considered as good, in so far as it was for purposes of " Benevolence "; which last word, it was said, was equivalent to "Charity." The Lord Chancellor does not say, that there could not be a proportional division, where a bequest was in part only for a charitable purpose, as in the Attorney-General v. Doyley (4 Vin. 485; 2 Eq. Ab. 194; 7 Ves. 58, note), but holds generally, that no charitable purpose was sufficiently expressed. In that case, as in this, the whole property might, consistently with the words of the will, have been applied to purposes strictly charitable.
But the question is, what authority would this Court have to say that the property must not be applied to purposes however so benevolent, unless they also come within the technical denomination of charitable purposes? If it might, consistently with the will, be applied to other than strictly charitable purposes, the trust is too indefinite for the Court to execute. I see no substantial difference between this case and the former, and therefore consider the point as already decided, though if it were still open, I should not entertain any doubt on the question."
[ Commonlii ] - [ Bailii ]
 
Den v Vancleve (1819) 2 Southard 589
1819


Wills and Probate
When asking as to the capacity of a testator, the court should ask: "was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty?" and "By the terms "a sound and disposing mind and memory" it has not been understood that a testator must posses these qualities of the mind in the highest degree; otherwise, very few could make testaments at all; neither has it been understood that he must posses them in as great a degree as he may have formally done; for even this would disable most men in the decline of life; the mind may have been in some degree debilitated, the memory may have become in some degree enfeebled; and yet there may be enough left clearly to discern and discreetly to judge, of all those things, and all those circumstances, which enter into the nature of a rational, fair, and just testament. But if they have so far failed as that these cannot be discerned and judged of, then he cannot be said to be of sound and disposing mind and memory."
1 Citers


 
Hoghton v Whitgreave [1819] EngR 780; (1819) 1 Jac & W 146; (1819) 37 ER 331
20 Dec 1819


Wills and Probate

[ Commonlii ]
 
Ross v Ross [1819] EngR 783; (1819) 1 Jac & W 154; (1819) 37 ER 334
21 Dec 1819


Wills and Probate

[ Commonlii ]
 
Doe, Dem of S Perkes v E Perkes And Others [1820] EngR 308; (1820) 3 B & A 489; (1820) 106 ER 740
21 Apr 1820


Wills and Probate

[ Commonlii ]
 
In re: King George III (1822) 1 Add 255
1822


Wills and Probate
The will of the Sovereign is not subject to probate.
1 Citers


 
Johnson And Others, Creditors of Sir John Legard Deceased v Sir Thomas Legard, and Others [1822] EngR 468; (1822) Turn & R 281; (1822) 37 ER 1107
21 Jul 1822


Wills and Probate, Insolvency

[ Commonlii ]
 
Goldsmid, and Others v Goldsmid, Brown, Ebason, and Others [1823] EngR 823; (1823) Turn & R 445; (1823) 37 ER 1172
12 Dec 1823


Wills and Probate, Family

[ Commonlii ]
 
Greenough v Martin [1824] EngR 70; (1824) 2 Add 239; (1824) 162 ER 281
1824

Sir John Nicholl
Wills and Probate
A will and codicil pronounced for; and three intermediate codicils, propounded on behalf of legatees in the same, held to be invalid. In a Court of Probate, what instruments the testator meant to operate as, and compose, his will, is to be collected from all the circumstances of the case. Sir John Nicholl said "In the court of probate the whole question is one of intention: the animus testandi and the animus revocandi are completely open to investigation . . in a court of construction, where the factum of the instrument has been previously established in the court of probate, the enquiry is pretty closely restricted to the contents of the instrument itself, in order to ascertain the intentions of the testator."
1 Citers

[ Commonlii ]
 
Thomas Duffield, Esq And Emily Frances His Wife v Amelia Maria Elwes, Widow, Francis Const And George Law, Abraham Henry Chambers, The Rev William Hicks, Clerk, And George Thomas Warren Hastings Duffield, Caroline Duffield, Maria Duffield, Anne Duffield [1825] EngR 313; (1825) 3 B & C 705; (1825) 107 ER 894
1825


Wills and Probate

[ Commonlii ]
 
Ingram v Wyatt [1827] EngR 94; (1827) 1 Hag Ecc 94; (1827) 162 ER 519
1827

Sir John Nicholl
Wills and Probate
The will appointed the testator's agent and attorney as both executor and almost universal legatee. Held: These circumstances called for more than evidence of due execution. Sir John Nicholl said of the testamentary capacity: "In order to arrive at the true meaning of "imbecility of mind," we may resort to what the law describes as perfect capacity, which is most correctly found in the form of our pleadings. The averment to be contained in a common condidit is, that the testator was "of sound mind, memory, and understanding, talked and discoursed rationally and sensibly, and was fully capable of any rational act requiring thought, judgment, and reflection." Here is the legal standard. When all this can be truly predicated of the person bare execution is sufficient: but if it cannot be truly predicated, a deficiency of capacity exists – a deficiency not necessarily rendering the person intestable, but in proportion to the degree of deficiency, requiring clearer and more direct proof of the unbiased testamentary intention." After reviewing the evidence of his capacity, Sir John Nicholl added that the testator: "was therefore (to take it no higher) a person so far liable to be imposed upon as to require the court to look with vigilance and jealousy into the proofs of the factum: that he might possess a testable capacity; and that very strong and clear evidence of the factum and of free and active testamentary intention might establish the executor's case."
1 Citers

[ Commonlii ]
 
Thomas Duffield, Esquire, And Emily Frances His Wife v Amelia Maria Elwes, Widow, And Abraham Henry Chambers, Esquire, William Hicks, Clerk, And George Thomas Warren Hastings Duffield, Caroline Duffield, Maria Duffield, Anna Duffield, And Susan Eliza Du [1827] EngR 205; (1827) 1 Bligh NS PC 497; (1827) 4 ER 959
1827
PC

Wills and Probate

[ Commonlii ]
 
In The Goods Of George Hulme [1828] EngR 115; (1828) 2 Hag Ecc 82; (1828) 162 ER 792 (B)
1828


Wills and Probate

[ Commonlii ]

 
 Marsh v Tyrrell; 1828 - (1828) 2 Hagg Ecc 84
 
Thomas Duffield, And Emily Francis His Wife, Plaintiffs In The Court Of Chancery v Amelia Maria Elwes, Francis Const, George Law, Abraham Henry Chambers, William Hicks, George Thomas Warren Hastings Duffield, Caroline Duffield, Maria Duffield, Anna Duff [1829] EngR 245; (1829) 3 Bligh NS PC 260; (1829) 4 ER 1334
1829
PC

Wills and Probate

[ Commonlii ]
 
Thomas Spong v John Spong, And Others [1829] EngR 246; (1829) 3 Bligh NS PC 84; (1829) 4 ER 1271
1829
PC

Wills and Probate

[ Commonlii ]
 
Bowsher v Watkins [1830] EngR 401; (1830) 1 Russ & My 277; (1830) 39 ER 107
16 Feb 1830
CA
Sir John Leach MR
Wills and Probate
Residuary legatees brought suit against the estate executors and a surviving partner of the testator for an account. It was argued that there were no special circumstances justifying the action by legatees. Held. Collusion between the executor and the partner was not an essential condition of such a claim.
1 Citers

[ Commonlii ]
 
Egerton v Jones [1830] EngR 487; (1830) 3 Sim 409; (1830) 57 ER 1051
16 Mar 1830


Wills and Probate
An estate at C was settled on A for life, remainder to his first and other sons in tail male, remainder to A. in fee. A. devised as follows : "As to the reversion and inheritance of the freehold estate at C., purchased by me in pursuance of my marriage articles, bearing date, &e., in case of failure of issue of my body by my said wife, I give and devise the same," &e. He then limited the estate to his brothers in succession, and to their respective first and other sons in tail male. The Court was of opinion that the devise was good.
1 Citers

[ Commonlii ]
 
In The Goods Of Elizabeth Brand [1831] EngR 118; (1831) 3 Hag Ecc 754; (1831) 162 ER 1333
1831


Wills and Probate, Health
A testatrix executed a wiil, and thereupon destroyed a former will, and subsequently executed two other wills. The last mill was propounded, but abandoned. A decree then issued calling on all parties interested to shew cause why probate of the instructions for the first will should not be granted; and the Court, on proof per testes that the instructions were of the same effect is the first will, that that will was executed wheri the deceased was sane, but destroyed and the other wills executed when insane, pronounced for the instructions, and refused coats out of the estate to persons in distribution who by interrogatories set up insanity when the first will waa executed.
[ Commonlii ]
 
In The Goods Of James Cassidy [1832] EngR 166; (1832) 4 Hag Ecc 360; (1832) 162 ER 1477
1832


Wills and Probate

[ Commonlii ]

 
 Wilson v Moore; 22-Mar-1834 - [1834] EngR 607; (1834) 1 My & K 337; (1834) 39 ER 709
 
Smith v Brooksbank [1834] EngR 880; (1834) 7 Sim 18; (1834) 58 ER 743 (B)
25 Jun 1834


Wills and Probate, Litigation Practice, Equity
A bequeathed a reversionary interest, expectant on his wife’s death, in a sum of stock to B. B. bequeathed it to C., and C. bequeathed it to D, who, on the death of A's wife, filed a bill against the trustees to have the stock transferred to him, alleging that the executors of A. and B, and C. had successively assented to the bequests. Held: that the executors were not necessary parties.
1 Citers

[ Commonlii ]
 
Overend v Gurney [1834] EngR 941; (1834) 7 Sim 128; (1834) 58 ER 785
25 Jul 1834


Wills and Probate
The testator gave real property and a sum of stock to A for her life, and after her death to his brother absolutely: and he gave legacies, which he directed to be paid as soon as convenient after hie death, to his nephews and nieces, and the residue of his property to his brother absolutely. The brother having died, the testator, by a codicil reciting that fact, and that, thereby, the devises and bequests to his brother had lapsed, gave an annuity to his brother's widow, and directed his trustees to pay the income of the residue of his personal estate to A. for life, and gave to her all his real estates for life, and, after her death, to his trustees in trust to sell, and the proceeds to fall into his personal estate : he then gave £10,000 to each of his nieces, in addition to the legacies given to them by the will, and directed that that sum for each of them should be held by his trustees for their separate use : and he gave all the clear residue of his estate (after providing for the before-mentionedlegacies, and also those given by his will) to his nephews. Held, that the legacies given to the nieces by the codicil were not payable till after A's death.
[ Commonlii ]
 
Harwood v Fisher [1834] EngR 1176; (1834) 1 Y & C Ex 110; (1834) 160 ER 46
23 Dec 1834


Wills and Probate
Where the first husband of a woman entitled to a legacy of 600l, chargeable, in default of personalty, on the testator's real estate, verbally agreed with the three devisees of the real estate to sell the legacy to them for 200l a piece, but received the consideration from one only of the devisees, taking interest on the 400l, due from the two others. Held, that to the extent to 400l. this was not a reduction of the legacy into possession, and that to a suit instituted by the woman and her second husband to recover what was due on the legacy, the representatives of the first husband were not necessary parties. Where facts are stated in the answer which are not contradicted, and which, if true, would lead to a material alteration in the frame of the suit, the Court will, on motion, permit the minutes of the decree to be amended, with a view to ascertain the truth of those facts.
[ Commonlii ]
 
Doe on the Demise of John Birtwhistle v Agnes Vardill [1835] EngR 75; (1835) 2 Cl & Fin 571; (1835) 6 ER 1270
1835
KBD

Wills and Probate, Land, Family
Quaere, whether a child, born in Scotland, of parents domiciled there, who at the time of his birth were not married, but who afterwards intermarried in Scotland, (neither having in the meantime married any other person,) can take as heir lands of his father in England.
[ Commonlii ]
 
Griffin And Amos (Legrew And Others Intervening) v Ferard [1835] EngR 1056; (1835) 1 Curt 97; (1835) 163 ER 33
8 Dec 1835


Wills and Probate
A paper not dispositive upon the face of it, nor shewn to be by extrinsic evidence, not entitled to probate.
[ Commonlii ]
 
Logan v Fairlie [1835] EngR 1067; (1835) 1 My & Cr 59; (1835) 40 ER 298
14 Dec 1835


Wills and Probate

[ Commonlii ]

 
 Earl of Durham v Wharton; HL 1836 - (1836) 3 C & Finelly 14
 
Hayle v Hasted and Pierson [1836] EngR 367; (1836) 1 Curt 236; (1836) 163 ER 80
29 Jan 1836


Wills and Probate
A sentence in favor of a draft will pronounced in a suit against the executors of a former will, is binding on the legatees named therein, unless fraud or collusion can be shewn between the parties to the suit, or neglect or mismanagement in the conduct of it.
[ Commonlii ]
 
Vaughan v Foakes [1836] EngR 453; (1836) 1 Keen 58; (1836) 48 ER 228
25 Feb 1836


Wills and Probate
A testatrix gave the residue of her property to A, and by a codicil, reciting that gift, and that, as life was uncertain, A might be removed before her, she in such case appointed B and C her residuary legatees. The testatrix made a second codicil, as follows:- "As the death of Mrs W (the mother of B and C) has taken place, and as her two children will ultimately become my residuary legatees, the £15 she was to have I give to Mrs H" Held: That A was entitled to the residue.
[ Commonlii ]
 
Barry v Butlin [1836] UKPC 9; [1838] 2 Moo PCC 480
22 Jun 1836


Wills and Probate, Litigation Practice
The hearing of a cause in the Prerogative Court is one continuous act, and after a cause has been set down for sentence on the second assignation, it is not competent for either of the litigant parties to interpose an appeal, till sentence has been given on the assignation.
This was a cause originally instituted for proving the last will and testament of Pendock Barry, deceased, promoted by the respondent, the sole executor, against the appellant, the son and only next, of kin of the deceased.
The cause was commenced in the Prerogative Court of Canterbury, on the 13th, May 1833, and various pleas having been put in, and witnesses examined on both sides, was set down for sentence on the 30th May 1835, on the second assignation on the fourth session of Trinity term.
1 Citers

[ Bailii ]
 
Pendock Barry Barry, Esq v James Butlin, Esq [1836] UKPC 9
22 Jun 1836
PC

Wills and Probate
The hearing of a cause in the Prerogative Court is one continuous act, and after a cause has been set down for sentence! on tlie second assignation, it is not competent for either of the litigant parties to interpose an appeal, till sentence has been given on the assignation.
[ Bailii ] - [ Commonlii ]
 
Davies v Davies [1837] EngR 840; (1837) 2 Keen 534; (1837) 48 ER 733
12 Jun 1837
CA
Lord Langdale MR
Wills and Probate
Residuary legatees filed a bill against the executor and the surviving partner of the testator for an account of partnership transactions. Held. In the absence of a charge of fraud or collusion, there were no special circumstances justifying the legatees' claim.
1 Citers

[ Commonlii ]
 
Wright v Doe Dem Sandford Tatham [1837] EngR 853; (1837) 7 Ad & E 313; (1837) 112 ER 488
13 Jun 1837
KBD

Wills and Probate, Evidence
The court was asked as to the understanding of th edeceased when he made his will. Letters, found in the house, were produced and the court now asked whether they could be used in evidence. Held: such letters were not admissible unless connected in evidence witb some act done by the testator.
1 Citers

[ Commonlii ]
 
Butlin v Barry [1837] EngR 984; (1837) 1 Curt 614; (1837) 163 ER 215
5 Sep 1837


Wills and Probate, Legal Professions
(Prerogative Court) A will being drawn by a solicitor, in which a considerable legacy was given to himself and to the medical man and butler of the deceased, excluding an only son, the presumption of law is strong against the act, and the Court requires strong evidence to satisfy it that the act is the real and voluntary act of the testator. Under the circumstances sufficient evidence being given of the capacity of the deceased and of his knowledge of the contents of the instrument, the Court pronounced for the will and condemned the son in costs from the time of giving in his allegatian.
1 Cites

1 Citers

[ Commonlii ]
 
Smethurst v Longworth [1837] EngR 1168; (1837) 2 Keen 603; (1837) 48 ER 760
22 Dec 1837


Wills and Probate

[ Commonlii ]
 
Cherry v Boultbee [1838] EngR 541; (1838) 2 Keen 319; (1838) 48 ER 651 (B)
6 Apr 1838
CA
Lord Langdale MR
Wills and Probate, Trusts
TB was indebted to CB, his sister, in the sum of £1878. He became bankrupt, and shortly after his bankruptcy C B made her will, giving legacies of £500 and £2,000 to her executors, in trust to pay the interest thereof (as to the £500 after the decease of her mother), to TB for his life, without power of anticipation and free from his debts ; and after his decease to pay the principal to such persons as he should appoint, and in default of appointment to his executors and administrators, for his and their own use and benefit. TB died without having obtained his certificate, and without having attempted to make any appointment. Held: The executors of the testatrix had no right to set off the debt due from TB to the testatrix against the legacies, but that the assignee of TB was entitled to so much of the legacies as the assets were sufficient to pay. A person who owes an estate money, that is, who is bound to increase the general mass of the estate by a contribution of his own, cannot claim a share given to him out of that mass estate without first making the contribution that completes it.
1 Citers

[ Commonlii ]
 
Ferard v Griffin [1838] EngR 595; (1838) 2 Keen 615; (1838) 48 ER 765
29 Apr 1838


Wills and Probate
A testator gave to his brother £300 per annum during his life, and to each of two nephews £150 during their lives ; but if either of the nephews died, the other to inherit the whole £300 ; and if the brother died without issue, the two nephews to inherit from the brother; and he then stated, that the reason why he left only the interest to his brother and two nephews was, that if they died without issue, the money might go to his three cousins, he desired his legatees to be paid within twelve months, and proceeded, “it is to be understood I leave it to them and their heirs;” the brother and nephews died without issue. Held, that, under the will, the brother took an annuity for life only, and was not interested in the fund set apart to answer the annuity of £300.
[ Commonlii ]
 
Hobbs v Knight [1838] EngR 769; (1838) 1 Curt 768; (1838) 163 ER 267
19 Jun 1838


Wills and Probate
For a testator to revoke a will by destroying it, there must be an act of ‘burning, tearing, or otherwise destroying of the will, but the whole will need not be destroyed’ – it suffices if ‘the essence of the instrument’ is destroyed.
[ Commonlii ]
 
Stephen Lazar And His Wife Thamar Lazar v Colla Ragava Chitty [1838] EngR 1035; (1838) 2 Moo Ind App 84; (1838) 18 ER 233; [1838] UKPC 21
3 Dec 1838


Wills and Probate
(India) Legacy of 12,000 star pagodas reserved by a Testator from his estate, and devised in favour of his Great-grand-daughter, having, in pursuance of the directions contained in the Will been put in strict settlement by the Executors, and subsequently secured by a mortgage of the real estate of the Testator to the Trustee of the settlement: held to be an equitable charge upon the whole of the real estate of the Testator, and there being no evidence of the payment off of such charge, the sale of a portion by the Sheriff of Madras, can under a writ of execution, declared to be invalid.
[ Commonlii ] - [ Bailii ]
 
Barry v Butlin (1838) 2 Moores PCC 480; [1838] EngR 1051; (1838) 1 Curt 637; (1838) 163 ER 223; [1838] EngR 1056; (1838) 2 Moo PC 480; (1838) 12 ER 1089; [1836] EngR 855; (1836) 1 Moo PC 98; (1836) 12 ER 749; [1838] UKPC 22
8 Dec 1838
PC
Baron Parke
Wills and Probate, Health
The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. Held: The case law establishes that the proposition that the propounder of a will: "must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator." The Board rejected a suggestion that the onus of proof could only be discharged by evidence of prior instructions for or subsequent reading over of the will before execution by the testator, saying: "Nor can it be necessary, that in all such cases, even if the testator's capacity is doubtful, the precise species of evidence of the deceased's knowledge of the will is to be in the shape of instructions for, or reading over the instrument. They form, no doubt, the most satisfactory, but they are not the only satisfactory description of proof, by which the cognizance of the contents of the will may be brought home to the deceased. The court would naturally look for such evidence; in some cases it might be impossible to establish a will without it, but it has no right in every case to require it."
The rules for admitting a will to probate are two. Baron Parke said: "the onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a party wrote or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased." The conscience of the court must be satisfied by the evidence."
1 Cites

1 Citers

[ Commonlii ] - [ Commonlii ] - [ Commonlii ] - [ Bailii ]
 
Munday And Berry v Slaughter [1839] EngR 866; (1839) 2 Curt 72; (1839) 163 ER 341
24 Jun 1839


Wills and Probate

[ Commonlii ]
 
Laing v Laing [1839] EngR 1076; (1839) 10 Sim 315; (1839) 59 ER 636 (A)
15 Nov 1839


Wills and Probate, Trusts
Testator gave £5000 stock to a female infant, to be paid or transferred to, or settled on her, by his executors, by such deed or instrument in writing, as they should think most prudent and proper, on her attaining 21. The infant married in the testator’s lifetime, and afterwards attained 21. The Court ordered the stock to be transferred to her, on her sole receipt.
[ Commonlii ]
 
Cherry v Boultbee (1839) My Cr 442; [1839] EngR 1099; (1839) 4 My & Cr 442; (1839) 41 ER 171
22 Nov 1839
HL
Cottenham LC
Wills and Probate, Insolvency
B died having made a will leaving a fund to pay income to A who owed her money but had been made bankrupt before the death. The debt to B remained unpaid. Held: The liability to pay the debt and the right to receive the legacy had never tested in the same person, and therefore B's executors remained liable to pay the income as set out in the will.
1 Cites

1 Citers

[ Commonlii ]
 
Susan Israell And Others v Henrietta Woollery Rodon And Others [1839] EngR 1180; (1839) 2 Moo PC 51; (1839) 12 ER 922; [1839] UKPC 10
7 Dec 1839
PC

Wills and Probate, Commonwealth

1 Cites

[ Commonlii ] - [ Bailii ]
 
Rex v Stewart [1840] 12 Ad & E 773
1840


Wills and Probate
It is the duty at common law for a householder under whose roof a person has died to make arrangements for the dignified and decent burial of the deceased, at least in circumstances where the deceased is a poor person in relation to whom no other arrangements can be made.
1 Citers


 
Vaughan v Mark of Headfort (1840) 10 SIM 639
1840

Shadwell VC
Wills and Probate
Eccentricity or irrationality are not enough to deprive someone of the freedom ot capacity to make a valid will. "Every testator is free to adopt his own nonsense"
1 Citers


 
Pym v Lockyer (1840) 5 My & Cr 29; [1841] EngR 340; (1840-1841) 5 My & Cr 29; (1841) 41 ER 283; [1841] EngR 1054; (1841) 12 Sim 394; (1841) 59 ER 1183
1840

Lord Cottenham LC
Wills and Probate
It can be sufficient for a gift to be adeemed as a portion where the donor is a parent: "in the case of a parent, a legacy to a child is presumed to be intended to be a portion . ." The court queried the likelihood of an intention in a grandfather who was in loco parentis disturbing the whole scheme of distribution he had set up in his will to have given an inter vivos gift without its adeeming the gift by will - "to the necessary prejudice of all the other children". The rule against double portions is "founded on good sense and adapted to the ordinary transactions of mankind".
1 Cites

1 Citers

[ Commonlii ] - [ Commonlii ]
 
Charles Harwood v Maria Baker (1840) 3 Moores PCC 282; [1840] EngR 1087; (1840) 3 Moo PC 282; (1840) 13 ER 117
1840
PC
Erskine J
Wills and Probate, Health
The Board emphasised the importance that the Court of Probate should be satisfied that a testatrix had the necessary capacity when she executed the will if the evidence showed that she had lost capacity shortly afterwards. The infirmity of the testator may strengthen certain presumptions which arise against the will in a case where the will is contrary to the previously expressed intentions of the testator as to his testamentary dispositions.
"in order to constitute a sound disposing mind, a Testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard; but that he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom by his will he is excluding from all participation in that property." and
"Now if their Lordships had found from the other evidence that Mr Baker had, while in a state of health, compared and weighed the claims of his relations, and had formed the deliberate purpose of rejecting them all in favour of his wife, but had omitted to carry that purpose into effect before the attack of illness under which he dies; and that during that illness he had acted upon that previous intention, and executed a Will in question, - less evidence of the capacity to weigh those claims during his illness might have been sufficient to show that the Will propounded really did contain the expression of the mind and will of the deceased."
Erskine J said: "Their Lordships are of opinion that, in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom by his will he is excluding from all participation in that property; and that the protection of the law is in no cases more needed than it is in those where the mind has been too much enfeebled to comprehend more objects than one; and more especially, when that one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration. And, therefore, the question which their Lordships propose to decide in this case is, not whether Mr Baker knew, when he executed this will, that he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property. If he had not the capacity required, the propriety of the disposition made by the will is a matter of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or injustice of the disposition might cast down some light upon the question as to his capacity."
and "that in all cases the party propounding the Will is bound to prove, to the satisfaction of the Court, that the paper in question does contain the last will and testament of the deceased, and that this obligation is more especially cast upon him when the evidence in the case shows that the mind of the testator was generally, about the time of its execution, incompetent to the exertion required for such a purpose."
1 Citers

[ Commonlii ]

 
 Button v Button; 11-Jan-1840 - [1840] EngR 301; (1840) 2 Beav 256; (1840) 48 ER 1178
 
In The Goods Of Hugh Donaldson Donaldson, M D [1840] EngR 555; (1840) 2 Curt 386; (1840) 163 ER 448 (A)
1 May 1840

Sir Herbert Jenner
Wills and Probate, Armed Forces
Sir Herbert Jenner said that: "The deceased must be considered to have been a surgeon in the East India Company's service; his being in charge of recruits for royal regiments, which was no part of his regimental duty, would not constitute him a Queen's officer. But, with respect to mariners, the exception is extended to merchant seamen, and by parity of reasoning, persons in the military service of the East India Company would seem to be included in the term 'soldiers'; there is nothing in the section of the Act which restricts the exemption to the Queen's soldiers."
1 Citers

[ Commonlii ]
 
French v French [1840] EngR 950; (1840) 11 Sim 257; (1840) 59 ER 872
13 Nov 1840


Wills and Probate

[ Commonlii ]
 
Gladstone v Tempest And Others [1840] EngR 989; (1840) 2 Curt 650; (1840) 163 ER 538
21 Nov 1840

Sir Herbert Jenner
Wills and Probate
Sir Herbert Jenner said: "generally speaking, there is no doubt that by such a general clause there is a revocation of all prior testamentary acts. But it has been over and over again laid down that probate of a paper may be granted of a date prior to a will with a revocatory clause, provided the Court is satisfied that it was not the deceased’s intention to revoke that particular legacy or benefit."
[ Commonlii ]
 
Burrough v Philcox [1840] EWHC Ch J62; (1840) 5 My & Cr 72; 41 ER 299
25 Nov 1840
ChD

Wills and Probate

[ Bailii ]
 
Lancaster v Evors (1841) 4 Beav 158
1841


Litigation Practice, Wills and Probate
A creditor of the deceased's estate could enforce a cause of action vested in an estate which the executors were not willing to enforce.
1 Citers


 
Black v Watson (1841) 3 D 522
1841


Scotland, Wills and Probate
Where a testator leaves more than one testamentary writing they are to be read together so far as possible as if they formed one deed.
1 Citers


 
Saunders v Vautier (1841) 4 Beav 115 affd Cr & Ph 240; [1841] EWHC Ch J27; [1841] EWHC Ch J82; (1841) Cr & Ph 240; [1841] EngR 629; (1841) 4 Beav 115; (1841) 49 ER 282
7 May 1841

Lord Cottenham
Trusts, Wills and Probate
A direction in a will stated that the income from certain shares was to be accumulated and invested until the beneficiary attained the age of 25. On attaining his majority at 21 years, the beneficiary sought termination of the trust, and transfer of the legal title in the property to him. Held: The beneficiary was entitled to call for the property. The intention of the testator was that the beneficiary would ultimately take the property, but had merely sought to postpone the date on which this would happen. Beneficiaries who are sui juris and together entitled to the whole beneficial interest can put an end to the trust and direct the trustees to hand over the trust property as they may direct: "once something has been given to a person the court will not enforce any attempt to keep it out of his grasp until a later date."
1 Citers

[ Bailii ] - [ Bailii ] - [ Commonlii ]
 
Saunders v Vautier [1841] EngR 765; (1841) Cr & Ph 240; (1841) 41 ER 482
5 Jun 1841


Wills and Probate

1 Cites

[ Commonlii ]
 
Malone of Rathcaslin In The County Of Westmeath v Malone Of Coburg Place In The City Of Dublin, O'Connor, Tuite, Ardill, O'Connor, Thomas Richard Rooper, John Conroy Browne, L'Estrange, L'Estrange, [1841] EngR 890; (1841) West 637; (1841) 9 ER 627
27 Jun 1841


Family, Wills and Probate
JM brought his bill against an infant and several other defendants, claiming, as against them, certain estates, upon two points, one of law, upon the construction of Lord Sunderlin’s will, the other of fact, that he was the heir male of Lord Sunderlin, charging by his bill that the marriage between his father and mother took place in or about the month of January 1801. With the consent of all parties, one of them being an infant, an issue was directed to inquire whether the plaintiff was the heir at law of his father; and the plaintiff, by the evidence of his mother, proved that the marriage took place in January 1801, and that her son Anthony was born in July of the same year (which would have negatived the claim of the plaintiff, by proving that he had an elder brother); but she swore that Anthony was the last child born before and the plaintiff the eldest son born after her marriage. The infant, having afterwards attained twenty one, was permitted to put in a new answer, and make a new defence ; and it was afterwards ordered that a new trial of the issue should take place, with liberty for him and other defendants to appear by counsel on the trial, and to give the judges report in evidence in respect of those witnesses who, having given evidence in the first trial, bud died. Held, that though it is a matter of discretion in a court of equity whether it will first decide the law or the fact, that the Court had, in the present instance, exercised a sound discretion in adopting the latter mode, inasmuch as all but one had concurred in that course, and a different course as to one might have led to different deterniinations upon the same point: That the issue directing the jury to inquire whether the plaintff was the heir at law was the proper issue to be tried: That though the date of the marriage proved was at variance with that alleged on the record, the Court was right in not dismissing the bill, but granting a new trial, on the ground of their being a misapprehension of the date or the facts: That the infant, though strictly speaking not a party to the issue, being permitted to make a new defence, was bound by the issue: That the judges report was properly directed to be received in evidence, being evidence between the same parties and to the same point.
[ Commonlii ]
 
Topham v Lightbody [1842] EngR 153; (1842) 1 Hare 289; (1842) 66 ER 1042
21 Jan 1842


Wills and Probate
Commonlii The Plaintiffs, claiming to be next of kin of the testatrix, filed their bill against the executors in respect of legacies which had failed: the executors answered, but did not admit that the Plaintiffs were such next of kin : the Plaintiffs moved the 5th Order of the 9th of May 1839 for a reference to inquire who were the next of kin of the testatrix : motion refused.
A preliminary inquiry may be directed under the 5th Order of the 9th of May 1839, where the evidence upon the answer is a sufficient foundation for the order, but not where, if the cause were heard upon that evidence, the bill would be dismissed. Quaere whether an aflidavit might not be received in support of the motion, where the answer simply stated ignorance of the Plaintiff's title?
[ Commonlii ]
 
In The Goods Of Francis Willesford, Deceased [1842] EngR 383; (1842) 3 Curt 77; (1842) B)
15 Mar 1842


Wills and Probate

[ Commonlii ]
 
Campbell v Campbell [1842] EngR 893; (1842) 13 Sim 168; (1842) 60 ER 65
15 Jul 1842


Wills and Probate
If an executor in India collects part of the assets there and then comes to England and has the remainder remitted to him by his agent, he is entitled to commission on that part only which he collected in India
[ Commonlii ]
 
Templeman v Warrington [1842] EngR 1223 (B); (1842) 13 Sim 267
23 Dec 1842


Wills and Probate
Testatrix bequeathed the residue of her funded property in trust for her niece for life, and, after her death, to be equally divided amongst all her children, whether sons or daughters, share and share alike: in case it should happen that there was but one child at the niece’s death, then to go to that one only child ; and in case of failure of issue to go as the niece should appoint by her will. The niece had eleven children, three of whom died in her lifetime. Held, that all the children took vested interests, and, as more than one survived their mother, there was no divesting of interests.
[ Commonlii ]
 
Crosse v Glennie [1843] EngR 377; (1843) 2 Y & CCC 237; (1843) 63 ER 104
18 Feb 1843


Wills and Probate

[ Commonlii ]
 
Mayor and Munday v Williams and Iles [1843] EngR 418; (1843) 3 Curt 432; (1843) 163 ER 781
28 Feb 1843


Wills and Probate
A will once revoked by a later will, was not revived on the destruction of the later will.
[ Commonlii ]

 
 MacMahon v Burchell; 20-Apr-1843 - [1843] EngR 526; (1843) 3 Hare 97; (1843) 67 ER 312
 
Kirk v Eddowes (1844) 3 Hare 509
1844

Sir James Wigram VC
Wills and Probate
The court discussed cases of ademption in a context where the two gifts were by instruments, to the effect that: "... The law raises a presumption that the second instrument was an ademption of the gift by the instrument of earlier date ..." Though care has to be taken not to offend the parole evidence rule where the gifts involve the construction of written instruments, such evidence has been admitted.
1 Citers


 
Hudson v Parker (1844) 1 Rob Ecc 14
1844

Dr. Lushington
Wills and Probate
The court made observations on the meaning of the requirement in the Wills Act 1837 that the witness "shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary". He pointed to the statutory requirement of attestation in addition to subscription and gave as the meaning of "attest" to bear witness to a fact: "I conceive the witnesses in a will bear witness to all that the statute requires attesting witnesses to attest, namely, that the signature was made or acknowledged in their presence. The statute does say "that no form of attestation shall be necessary", still the witnesses must attest, although the outward work of attestation may be subscription only".
Wills Act 1837
1 Citers



 
 Midland Counties Railway Company v Oswin; 12-Feb-1844 - [1844] EngR 251; (1844) 1 Coll 74; (1844) 63 ER 327
 
Ilott v Genge [1844] EngR 282; (1844) 4 Moo PC 265; (1844) 13 ER 304; [1844] UKPC 8
21 Feb 1844
PC

Wills and Probate
(Prerogative Court of Canterbury) The mere circumstance of the deceased having called in two witnesses "to sign a paper for him,'' (which they did in his presence,) but without any explanation of the nature of the instrument being made to them, or the witnesses being able to see if any signature or writing was upon it when they attested it : Held by the Judicial Committee of the Privy Council, affirming the judgment of the Prerogative Court not to amount to an acknowledgment of the signature by the deceased, so as to satisfy the provisions of 1 Tic., c. 26, see. 9, and Probate refused to such paper.
[ Commonlii ] - [ Bailii ]
 
Cort v Winder [1844] EngR 729; (1844) 1 Coll 320; (1844) 63 ER 438
3 Jul 1844


Wills and Probate
Upon the construction of a will: Held: That the residue of the testator’s personal estate devolved to his cousins-german, living at his death, except that the issue of any cousin, dying between the date of the will and the death, took the prospective share of the parent.
Upon the construction of the same will the share of a cousin, dying without issue between the date of the will and the death of the testator, was held not to have lapsed, but to have fallen into the bequeathed residue.
[ Commonlii ]
 
Thomas v Thomas [1844] EngR 773; (1844) 14 Sim 234; (1844) 60 ER 348
11 Jul 1844


Wills and Probate
By a marriage settlement, the trustees were directed, after the decease of the survivor of the husband and wife, to convey, assign and deliver the settled property to such children or child of the marriage, or the lawful issue of such who should or might be living at the decease of the survivor, and who should attain twenty-one, to whom the husband and wife should jointly appoint, or to whom the survivor of them should appoint; and in default of appointment, to permit the property to be held and enjoyed by and equally between ail the children of the marriage and the survivors of them, and the lawful issue of such children or child so surviving the husband and wife and attaining twenty-one, such issue representing and taking the share that the parent would have taken if living.
Held, that the words in the clause creating the power, ''who shall or may be living at the decease of the survivor," referred to the children of the marriage, and not to their issue ; and, therefore, that clause exceeded the limits prescribed by law ; and, consequently, that an appointment made to the son of a daughter of the marriage was void.
[ Commonlii ]
 
Fletcher v Fletcher [1844] EWHC Ch J69; (1844) 4 Hare 67; 67 ER 564
25 Jul 1844
ChD

Wills and Probate, Equity
The son of the deceased sought payment under a deed executed by the testator but not disclosed to his trustees who now refused to act upon it, saying it was a voluntary deed. Held: The debt must be paid: "The rule against relief to volunteers cannot, I conceive, in a case like that before me, be stated higher than this, that a Court of Equity will not, in favour of a volunteer, give to a deed any effect beyond what the law will give to it. But if the author of the deed has subjected himself to a liability at law, and the legal liability comes regularly to be enforced in equity, as in the cases before referred to, the observation that the claimant is a volunteer is of no value in favour of those who represent the author of the deed. " and " Its being executory makes no difference, whether the party seeks to recover at law in the name of the trustee, or against the assets in this Court."
[ Bailii ]
 
Dowley v Winfield [1844] EngR 931; (1844) 14 Sim 277; (1844) 60 ER 365
9 Nov 1844


Wills and Probate

[ Commonlii ]
 
Lanyon v Carne et al Executors Of Cara [1845] EngR 141; (1845) 2 Wms Saund 165; (1845) 85 ER 912
1845


Wills and Probate, Landlord and Tenant
A lease is made to A. for 99 years, if A. and B. or either of them shall so long live, to commence after the death of C. yielding and paying 31. for a heriot on the respective deaths of A. and B, and A. dies living C., the heriot is of the same nature with a rent, and is not payable by the executors of A.
[ Commonlii ]
 
Kipping and Barlow v Ash [1845] 1 Rob Eccl 270
1845


Wills and Probate

1 Citers


 
Foster v Smith [1845] EngR 554; (1845) 1 Ph 629; (1845) 41 ER 772
4 Mar 1845


Wills and Probate

[ Commonlii ]
 
Hobby v Ruell, Sued Executor Of John Smith [1845] EngR 596; (1844) 1 Car & K 716; (1845) 174 ER 1004
28 Mar 1845


Wills and Probate

[ Commonlii ]
 
M'Mohan v Burchell [1845] EngR 724; (1845) 1 Holt Eq 186; (1845) 71 ER 716
30 Apr 1845


Wills and Probate, Landlord and Tenant

1 Cites

1 Citers

[ Commonlii ]
 
Bolton v Ward [1845] EngR 823 (B); (1845) 2 Holt Eq 88
22 May 1845


Wills and Probate

[ Commonlii ]
 
Bolton v Ward [1845] EngR 877; (1845) 4 Hare 530; (1845) 67 ER 758
30 May 1845


Wills and Probate

[ Commonlii ]
 
Anne Casement v John Williamson Fulton and Wife [1845] UKPC 8
19 Jun 1845
PC

Commonwealth, Wills and Probate
(India)
[ Bailii ]
 
Clough v French [1845] EngR 1121 ©; (1845) 2 Coll 277
10 Jul 1845


Insolvency, Wills and Probate

[ Commonlii ]
 
Scott v Scott [1845] EngR 1139; (1845) 15 Sim 47; (1845) 60 ER 533
16 Jul 1845


Wills and Probate

[ Commonlii ]

 
 Twining v Powell; 17-Jul-1845 - [1845] EngR 1144; (1845) 2 Holt Eq 422; (1845) 71 ER 930
 
M'Mohon v Burchell [1846] EngR 760; (1846) 5 Hare 322; (1846) 67 ER 936
5 Jun 1846


Wills and Probate, Landlord and Tenant, Equity

1 Cites

1 Citers

[ Commonlii ]
 
William M'Mahon And Wife v Burchell And Another [1846] EngR 1180; (1846) 2 Ph 127; (1846) 41 ER 889
4 Dec 1846


Wills and Probate, Landlord and Tenant

1 Cites

[ Commonlii ]
 
Nightingale v Goulbourn (1848) 2 Ph 594; (1847) 5 Hare 484
1847


Charity, Wills and Probate
A testamentary gift to the Chancellor of the Exchequer was expressly impressed with a trust for Great Britain.
1 Citers


 
Doe, On Demises Of Jarman Patrick, Against James Royle And Elizabeth His Wife [1847] EngR 11; (1847) 13 QB 100; (1847) 116 ER 1201
1847


Wills and Probate

[ Commonlii ]
 
Doe, On The Several Demises Of Renow And Another, v Ashley [1847] EngR 13; (1847) 10 QB 663; (1847) 116 ER 252
1847


Wills and Probate
In 1814 premises were purchased by testator, which in the conveyance to him were described as containing by estimation three acres five perches, and were of that quantity, or nearly so. They then consisted of a field, an orchard, and a house and garden, and so remained until 1838, when the house arid garden, and south part of the field, were let. Testator then made a fence, which prevented all communication between the north and south parts of the field; and the tenant afterwards subdivided the south field into two. The premises conitinued in this condition until testator’s death; he occupying the north field and orchard, and the tenant holding the residue. The north field was at the north corner of the town of M., and opposite a pond. In 1840 testator devised “all that my messuage or dwelling house, with the out-buildings, garderi, orchard and appurtenances thereto belonging,” occupied by A. B., “situate on the east side of the town of M.,” I ‘ and a close of land adjoining, being the close at the north corner of the town of’’ M., “and opposite the pond, and containing, with the garden and orchard, three acres, five perches, more or less,” to his daughter in fee. By codicil in 1841, after reciting that he had given to his daughter “a close situate at” M., “ being the close at the north corner of the town of M.,” “ and opposite the pond, and containing,” &c. (as in the will), “and now in my occupation,” he proceeded: "Now I do hereby revoke,” &c. the devise “ of the said close to my said daughter ;” and devised “the same close with the appurtenances ” to another daughter. Held, on a question whether the two south fields passed by the codicil, that the description by testator’s occupation was clear, that the description by quantity was uncertain, and that the north field only so passed.
[ Commonlii ]
 
Hope v Hope [1847] EngR 326; (1847) 10 Beav 581; (1847) 50 ER 706
12 Mar 1847


Wills and Probate
Distinction between directing an issue and giving liberty to bring an action at law to try a legal right. In the former case, application for a new trial must be made in this Court, when all the proceedings at law will be examined; but in the latter, application for a new trial must be made to the Court of law, and this Court will look merely to the result of the action. In the latter case also, if there has been a marriage at law, relief, if any, cannot be obtained, upon the case coming on upon the equity reserved, without a petition.
[ Commonlii ]

 
 Swaffield v Orton; 2-Jun-1847 - [1847] EngR 576; (1847) 1 De G & Sm 326; (1847) 63 ER 1088
 
Barker v Birch [1847] EngR 745; (1847) 1 De G & Sm 376; (1847) 63 ER 1112
19 Jul 1847


Wills and Probate, Litigation Practice
There may be circumstances under which the Court will, at the suit of universal legatees under a will, direct an account against a debtor to the testator’s estate, without collusion being established between the debtor and the personal representative, or any evidence of insolvency on the part of the latter, or of his refusal to sue the debtor other than his omission to institute proceedings for a considerable period. Quaere, whether an honest refusal by an executor to institute a suit against a solvent person reasonably alleged to be equitably indebted to the testator is sufficient of itself to enable the universal legatee of the testator to sue the debtor in equity, making the executor a party. Quaere, whether a party can read the cross-examination of the witness of his adversary where the latter does not read the examination-in-chief.
1 Citers

[ Commonlii ]
 
Godfrey v Hughes [1847] EngR 757; (1847) 1 Rob Ecc 593; (1847) 163 ER 1147
23 Jul 1847


Wills and Probate, Family

[ Commonlii ]
 
Payne and Meredith v Trappes [1847] EngR 759; (1847) 1 Rob Ecc 583; (1847) 163 ER 1143
23 Jul 1847


Wills and Probate

[ Commonlii ]
 
King v Cullen [1848] EngR 401; (1848) 2 De G & Sm 252; (1848) 64 ER 113
14 Apr 1848


Wills and Probate
A testator by his will directed a fund to be set apart to answer an annuity which he directed to be paid to his widow. After her death he directed the fund to form part of his residuary estate; and he bequeathed his residuary estate to all his children equally, to be divided between them; with a proviso that, if any child should die, either in his lifetime or after his decease, and before the part or share bequeathed to such child should become a vested interest, without leaving issue, then such share should go to the survivors; but in case any child should die leaving issue, then such issue should take their parent’s share. Held, that the second branch of the proviso must be read in connection with the first, and that in both the death contemplated was a death before the share vested in possession.
[ Commonlii ]
 
Cole v Scott [1848] EngR 615; (1848) 16 Sim 259; (1848) 60 ER 873
14 Jun 1848


Wills and Probate

1 Citers

[ Commonlii ]
 
Cornick v Pearce [1848] EngR 997; (1848) 7 Hare 477; (1848) 68 ER 197
5 Dec 1848


Wills and Probate
The testator gave his real and personal estate to trustees, upon trust to apply the rents, issues and proceeds for the benefit of his two daughters, with a direction, on the youngest attaining twenty-one, to divide the whole into two equal moieties, of which the testator gave one moiety to his two daughters equally, and directed the other to be placed out upon Government or real securities, and the dividends and interest thereof to be paid to the daughters for their lives, and upon their death the said monies and effects to be divided amongst their children. Held, that there was no conversion by the will of the moiety of the real estate devised to the daughters on the youngest attaining twenty-one.
[ Commonlii ]
 
Chipchase v Simpson [1849] EngR 158; (1849) 16 Sim 485; (1849) 60 ER 962
19 Jan 1849


Wills and Probate
Testator gave £1000 to his sister for her or for her childrens sole use and benefit forever; and directed his executors go pay the same to her as soon as practicable. Held, that the word '' or " was to be taken disjunctively, and that the testator intended his sister to take the £1,000 absolutely and exclusively (but not for her separate use), if she survived him ; but, if she did not, that it should go to her children.
[ Commonlii ]
 
Corneby v Gibbons [1849] EngR 392 (B); (1846) 1 Rob Ecc 705
14 Mar 1849


Wills and Probate
A will executed in 1846, containing in the body of it blank spaces, held to be entitled to probate, as the statute is silent in regard thereto.
[ Commonlii ]
 
Affleck v James [1849] EngR 846; (1849) 17 Sim 121; (1849) 60 ER 1074
12 Jul 1849


Wills and Probate

[ Commonlii ]
 
Cole v Scott [1849] EngR 1113 (B); (1849) 1 H and Tw 477; [1849] EngR 1114; (1849) 1 Mac and G 518; (1849) 41 ER 1366
29 Nov 1849


Wills and Probate

1 Cites

[ Commonlii ] - [ Commonlii ]
 
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