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is a reference to any written document, described as then existing, in such terms that it is capable of being ascertained, parol evidence is admissible to ascertain it, and the only question then is, whether the evidence is sufficient for the purpose.
Supposing the evidence to be admissible as the case would have stood
under the Statute of Frauds, has the Wills Act of 1837 altered the genoftas alta"
Geral law upon the subject? There are no words in the Act by wbich any such intention is declared. It has altered the mode in which the instrument containing the will is to be executed, but it has left untouched, as it appears to us, the question what papers are to be held included in the instrument so executed. The Statute of Frauds enacted, that all devises of lands shall be in writing, and signed by the devisor, or by some other person in his presence, and by his express directions, and shall be attested and subscribed in his presence by three or four credible witnesses, or else they shall be void.
The Wills Act, 7th Will. IV., and 1 Vict. $ 9, provides, that no will shall be valid unless it be in writing, and signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction, and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.
The ceremonies necessary to authenticate the instrument are altered, but no alteration is here made in the effect to be given to words used in it. It should seem that a paper which would have been incorporated in a will executed according to the Statute of Frauds must now be incorporated in a will executed according to the new Act.
In those instances in which the Legislature was of opinion that the construction put by decided cases upon the Statute of Frauds, as to the execution of wills, or the rules applied to devises contained in them, required alteration, provisions for that purpose were introduced into the Act.
The incorporation of unattested documents by reference in an attested will, was a subject of very great importance, and had excited much attention, the propriety of which had been sometimes doubted, at least to the extent to which it had been carried. It can hardly be supposed that if it had been intended to introduce so great an alteration in the law, it would not have been introduced by express declaration. But to have introduced any such declaration would have occasioned, in many cases, great inconvenience and injustice.
The only circumstance of which we are aware from which any color can be given to the argument that the Statute had the operation now suggested, is the construction put upon it by this committee, in Smee v. Bryer, 6 Moore's P. C. Cases, 404, by which it was held that the sig. nature must be so affixed at the end of the will as to leave no blank space for any interpolation between the end of the will and the signature ; and it might be said that such a security against fraud could not be afforded if a paper only referred to in the will could be admitted as part of it. But this construction was found to produce such extensive injustice that, by the Statute, 15th & 16th Vict. c. 24, the Legislature interfered to alter the law so established, and this Act passed before the codicil in this case was executed. It was not contended in this case, por, as far as we are aware, bas it been contended in any case since the Wills Act of 1837, that no reference, however distinct, is now sufficient to incorporate another testamentary paper in the paper duly executed as a will or codicil, but the question has always been, what reference in the valid paper is sufficient to let in evidence to identify the invalid paper.
Upon this point an important distinction has been introduced by the Act, to which we have already alluded, namely, that whereas before the Act a paper not duly executed might be a codicil as to personal estate, and might, therefore, be referred to by that description, no such paper can now be properly so designated.
That, with this exception, the law on this subject remains as it was before the Act, appears from an examination of the authorities, although in deciding on the question what is or is not a sufficient description to let in evidence, cases of great nicety are to be found.
In April, 1841, the question now raised came before the Prerogative Court in Smith's Case, 2 Curt. 796. In that case the testator, in May, 1838, made a codicil to his will, signed but not attested. In August, 1840, he made a further codicil, signed and duly attested. This was written on the second side of the paper on which the former codicil was written, and the deceased described it as “ a second codicil to my last will and testament.” Sir Herbert Jenner Fust decreed probate of both codicils, observing : “ The latter codicil being duly executed, referring to the former, is an execution of the former codicil also.”
In the case of the Goods of Sotheron, 2 Curt. 831, the same learned judge recognized the rule as laid down in Smith's Case, but held the reference in the will not to be sufficient to let in evidence of the paper propounded.
In January, 1843, in the case of Claringbull, 3 Notes of Cases, 1, Sir Herbert Jenner Fust again acted on the rule laid down in Smith's Case, referring to it as the interpretation which this court has put upon the Statute of Wills.
In the course of the same year he had to determine the important case of Lord Hertfords Will, 3 Curt. 468. The testator had there made a will and twenty-nine codicils. Some of the codicils were made before the Act of 1837, and required no attestation ; others were made after the Act, some of which were attested, and others not. One codicil, made at Milan in October, 1838, was unattested. He made a further codicil dated in April, 1839, duly executed and attested, and thereby declared that he ratified and confirmed his will and codicils. The question was whether the Milan codicil was thereby established, and it was
VOL. IV. – 14
answering as the case mainly one on every grounded by its au
decided by Sir Herbert Jenner Fust that it was not, and upon this principle, that it was not a codicil; that it was not distinctly referred to as such ; that there were other papers which were codicils, and which would satisfy the words of the instrument referring to them; and that the court could not, therefore, extend the words of reference to an instrument not answering the description.
In June, 1844, the case on Lord Hertford's testamentary papers came before the Judicial Committee by way of appeal from the decision of Sir Herbert Jenner Fust, and the decision was affirmed (4 Moore's P. C. Cases, 339). Dr. Lushington, in delivering the judgment of the Committee, observed very strongly upon the inconvenience which might result from admitting papers to probate neither properly executed nor distinctly identified ; but he also relied on the ground of the judgment in the court below, namely, that there being no reference to the particular paper, except under a general description of " codicils," and there being instruments which properly answered the description of codicils, the words could not be extended to an instrument not properly answering the description.
This was the case mainly relied on by the appellant in the argument before us. It is a decision on every ground entitled to the utmost respect, and we not only hold ourselves bound by its authority, but entirely assent to its principle. We can find, however, nothing in it inconsistent with the rule adopted in the cases of Smith and Claringbull, which applied under the new Act the principles adopted under the old.
The question came again before Sir Herbert Jenner Fust in the case of Ingoldby v. Ingoldby, 4 Notes of Cases, 493, in 1846. In that case, the testator made an unattested codicil to his will; he afterwards made a second, properly attested, with the words, “ This is another codicil to my will." On his death, these two codicils only were found, and Sir Herbert Jenner Fust admitted them to probate. The learned judge observes : “I think the circumstances of this case are sufficient to distinguish it materially from the Marquis of Hertford's Case. There is only one paper here which comes under the description of a codicil. It is not, indeed, a codicil, because it is not duly executed ; but it is clear that the testator intended it to be a codicil, not only from the paper itself, but from the indorsement; and it was attached to the will by sealing-wax, without a seal. He describes the second paper as ' another codicil,' evidently referring to what he believes to be in existence. I apprehend there are cases in which a testator has bequeathed property to his children, and there being no legitimate children to answer the description, illegitimate have taken. So here, there being no duly executed codicil, the words may have reference to an unexecuted codicil.” The learned judge then adverts to the circumstance that there was a reference in the second codicil to a bequest contained in the first, and adverts to it as a not immaterial circumstance, but does not make it the ratio decidendi.
The same question again came before the court in 1849, in the Case of Phelps, 6 Notes of Cases, 695. There the testator made his will, duly executed, and afterwards made a first codicil on the same sheet of paper, attested by only one witness. He then executed a second codicil, duly attested, by which he referred to and confirmed the will, but took no notice of the first codicil. Sir Herbert Jenner Fust held, that the first codicil was not established by the second, for the instrument in question was not a codicil; and, therefore, the confirmation of the will did not amount to a confirmation of the codicil.
In the case of Haynes v. Hill, 7 Notes of Cases, 256, the point once more arose in August, 1849. In that case, a testator made his will and several codicils, the last of which only was attested. The last codicil confirmed the will, but said nothing of the codicils. The question was in truth the same as had arisen in Phelps's Case, and the same decision was pronounced. Sir Herbert Jenner Fust went very fully into the doctrine, and held, as it seems on the most satisfactory grounds, that the case was governed by Lord Hertford's, there being no reference to anything but the will, and the unattested codicils not being part of it.
These cases, when compared with Gordon v. Lord Reay, clearly illustrate the distinction introduced by the Wills Act, to which we have already adverted.
In the Case of the Countess Dowager of Pembroke, 1 Deane's Ecc. Rep. 182, Sir John Dodson, from whose decision the present appeal is brought, followed the decision of Sir Herbert Jenner Fust in Sotheron's Case, but his subsequent decision in the present case shows that he did not mean to infringe upon the rules to which we have referred.
The result of the authorities both before and since the late Act, appears to be, that when there is a reference in a duly executed testamentary instrument to another testamentary instrument by such terms as to make it capable of identification, it is necessarily a subject for parol evidence, and that when the parol evidence sufficiently proves that, in the existing circumstances, there is no doubt as to the instrument, it is no objection to it that, by possibility, circumstances might have existed in which the instrument referred to could not have been identified.
As in this case tbe only question is whether there is sufficient evidence to identify the paper propounded as the will, it is not necessary to consider whether any evidence was received in this case, to which objection might be made. The facts on which we rely are, beyond all question, admissible in evidence, namely, that the paper in question was written by the testatrix, was found locked up in her possession at her death, in a sealed envelope, on which there was an indorsement describing it as her will; and that after diligent search no other paper has been found answering the description, and that the only trace of any other testamentary paper in the evidence, is the proof of an earlier will, which the testatrix destroyed.
e paper bence was on whithat the her po
Their Lordships, therefore, are of opinion, that the decree complained of must be affirmed, and they think that the costs of all parties must come out of the estate. They cannot properly refer to the extrajudicial opinion of any individual, however eminent, as an authority for their decision; but it is satisfactory to them to observe that (in a work which, though it professes to be written only for the unlearned, may often be consulted by the most learned with advantage) Lord St. Leonards treats as clear, a point which, from its extreme importance, their Lordships have thought it advisable to examine at so great a length. In the “ Handy Book on Property Law” (sixth ed. 151 ), we find the following passage : “ So a will or codicil not duly executed, may be rendered valid by a later codicil duly executed and referring clearly to it, or in such a manner as to show the intention. Therefcre, if you were to begin your codicil, · This is a codicil to my last will,' and there was only one will, those words would set up the will, although not duly executed.” That very learned author then points out the distinction, where there are several wills and codicils, and refers to the decision in Lord Hertford's Case, which he understands as we do.
Sir Fitz-Roy Kelly, Q. C., and Dr. Jonner, for the appellant.
GOODS OF ALMOSNINO.
(Reported 1 Sw. & Tr. 508.] In this case the testatris died on the 31st of December, 1858. On a table in her room was found an envelope, which had been sealed, but the seal was broken, directed to Mr. Azuelos, No. 62, Bishopsgate Street Without. Within this was another envelope, sealed and directed “For Mr. Azuelos, No. 62, Bishopsgate Street Without. I wish him to open this letter immediately I am dead, or, if he should not be in London at the time of my death, it must be delivered to Mr. S. Almosnino, No. 11, Bevis Marks, City."
On the inner envelope was also written, “I confirm the contents written in the enclosed document, in the presence of Richard Morse and Sarah Praeger, this 29th day of December, 1858.
" A. ALMOSNINO,
Upper Kennington Lane.”
1 Cf. Goods of Greves, 1 Sw. & Tr. 250 (1858); Goods of Dallow, L. R. 1 P. & D. 189 (1866); Singleton v. Tomlinson, 3 Ap. Cas. 404 (1878). The case of Goods of Sotheron, 2 Curt. 831 (1841), must be considered as overruled.