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		Wills and Probate - From: 1849 To: 1899 This page lists 227 cases, and was prepared on 02 April 2018. Â 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 ] Â 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 ] Â Affleck v James [1849] EngR 846; (1849) 17 Sim 121; (1849) 60 ER 1074 12 Jul 1849 Wills and Probate [ Commonlii ] Â 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 ] Â Bryan v White (1850) 2 Rob Ecc 315 1850 Dr. Lushington Wills and Probate The court considered the proper execution of a will: ""Attest" means the persons shall be present and see what passes, and shall, when required, bear witness to the facts". 1 Citers Â Thomas v Thomas, Executux, and C [1850] EngR 309; (1850) 5 Exch 28; (1850) 155 ER 13 15 Feb 1850 Wills and Probate [ Commonlii ] Â Purchase v Shallis [1850] EngR 322; (1850) 2 H & Tw 354; (1850) 47 ER 1719 18 Feb 1850 Wills and Probate [ Commonlii ] Â Eccles v Birkett [1850] EngR 396; (1850) 4 De G & Sm 105; (1850) A) 18 Mar 1850 Wills and Probate Bequest to trustees, upon trust, to pay to each of the testator’s children who should be living at his death, as and when they attained twenty-five, the sum of £3000 absolutely, with a power for the trustees to apply all or any part of the income of the shares of the children for their maintenance or education till twenty-five : Held, to give the children vested interests at the testator’s death. [ Commonlii ] Â Pepper v Dixon [1850] EngR 448; (1850) 17 Sim 200; (1850) 60 ER 1105 22 Apr 1850 Wills and Probate [ Commonlii ] Â Milne v Milne; Travis v Milne [1851] EngR 524; (1851) 9 Hare 141; [1851] 68 ER 449 29 May 1851 Turner V-C Wills and Probate A suit by parties beneficially interested in the estate of a deceased partner could not be maintained against both his executors and surviving partners, in the absence of special circumstances; but collusion was not the only ground for such a suit; and the suit might be maintained where the relation between the executors and surviving partners was such as to present a substantial impediment to the prosecution by the executors of the rights of the parties interested in the estate as against such partners. A gift and devise by one of the partners in a cotton-mill of all his property, estate and effects to trustees, upon trust, to lay out and invest two-third parts thereof upon real or good personal security, or to transfer the same, and allow it to remain in the concern, of which he was one of the co-partners, in the names of his trustees, and alter, vary, change and transpose the same as they should think fit, and stand possessed of the same, upon trust, for the two sons of the testator, with certain powers of advancement out of their respectives shares: Held, to authorise the executors to continue the monies of the testator in the trade, but not to trade with the monies by becoming partners in the firm. The surviving partners of a testator dealing with the property of the testator, with the knowledge that it belongs to his estate, are bound to inquire into the trusts on which it is held, and are liable as if they had actual notice of those trusts. A suit by parties beneficially interested in the estate of a deceased partner cannot be maintained against, both his executors and surviving partners, in the absence of special circumstanees ; but collusion is not the only ground for such a suit ; and it may be maintained where the relation between the executors and surviving partners is such as to present a substantial impediment to the prosecution by the executors of the rights of the parties interested in the estate as against such partners. It is not to be presumed that the annual stock-taking by a partnership truly represents the interests of the several partners in the firm; but it may or may not do so, according to the purposes for which and the mode in which it is made up. 1 Citers [ Commonlii ] Â Egerton v Lord Brownlow [1851] EngR 789; (1851) 1 Sim NS 464; (1851) 61 ER 180 20 Aug 1851 Wills and Probate, Trusts John WilIiam Earl of Bridgewater devised his freehold estates to trustees, in trust to convey them to the use of Lord Alford, his great-nephew, for ninety-nine years, if he should so long live ; remainder to trustees and their heirs doring the life of Lord Alford, in trust to preserve contingent remainders ; remainder to the use of the heirs male of the body of Lord Alford, with diverse remainders over: provided that, if Lord Alford should die not having acquired the title of Duke or Marquis of Bridgewater, the estate directed to be limited to the heirs male of his body should cease, and the estates should thereupon go over and be enjoyed according to the subsequent uses and limitations directed by his will. Lord Alford died leaving a son, but without having acquired the title. Held, that the proviso was valid. 1 Citers [ Commonlii ] Â Maxwell v Maxwell (1852) 2 De G M and G 705 1852 Equity, Wills and Probate The court rejected a request to apply the doctine of election despite evidence that the testator might have disapproved of the result. 1 Citers Â Hudleston v Huddleston [1852] EngR 212 (A); (1852) 2 Rob Ecc 424 6 Feb 1852 Wills and Probate Administratian of a wife's effects, who had lived with her husband until her death, granted to an antenuptial creditor. A decree had been personally served on the husband, but no appearance was given. [ Commonlii ] Â Bolton v Powell, Howard v Earle [1852] EngR 352; (1852) 2 De G M & G 1; (1852) 42 ER 771 11 Mar 1852 Wills and Probate An administrator of an intestate died in 1817 indebted to a large amount in respect of his receipts as administrator, but leaving sufficient personal estate to pay this amount, and also leaving freehold estates. In the same year a suit was instituted for the administration of his personal estate, and in 1832, it appeared from the report in that suit, that his personal estate had been misapplied, and that his executor had become bankrupt. Thereupon, and in the same year (1832), an administratrix de bonis non of the intestate instituted a suit against the administrator’s heir and the sureties, in the usual administration bond, and against the representatives of the Archbishop (who had died), praying to have the benefit of the bond, and to charge by means of the administrator’s freehold estates. No decree was made in this suit, the Plaintiff having married in 1838, and having died in 1847, without the suit having ever been revived. In 1848 another of the next of kin, who had been a Defendant to the suit of 1833, took out administration de bonis non of the intestate, and filed a bill of revivor and supplement, claiming to have the benefit of the suit of 1832. Held, that the suit of 1833 must be considered as having been abandoned, and that the suit of 1848 must be considered an original suit, and as such barred by length of time and laches. [ Commonlii ] Â In The Matter Of The Trusts Of The Will Of Agnes Atkinson [1852] EngR 704; [1852] 11 Vict c 96; (1852) 42 ER 824 9 Jun 1852 Wills and Probate [ Commonlii ] Â Â Boyse v Rossborough; 5-Dec-1853 - [1853] EngR 1056; (1853) Kay 71; (1853) 69 ER 31 Â Attorney-General v Sturge (1854) 19 Beav 597 1854 Sir John Romilly MR Charity, Wills and Probate The testatrix had left funds to support a school in Genoa. Held: The courts have no authority to make a scheme where the trustees would not be within the jurisdiction of the English courts. 1 Citers Â Â Boyse v Rossborough; 11-Feb-1854 - [1854] EngR 252; (1854) 3 De G M & G 817; (1854) 43 ER 321 Â Forbes v Forbes [1854] EngR 317; (1854) 18 Beav 552; (1854) 52 ER 216 3 Mar 1854 Wills and Probate, Charity [ Commonlii ] Â Jamieson v Raleige Trevelyan and Elizabeth His Wife [1854] EngR 546; (1854) 10 Exch 269; (1854) 156 ER 445 30 May 1854 Wills and Probate [ Commonlii ] Â Surtees v Parkin [1854] EngR 736; (1854) 19 Beav 406; (1854) 52 ER 407 10 Jul 1854 Wills and Probate A testator bequeathed legacies to A., B. and C., payable out of his personal estate, and he devised his real estates, subject to the payment of his debts, to D. and E. The personal estate being exhausted in payment of debts, the legatees were held entitled, on the principle of marshalling, to have recourse, for payment, to the real estate, to the prejudice of the devisees. [ Commonlii ] Â Â Boyse v Rossborough; 7-Nov-1854 - [1854] EngR 853; (1854) 1 K & J 124; (1854) 69 ER 396 Â Bentley v Oldfield [1854] EngR 859; (1854) 19 Beav 225; (1854) 52 ER 335 8 Nov 1854 Wills and Probate Devise of "my property in houses, &c., at G." held (independently of Wills Act) to pass the fee. A testator gave his real and personal estate to trustees, for the maintenance of his children until they attained twenty-one. As thay arrived at that age respectively, he directed it to be divided as follows: A legacy of 2100 to his son, and his property at G. (freehold), between his daughters. Held: on a deficiency of personal estate, that the legacy was not charged on the real estate. Observation on the doctrine of Roberts v Walker, 1 Russ & Myl 752. A testator, in the first instance (as was held) devised freeholds to his three daughters equally, in fee, and he further willed the several shares to his three daughters as before mentioned, to have the interest for their use during their natural lives, and afterwards devised equally amongst their children, and, for want of children, to go to their husbands, if living. Held: that the daughters took an estate for life, and in defauIt of children, their husbands, if living, took the fee. [ Commonlii ] Â Kane v Reynolds [1854] EngR 953; (1854) 4 De G M & G 565; (1854) 43 ER 628 25 Nov 1854 Wills and Probate The solicitor for the affairs of the Treasury, as nominee of the Crown, having taken out letters of administration of the goods of an intestate on the assumption that he had died without next of kin, was held not entitled to the costs of a suit instituted by a person rightfully claiming as next of kin. [ Commonlii ] Â In Re Wilson's Will In Re The Trustee Relief Act [1854] EngR 1031; (1854) 19 Beav 594; (1854) 52 ER 481 20 Dec 1854 Wills and Probate [ Commonlii ] Â In The Goods Of Mary Reed, Deceased [1854] EngR 1041; (1854) 2 Sp Ecc & Ad 202; (1854) 164 ER 388 28 Dec 1854 Wills and Probate [ Commonlii ] Â Roberts v Phillips (1855) 4 El & Bl 450 1855 Lord Campbell CJ Wills and Probate 1 Citers Â In Re Johnson, Sly v Blake (1855) 29 ChD 1855 Chitty J Wills and Probate The commencement of the limitation period against a beneficiary ran from the time when he acquired a present right to receive the inheritance. Time ran from the end of the executor’s year when the interest fell into possession. Chitty J said: "The second question turns on the meaning of the words 'present right to receive the same.' The intestate Johnson died in 1848, and the Defendants contend that the Plaintiff's right was barred at the end of twenty years from his death, or at all events of twenty-one years, the additional year being conceded in conformity with the general rule that an executor or administrator is allowed in an administration case one year to complete the administration of the estate. In the absence of any special circumstances relating to the getting in of an intestate's estate, I think that the latter contention is correct, and that the Plaintiff's claim for the general administration of the intestate's estate is barred . . But I am of the opinion that the claims of the Plaintiff in her own right and as administratrix of her deceased sister are not barred in reference to such of the assets as came into the possession of T.C. Johnson the administrator, within twenty years before the 11th of April 1883, the day on which the writ was issued. . The right to a legacy and the right to receive a legacy are, (as was pointed out by Lord Romilly in Earle v. Bellingham [24 Beav. 448]), obviously distinct rights. And the observation applies equally to a share of the residue of an intestate's estate. But the enactments speak not merely of a right to receive, but, emphatically, of a present right to receive. The next of kin have no present right to receive from the administrator a reversionary asset belonging to the intestate, before it falls into possession and is possessed by him, nor where he is compelled to take proceedings to recover an outstanding asset, before he recovers it or obtains possession of it." 1 Citers Â Jamieson v Trevelyan And Elizabeth, His Wife [1855] EngR 80; (1855) 10 Exch 748; (1855) 156 ER 642 17 Jan 1855 Wills and Probate [ Commonlii ] Â Burrows v Walls [1855] EngR 294; (1855) 5 De G M & G 233; (1855) 43 ER 859 10 Mar 1855 Wills and Probate, Trusts A testator, by his will, gave the residue of his property to three trustees, whom he appointed executors, upon trust to sell and invest the same and to pay the income thereof to his widow for life, and after her decease, to his children, who were still infants at the time of his death. The eldest child attained twenty one in the year 1839, and the youngest in 1846. The three executors proved the will, but one of them almost exclusively acted. The money which was the proceeds of the estate was suffered by two of the executors to remain in the hands of the third, who ultimately became insolvent. On the youngest child attaining twenty one on behalf of himself and his brothers and sisters, attempted to obtain payment from the acting executor, and in 1848 wrote to him a letter consenting to receive payment of the amount then admitted to be due by annual instalments. In 1849, and shortly before the insolvency of the acting trustee, a bill was filed by all the children against the three trustees for the purpose of making them each responsible. Held, that inasmuch as it was the duty of the three trustees to have explained to their cestuis que trust what their rights were, and as they had not done so, there was nothing in the conduct of the children to deprive them of their remedy against the three trustees, who were accordingly declarecl to be, jointly arid severally liable to make good the deficiency, 1 Citers [ Commonlii ] Â Gurney v Gurney (1855) 3 Drew 208; [1855] EngR 306; (1855) 61 ER 882 15 Mar 1855 Wills and Probate The will gave first a legacy then divided the residue between two. The will was witnessed correctly, but the two residuary beneficiaries witnessed a later codicil revoking the prior legacy. Held: Although the revocation did increase the residue, the original gifts of residue had been validly made. Wills Act 1937 15 [ Commonlii ] Â In The Goods of William Jones [1855] EngR 756 (B); (1855) Dea and Sw 3 7 Nov 1855 Wills and Probate [ Commonlii ] Â Cobbett v Ludlam, Executor of Oldfield [1855] EngR 839; (1855) 11 Exch 446; (1855) 156 ER 906 26 Nov 1855 Wills and Probate, Intellectual Property, Litigation Practice O, the defendant’s testator, instituted a suit in Chancery for the administration of the estate and effects of C, the plaintiffs testator. An order was made by the Court of Chancery, that the plaintiff be restrained by injunction from interferlng with the estate or effects of C. The plaintiff brought an action against the defendant for an alleged infringement by O of C’s copyright in certain books Held: First, that the action was in disobedience of the order of the Court of Chancery, since the damages, when recovered, would be assets of C. in the plaintiff‘s hands. Secondly, that under the 226th section of the Common Law Procedure Act, 1852, this Court had jurisdiction to stay proceedings in the action, although no writ of injunction had issued. Common Law Procedure Act 1852 226 [ Commonlii ] Â Candler v Tillett [1855] EngR 920; (1855) 22 Beav 257; (1855) 52 ER 1106 17 Dec 1855 Wills and Probate [ Commonlii ] Â Wintour v Clifton (1856) 8 De GM & G 641 1856 Wills and Probate The law adopts a strong presumption that a testator will have purported to dispose only of property of which he was free to dispose. 1 Citers Â Willeter v Dobie [1856] EngR 706; (1856) 2 K & J 647; (1856) 69 ER 942 23 Jun 1856 Trusts, Wills and Probate A married woman, by her will, in exercise of a power of appointment over trust moneys, made several bequests, and "after payment of her just debts, funeral and testamentary expenses, and the expenses attending the execution of her will, appointed" the residue of the trust moneys among her nieces. Held: The charge of funeral expenses was not contingent upon her surviving her husband, and that her husband surviving was entitled to repayment, out of the trust moneys, of money paid by him in respect of such expenses. [ Commonlii ] Â Lovett v Lovett [1856] EngR 847; (1856) 3 K & J 1; (1856) 69 ER 997 4 Nov 1856 Wills and Probate The Court can entertain a suit to establish a will against parties claiming under a prior will, and disputing the Plaintiff’s claim: a devisee being entitled to have the will established and his title quieted not only against the heir, but against all persons setting up adverse rights. But whether the Court can establish a will against a devisee claiming under another instrument, without directing an issue (except where an issue would be merely frivolous and vexatious)--quaere. Observations on the impropriety, in such cases, of detailed evidence on the part of the defence. [ Commonlii ] Â Harper v Munday [1856] EngR 890; (1855) 7 De G M & G 369; (1856) 44 ER 144 13 Nov 1856 Wills and Probate [ Commonlii ] Â Â Boyse v Rossborough; HL 1857 - [1857] 6 HLC 2; [1857] EngR 299; (1857) 5 HLC 1; (1857) 10 ER 1192 Â Brooke v Garrod (1857) 3 K & J 608; (1857) 2 De G & J 62; [1857] EngR 4 (B) 1857 Wills and Probate The testator directed his trustees to offer all his real estate to his brother at the price of £2,500, but if he should not, within one calendar month after the death, signify his desire to accept the real estate at that price, or should not, at the expiration of two months from the time of signifying his intention, pay the price, then the testator directed his trustees to sell the premises by public auction or private contract, and directed his trustees to stand possessed of the sale price upon trusts for the benefit of another brother and his sisters. The brother signified his intention within the relevant time to buy the property, but failed to pay the purchase price, when his solicitor was not provided with an abstract of title. Sir William Page Wood V-C said that the right of pre-emption was a privilege, and the conditions were conditions with which the brother was obliged to comply strictly, and the case was analogous to a case between vendor and purchaser where time was of the essence. Having signified his intention to purchase the property, it became his duty to pay the purchase money, and he was not justified in waiting for an entire abstract of title. It was said that the position might have been different if there had been fraud or laches. On appeal, Lord Cranworth LC agreed: "It is said, that although he did not pay within the time, he did what ought to be considered as equivalent to payment, or ought to exonerate him from any charge of neglect. Now, I have more than once had occasion to say that I think this Court has gone to too great an extent in departing from the precise terms of the contracts into which parties have entered, and so in effect making other contracts for them … No authority has, however, been produced in which this court has varied the terms of a gift under which a benefit is to be taken. The rule there is (cujus est dare ejus est disponere(and if the donor choose to say that in the event of a person paying 2,500l. on or before a specified day the gift shall take effect, I do not see how the court, if the money is not paid on or before the day, can take anything as an equivalent for the payment at the prescribed time." 1 Citers [ Commonlii ] Â Simpson And Others, Executors of William Warre Simpson, Deceased, v The Accidental Death Insurance Company [1857] EngR 69; (1857) 2 CB NS 257; (1857) 140 ER 413 1857 Wills and Probate [ Commonlii ] Â The Earl Of Lonsdale v The Countess Of Berchtoldt [1857] EngR 110; (1857) 3 K & J 185; (1857) 69 ER 1074 16 Jan 1857 Wills and Probate Will. Specific Bequest. Leaseholds, Damnosa Haereditas. Executor’s Assent. Decree for Sale. Election. Purpose Failing. Beguest Maintained. [ Commonlii ] Â In The Goods Of Ann Dadds, Widow, Deceased [1857] EngR 406; (1857) Dea & Sw 290; (1857) 164 ER 579 18 Apr 1857 Wills and Probate When asking whether a testator wishing to revoke her will by destroying it was present when it was destroyed, the court held that she had to be in the line of sight of the destruction. [ Commonlii ] Â The Attorney General v John Hollingworth [1857] EngR 577; (1857) 2 H & N 416; (1857) 157 ER 172 30 May 1857 Wills and Probate By agreemerit made in 1794, 80001. stock was transferred by O. to H, upon the terms that H should repay the money produced by the sale of it or replace the stock at the option of O, and in the mean time pay interest at the rate of 5 per cent., the loan was secured by bond, mortgage, and a deed of covenant. O. and H being dead, E. O being the legatee ancl heiress, but not the personal representative of O., and J H. being the devisee of H , J. H. applied to E O. to assist him to raise moNey, which E. O. agreed to do on having a security for the replacement of the stock. E. O. accordingly assigned the bond mortgage, and deed of covenant of 1794, to H. and P, by way of mortgage, to secure an advance to J. H., and in consideration thereof, J. H, iri 1842, by iindenture, conveyed to E. O. the premises comprised iri the original mortgage, together with other lands, by way of mortgage, with a proviso and covenant to secure the transfer to E O. of 80001 stock E O died, and by her will forgave the mortgage debt, of 1842 to J H. Held, that the mortgage and covenant of 1842 were not so connected with the illegal agreement of 1794 as to be usurious and void, and that therefore legacy duty was payable on the bequest 1 Citers [ Commonlii ] Â Henry Labouchere And Others v Emily Tupper And Others [1857] EngR 685; (1857) 11 Moo PC 198; (1857) 14 ER 670; [1857] UKPC 3 17 Jun 1857 PC Company, Wills and Probate Isle of Man - An executor of a trader carying on the trade after his death, though not avowedly in the character of executor, is nevertheless persmally liable for all the debts contracted in the trade after the Testator's death, whether he is entitled or not, to be wholly, or to any extent, indemnified by the Testator's personal estate, and whether the Testator's estate is sufficient or insufficient for that purpose Neither does the propriety of the executor's conduct, as between himself and those beneficially interested in the Testator's personal estate, give the creditors of the trade, becoming so after the death of the Testator, the rights of creditors of the Testator; it being immaterial, as. far as they are concerned, whether the Testator, if be had a partner, was bound by a covenant with him that the Testator's executor should continue the trade in partnership with the surviving partners The executor of a deceased shareholder in a Joint-stock Banking Cbmpany held not liable to make good out of his Testator's assets, debts contracted by the Company subsequently to the Testator's death, though the shares were registered in the executor's name, and he received the dividends in his character of executor, the debts due at his death having been subsequently discharged by the Company There is no difference between the Manx law and the law of England in respect to the principles applicable to the law of partnership [ Commonlii ] - [ Bailii ] Â Brooke v Garrod [1857] EngR 783; (1857) 3 K & J 608; (1857) 69 ER 1252 20 Jul 1857 Wills and Probate 1 Cites [ Commonlii ] Â Earle v Bellingham (1857) 24 Beav 448; [1857] EngR 795 (B); (1857) 24 Beav 445 24 Jul 1857 Trusts, Wills and Probate The right to receive legacies charged on a reversionary legacy payable under the will of another was not a present right to receive them until the reversionary legacy fell into possession on the death of the life tenant. 1 Citers [ Commonlii ] Â Regina v Feist [1858] D&B 590 1858 Wills and Probate A master of a workhouse may have legal possssion of a body before burial, and therefore a duty to provide for its burial. 1 Citers Â Eliza Topham v Morecraft [1858] EngR 345; (1858) 8 El and Bl 972; (1858) 120 ER 361 11 Feb 1858 Wills and Probate [ Commonlii ] Â Maddison And Wife v Chapman [1858] EngR 962; (1858) 4 K & J 709; (1858) 70 ER 294 8 Jul 1858 Wills and Probate Where there is in a will a limitation over, which, though expressed in the form of a contingent limitation, is in fact merely dependent upon a condition essential to the determination of the interests previously limited, the Court is at liberty to hold that, notwithstanding the words in form import contingency, they mean no more, in fact, than that the person to take under the limitation over is to take subject to the interests so previously limited. But in order that this rule of construction may be applied, the condition, upon which the limitation over is made dependent, must involve no incident but what is essential to the determination of the interests previously limited. The onus is upon those who claim under a codicil, as against devisees under the will to shew that the intention to displace the devisee is equally clear with the original intention to devise. If the whole tenor of a will be such as clearly indicates that the testator has used the word "minority" to mean the whole of the period during which he has kept a devisee out of the full control over the devised property, the Court may adopt that interpretation. Otherwise, the word must be strictly construed. Testator by his will directed that, when the youngest of his two daughters had attained twenty-one, his real and personal estate and effects should be divided into three equal parts, one part to be for his wife, and one of the remaining two for each daughter ; at his wife’s decease her share to be equally divided between his two daughters; and provided either of his two daughters should die before a division of the property should have been made, and having no issue, then the part of the deceased to be given to her survivirig sister. By a codicil, should both his children die in their minority and leave no issue, then in such case, and in such case only, he gave the whole of his property to his wife for life, with remainder over. The elder daughter attained twenty-one, but both died before the younger attained that age, and without having been married. Held, that, whether the interests under the will were vested or not, and whether a reasonable motive could or could not be assigned for the condition upon which the testator had made the limitation over in the codicil to depend (the death of both his daughters in their minority that condition must be construed strictly ; and the event not having happened, the limitation over : Held not to take effect, But, semble, the interests under the will were vested interests. [ Commonlii ] Â Montefiore v Guedalla (1859) 1 de GF & J 93 1859 Turner LJ, Lord Campbell LC Wills and Probate Referring to the doctrine of ademption: (Turner LJ) "... the court will not impute to a parent the intention twice to discharge the same obligation of providing for his child - a rule founded, as it seems to me, on very sufficient reasons; for there can be no doubt that, in the absence of it, the affairs of families would in many cases be involved in the utmost confusion." and (Lord Campbell LC) "The doctrine of ademption has been established for the purpose of carrying in to effect the intention of fathers of families for providing for their children, and of preventing particular children from obtaining double portions, contrary to such intention." 1 Citers Â Symes v Green (1859) 1 Sw & Tr 401; (1859) 28 LJP & M 83; (1859) 164 ER 785 1859 Health, Wills and Probate The deceased had been taken ill and his mind affected, but he recovered. For several weeks he behaved normally and wrote a will, but this was within a day of the recurrence of symptoms of his illness which included a fixated idea that he would be eternally damned, having taken communion whilst unworthy. A few days later he was declared insane and died a year later. Held. Where a will was apparently properly executed and was rational on the face of it, it was to be presumed to be valid and made by a person of proper capacity unless and until the contrary was shown. Once circumstances were shown to exist to counterbalance that presumption, the court must pronounce against the will unless it was established affirmatively that the testator was of sound mind when the will was executed. Here though there was nothing in the will to betray any lack of capacity, circumstances existed to require the shift in the burden of proof, and it was not discharged. Â Scott v Josselyn [1859] EngR 175 (C); (1859) 26 Beav 174 11 Jan 1859 Wills and Probate A testator bequeathed the residue to trustees, upon trust to permit his wife to receive the annual produce during her life, and also to apply to her own use such parts of the capital as she should think proper, and after her decease to stand possessed thereof, upon trust for such persons as she should by will appoint, and in default, upon trust to pay certain legacies. Held: The widow took a life-estate only, with power of disposition of the capital during her life and of appointment by will, and not an absolute interest. [ Commonlii ] Â Maddison v Chapman [1859] EngR 238; (1859) 3 De G & J 536; (1859) 44 ER 1375 22 Jan 1859 Wills and Probate [ Commonlii ] Â Warren v Kelson [1859] EngR 400 (B); (1859) 1 Sw & Tr 290 9 Mar 1859 Wills and Probate Letters of Admiriistration with Will annexed -Grant de bonis non - Residuary Legatee - Next of Kin [ Commonlii ] Â In Re Ashwell's Will [1859] EngR 412; (1859) Johns 112; (1859) 70 ER 360 14 Mar 1859 Wills and Probate [ Commonlii ] Â Â Shadwell v Shadwell and Another; CCP 11-Jan-1860 - [1860] EWHC CP J88; (1860) 9 CBNS 159; [1860] 142 ER 62 Â Â Wing v Angrave, Tulley, And Others; 29-Feb-1860 - [1860] EngR 525; (1860) 8 HLC 183; (1860) 11 ER 397; (1860) 8 HL Cas 183 Â Stroud v Gwyer [1860] EngR 579; (1860) 28 Beav 130; (1860) 54 ER 315 26 Mar 1860 Wills and Probate A testator authorized his executors to enter into a partnership with his brother, on such terms as they should think fit, and leave his capital therein. The executors did so, and the articles of partnership stipulated that interest at 25 per cent should be paid on the testator’s capital, and that part of the executor’s profits should be left in the concern "as additional capital." Held, that the tenant for life was entitled to the interest, but that the share of the profits retained as additional capital must, as between the tenant for life and remairider-man, be considered as capital and not income. When trust funds are, without authority, lent to traders, with notice of the trust, and employed in their business, such traders are not liable to account to the cestuis que trust for a share of the profits of the business. Trustees, without authority, lent trust moneys at interest at &5 per cent. Held, that the tenant for life was entitled to the whole interest, and that the remainderman had no right to insist that the excess of the interest beyond the dividends which would have been produced if the money had been invested in consols formed capital. [ Commonlii ] Â Willes v Greenhill [1860] EngR 1148; (1860) 29 Beav 376; (1860) 54 ER 673 16 Nov 1860 CA Sir John Romilly MR Wills and Probate The testator had in 1830 backed a bill for his son Henry. It was dishonoured, and after the testator's death in 1832 his executors met the liability. Henry had a one-sixth interest, subject to his mother's life interest, in the residuary trust fund. Henry mortgaged this interest and the mortgage was transferred to Willes. The issue of priority in the distribution of Henry's share arose on the widow's death in 1849. Held: The executors' right to make an adjustment to indemnify themselves took priority to the rights of the mortgagee. 1 Citers [ Commonlii ] Â In The Goods of Thomas Tucker [1860] EngR 1298 (B); (1860) 2 Sw & Tr 123 19 Dec 1860 Wills and Probate, Ecclesiastical [ Commonlii ] Â Forshaw v Welsby [1860] EngR 1299; (1860) 30 Beav 243; (1860) 54 ER 882 20 Dec 1860 Wills and Probate [ Commonlii ] Â Dilkes v Broadmead [1860] EngR 1300; (1860) 2 De G F & J 566; (1860) 45 ER 740 21 Dec 1860 Wills and Probate [ Commonlii ] Â McLure v Evans (1861) 30 LJNS Ch 295; (1861) 29 Beav 42 1861 Wills and Probate The court must look to the testator's intentions to decide whether there has been an ademption of a gift. 1 Citers Â Lord Lilford v Powys Keck [1861] EngR 228; (1861) 30 Beav 300; (1861) 54 ER 904 24 Jan 1861 Wills and Probate A testator in 1541, devised all the freehold property "I am seised or etititled in feesimple" in strict settlement. He afterwards devised all the copyholds "I am or at the time of my death shall be possessed of" upon trusts corresponding with those of his freeholds, The testator died in 1861. Held, that freeholds acquirecl after the date of the will passed by the devise. [ Commonlii ] Â Maddison v Chapman [1861] EngR 255; (1861) 1 J & H 470; (1861) 70 ER 831 30 Jan 1861 Wills and Probate [ Commonlii ] Â In The Goods Of Charles Whiston (Deceased) [1861] EngR 494; (1861) 2 Sw & Tr 318; (1861) 164 ER 1018 24 Apr 1861 Wills and Probate Use of 'Sumners' in the Isle of Man [ Commonlii ] Â Â Saltmarsh v Barrett; CA 27-Apr-1861 - [1861] EngR 521; (1861) 29 Beav 474; (1861) 54 ER 711 Â Williams v Hensman [1861] 1 John & Hem 546; [1861] 30 LJ CH 878; [1861] 5 LT 203; [1861] 7 Jur NS 771; [1861] 70 ER 862; [1861] EWHC Ch J51 10 Jun 1861 Sir William Page Wood VC Equity, Wills and Probate A fund of money was bequeathed on trust to be invested so as to generate an income payable to A 'the principal to go to her children at her death'. Held: The will created a joint tenancy. The court set out three ways in which a joint tenancy may be severed. Where joint tenants indicated by their conduct that they treated their interests separately, the fact that they did not understand that their interests had been joint did not prevent such behaviour acting to sever the tenancy. 1 Citers [ Bailii ] Â Â Saltmarsh v Barrett; HL 13-Jul-1861 - [1861] EngR 816; (1861) 3 De G F & J 279; (1861) 45 ER 885 Â The Attorney-General And H Revell Reynolds, Esq v Philip Kohler And Others [1861] EngR 841; (1861) 9 HLC 654; (1861) 11 ER 885 24 Jul 1861 Wills and Probate [ Commonlii ] Â In The Goods Of William George Smith (Deceased) [1861] EngR 1071; (1861) 2 Sw & Tr 508; (1861) 164 ER 1094 17 Dec 1861 Wills and Probate [ Commonlii ] Â Crispin v Doglioni [1861] EngR 1070; (1861) 2 Sw & Tr 493; (1861) A) 17 Dec 1861 Wills and Probate [ Commonlii ] Â Stevens v Pyle [1861] EngR 1077; (1861) 30 Beav 284; (1861) 54 ER 898 21 Dec 1861 Wills and Probate [ Commonlii ] Â Hingeston v Tucker [1862] 2 SW&TR 596 1862 Wills and Probate 1 Citers Â Lord Lilford v Powys Keck (No 1) (1862) 30 Beav 295; [1862] EngR 347; (1862) 54 ER 902 1862 Wills and Probate 1 Citers [ Commonlii ] Â In The Goods Of Augustus Turrell (Deceased), On Motion [1862] EngR 506; (1862) 2 Sw & Tr 456; (1862) 164 ER 1073 4 Mar 1862 Wills and Probate [ Commonlii ] Â Â Saltmarsh v Barrett; 9-Jun-1862 - [1862] EngR 779; (1862) 31 Beav 349; (1862) 54 ER 1173 Â Â Cosnahan v Grice; PC 12-Jul-1862 - [1862] EngR 910; (1862) 15 Moo PC 215; (1862) 15 ER 476; [1862] UKPC 12 Â Mitchell v Gard (1863) 3 Sw & Tr 275 1863 Sir James Wilde Costs, Wills and Probate The next of kin of the deceased, who had unsuccessfully opposed the will in a testamentary suit tried before Byles J and a jury, applied for their costs to be paid out of the estate. Held: Sir James Wilde said: "The basis of all rule on this subject should rest upon the degree of blame to be imputed to the respective parties; and the question who shall bear the costs? will be answered with this other question, whose fault was it that they were incurred? If the fault lies at the door of the testator, his testamentary papers being surrounded with confusion or uncertainty in law or fact, it is just that the costs of ascertaining his will should be defrayed by his estate. But if the testator be not in fault, and those benefited by the will not to blame, to whom is the litigation to be attributed? In the litigation entertained by other Courts, this question is in general easily solved by the presumption that the losing party must needs be in the wrong, and, if in the wrong, the cause of a needless contest. But other considerations arise in this Court. It is the function of this Court to investigate the execution of a will and the capacity of the maker, and having done so, to ascertain and declare what is the will of the testator. If fair circumstances of doubt or suspicion arise to obscure this question, a judicial enquiry is in a manner forced upon it. Those who are instrumental in bringing about and subserving this enquiry are not wholly in the wrong, even if they do not succeed. And so it comes that this Court has been in the practice on such occasions of deviating from the common rule in other Courts, and of relieving the losing party from costs, if chargeable with no other blame than that of having failed in a suit which was justified by good and sufficient grounds for doubt. From these considerations, the court deduces the two following rules for its future guidance: first, if the cause of litigation takes its origin in the fault of the testator or those interested in the residue, the costs may properly be paid out of the estate; secondly, if there be sufficient and reasonable ground, looking to the knowledge and means of knowledge of the opposing party, to question whether the execution of the will or the capacity of the testator, or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent." 1 Citers Â Jenkins v Gaisford, Re Jenkins (deceased)'s goods (1863) 1863 ChD Wills and Probate, Administrative The testator had become infirm and unable to sign his name. He had made a stamp which reproduced his signature. He used it to execute his will. The will was challenged. Held: The will had been validly executed. The requirement of the Act could be fulfilled by somebody else executing a document on the direction of the testator, and therefore was equally fulfilled in this case. Wills Act 1837 9 Â Ravenscroft v Jones (1863) 32 Beav 669 1863 Knight Bruce LJ, Turner LJ Wills and Probate A father by his will bequeathed £700 to his then unmarried daughter. Later two inter vivos gifts were made; one, of £ 100, was plainly not a portion. The other, of £400, was not given to the daughter but to her husband. The testator said to the husband that he hoped the gift would do him good. Held: A small gift is not to be taken as a 'portion' of the gift intended to be made under a will. "With respect to the . . . £400, I prefer to express no opinion as to the ground upon which, to a great extent at least, the Master of the Rolls appears to have proceeded; namely that the daughter herself was the legatee, while the payment was made to the husband of the daughter. I do not rely upon that ground nor on the other hand do I express any dissent from It." On the evidence the £400 was intended as "a simple gift" meaning, I apprehend, that it was not a portion at all but pure bounty. 1 Citers Â Re Saunders's Estate; Saunders v Watson [1863] EngR 139; (1863) 4 Giff 179; (1863) 66 ER 669 16 Jan 1863 Wills and Probate [ Commonlii ] Â Leigh v Birch [1863] EngR 396; (1863) 32 Beav 399; (1863) 55 ER 156 15 Apr 1863 Wills and Probate [ Commonlii ] Â Â Freeman v Butler; 16-Nov-1863 - [1863] EngR 954 (A); (1863) 33 Beav 289 Â Best v Stonehewer (1865) 2 De G J & Sm 537 CA; (1864) 34 Beav 66 1864 Wills and Probate 1 Citers Â Watson and Watson (1864) 33 Beav 574 1864 Wills and Probate A gift in a will is not to be adeemed by small lifetime gifts - they are not generally 'portions' of the inheritance. A gift may be a portion where it is from parent to child: "The rule applies not only to parent and child ..." 1 Citers Â Brock v Bradley (1864) 33 B 670 1864 Wills and Probate A legacy to a single woman if she survives her husband takes effect if she never marries. 1 Cites 1 Citers Â Keenan v Handley 1864 12 WR 1021 1864 Litigation Practice, Contract, Wills and Probate The court considered the availability of specific performance as a remedy to a personal representative. 1 Citers Â The Attorney General v Lord Lilford [1864] EngR 546; (1864) 3 H & C 239; (1864) 159 ER 521 8 Jun 1864 Wills and Probate [ Commonlii ] Â Keenan v Handley [1864] EngR 645; (1864) 2 De G J & S 283; (1864) 46 ER 384 6 Jul 1864 Wills and Probate [ Commonlii ] Â Thomas v Thomas [1864] EngR 865; (1864) 2 Dr and Sm 298; (1864) 62 ER 635 16 Dec 1864 Wills and Probate Although the law presumes a person, who has not; been heard of for seven years, to be dead, yet (in the absence of special circumstances it draws no presumption from that fact as to the particular period when he died ; and the onus of proving death at any particular period of time within the seven years lies with the party alleging death at such particular time. [ Commonlii ] Â Steer v Steer [1864] EngR 881 (A); (1864) 2 Dr & Sm 311 21 Dec 1864 Wills and Probate [ Commonlii ] Â Knox v Wells [1864] EngR 882; (1864) 2 H & M 674; (1864) 71 ER 626 22 Dec 1864 Wills and Probate ER A testator devised Blackacre to trustees upou trust out of the rents and profits to pay an annuity to J and A, his wife, jointly, and a similar annuity to the survivor, and upon trust to accumulate the residue for the benefit of the children of J and divide the same among such children when the youngest attained 30, "and if any of such children should die under 0 leaving issue such issue were to take their parent's share. Held, that all the children who survived, took vested interests. [ Commonlii ] Â In The Goods Of George Thorne [1865] EngR 26; (1865) 4 Sw & Tr 36; (1865) B) 1865 Wills and Probate [ Commonlii ] Â Scarlett v Lord Abinger [1865] EngR 292; (1865) 34 Beav 338; (1865) 55 ER 665 4 Mar 1865 Wills and Probate Property was, by will, limited to the Defendant, on condition of his settling some Scotch estates within a limited time on trusts, the validity and effect of which were doubtful. The Defendant settled the estates within the time, in general terms, on the persons on whose behalf the condition was imposed. Held, that this was a sufficient compliance with the condition. [ Commonlii ] Â Birks v Birks [1865] EngR 362 (B); (1865) 4 Sw & Tr 23 21 Apr 1865 Sir J P Wilde Wills and Probate Probate was applied for for two testamentary papers. Mistake. Admissibility of Parol Evidence.-Testamentary Papers not inconsistent with each other. The First not revoked by the Last.---A testator, having erased a clause in his Will after the execution, asked a friend to make a fresh copy of the Will, omitting the erased clause. The copy was made; but the person who made it by mistake omitted several other clauses. The copy was duly executed, and the omissions were not discovered until after the testator’s death, both Wills having remained in his custody up to that time. The two Wills were not inconsistent with each other, and the latter contained no express clause of revocation. Probate was granted of both documents upon parol evidence of the circumstances under which they were drawn up and executed, as together containing the deceased’s last Will and Testament. Sir J P Wilde said "It is undoubted law that parol evidence may be given to show the circumstances under which a testamentary paper was executed" 1 Citers [ Commonlii ] Â Re Caplin's Will [1865] EngR 370; (1865) 2 Dr & Sm 527; (1865) 62 ER 720 22 Apr 1865 Wills and Probate [ Commonlii ] Â Ludlow v Bunbury [1865] EngR 770; (1865) 35 Beav 36; (1865) B) 8 Dec 1865 Wills and Probate [ Commonlii ] Â Armitage v Coates [1865] EngR 776; (1865) 35 Beav 1; (1865) 55 ER 794 14 Dec 1865 Wills and Probate [ Commonlii ] Â The Viscountess D'Adhemar v Bertrand [1865] EngR 785; (1865) 35 Beav 19; (1865) A) 15 Dec 1865 Wills and Probate [ Commonlii ] Â Lord Lilford v Powys Keck [1865] EngR 787; (1865) 35 Beav 77; (1865) 55 ER 823 18 Dec 1865 Wills and Probate [ Commonlii ] Â Ibbotson v Elam [1865] EngR 789; (1865) 35 Beav 594; (1865) 55 ER 1027 19 Dec 1865 Wills and Probate [ Commonlii ] Â Lovejoy v Crafter [1865] EngR 791; (1865) 35 Beav 149; (1865) 55 ER 852 20 Dec 1865 Wills and Probate [ Commonlii ] Â Gaskin v Rogers [1866] LR 2 Eq 284 1866 Wills and Probate The will made a contingent gift. A later codicil removed the contingency, but was witnessed by the beneficiary. Held: The gift was avoided by the section. Wills Act 1837 15 Â D'Eyncourt v Gregory (No 1) (1866) LR 3 Eq 382 1866 Lord Romilly MR Wills and Probate, Land If the intention is apparent to make the articles part of the land, they become part of the land. Sculptures which simply rested by their own weight were held to form part of the architectural design for the hall in which they were placed and so fell to be treated as part of the freehold. 1 Citers Â Guardhouse v Blackburn [1866] LR 1 P & D 109 1866 Lord Penzance Wills and Probate 1 Citers Â Miles v Miles [1866] EngR 53 (B); (1866) 35 Beav 191 12 Jan 1866 Wills and Probate By his will, the testator gave "all that my messuage, partly freehold and partly leasehold," in Cannon Street, according to the nature and tenure thereof, respectively, in trust for his widow for life, or, as to the leaseholds, for so long as the term and interest in them should exist, with remainder over. After the date of his will, the reversion in fee of the leaseholds was purchased by, and conveyed to, the testator. Held, that the fee of the whole passed under the specific gift of "my messuage" at C., and that the rent of the devise was descriptive. [ Commonlii ] Â Earl Poulett v Hood [1866] EngR 56; (1866) 35 Beav 234; (1866) 55 ER 885 13 Jan 1866 Wills and Probate [ Commonlii ] Â Â Tempest v Lord Camoys; 18-Jan-1866 - [1866] EngR 61; (1866) 35 Beav 201; (1866) 55 ER 872 Â Percy v Percy [1866] EngR 62; (1866) 35 Beav 295; (1866) 55 ER 909 19 Jan 1866 Wills and Probate [ Commonlii ] Â Gee v Liddell [1866] EngR 68; (1866) 35 Beav 631; (1866) 55 ER 1042 23 Jan 1866 Wills and Probate [ Commonlii ] Â Gee v Liddell [1866] EngR 66; (1866) 35 Beav 629; (1866) 55 ER 1041 23 Jan 1866 Contract, Wills and Probate, Limitation [ Commonlii ] Â Leach v Leach [1866] EngR 72; (1866) 35 Beav 185; (1866) 55 ER 865 30 Jan 1866 Wills and Probate [ Commonlii ] Â Harman v Gurner [1866] EngR 71; (1866) 35 Beav 478; (1866) B) 30 Jan 1866 Wills and Probate, Land [ Commonlii ] Â Lalla Bunseedhur v Koonwur Bindeseree Dutt Singh, And After His Death, Mussumat Gunaish Koer [1866] EngR 79; (1866) 10 Moo Ind App 454; (1866) 19 ER 1044 7 Feb 1866 Wills and Probate [ Commonlii ] Â Re Taylor Daubney v Leake [1866] EngR 87 (A); (1866) 35 Beav 311 9 Feb 1866 Wills and Probate [ Commonlii ] Â Morgan v Middlemiss [1866] EngR 86 (A); (1866) 35 Beav 278 9 Feb 1866 Wills and Probate [ Commonlii ] Â Collett v Collett [1866] EngR 89; (1866) 35 Beav 312; (1866) B) 10 Feb 1866 Wills and Probate [ Commonlii ] Â Pettinger v Ambler [1866] EngR 96; (1866) 35 Beav 321; (1866) 55 ER 919 13 Feb 1866 Wills and Probate [ Commonlii ] Â Her Majesty's Procureur and Advocate-General v Virginie Bruneau [1866] EngR 104; (1866) 4 Moo PC NS 1; (1866) 16 ER 217 17 Feb 1866 PC Commonwealth, Wills and Probate [ Commonlii ] Â Kermode v Macdonald [1866] EngR 106; (1866) 35 Beav 607; (1866) 55 ER 1032 19 Feb 1866 Wills and Probate [ Commonlii ] Â Re Usticke [1866] EngR 108; (1866) 35 Beav 338; (1866) 55 ER 926 23 Feb 1866 Wills and Probate [ Commonlii ] Â Aspinall v Duckworth [1866] EngR 107; (1866) 35 Beav 307; (1866) 55 ER 914 23 Feb 1866 Wills and Probate [ Commonlii ] Â Wood v Wood [1866] EngR 114; (1866) 35 Beav 587; (1866) 55 ER 1024 28 Feb 1866 Wills and Probate [ Commonlii ] Â Earl Cowley v Wellesley [1866] EngR 112; (1866) 35 Beav 635; (1866) 55 ER 1043 28 Feb 1866 Land, Wills and Probate [ Commonlii ] Â Hale v Bushill [1866] EngR 116; (1866) 35 Beav 343; (1866) 55 ER 928 2 Mar 1866 Wills and Probate [ Commonlii ] Â French v Semple [1866] EngR 119; (1866) 35 Beav 376; (1866) 55 ER 941 8 Mar 1866 Wills and Probate [ Commonlii ] Â Stooke v Stooke [1866] EngR 126; (1866) 35 Beav 396; (1866) 55 ER 949 12 Mar 1866 Wills and Probate [ Commonlii ] Â Gray v Adamson [1866] EngR 123; (1866) 35 Beav 383; (1866) A) 12 Mar 1866 Wills and Probate [ Commonlii ] Â Cross v Wilks [1866] EngR 127; (1866) 35 Beav 562; (1866) 55 ER 1014 15 Mar 1866 Wills and Probate [ Commonlii ] Â Bedford v Bedford [1866] EngR 128; (1866) 35 Beav 342; (1866) B) 24 Mar 1866 Wills and Probate [ Commonlii ] Â George v George [1866] EngR 129; (1866) 35 Beav 382; (1866) 55 ER 943 24 Mar 1866 Wills and Probate [ Commonlii ] Â Earl Howe v Earl Of Lichfield [1866] EngR 130; (1866) 35 Beav 370; (1866) 55 ER 939 28 Mar 1866 Wills and Probate [ Commonlii ] Â Cope v Henshaw [1866] EngR 133; (1866) 35 Beav 420; (1866) B) 17 Apr 1866 Wills and Probate [ Commonlii ] Â Bouck v Bouck [1866] EngR 134; (1866) 35 Beav 643; (1866) 55 ER 1047 18 Apr 1866 Wills and Probate [ Commonlii ] Â Shattock v Shattock [1866] EngR 140; (1866) 35 Beav 489; (1866) 55 ER 986 23 Apr 1866 Wills and Probate, Contract [ Commonlii ] Â Joyce v Rawlins [1866] EngR 144; (1866) 35 Beav 465; (1866) A) 26 Apr 1866 Wills and Probate [ Commonlii ] Â Powell v Boggis [1866] EngR 145; (1866) 35 Beav 535; (1866) 55 ER 1004 1 May 1866 Wills and Probate [ Commonlii ] Â Partridge v Foster [1866] EngR 150; (1866) 35 Beav 545; (1866) 55 ER 1008 4 May 1866 Wills and Probate [ Commonlii ] Â Belaney v Belaney [1866] EngR 155; (1866) 35 Beav 469; (1866) 55 ER 978 25 May 1866 Land, Wills and Probate [ Commonlii ] Â Edwards v Jones [1866] EngR 162; (1866) 35 Beav 474; (1866) 55 ER 980 5 Jun 1866 Wills and Probate [ Commonlii ] Â Smith v Tebbitt (1867) 1 P&D 398 1867 Sir JP Wilde Wills and Probate 1 Citers Â Â Lord Chichester v Coventry; HL 1867 - (1867) Ex I App 71 Â Hall v Hall [1868] LR 1 P&D 481 1868 Sir JP Wilde Undue Influence, Wills and Probate Even a reprehensible placing of pressure on a testator will not always be undue influence so as to avoid the will: "To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like – these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgement, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping distress of mind or social discomfort, these, if carried to a degree in which the freeplay of the testator's judgment, discretion or wishes is overborne will constitute undue influence, though no force is either used or threatened. In a word a testator may be led but not driven and his will must be the off-spring of his own volition and not the record of someone else's". 1 Citers Â Grayburn v Clarkson (1868) LR 3 LRCh App 605 1868 Wills and Probate The result of the authorities seems to be, that there is no fixed rule that conversion must take place by the end of the year, but that that is the prima facie rule, and that executors who do not convert by that time must shew some reason why they did not do so, and, where the question is distinctly and fairly raised upon the pleadings, there is an onus thrown on the executors to justify the delay. Â Read v Great Eastern Railway Company [1867-78] LR 3 QB 555 1868 Blackburn J, Lush J Personal Injury, Wills and Probate A railway passenger was injured; he sued and was awarded damages. He died later from injury on the accident. Held: The widow could not bring an action for loss of dependency under section 1 of the 1846 Act. Lush J said that the statute overcame the old rule that a person's action ended with his death. It provided a different mode of assessing damages but did not give a fresh cause of action. Blackburn J said: "Before that statute, the person who received a personal injury and survived its consequences, could bring an action and recover damages for the injury; but if he died from its effects, then no action could be brought. To meet this state of the law, the statute was passed." and "Here, the party injured could not 'maintain an action in respect thereof' because he had already received satisfaction." Section 2 regulated the amount of damages and provided for apportionment in a manner different from that which would have been awarded to a man in his lifetime. He continued: "This section may provide a new principle as to the assessment of damages but it does not give any new right of action. The intention of the enactment was that the death of the person injured should not free the wrongdoer from an action and in those cases where the person injured could maintain an action, his personal representatives might sue." Fatal Accidents Act 1846 1 2 1 Citers Â Atter v Atkinson [1869] 1 P & D 665 1869 Wills and Probate 1 Citers Â Re Casmore (1869) LR 1 P and D 653 1869 Wills and Probate 1 Citers Â Wright v Rogers (1869) LR 1 PD 678 1869 Lord Penzance Wills and Probate The survivor of the attesting witnesses of a will, which was signed by the testator and the witnesses at the foot of an attestation clause, gave evidence a year later that the will was not signed by him in the presence of the testator. Held: The question was whether the court was able to rely on the witness' memory: "The Court ought to have in all cases the strongest evidence before it believes that a will, with a perfect attestation clause, and signed by the testator, was not duly executed, otherwise the greatest uncertainty would prevail in the proving of wills. The presumption of law is largely in favour of the due execution of a will, and in that light a perfect attestation clause is a most important element of proof. Where both the witnesses, however, swear that the will was not duly executed, and there is no evidence the other way, there is no footing for the Court to affirm that the will was duly executed." After referring to Croft -v- Croft Lord Penzance said: "Here we have only the evidence of one witness, and we find the signature of the other attached to a full attestation clause. Taking all the circumstances into consideration, I come to the conclusion that the will was well executed, and that I ought not to rely upon a recollection of the witness, seeing that, if he did not himself, in the first instance, affirm the execution of the will, he stood by and assented to his fellow witness making such affirmation." 1 Citers Â Â Grissell v Swinhoe; 1869 - (1869) LR 7 Eq 291 Â Dame Emilie Malvina Evanturel And Edouard Remillard v L'Honorable Francois Evanturel [1869] EngR 24; (1869) 6 Moo PC NS 75; (1869) 16 ER 655 2 Mar 1869 Wills and Probate [ Commonlii ] Â Farrow vWilson (1869) LR 4 CP 744 5 Jul 1869 CCP Willes and Montague Smith, J Contract, Wills and Probate, Employment The plaintiff had been employed by the deceased as a farm bailliff. The employment included both weekly wages and a residence. The employment was subject to six month's notice. After the death the personal representative, the defendant, terminated the employment contract. Held: Though as a general rule obligations under a contract continued to bind the estate upon death, this did not apply where personal considerations were dominant: "Where, however, personal considerations are of the foundation of the contract, as in cases of principal and agent and master and servant, the death of either party puts an end to the relation; and, in respect of service after the death, the contract is dissolved, unless there be a stipulation express or implied to the contrary. It is obvious that, in this case, if the servant had died, his master could not have compelled his representatives to perform the service in his stead, or pay damages, and equally by the death of the master the servant is discharged of his service, not in breach of the contract, but by implied condition." Â Bell v Fothergill [1870] 2 PD 148 1870 Wills and Probate The presumption that where a will is found after death with the deceased but in a mutilated condition, the will has been revoked, is a rebuttable one. Â Grant v Grant (1870) LR 5 CP 727 1870 Blackburn J Wills and Probate Blackburn J said: "The will is the language of the testator, soliloquizing, if one may use the phrase, and the Court in construing his language may properly take into account all that he knew at the time, in order to see in what sense the words were used." 1 Citers Â Â Banks v Goodfellow; QBD 1870 - (1870) LR 5 QB 549 Â Pankhurst v Howell (1870) LR 6 Ch App 136 1870 Wills and Probate If both a gift by will to a donee and a later gift inter vivos by the testator to the same donee are a "pure bounty", then the latter gift will not be taken to be a substitute, wholly or in part, for the former and the donee will be able to take both. In the absence of special considerations such gifts will be taken to be "pure bounty" or "mere gifts" and no ademption of the gift in the will will take place. A gift from parent to child may be assumed to be a portion. This is ". . in the natural [or) assumed relation of a parent to the legatee". 1 Citers Â In the Goods of Peel (1870) LR 2 P & D 46 1870 Lord Penzance Wills and Probate The testator appointed "Francis Courtnay Thorpe, of Hampton . . Middlesex" to be his executor. There was a Francis Courtenay Thorpe of Hampton, Middlesex. He was however only 12 years old and his father Francis Corbet Thorpe, of Hampton, Middlesex, was an old friend of the testator. Held: These facts were inadmissible. Lord Penzance said: "If I am at liberty to look at the facts stated in the affidavits, I may possibly have no difficulty in deciding that the person meant is the father, but the question is, whether I am at liberty to do so." and "The testator makes use of a description which applies in fact to one person, and not to any other." 1 Citers Â Ranee Bistoopria Putmadaye,-Appellant; Nund Dhul And Others,-Respondents [1870] EngR 58; (1870) 13 Moo Ind App 602; (1870) 20 ER 675 12 Dec 1870 Wills and Probate An appeal to the Queen in Council was allowed by the High Court, in a suit instituted by a Hindoo Widow as Guardian of her husbands adopted son, a Minor. [ Commonlii ] Â Ex parte Wilson (1871-1872) L R 7 Ch App 490 1871 Wills and Probate Hotchpot principles 1 Citers Â Griffiths v Griffiths (1871) LR 2 P&D 300 1871 Lord Penzance Wills and Probate The court considerd the requirements for the proper execution of a will: "The statute says that the witness shall attest, and shall subscribe the will; which must mean that he shall put his name to the will as attesting to the fact that he saw the testator sign it; that is, he must put his name as witness". 1 Citers Â John Gavin v James Farquhar Hadden [1871] EngR 31; (1871) 8 Moo PC NS 90; (1871) 17 ER 247 10 Jul 1871 Commonwealth, Wills and Probate ER Bond and mortgage made in pursuance of an Order of Court by one executor of his Testator's real estate in Ceylon, for the necessary expenses for the cultivation of the estate, and a Fiscal sale in execution of a decree in consequence of the default in payment by such Mortgagor, upheld; notwithstanding an attempt to repudiate the mortgage and set aside the sale by a co-Executor and Devisee in trust under the Will of the Testator on an allegation of collusion with the Purohaser, and that such co-Executor was not a party to the mortgage. The Supreme Court at Ceylon being a Court of Law and Equity, it is in accordance with the practice of that Court, that for moneys bona fide advanced to an Executor or Admnistrator for the purposes of the estate which he represents, a suit may be sustained against him in his representative character, and judgement and execution had against the Testator’s or intestate’ s estate; if, however, the Executor or Administrator deals with such estate in breach of his duty, a person who is party to such dealings or takes any property of the Testator with knowledge of a breach of trust, will not be allowed to retain any benefit therefrom [8 Moo. P.C. (N.S.) 118, 1191. An Executor by the law in force in Ceylon has the same powers a8 an English Executor, with the addition that it extends to immoveable as well as moveable property. [ Commonlii ] Â Kooer Goolab Sing, And Others,-Appellants; Rao Kurun Sing,-Respondent [1871] EngR 32; (1871) 14 Moo Ind App 176; (1871) 20 ER 753 10 Jul 1871 PC Wills and Probate, Commonwealth ER Lunacy by Hindoo Law is a bar to succession. On the death of D. his Widow succeeded, according to the Mitacshara. By Deeds of gift and sale she and her Husband‘s Mother alienated part of her Husband's estafe. R., the fifth in descent from the common ancestor of D., whose Father was dead, brought a suit as Guardian of his Grandfather, a lunatic, against the alienees and D.’s Mother, the heir of D.’s Widow, then deceased, to set aside the alienations of the inheritance and for possession. The Courts in India set aside the alienations as having been made without such necessity as is required by Hindoo Law. At the time of the institution of the suit D.’s Motlier was alive. Held, that R, as the next presumable reversioner, was entitled to sue to preserve the estate, and that it was not a fatal objection to the suit that she died before decree in a suit so framed, as it was only a matter of form, not affecting the merits. Whether a Sister can succeed by inheritance her Brother, according to the law received in the North-West Provinces, Quaere? Such point not having been raised by the issues in the suit, the Judicial Committee refused to decide the question. [ Commonlii ] Â Rao Kurun Sing v Nawab Mahomed Fyz Ali Khan, And Others [1871] EngR 33; (1871) 14 Moo Ind App 187; (1871) 20 ER 757 11 Jul 1871 Wills and Probate B brought a suit against certain parties in possession and the tenant for life to set aside the alienations made by the Widow of D and her Mother-in-law who, on the death of the Widow, was in possession as the Widow's heir. R afterwards brought another suit against the Mortgagees in possession claiming under the Widow to set aside the mortgage which formed part of the lands he sued for in the previous suit, as having been made by a Hindoo Widow, who, in the circumstances, had no power to charge the estate of her deceased Husband. Held, that, the two suits being against different persons, of a distinct nature, and for different relief, sect. 7 of Act, No. VIII. of 1855, did not apply, as it was not' a splitting suit or the same cause of action [14 Moo. Ind. App. 197-199]. Held further, in the absence of proof showing, the legal necessity, that the Widow had no power by Hindoo Law to charge or mortgage the estate of her deceased husband so as to effect the inheritance. [ Commonlii ] Â Â Mussumat Bebee Bachun v Sheikh Hamid Hossein And Mussumat Durjahun; And Mussumat Bebee Bachun, Mussumat Bebee Sogra And Moulvie Abdool Azeez v Sheikh Hamid Hossein And Mussumat Durjahun; 13-Dec-1871 - [1871] EngR 57; (1871) 14 Moo Ind App 377; (1871) 20 ER 828 Â Â Parfitt v Lawless; 1872 - [1872] LR 2 P & D 462 Â Louisa Migneault v Eulalie Malo And Jean Baptiste Brousseau [1872] EngR 3; (1872) 8 Moo PC NS 347; (1872) 17 ER 342 13 Jan 1872 Wills and Probate [ Commonlii ] Â Mussumat Ameeroonnissa Khanum And Mussumat Parbutty v Mussumat Ashrufoonnissa [1872] EngR 5; (1872) 14 Moo Ind App 433; (1872) 20 ER 848 19 Jan 1872 Commonwealth, Wills and Probate [ Commonlii ] Â Ramalakshmi Ammal v Sivanantha Perumal Sethurayar [1872] EngR 20; (1872) 14 Moo Ind App 570; (1872) 20 ER 898 15 Mar 1872 PC Commonwealth, Wills and Probate [ Commonlii ] Â Abraham Denyssen, As Secretary Of The South African Association For The Administration And Settlement Of Estates v Sybrand Jacobus Mostert [1872] EngR 24; (1872) 8 Moo PC NS 502; (1872) 17 ER 400 23 Apr 1872 PC Commonwealth, Wills and Probate Exposition and effect of the Roman-Dutch Law prevailing in the Cape of Good Hope, in respect to a mutual Will made by Husband and Wife. First, such mutual Will is to be construed as a separate Will; the disposition of each spouse being treated as applicable to his or her half of the joint property. [ Commonlii ] Â Â Azema Bouche, Otherwise Emma Lagesse v Lucie Allard And Alphonse Lagesse; PC 20-Dec-1872 - [1872] EngR 40; (1872) 9 Moo PC NS 399; (1872) 17 ER 564 Â Cooper v MacDonald (1873) LR 16 Eq 258 1873 Lord Selbourne Wills and Probate A testator by will gave a share in his residuary estate to his then unmarred daughter and later, under a marriage settlement to which he was party, gave two gifts, namely £1,000 to the prospective husband for his own use and benefit and £4,000 (which he covenanted would be paid within his lifetime or within 2 years after his death) to be held as to one moiety to pay the income to his daughter for her life and then to her husband for life and as to the other moiety to the husband for life and then to the daughter for life, with various remainders to their children, if any, and an ultimate remainder back to his own estate. There was no gift to the husband in the will which that inter vivos gift to him could adeem. "The Court has been in the habit of disregarding differences in the manner of settling gifts on a child or child's family by different instruments which raise a question of ademption or satisfaction, when such differences appear to be in their nature consistent with a presumption that the one gift is meant to be substituted for the other" "But I am not aware that this presumption has ever been held to arise (in the absence of express direction) when the persons taking under the several instruments are themselves altogether different" 1 Citers Â Waterer v Waterer [1873] LR 15 Eq 402 1873 Company, Wills and Probate 1 Citers Â Brunt v Brunt [1873] 3 P&D 37 1873 Wills and Probate The testator had purported to revoke his will, but was, at the time, very ill. Held: At the time of the purported revocation, he had insufficient capacity for the act of revocation. Â Broughton v Knight (1873) 3 P & D 64 1873 Sir J Hannen Wills and Probate Sir J Hannen said that a testator "may disinherit his children, leave his property to strangers to gratify his spite, or to charities to gratify his pride". 1 Citers Â Boughton v Knight (1873) LR 3 P & D 64 1873 Sir John Hannen Wills and Probate The jury found that the testator had not been of sound mind, memory and understanding when he made the will propounded by the plaintiffs. Held: The court contrasted a person of "sound mind" with one suffering from "delusions". The amount and quantity of intellect which is requisite to constitute testamentary capacity is eminently a practical question that does not depend solely on scientific or legal definition. Sir James Hannen said: "But it appears to me that it would be highly dangerous to encourage the notion that because a person is eccentric in his habits of life he is therefore incompetent to make a will. There was nothing in the case which led me to suspect that Sir Charles [the executor who propounded the will] had ever heard anything about the testator which went beyond eccentricity. His having bands of music at his house, the mode in which he exercised his horses, his shooting rooks in company with his servants, those and similar acts fell far short of evidence to establish incapacity . . The circumstances that made an impression on my mind, and therefore probably on the jury, were these: when the testator's history came to be sifted, it turned out that he had recurring throughout his life a set of delusions which, from their nature, had a tendency to impair his disposing powers. He had suspicions of the motives which actuated the persons about him. Of all these incidents Sir Charles must have been totally ignorant. … Sir Charles had no knowledge of this strange inner life. In determining whether or not he should propound this will, he had only before him evidence that the testator was a very eccentric man. Practically he had nothing more; that is the utmost to which it went. Under these circumstances, was he justified in propounding the will? I think he was." Sir John Hannen: "Accordingly, by the law of England everyone is left free to choose the person upon whom he will bestow his property after death entirely unfettered in the selection he may think proper to make. He may disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and we must give effect to his will, however much we may condemn the course he has pursued. In this respect the law of England differs from that of other countries. It is thought better to risk the chance of an abuse of the power arising from such liberty than to deprive men of the right to make such a selection as their knowledge of the characters, of the past history, and future prospects of their children or other relatives may demand …" and "It is unfortunately not a thing unknown that parents – and in justice to women I am bound to say it is more frequently the case with fathers than mothers, - that they take unduly harsh views of the characters of their children, sons especially. That is not unknown. But there is a limit beyond which one feels that it ceases to be a question of harsh unreasonable judgment of character, and that the repulsion which a parent exhibits towards one or more of his children must proceed from some mental defect in himself. … … there is a point at which such repulsion and aversion are themselves evidence of unsoundness of mind." 1 Cites 1 Citers Â Davies v Gregory (1873) LR 3 P&D 28 1873 Sir James Hannen WIlls and Probate, Costs After a contested application, the court pronounced in favour of the will. Held: Sir James Hannen did not agree that the first rule or exception applied only in cases where the state in which the deceased left his papers had given rise to the litigation, and said the reason why costs were payable out of the estate was: "because the conduct of [the] testator himself caused the litigation." and "That principle having once been extracted from the decisions, we should no longer slavishly confine ourselves to precisely the same state of facts in applying it, but should apply it to all cases to which it is fairly applicable. The principle being as I have stated, the question to be determined in each case is this: Is the testator, by reason of his conduct, to be considered the cause of the reasonable litigation which has occurred after his death as to the validity of his will?" . . and "Where the facts show that neither the testator nor the persons interested in the residue have been to blame, but where the opponents of the will have been led reasonably to the bona fide belief that there was good ground for impeaching the will, there will be no order as to costs. Of course the opponents must have taken all proper steps to inform themselves as to the facts of the case, but if, having done so, they bona fide believe in the existence of a state of things which, if it did exist, would justify litigation, then, although no blame should attach to the testator or to the executors and persons interested in the residue, each party must bear his own costs." The costs of an unsuccessful opposition to a will must be paid out of the estate in cases where the testator, by his own conduct, and habits, and mode of life, has given the opponents of the will reasonable ground for questioning his testamentary capacity. 1 Citers Â Â Harter v Harter; 1873 - [1873] LR 3 P & D 11 Â Powell v Rawle (1874) 18 Eq 243 1874 Wills and Probate A legacy was given to the testator's daughter on the "express condition that if the said bequest be not duly claimed by my said daughter within the space of three calendar months next after my decease, that then the said bequest shall lapse, and the amount thereof shall fall into and be considered as part of my residuary personal estate and be applied accordingly." The daughter did not claim the legacy for some years. She claimed that she had not heard of it until nearly two years after her father's death, and it was admitted by the executors that no notice was given. Held: "the words are too strong" and the fund must fall into the residue, on her failure to claim the legacy. 1 Citers Â Â In the Goods of Oswald; 1874 - (1874) LR 3 P&D 162 Â The Goods of Pearn, Re [1875] 1 PD 70 1875 Wills and Probate 1 Citers Â Â Williams v Arkle; HL 1875 - (1875) LR 7 HL 606 Â Â Fulton v Andrew; HL 1875 - (1875) LR 7 HL 448 Â Â In the Goods of Hunt; 1875 - (1875) LR 3 P&D 250 Â Â Sugden v St. Leonards; 1876 - [1876] 1 PD 154 Â Â Cheese v Lovejoy; 1877 - [1877] 2 PD 251 Â O'Learly v Douglass (1878) 1 LR IR 45 1878 Warren J Wills and Probate The testator had executed two wills, identical in all respects save only for the dates and the attesting witnesses. Held: Warren J said: "On these facts it would seem immaterial whether one or both papers should be admitted to probate." However there were certain charitable donations contained in the wills which, under the law at the time, would have failed if dependant on the second will but would have been valid if effected by the earlier will. After referring to Birks, he said the Court may draw what light it can from such evidence." The function of the Court was "to admit to probate all testamentary papers which a testator has duly executed and which he has not revoked". 1 Cites 1 Citers Â Burdett v Thompson (1878) 3 P&D 72 1878 Wills and Probate 1 Citers Â In re Duke, Hannah v Duke [1880] 16 ChD 112 1880 Wills and Probate 1 Citers Â Re Smith (1880) 42 Ch D 302 1880 Wills and Probate, Trusts Once an estate has been administered, the personal representative becomes a trustee; and at that stage the court's inherent jurisdiction to control trusts arises allowing if necessary an order for his removal. 1 Citers Â Â Boyes v Cook; CA 1880 - (1880) 14 Ch D 53; (1880) 49 LJCh 350 Â In re Hallett's Estate; Knatchbull v Hallett (1880) 13 ChD 696 1880 CA Sir George Jessel MR Wills and Probate, Trusts Where a trustee of a policy used money received from others to make payment of premiums on an insurance policy, they would be entitled to a lien on the policy. Where an asset was acquired exclusively with trust money, the beneficiary could either assert equitable ownership of the asset or enforce a lien or charge over it to recover the trust money. In the case of a mixed substitution the beneficiary is confined to a lien. 1 Citers Â Â Thorpe v Bestwick; 1881 - (1881) 6 QBD 311 Â Â Wilkinson v Corfield; 1881 - (1881) 6 PD 27 Â Â Williams v Williams; 1882 - [1882] 20 ChD 659 Â Â The Law Society of the United Kingdom v Waterlow Brothers and Layton; HL 1883 - (1883) 8 App Cas 407 Â Parker and Another v Felgate and Tilly (1883) 8 PD 171 1883 Sir James Hannen, President Wills and Probate A will was challenged on the basis of alleged lack of capacity. The testatrix had capacity when instructing her solicitor, but suffered from Bright's disease which affected her kidney, and she fell into a coma before it was prepared. She was roused to execute the will. The doctor said 'This is your will. Do you wish this lady to sign it?' Held: Sir James Hannen, President directed the jury: "The law applicable in this case is this. If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make a good will, if executed by the testator, is that he should be able to think thus far, 'I gave my solicitor instructions to prepare a will making a certain disposition of my property: I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out.' Now, I have only put into language that which flashes across the mind without being expressed in words. Do you believe that she was so far capable of understanding what was going on? Did she at the time know and recollect all that she had done with Mr Parker? That would be one state of mind. But if you should come to the conclusion that she did not at that time recollect in every detail all that had passed between them, do you think she was in a condition, if each clause of this will had been put to her, and she had been asked, 'Do you wish to leave So-and-so so much,' or do you wish to this (as the case might be), she would have been able to answer intelligently 'Yes' to each question? That would be another condition of mind. It would not be so strong as trhe first, viz., that in which she recollected all that she had done, but it would be sufficient. There is also a third state of mind which, in my judgment, would be sufficient. A person might no longer have capacity to go over the whole transaction, and take up the thread of business from beginning to end, and think it all over again, but is able to say to himself, 'I have settled that business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it;' it is not, of course, necessary that he should use those words, but if he is capable of that train of thought in my judgment that is sufficient. It is for you to say whether, having regard to the circumstances under which this will was prepared and executed, you accept the view of those who were present at the time, and who have given their evidence, who say that in their judgment she was conscious." and "If Mr Ponsford [the solicitor] only inserted these clauses because he believed the testatrix would approve of them that would not be sufficient. To make the clauses good there must be either instructions previously given or the will as drawn must be afterwards acknowledged or approved. If you believe that there were such instructions, then the will only expresses her intention and carries out her instructions, and the clauses cannot be rejected." Held: What is required at the date of execution is that the testator understands that he is executing a will for which he has previously given instructions. The court pronounced in favour of the will. 1 Citers Â Massy v Rogers (1883) 11 LR Ir 409 1883 Wills and Probate 1 Citers Â Wright v Sanderson (1884) 9 PD 149 1884 Earl of Selborne LC Wills and Probate The testator had written a holograph codicil to his will and included an attestation clause. He asked two witnesses to "sign this paper" which they did. Their evidence, given 4 to 5 years later, was that they did not see the attestation clause nor did they see the testator sign. One witness said that she did not know what she was signing; the other said that she did not know what she was doing. Although the trial judge, Sir James Hannen P., did not doubt their honesty, he felt that he could not rely on their evidence to rebut the presumption arising from the regularity of the codicil on its face as regards all the formalities of signature and attestation when no suspicion of fraud arose. Held: The appeal was dismissed: "I do not know how many wills, really well executed and duly attested, might not be brought into peril if, upon the sort of evidence which we have here, after a lapse of several years, probate were refused." 1 Citers Â Letterstedt v Broers [1884] UKPC 1; (1884) 9 App Cas 371; [1884] UKPC 18 22 Mar 1884 PC Lord Blackburn Trusts, Equity, Wills and Probate (Supreme Court of the Cape of Good Hope) Lack of harmony may be of itself a good reason for a trustee to resign or be dismissed. Lord Blackburn approved a passage in Story's Equity Jurisprudence, s 1289: "But in cases of positive misconduct, courts of equity have no difficulty in interposing to remove trustees who have abused their trust; it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce courts of equity to adopt such a course. But the acts or omissions must be such as to endanger the trust property or to shew a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity." . . and "It seems to their Lordships that the jurisdiction which a court of equity has no difficulty in exercising under the circumstances indicated by Story is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out, or were greatly exaggerated, so that the trustee was justified in resisting them, and the court might consider that in awarding costs, yet if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate." The court set out the principles underlying a decision to remove a trustee. Lord Blackburn said: "The whole of the matters which have been complained of, and the whole that, if this judgment stands, may yet have to be done by the Board, are matters which they had to do, as having accepted the burthen of carrying out the trusts which on the true construction of the will were imposed upon them, and so become trustees. What they had to do as executors merely, such as paying debts, collecting assets, andc., have long ago been over, and by the terms of the compromise the plaintiff cannot now say they have not been done properly. There may be some peculiarity in the Dutch Colonial law, which made it proper to make the prayer in the way in which it was done to remove them from the office of executor; if so, it has not been brought to their Lordships' notice; the whole case has been argued here, and, as far as their Lordships can perceive, in the Court below, as depending on the principles which should guide an English Court of Equity when called upon to remove old trustees and substitute new ones. It is not disputed that there is a jurisdiction "in cases requiring such a remedy," as is said in Story's Equity Jurisprudence, s. 1287, but there is very little to be found to guide us in saying what are the cases requiring such a remedy; so little that their Lordships are compelled to have recourse to general principles. Story says, s. 1289, 'But in cases of positive misconduct, Courts of Equity have no difficulty in interposing to remove trustees who have abused their trust; it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce Courts of Equity to adopt such a course. But the acts or omissions must be such as to endanger the trust property or to shew a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity' It seems to their Lordships that the jurisdiction which a Court of Equity has no difficulty in exercising under the circumstances indicated by Story is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out, or were greatly exaggerated, so that the trustee was justified in resisting them, and the Court might consider that in awarding costs, yet if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate. The reason why there is so little to be found in the books on this subject is probably that suggested by Mr. Davey in his argument. As soon as all questions of character are as far settled as the nature of the case admits, if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign, and does so. If, without any reasonable ground, he refused to do so, it seems to their Lordships that the Court might think it proper to remove him; but cases involving the necessity of deciding this, if they ever arise, do so without getting reported. It is to be lamented that the case was not considered in this light by the parties in the Court below, for, as far as their Lordships can see, the Board would have little or no profit from continuing to be trustees, and as such coming into continual conflict with the appellant and her legal advisers, and would probably have been glad to resign, and get out of an onerous and disagreeable position. But the case was not so treated. In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture to lay down any general rule beyond the very broad principle above enunciated, that their main guide must be the welfare of the beneficiaries." He referred to cases in which there was a conflict between trustee and beneficiary and continued: "As soon as all questions of character are as far settled as the nature of the case admits, if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign, and does so. If, without any reasonable ground, he refused to do so, it seems to their Lordships that the Court might think it proper to remove him; but cases involving the necessity of deciding this, if they ever arise, do so without getting reported." However: "It is quite true that friction or hostility between trustees and the immediate possessor of the trust estate is not of itself a reason for the removal of the trustees. But where the hostility is grounded on the mode in which the trust has been administered, where it has been caused wholly or partially by substantial overcharges against the trust estate, it is certainly not to be disregarded." 1 Citers [ Bailii ] - [ Bailii ] Â In re Pollock; Pollock v Worrall (1885) 28 ChD 552 1885 Wills and Probate An example of a gift which is made under a special consideration is where the gift satisfies a particular moral duty identified in the will. 1 Citers Â In Re Pollock (1885) 28 Ch D 552 1885 CA Lord Selbome LC Wills and Probate There exists a special consideration sufficient to deny a gift in a will the character of "pure bounty" is where the gift by will has a particular purpose identified in the will itself. The language may show that the gift is intended to meet a particular moral obligation. In such circumstances an arlier gift may adeem the gift in the will. A gift may be deemed a portion "where the donor is a parent or in loco parentis ..." and "When a testator gives a legacy to a child, or to any other person towards whom he has taken on himself parental obligations, and afterwards makes a gift or enters into a binding contract in his lifetime in favour of the same legatee, then (unless there be distinctions between the nature and conditions of the two gifts, of a kind not in this case material) there is a presumption prima facie that both gifts were made to fulfil the same natural or moral obligation of providing for the legatee; and consequently that the gift inter vivos is either wholly or in part a substitution for, or an "ademption" of, the legacy." 1 Citers Â Â Wingrove v Wingrove; 1885 - [1885] 11 PD 81 Â In Re Williams (1886) 34 ChD 558 1886 Wills and Probate, Limitation, Land The purpose of the section is to allow time to run against an administrator as from the intestate's death, irrespective of whether a grant of administration has been obtained or not. Real Property Limitation Acts of 1833 6 1 Citers Â Austen v Collins (1886) LT 903 1886 Chitty J Wills and Probate A condition in a will that a beneficary "take steps" means that the heir must make every endeavour. 1 Citers Â Â Daintrey v Butcher; 1888 - (1888) 13 PD 102 Â In re Akerman [1891] 3 Ch 212 1891 ChD Kekewich J Trusts, Equity, Wills and Probate The court was asked whether in the division of the testator's residuary estate three of the testator's seven children had to bring into account statute-barred debts due to the estate. Held. They were bound to bring them into account. Kekewich J restated the rule in Cherry v Boultbee: "A person who owes an estate money, that is to say, who is bound to increase the general mass of the estate by a contribution of his own, cannot claim an aliquot share given to him out of that mass without first making the contribution which completes it. Nothing is in truth retained by the representative of the estate; nothing is in strict language set off; but the contributor is paid by holding in his own hand a part of the mass, which, if the mass were completed, he would receive back. That is expanding what the Lord Chancellor calls in Cherry v Boultbee 'a right to pay out of the fund in hand,' rather than a set-off." 1 Cites 1 Citers Â Â In re Jane Davies; 1891 - [1891] 3 Ch 119 Â Â In the Goods of Boehm; 1891 - [1891] P 247 Â In re Lacon (1891) 2 Ch 48 1891 Bowen LJ Wills and Probate The doctrine of ademption serves to preserve equality between children. Bowen LJ said: " . . it being the view of the law that equality is what the father, in dealing with his children, would in most cases presumably intend." and there may even be a presumption in favour of equality. 1 Cites Â Mcleod v Mcnab and Others [1891] UKPC 28 17 Jul 1891 PC Wills and Probate (Nova Scotia) [ Bailii ] Â Phillips v Low [1892] 1 Ch 47 1892 ChD Chitty J Land, Wills and Probate There had been a conveyance of land with a house on it whose window looked onto other land of the vendor. Held: There was an implied ancillary right that the window would not be obscured by act of the vendor. There is applicable to devises of a testator's property to different grantees the same salutary principle that governs the implication and acquisition of easements on the contemporaneous grants to different grantees of properties previously in the ownership of the grantor. 1 Cites 1 Citers Â Â Cleaver v Mutual Reserve Fund Life Association; CA 1892 - [1892] 1 QB 147 Â Â In Re Beddoe, Downes v Cottam; CA 1893 - [1893] 1 Ch 547 Â Â Collins v Elstone; 1893 - [1893] P 1 Â Â Tyrell v Painton; CA 1894 - [1894] P 151 Â Â In re Fish; CA 1894 - [1894] 2 Ch 83 Â Allen v Allen [1894] P 248 1894 CA Lopes LJ Wills and Probate, Litigation Practice Lopes LJ said: "It appears to us contrary to all rules of evidence, and opposed to natural justice, that the evidence of one party should be received as evidence against another party, without the latter having an opportunity of testing its truthfulness by cross-examination." 1 Citers Â Â Tyrrell v Painton; CA 1894 - [1894] 1 P 151 Â Beaver v The Master In Equity of The Supreme Court of Victoria [1895] UKPC 2; [1895] AC 251 29 Jan 1895 PC Lord Hesrchell LC, Watson, Hobhouse, MacNaghten, Shand LL Commonwealth, Taxes - Other, Company, Wills and Probate (Victoria) The Board was asked whether a share in a partnership was subject to etsate duties on the death of the partner. [ Bailii ] Â Â Re Ashton; ChD 1897 - [1897] 2 Ch 574 Â Atkinson v Morris [1897] PD 40 1897 CA Wills and Probate The plaintiff was able to prove that the testator had said she had destroyed one copy of a will she had made in duplicate. Held: Though that evidence would have had the effect of revocation, it was hearsay and inadmissible and her intentions were, to the annoyance of the court, frustrated. Hearsay evidence is inadmissible on the issue of due execution. 1 Citers Â Sudeley v Attorney-General [1897] AC 11 1897 HL Lord Herschell, Lord Davey Wills and Probate The husband had died leaving part of his residuary estate to his widow. She then died before the estate was fully administered. Both died domiciled in England. The husband's estate included mortgages of land in New Zealand and the House was asked whether, on the widow's death, probate duty was payable on the value of her interest in these New Zealand mortgages. Her executors argued that since the mortgages were foreign assets probate duty was not payable on the widow's share in them. Held: Duty was payable. Lord Herschell said: "the whole fallacy of the argument on behalf of the appellants rests on the assumption that [the widow], or they as her executors, were entitled to any part of these New Zealand mortgages as an asset - she in her own right, or they as executors of their testatrix. I do not think that they have any estate, right, or interest, legal or equitable, in these New Zealand mortgages so as to make them an asset of her estate. What she had a right to - what they as her executors had a right to - was one-fourth of the clear residue of [her deceased husband's] estate - that is to say, what remains of his estate after satisfying debts and legacies; and a bequest to them of one fourth part of his residuary estate does not seem to me to vest in them or in her a fourth part of each asset of which that estate consists." The widow's estate did not have a proprietary interest in the specific asset of her husband's estate that the New Zealand mortgages constituted. Lord Davey said: "What then, are the rights of the appellants? Their right, and the only right which they could enforce adversely, is to have the administration completed and the residuary estate ascertained and realised, either wholly or so far as may be necessary for the purpose, and to have one-fourth of the proceeds paid to them." 1 Citers Â Re Ashton [1898] 1 Ch 142 1898 CA Wills and Probate (Reversed) 1 Cites 1 Citers Â Re Ratcliff [1898] 2 Ch 352 1898 Wills and Probate The court has no inherent jurisdiction to remove a personal representative in that capacity. 1 Citers Â In re Lysaght [1898] 1 Ch 115 1898 CA Lord Lindley MR Wills and Probate The testator bequeathed certain shares and declared that they "shall carry the interest accruing thereon at my death." Held: But for this clause the Apportionment Act would have allowed the residuary legatees to take the benefit of the dividends up to the date of death. Lord Lindley MR said that the clause amounted to "a stipulation, within the meaning of section 7, that no apportionment shall take place." 1 Citers Â Re Trotter [1899] 1 Ch 764 1899 Wills and Probate A witness to the will was to claim a benefit under it. The will had later been confirmed and altered in a codicil. Held: Section 15 did not apply so as to avoid the gift to the beneficiary, since the will, and the gift, had been confirmed by the later codicil which was not so tainted. Wills Act 1837 15 Â
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Wills and Probate - From: 1849 To: 1899