Page images
PDF
EPUB
[blocks in formation]

MARTHA OSWALD, of Beccles, Suffolk, widow, deceased, died on the 21st of March, 1873, having made a will with two codicils thereto, dated respectively the 3d of March, 1859, and the 3d of March, 1865, and one codicil without date. By the will she appointed James Read the younger and Henry James Kerrison executors and trustees. She gave to her daughters, Georgina Emily Crisp and Sarah Read, to and for their uses absolutely, all her household goods, and furniture, plate, china, wearing apparel, and consumable stores, and the residue to her two sons, Robert William Oswald and William Oswald, and the two daughters above-mentioned, equally, for their uses absolutely. On the 7th of December, 1872, she executed another testamentary paper to the following effect: "This is the last will and testament of me, Martha Oswald, of Beccles, in the county of Suffolk, widow, whereof I appoint James Read the younger, of Mildenhall, Suffolk. gentleman, and Henry James Kerrison, of Beccles, aforesaid, gentleman, executors. I give and bequeath all my furniture, plate, linen, china, books, and all other household effects now belonging to me, unto Georgina Emily Crisp, the wife of James Crisp, of Beccles, aforesaid, coal merchant, for her own separate use and benefit, free from all control, debts, or interference of her said husband, the said James Crisp. I hereby revoke all former

he executed the instrument, yet that from fraud he executed that which was not his will, there is no difficulty in pronouncing that the instrument is not his will. And it has been held that when it is sufficiently proved that the instrument comprised his will, but that from fraud, or perhaps from inadvertence, such as that In the Goods of Duane, the instrument which he actually executed contained also something which was not his will, this latter part is to be rejected. And in such a case, if this latter part is so distinct and severable from the true part that the rejection of it does not alter the construction of the true part, it has been held that, consistently with the Statute of Wills, the execution of what was shown to be the true will, and something more, may be treated as the execution of the true will alone. A much more difficult question arises where the rejection of words alters the sense of those which remain. For even though the court is convinced that the words were improperly introduced, so that if the instrument was inter vivos they would reform the instrument and order one in different words to be executed, it cannot make the dead man execute a new instrument; and there seems much difficulty in treating the will after its sense is thus altered as valid within the 9th section of the 7 Will. 4 & 1 Viet. e. 26, the signature at the end of the will required by that enactment having been attached to what bore quite a different meaning. It has never, as far as their Lordships are aware, been necessary to decide as to this, though the judgment of Sir James Hannen in Harter v. Harter has some bearing on it. And their Lordships think it unnecessary and therefore improper now to express any opinion on this question, for the evidence does not raise it." - Per LORD BLACKBURN in Rhodes v. Rhodes, 7 Ap. Cas. 192, 198 (1882).

wills by me heretofore made. It witness," &c. It appeared from the athidavit of Mr. Kerrison that in December, 1872, he saw and had a conversation with the deceased upon the subject of her will and the manner in which her household furniture was to be disposed of. James Crisp, the son-in-law of the deceased, to whose wife a portion of such furniture was bequeathed by her will, was in pecuniary difficulties, and he therefore suggested to Mrs. Oswald that she should secure the furniture for the sole and separate use of her daughter, free from the control, debts, or interference of her husband. The deceased assented, and instructed him (Mr. Kerrison) to have a document, carrying out the suggestion, prepared. Mr. Fiske was requested to draw up the proper instrument for the purpose, and prepared the will dated the 7th of December, 1872, which was sent to Mr. Kerrison, who, accompanied by his wife and Georgina Cowles, the two attesting witnesses, attended upon the deceased, when it was duly executed by Mrs. Oswald. The paper was never read over by or to the deceased before she executed it, and she was not aware of the clause of revocation contained therein. No instructions were given to Mr. Fiske to insert such a clause, and it never was the intention of the testatrix to revoke the dispositions made by her of her property, except so far as to secure the bequests made to her daughter. The whole property of the deceased was in value under £200. All the next of kin and the parties entitled in distribution in case the deceased had died intestate consented to probate being granted as asked for by this motion.

G. H. Cooper applied to the court to decree probate of the will dated the 3d of March, 1859, and of the two codicils thereto, as also of the paper dated the 7th of December, 1872, as together containing the will of the deceased, excluding from the last the clause of revocation. He referred to In the Goods of Duane, 2 Sw. & Tr. 590; 31 L. J. (P. M. & A.) 173.

SIR J. HANNEN. It was clearly not the intention of the deceased to revoke her previous will. From the facts stated in the affidavit it is evident that the words of revocation were introduced into the last paper per incuriam, and therefore probate will issue without them.1

1 Morrell v. Morrell, 7 P. D. 68 (1882), accord.

NOTE. A paper in form a will, but not really intended as such, as where it was made to show in how short a form a will could be drawn, Nichols v. Nichols, 2 Phillim. 180 (1814), or to induce a third person to believe a will had been made, Lister v. Smith, 3 Sw. & Tr. 282 (1863), but not intended to be operative, will not be admitted to probate. So when one paper is signed by mistake for another, it is not a will, Goods of Hunt, L. R. 3 P. & D. 250 (1875).

[blocks in formation]

IN ejectment upon Not guilty, and a special verdict, the case was: Stanley seised in fee writ his will with his own hand; beginning, “In the name of God, amen, I John Stanley make this my last will and testament," and thereby devised the lands in question, and put to his seal, but did not subscribe his name, only had it subscribed by three witnesses in his presence; and all this was done after 29 Car. 2, against Frauds and Perjuries; and whether this was a good will to pass the lands, was the question. And after several arguments it was adjudged by the whole court, sc. NORTH, WYNDHAM, CHARLTON, and LEVINZ, to be a good will; for being written by himself, and his name in the will, it is a sufficient signing within the Statute, which does not appoint where the will shall be signed, in the top, bottom, or margin, and therefore a signing in any part is sufficient. And per NORTH, WYNDHAM, and CHARLTON, the putting of his seal had of itself been a sufficient signing within the Statute; for signum is no more than a mark, and sealing is a sufficient mark that this is his will: but LEVINZ doubted of this upon the case in Roll. 1 Abridgm. 245, § 25. Submission to an award ita quod it be made, signed, and delivered, the arbitrator makes an award, and delivers it, but does not sign it: Et per Cur'. It is not good; but all agreeing upon the other reason, judgment was accordingly given for the defendant.1

1 "It was said by LORD CHIEF BARON PARKER, BARON CLIVE, and BARON SMYTHE (absente LEGG), that what is said by North, Windham, and Charlton, in 3 Lev. 1, That putting a seal to a will is a sufficient signing within the Statute of Frauds and Perjuries,' is very strange doctrine; for that if it was so it would be very easy for one person to forge any man's will, by only forging the names of any two obscure persons dead, for he would have no occasion to forge the testator's hand. And the barons said if the same thing should come in question again, they should not hold that sealing a will only, was a sufficient signing within the Statute."- Smith v. Evans (Exch. 1751), 1 Wils. 313.

On signing at the "foot or end," see St. 7 Wm. IV. & 1 Vict. c. 26 (1837), § 9 (Wills Act), and St. 15 & 16 Vict. c. 24 (1852), and 1 Woerner, Amer. Law of Adm. § 39.

Semayne w Stawley

1188 Jues here was whether the will, was good with only devisor's real anmixed, The name of divisse was not subsented, beet the 3 evilnesses signed the will Held seal suff.

1

ford, and his brother, Henry Jenkins, executrix and executor.

[ocr errors]

There

[graphic]

Gacafredcember, Jenkins v Jacsfred ember, 1862, and the 6th November, 1862, and an am made by Henry Atkins Die beve was whoher a codicil was Henry Atkins Jered as Jestator, who had at. duly executed

[ocr errors]
[ocr errors]
[ocr errors]

some months previousle to be death haien engulf ques gnature in order that the same might be used to or impress his slavip edhe tertements, and that in his presence 1 have en in the habit of sing to letters and other documents and

red goods the sun the reamp represents the ignatiive of restator dicil to the will the said

the subscribing witnses to the first enkins, now produced and shome me, the said codicil heino written at the foot of the said will, and

[merged small][merged small][ocr errors][ocr errors][ocr errors]

190

A mole due to lead spent had several endorsements on its back and also ete affixed to the paid codicil as aforesaid, placed his hand on the said

uquees that if exstator was did when

-be codicil to his last will, and requested me to attest the same, and

nole became such what it be

[graphic]
[ocr errors]

Arad no sed,

similar del here afpeared
There

only the segnalement f

eschi sizdan het been stampele peeecond codicil.
the will and tno codicils.

Held good wiel. His a gook listamentoy

Kery Jenkins, the executor named in the kill, thereupon proponity write in a special declaration containing statement of the above facts, and cited Mrs. Gaisford and Mrs. Thring, the sisters, and with

[ocr errors]
[ocr errors][merged small][merged small][merged small][ocr errors][ocr errors][merged small][merged small][ocr errors][merged small][merged small]
[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]

هلا

جمع حديد

[ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][merged small][ocr errors][ocr errors][merged small][ocr errors][ocr errors][ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]

فند امسة

te t

دهد.

بتسم

« PreviousContinue »