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CT. OF APP.]
SUGDEN v. LORD ST. LEONARDS (No. 2).
[CT. OF APP.
ferred. They all exist in this case, that is the case second will. We must also remember that these of a testator declaring the contents of his will. Of documents were carefully preserved by the testator, course, as in the case of pedigree, the courts must that they were tied up with other documents in the be careful and cautious in admitting such evidence. same box which contained his will and codicils, From its very nature it is evidence not open to and that it is not likely that he would so carefully the test of cross-examination, it is very often pro- have preserved the documents if he had changed duced at second or third hand, and is therefore his intention between making them and signing particularly liable to lose something of its colour his will. If they had no longer represented his in the course of transmission. It is so easily and final intention he would probably have destroyed so frequently fabricated that all courts which them and thrown them away as waste paper. That dispose of such cases must be especially on their confirms, to my mind, the value of the documents, guard. But that only goes to the question as and that, although evidence of intention, they are to the weight to be attributed to the evidence also evidence of intention not changed at the time of when admitted; it does not go to the question of the execution of the will. Upon those documents, admitting the evidence itself, and I must say it I think, whatever view may be taken as regards appears to me that, having regard to the reasons the latter document, full reliance ought to be principles which have induced the tribunals of and placed. Then I come to the question as to whether, this country to admit exceptions in the other | irrespective of the post-testamentary declaracases to which I have referred, we should be tions, as I may call them, there would be any equally justified and equally bound to admit it in grouŋd for saying that there was not sufficient this case ; when I say equally, perhaps I state the evidence to sustain the proof of this will. Now, case a little too low, because if there is any case in I am clearly of opinion that there would be no such the world in which it is incumbent upon a tribunal ground. It happens fortunately in this case that not to grant a premium for fraud or wrong-not these post-testamentary declarations are of comto hold out to the world that any man who is able paratively little value. In theonly instance in which to get hold of the will of a testator which may confirmation is required they are very vague and disappoint him of his expectations, just or unjust, general. That instance is the share of the residue shall be able if he once destroys it to acquire the given to Miss Sugden. Now, in considering the property either for himself or for those whom he last head as to the sufficiency of the evidence, I wishes to benefit-I say if ever there was such a will consider the case, first irrespective of case, it is the case of a lost will, and it is in that
these post-testamentary declarations which the case that the court should be anxious, not nar- learned judge in the court below considered himrowly to restrict rules of evidence which were self bound, as I think he was bound, by the decision made for the purpose of furthering truth and in the case of Quick v. Quick (10 L. T. Rep. N. S. justice, but to be guided by those great principles 619; 3 Sw. & Tr. 442) to disregard, and I must which have guided other tribunals in other say I should entirely concur with the learned countries in admitting this evidence generally, and judge in his conclusion, assuming that I had been at all events to admit it in the special case which we bound, as he was bound, by the decision in the have under consideration. I should, therefore, case of Quick v. Quick, to disregard that evidence. entirely concur with the Lord Chief Justice's But how does the matter stand : The will was conclusion that this evidence would be admissible, read frequently, and under peculiar circumstances not only as regards that portion which was of interest, by Miss Sugden.
She had not anterior to the execution of the will, but also as only an opportunity of becoming familiar with regards that portion of it which is posterior to its its contents, but she had the strongest motive for execution. As regards the portion of it anterior becoming so familiar. The will interested not to the execution, it has been admitted, where it only herself, but those who were nearest and has been admitted at all, on a somewhat different dearest to her. It would be no idle curiosity ground. It is not strictly evidence of the contents which would induce her to read it and re-read it of the instrument, because it is simply evidence of with attention, and to remember its contents with the intention of the person who afterwards accuracy and fidelity. Therefore, we have the executes the instrument. It is, therefore, simply evidence of a witness to be trusted beyond the evidence of probability-no doubt of a high degree average of witnesses, more to be trusted even in of probability in some cases, and of a low degree of this respect, supposing there were no question of probability in others. The cogency of the evi- interest, than an ordinary solicitor who testifies to dence depends very much on the nearness in point the contents of a will. He has other affairs to of time of the declaration of intention to the period attend to, he has many wills to read, and he has of the execution of the instrument. Now, in this no special or particular interest in the disposition case we have that link supplied in the most satis- of the property of the testator. Therefore, we factory manner as regards the two important have a witness peculiarly likely to know what the documents J. & K. We have the evidence of the contents of the will were. Besides that, we have witness that they were, to use her words, jotted a witness of unimpeached and unimpeachable down at the time when the will was being written, integrity. We have the gratification of knowing, and therefore immediately before the execu- in deciding this case, that no question has tion, and in that case it is not to be presumed for been raised as to the credibility of Miss Sugden, a moment that there was any change in the inten- and this appears to be answer to that tion of the testator from the time of jotting down his assumed danger which might apply to other legacies to the time he signed the will. As regards cases in allowing such proof as this to establish the earlier document, no doubt that relates to a wills. It has, in my opinion, nothing to do with prior will, the will of 1867, but we have the evi- the admissibility of the evidence. Where the credence of Miss Sugden that that was incorporated dibility of a witness is contested, it does not make in the second will, and therefore to that extent it the witness's testimony less admissible, but it brings it down to the time of the execution of the does add enormously to the weight of it, when
CT. OP APP.]
SUGDEN v. LORD ST. LEONARDS (No. 2).
[CT. OF APP.
you find that the opponent does not dispute the from all the testimony we have before us; that he honesty and truthfulness, and the entire integrity had a moral duty to provide for her, and to place and veracity of the witness. This case is singular in her in a situation of life such as not greatly to that respect, and I should think it is very likely diminish her habits of comfort, or even of luxury, to remain singular, and without a parallel in sub- is plain and beyond controversy. Whether he had sequent cases. Therefore, there is no danger in promised to do so or not, does not appear to me to granting probate in this particular case; and I be material; but it is clear that he had promised see no reason why we should refuse to do justice to do so, even before the making of his last will. because it may induce other persons, not credible Under those circumstances, what does she take witnesses, to attempt to substantiate fictitious out of this interest, or out of this combination of wills. But no doubt there is this observation, that interests? There, again, my figures are probably Miss Sugden is an interested witness. Here again not accurate, although they are as nearly accurate it is not alleged that the interest was such as to as I can make them. She takes a portion of impair her credibility. If it had, I could have 60001., which, although more than some of her understood the ohjection; but as it is admitted sisters seem to have taken, appears to have been that she is a veracious person, the objection as to calculated with the view of making her equal in interest fails of itself. The law at one time consi. that respect with the most favoured, although dered it impossible that a person biassed by the not beyond. Of course it is perfectly natural smallest interest could tell the truth, but that law that the testator should desire that the unwas found so utterly opposed to human expe- married daughter should be at least as well prorience, that it was abrogated by the Legislature, vided for as the married daughters had been and interested witnesses daily give evidence in our on the occasion of their m
this tribunals, and, subject to the observation that there is confirmation. She takes a life interest in they may be biassed by their interest so as to a farm which is stated to be worth 3501. a year. I some extent to affect the weight of their testi- am not acquainted with the exact age of Miss mony, their evidence is received without doubt or Sugden, but she can be no longer very young ; question. No doubt, in the case even of a cre- and I take the value of her life interest in that dible witness, even in the case of a witness without farm to be considerably less than 30001. She interest, it is desirable, if possible, to procure con- takes a house which appears to have cost 15001., firmation to show the accuracy of the memory of and some meadows, the exact value of which does the witness, and for that purpose only. But the not appear, but which, again say, 30001. may moment you admit a witness to be credible, the very fairly represent. That makes 12,0001. And desirability of the confirmation appears to me to she takes, besides, one-third of the residue, the apply just as much to the portion of the evidence exact amount of which again does not appear. Of as to which she is not interested as to that in which course there are large legacies to be deducted from she is interested. Now as regards Miss Sugden's it, and I should think 10,0001. or thereabouts evidence, she is confirmed in every material would fairly represent it. But assuming it to be respect, except as to that important portion of the 13,0001., which is a very large figure, considering property which comprises the residue of the per- the deductions to be made, then you have not sonal estate. I am not going to repeat the elabo- more than 25,0001. as the provision made for this rate judgment which has already been given as lady, who stood in the relation I have mentioned regards the nature of the evidence, but I will take to a testator possessed of this considerable fortune. that to be sufficiently established. As regards the I think it is not only reasonable to presume that residue, if we exclude the post-testamentary decla- he would have made this, which appears to be by rations, there is no actual confirmation of Miss no means an immoderate provision for her, but he Sugden's testimony except one, that is the confir. would, as I say, have sinned in his grave if he had mation of probability. Now, I must say that that done otherwise than make such a provision for bas had considerable weight with me. In testing the child who had devoted to him her whole life. the unsupported testimony of a person, especially I think, therefore, she is amply confirmed in my of an interested person, the position of the tes- mind, and that the extent of the benefit which he tator, and the probability of the disposition he is intended for her has not been exaggerated by her said to have made, appear to me to be important in her testimony, and the point as to her share in elements. And how stands the matter as far as the residue is the only point on which there was they are concerned ? I am not in a position to no other confirmation. Therefore, if I excluded give accurate figures, although I have done my these testamentary declarations, I should have best to ascertain the value; and, therefore, what I arrived at the same conclusion. But if we admit am saying must not be considered to be quite pre- them they point still more strongly to the same cise; but, from the statement made to us, and conclusion. The testator is proved to have told which was made in the court below, I should one person that his daughter would be a rich imagine that the testator died possessed of pro- woman, and be able to receive in the same manner perty worth about 300,0001., probably more, but not as she had done in his lifetime. He told another less. He is said to have had between 70001. and person that she would be a wealthy woman after 80001. a year in freehold estates, and about 60,0001. his death; he has told her in terms which are personalty, or thereabouts. The state of his family affecting, no doubt, and even pathetic, in speaking was this: he bad had a great number of children, of her devotion to him, that she was blessed, and and all his daughters were married except one, ought to be blessed by him as regards the disposiand all his sons were dead except one, although tion of his property. Can we say that these extwo of the sons had left a child or children. Of pressions of the testator have been more than all his children that one single daughter remained fulfilled by what I may call the modest provision with him, and one might say she was the prop and he has made for her by the testamentary instru, solace of his life; that he entertained a great, and ments which have been admitted to probate, and one might say deserved affection for her, is clear 1 which, in all probability, if there had not been a
CT. OF App.]
Sugdex v. LORD ST. LEONARDS (No. 2).
[Ct. Or APP.
title in the family, would have been
much MELLISH, L.J.-I am also entirely of the same larger ? On the whole I express my entire con- opinion, and I think it is quite unnecessary that currence in the judgment which my lord has I should make any lengthened observations in given, and I agree with him also that after the
The really material questions are, of careful and elaborate investigation which this case course, the two questions of fact as to what are has undergone in the court below, after the clear, the contents of the will, and whether that will has luminous, careful, and elaborate judgment which been proved, and upon those two main important has been given by the distinguished judge who questions I am perfectly satisfied with the judg. pronounced his decree in that court, the heir-at- ment of the judge in the court below; and I am law and next of kin would have done well and also entirely satisfied with the reasons which have wisely in abstaining from pressing the appeal to been given by the Lord Chief Justice and the this court. I think that, as they have chosen to Master of the
Rolls here, and I say nothing more do that, they ought to bear the penalty to which about them. I am also entirely satisfied with the all unsuccessful litigants are liable, and that in reasons which have been already given upon the dismissing this appeal we ought to dismiss it questions of law as to whether probate of the with costs.
whole will ought to be refused, or probate of that JAMES, L.J.-I agree so entirely with the judg. | portion of the will of which we have evidence ment of the Lord Chief Justice, both in the con- ought to be refused, because there may be some clusions at which he has arrived and in the reasons other portions upon which we have not sufficient which he has given for those conclusions, that I evidence. But even that question, to my mind, shall not think it necessary to make more than one does not very seriously arise in this case; because, or two short remarks. First, I would corroborate with regard to the parts that are omitted, it seems what he has said with regard to the admission of to me that we have satisfactory evidence that they part of an instrument where the rest is not forth- do not at all substantially alter the provisions of coming, by referring to the case of Dickinson v. which we have evidence. With reference to the Stidolph (11 C. B., N. S., 341) decided by a court personal estate there is no reason at all to suppose consisting of the Lord Chief Justice Erle, Mr. that any of the missing legacies, if there are any, Justice Williams, Mr. Justice Byles, and Mr. of which we have no evidence, were given to the Justice Willes. The judgment of the court was next of kin, that is, to the relatives of the testator. delivered by Mr. Justice Williams, probably the He had put down on the paper of which we have most eminent authority in our time on matters evidence the legacies that he intended to give to connected with wills. In the judgment there are the different members of his family. The next of (11 C. B., N. S., at page 357) the following expres- kin were all represented by counsel, and no one sions : Secondly, it was objected that the testa- asked Miss Sugden whether she was confident trix refers to two memorandums, and only one is that there were no legacies given to them, and found. But if she intended to adopt two instru- I think I can clearly come to the conclusion, ments, and only one is found, the law requires as a matter of fact, that whatever the small that effect should be given to that which is found; legacies may have been, of which we bave no for, either the ordinary presumption must prevail, evidence, they were not legacies to any members that the missing paper was destroyed by the of his family, and therefore no one can possibly be testatrix animo revocandi, or the principle must prejudiced, except those persons, whoever they be applied that the apparent testamentary inten- may be, of whom we have no evidence, and who tions of a testator are not to be disappointed get no benefit whatever. No one can be prejudiced merely because she made other dispositions of her by our granting probate of this will. I do not at property which are unknown by reason of the all mean, in making that observation, to throw out testamentary paper which contained them not any doubt respecting the judgment which has being forthcoming. It is on this principle that a been given by the Master of the Rolls, and as to subsequent will is no revocation of a former one, if the reasons he has given why probate of a gift of the contents of a subsequent will are unknown. the residue ought to be granted, even although we And the law is the same even if the latter will be might not know to whom, or of what amount, or expressly found to be different from the former, what was the nature of the legacies of personal provided it be unknown in what the difference estate contained in the part of the will of which consists." That is upon the point as to whether there is no evidence. And also with reference to we can grant probate of a will of which only a part the real estate, it is perfectly plain that whatever is known. With regard to the testamentary de. omissions there may be in the ultimate limitations, clarations of the testator, I desire to say that I those omissions cannot possibly be of any prejuentirely concur in the conclusion at which the dice to the heir-at-law. The only part of the case Lord Chief Justice has arrived, that those testa. upon which I have any doubt, and at all differ mentary declarations are admissible and ought to be from what has been already said, is a part of the admitted, but in this case it is conceded that every case which, it appears to me, is not before us, and one of these declarations was admissible and was which it is not really necessary to deeide; because properly admitted for some purpose in the cause, at the time of the argument, not having read the and thereby those declarations of the testator have judgment of the President of the Probate Division, become legitimately known to me. I believe them I was under the impression tbat he might have to have been made by him, and I believe them to relied to some extent upon the evidence of the be true, and, having those declarations before me statements of Lord St. Leonards respecting his and so believing them, it would be in me a judicial will, made after the execution of the will with lie if I were to pretend that I did not act upon reference to its contents; but having now carethem in coming to the conclusion that the evidence fully read through his judgment, I find that he of the witness and the sworn depositions of the did not rely upon that evidence at all, but that he witness as to the actual contents of the will are considered, first, what were the contents of the true.
will, and, in determining what were the contents
[Vol. XXXIV., N. S.-337
Cr. of App.]
JONES V. DANGERFIELD.
have not the least doubt in saying that I think it pronounced by the Lord Chief Justice has so
concurrence in that portion of the judgment which
Justice as to the unsoundness of the decision in
are not entitled to receive. The Master of the with costs.
Solicitors for the respondents, Trollope and
his intentions were. When a doubt is thrown
JONES V. DANGERFIELD.
surveyor, and, in pursuance of the Ecclesiastical
Re ARTHUR ASSURANCE ARBITRATION.
Archbishop of Acanterbury made an order to spend
Dilapidations Act 1871 (34 & 35 Vict. c. 43), the 36, which casts the liability on the executors or
administrators of the late incumbent. The result ing the necessary repairs, the cost of which was is that the sequestrator is under no liability estimated at 1741. 188., for which the personal for repairs. I must make an order in the terms representatives of the late incumbent were declared of the summons, as I am of opinion that the liable. Mr. Dangerfield collected the tithes which sequestrator is not liable for the dilapidahad accrued due in Mr. Brothers' lifetime, and tions, and is not entitled to have the amount under an order of the court dated 31st March 1875, deducted from the profits of the benefice collected paid £650 into court on account thereof, having by him. been advised that he was liable to pay the cost of Solicitors, Kingsford and Dorman for Hallett, repairs out of moneys coming into his hands as Curry, and Furley, Ashford; Dangerfield and sequestrator. The court was now asked to make Blythe; A. S. Twyford. an order that Dangerfield should pay into court 1391. 158. 3d., the amount certified to be due by him on paying the final amount as sequestrator, in order to decide the question of his liability for
Saturday, Feb. 26. dilapidations. Mr. Brothers, who had taken the
Re ARTHUR ASSURANCE ASSOCIATION. benefit of the Insolvent Act in 1853, died intestate, Mutual Insurance Association—Unregistered body and it was stated that there were no assets to - IVinding-up — Rights of creditors – Official administer.
liquidator-Costs. Davey, Q.C. and Rigby for the plaintiff, in the association was formed for the mutual insur- . support of the summons.
ance of ships, and consisted of eighty members, Chitty, Q.C. and W. W. Karslake for the
but was not registered. A winding-up order was sequestrator and for Mr. Perry, the new incum- obtained. Special rate policies hod been issued, bent.-The condition on which sequestrations are but not in the form required by law. Great ez, granted is that the sequestrator keeps the buildings in repair, and is liable for dilapidations.
pense was incurred in ascertaining the amount
payable to the policy-holders, but it was subse. Sect. 20 of the Act of 1871 enacts that the dilapi- quently decided by the Master of the Rolls, and dations are to be charged to the sequestrator affirmed by the Court of Appeal, that the wind in respect of the profits of the benefice. They ing-up order ought not to have been made, and referred to:
that the policy-holders could claim nothing. The Hubbard v. Beckford, 1 Hagg. Cons. 307 ;
official liquidator applied to the court for a call to Whinfield v. Watkins, 2 Phill. 1;
be made on the contributories for the payment of Cripp's Laws of Church and Clergy, 322.
debts and of costs of liquidation. The applicaPhillimore's Ecclesiastical Law, 1390.
tion was opposed on the ground that the individuals Langley, for the official assignee of Mr. Brothers, by whom each debt was incurred, and not the claimed the balance of the fund after payment association, as such, were liable. of the persons entitled under the deed of assign- Held, that as the association had been wound-up as ment.
one association, the oficial liquidator was only Sir GEORGE JESSEL,—The question I have to the ministerial officer of the court he was entitled decide concerns the liability of the sequestrator to his costs, and the call must be paid. in respect of the balance in his hands from the Remarks on Re London Marine Insurance Associa. profits of a sequestered benefice for dilapidations tion (20 L. T. Rep. N.S. 943; L. Rep. 8 Eq. 176). reported after the incumbent's death.
This was a summons taken out by the official sequestration issued many years ago, and remained liquidator to obtain the sanction of the court to a in force to the incumbent's death, in Oct. 1873. call of 135l. upon each of the contributories of the The avoidance occurred subsequently to the com- association. By the affidavit of the official liquimencement of the Ecclesiastical Dilapidations dator, in which the liabilities and assets of the Act 1871, and that Act, therefore, applies to this association were fully scheduled, it appeared that case. The law, whatever it was previously to that about 80001. would be required to satisfy the cer. Act, is remodelled by it. By sect. 53 it is declared tified debts and costs of the winding-up, and that that no sum shall be recoverable for dilapidations for that purpose, having regard to the fact that in respect of any benefice becoming vacant after some of the contributories would partly or wholly the commencement of the Act and to which the fail to pay the amount of call, it would be necesAct shall apply, unless the claim for such sum be sary to make such call upon the eighty members founded on an order made under the provisions of of the association. the Act. Now the Act contains two distinct The association was formed in 1867 for the pursets of provisions: the one, comprising ss. 12 to pose of mutual insurance of ships. It was never 24, provides for the inspection of buildings at incorporated, though it consisted of eighty memtimes when a benefice is not vacant; the other, ss. bers, but was nevertheless wound-up by an order 29 to 53, for the inspection of buildings on a made in Feb. 1870. Special rate policies were vacancy. No inspection seems to have taken issued, in which the chief clerk's certificate found place of the buildings of this benefice in Mr. that 17,0001. was due, and great trouble and expense Brothers' lifetime; but after his death, that is, was incurred in calculating what was owing to on the vacancy, an inspection took place, and the each such policy-holder. A summons was taken archbishop, according to sect. 34, made an order out to review the certificates, and was heard by the stating the repairs required to be done, and their Master of the Rolls, who decided that the associacost, for which the late incumbent's executors tion, being unregistered, was illegal, and no wind. and administrators were declared to be liable. ing-up order ought to have been made, and that It appears to me that the provisions of sect. 20, the policies were void owing to non-compliance and the other sections of that Act, have no bearing with the statute 30 Vict. c. 23 (32 L. T. Rep. N. S. on the present case, but that it falls under sect. 525). The decision of the Master of the Rolls was