Page images

(the rest of my will to be put in execution, and considered as my .last will and testament."

It was contended, on the one hand, that the construction to be put upon the second codicil was, that the deceased did not mean that it should revoke the appointment of Mrs. Sherard as an executor; that had he so intended, he would have made the revocation in the same strong terms as those by which he had in the 1st codicil revoked the appointment of one of his brothers, and not in words of a remote and doubtful implication; and that by confirming "the rest of his will, he had confirmed the appointment of Mrs. Sherard, that appointment forming part of the rest of his will."

On the other hand it was argued, that when two testamentary papers contradict each other, it was held as a rule of law in courts of construction, that the latter should operate; that the latter paper, or second codicil in this case, being by implication contradictory to the former as to the appointment of executors, must operate singly in that respect, and as making no mention of Mrs. Sherard, probate must be granted without her.

Sir John Nicholl observed, that the question was, whether the appointment of Mrs. Sherard was revoked. The appointment was made by a very formal instrument, and its revocation must therefore be in express terms, or by necessary implication. It was evidently not expressly revoked; and the question therefore was, whether it was so by necessary implication, which, he was of opinion, it was not. The direc

tion in the second codicil, that the testator's brother, George, should remain an executor, and Sir Sir mon Haughton Clarke be joined with him only, did not by the word "only" necessarily shew a revocation. In interpretation, the Court must hesitate in giving a positive meaning to eveiy word: and that this had no such positive meaning was to be inferred from what followed—the express revocation of the appointment of the two brothers without revoking that of the wife. By confirming the rest of his will, the deceased had also confirmed his wife's appointment. There were three executors throughout, the deceased always contemplating a joint appointment. There appearing, then, no revocation either in express terms or by necessary implication, the court directed Mrs. Sherard to be joined in the probate with the other executors.

Henshaw and Hadfield v. Atkinson and Atkinson.—For many days this very important cause had been under discussion before a Commission of adjuncts, composed of the following learned judges :—The Hon. Mr. Baron Wood, t)ie Hon. Mr. Justice Bailey, the Hon. Mr. Justice Dallas, the Hon. Mr. Baron Richards, Dr. Burnaby, Dr. Daubeny, Dr. Phillimore, and Dr. Gostling. It was a question as to the validity of the will and codicils of the late .Mr. Henshaw, of Oldham, in Lancashire, who died worth near 150,0001.

The will bore date in November, 1807 j the two first codicils in January, 1308; the third in May following, and the fourth in

July, nary activity of mind, that he was so described by the learned physician (Dr. Ferriar, of Manchester) who had attended him for a slight paralytic attack in 1800, from which he perfectly recovered in a few weeks, and who saw him frequently afterwards till his death; that his having been so affected in 1800 could afford no inference against his acts in 1807, 1808, and 1809, done in the presence of unimpeached witnesses, who spoke fully to his capacity. That his letters, many of which were before the Court, shewed extreme shrewdness in resisting attempts at circumvention and fraud j and that the conduct of the opposing parties themselves was conclusive against their plea, they having, whilst the testamentary acts were going on, joined in a great variety of most important transactions of business with him, and having all of them delived great benefit from his liberality and judicious kindness to-' ward them on those occasions: that there was not a tittle of evidence to shew that any one provision in any of the papers was suggested to Mr. Atkinson; and as to the charities, it was most manifest that they were the favourite objects of the testator's thoughts, after providing, with remarkable liberality, for all his friends and connections, particularly for Mrs. Henshaw's family, who had large fortunes of their own, greatly owing to his good management of their property, and to his having given her sons a large share of his own business. It was statod, that Mr. Atkinson, far from intruding himself into the family, hud been one of the

oldest friends the testator had, from a period long antecedent to his second marriage; that he had been on all occasions of difficulty resorted to as an arbitrator and adviser by the testator and all his connections, and had rendered them all most essential services: that in the affair of Henry Henshaw's will, George Hadfield had voluntarily released his interest to the amount of 60,0001. acknowledging under his hand and seal, that that will was executed when Henry Henshaw was in a state of incapacity; that it did not appear that Mr. Atkinson had advised Hadfield to this step at all; but if he had, it was probably the best advice that could have been given* as no man would, without very strong reasons, have been induced to give up 60,0001. That in short, there was not one syllable in the whole voluminous mass of evidence to show that any undue means whatever had been resorted to by Mr. Atkinson to obtain an influence either with the deceased, or with any of his connections; that it was true the deceased had a high opinion of him, and always spoke of him in such terms as to induce their common acquaintance to believe he would leave him something very considerable. That this furnished a reasonable motive for, and solution of, the bequest in the third codicil; that if this codicil was in Mr. Atkinson's hand - writing, those in which he was not at all benefited were so too; that it was written in a large, plain, legible hand, all on one side of a sheet of paper; that the bequest to Mr. Atkinson occupied the upper half of the page, the other


part being Riled with the appointment of the trustees; that the testator not being a man of education, wished to have the aid of Atkinson, merely as to style and orthography; but that he signed in a clear strong hand, and wrote in the date in words at length. It was admitted that the writing by a legatee is always a circumstance proper to awaken the vigilance ©f a Court, as to the necessary proof of execution and capacity, but that at Common Law if these be proved, the party setting up •the will has discharged his burthen of proof; and it was denied that the cases cited, had shewn any different rule to prevail in the Ecclesiastical Courts j that indeed the fullest proof of execution and capacity must give way to positive proofs of fraud; but that the burthen of proving fraud lies strongly on the party suggesting it; that what is said of the 30001. is merely loose inference, from words not technically used, amd iu a transaction not clearly before the Court; that at all events there is nothing to show that the testator himself did not consider this sum as an ultimate gift, and that it would be contrary to all justice to build upon a vague conjecture a charge of fraud so deeply involving the character of a person who, upon the evidence, stands high in point of respectability. That even if it •were necessary to corroborate the proof of execution and capacity, by specific proof of knowledge of the contents of this codicil, the esse supplied such corroboration; for it was in evidence that the testator was fully aware of having appointed the trustees of the cha

rities, which was done by this codicil; and it would be absurd to say that he had a sufficient capacity to understand the lower half of a paper lying open before him, and hot to understand the upper half, when he executed the whole as his will in the most deliberate and formal manner.

After the arguments on both sides had been fully gone through, the Court adjourned for a week, and reassembled on Wednesday last, when, after remaining four hours in deliberation, they declared as before, that they were satisfied of the validity of the will, and all the codicils except the third, but being equally divided on that they gave no judgment.

Doe, dem. Barford v. White.— Mr. Serjeant Blossett moved for a new trial of this ejectment before Mr. J. Heath, at the last Cambridge Assizes, on the ground that the birth of a child after the death of the husband, the wife being then four months pregnant, unknown to herself and her husband, operated as a revocation of the husband's will. The rule of law is, that marriage and the birth of a child impliedly revoke a bachelor's will; but in the case of Shepherd v. Shepherd, in the Prerogative Court, it was held by Dr. Hay, that a married man's will shall not be set aside by the birth cf children. In the case of Doe v. Lancashire, 5 T. R. 49, it was held that marriage and the birth of a posthumous child amount to an implied revocation of a will of lands made before marriage; but in that case the pregnancy waa known to the husband.

The court sanctioned tht opinion ion of Mr. J. Heath, that this was no revocation of the will; this was a step beyond Doe v. Lancashire; and it would have been better if the law had held only that marriage should operate as an implied revocation of a will; that was such an alteration of the relations of a man, as might reasonably be supposed, to revoke his will; but there would be no end to revoking it upon the birth of every new child: besides, a husband might intentionally suffer his will to stand, from a suspicion that the child with which his wife was pregnant was not his. And Lord Ellenborough mentioned an instance of a sailor who, having early in life left his whole estate to a woman of very ordinary rank, went abroad and married a lady of fortune, and at last died possessed of a very large estate, which went to the woman in whose favour he had first made his will, notwithstanding he had acquired the greater part of it by marriage.

Taylor and others v. Diplock— This was a question as to a grant of administration of the effects of Job Taylor, late staff or quartermaster-serjeant in the Royal Artillery, deceased. He had made his will, appointing his wife, Lucy Taylor, sole executrix, and sole residuary legatee. Having been for some time in Portugal on foreign service, he was returning with her on board the Queen transport, when the vessel, in Falmouth harbour, struck upon a rock, owing to the violence of the weather, and sunk almost immediately afterwards. Nearly 300 persons on board perished, and

amongst them Taylor and hi* wife. Taylor died possessed of property to the amount of about 40002. and a bill in Chancery was filed by the next of kin of the wife against those of the husband, to ascertain who was entitled to this property, but the proceedings were at a stand for want of a personal representative of the husband. Both parties, therefore, applied to the court for letters of administration generally, or that the court would suspend granting them to either party during the dependence of the Chancery suit, and in the mean time grant to a nominee an administration limited to the purpose of substantiating the proceedings in that suit. This latter prayer was, however, abandoned, on understanding that the court could not grant a limited administration where a general one might be granted, and was applied for 5 and the present question, therefore, was, to whom the general administration should be granted,—whether to the next of kin of the husband as (lying intestate, bis wife not having survived, so as to become entitled under his will, or to the representatives of the wife as his residuary legatee, she having survived so as to become entitled in that character.

It appeared, from the affidavits exhibited on both sides, that at the time the accident happened, Lucy Taylor was below in the cabin, and her husband on deck. The water was rushing in fast, and he offered large sums to anyone who would go below and save her; but finding none would venture, he descended himself, and the vessel immediately afterwards


"Went to pieces. The bodies of Taylor and his wife were found close together, and it further appeared that she was a woman of a very robust constitution, and in the habit of enduring great fatigue by her management of the officers' mess, as well as that of a great many of the soldiers, whilst he was rather sickly, and had been latterly much afflicted with an asthma.

It was contended on the part of the husband's next of kin, that by the principles of the Roman civil law, which had been adopted into the law of this country, and were in fact the only principles governing a case of this kind, it was laid down that where two persons perished together in a common calamity, and it became a question which of the two was the survivor, the presumption of law should always be in favour of the person possessing the more robust constitution and greater strength, as being thereby the better fitted to struggle with the difficulties of his situation, and resist for a longer time the operation of death. Thus where the father and son shall perish together, the presumption of survivorship is in favour of the son, if above the age of puberty, but of the father if under; the same as to a mother and daughter; and as to husband and wife, the presumption is in favour of the husband. This, however, like ojl other legal presumptions, was liable to be repelled by evidence to the contrary; but in this case it was contended, from the situation of the wife at the time the accident happened, it was most probable that she had perished before her husband descended to her

Vol. LV1I.

rescue. Upon both grounds, therefore, of principle, and of fact, the court must conclude, that the husband was the survivor, and accordingly grant the administration to the next of kin.

On the part of the wife's next of kin, it was contended, that the presumption of law alluded to was only applicable to cases where parties perish together, in such a manner as to preclude the possibility of obtaining any evidence as to which of them was the survivor. Where, however, evidence as to that fact was produced, as in the present case, the case must be decided upon that evidence only. Here it appeared that the parties had perished by the same accident, and their bodies were afterwards found together, and that the common course of nature had, in this instance, been inverted by the wife being the more strong and robust of the two. The court must, therefore, necessarily conclude that she was the survivor, and accordingly grant the administration of her husband's effects to her representatives.

Sir John Nicholl observed, that this case presented itself for decision under very singular circumstances. He recapitulated them, and observed, that the question as to the administration bait, not been gone into; but that with respect to the general administration, the counsel had argued upon the legal presumption of survivorship, and whether or not that presumption was sufficiently repelled by the facts in evidence. He agreed in the doctrine that had been laid down, of the presumption being in favour of the husband, but it was a necessary

T preli

« PreviousContinue »