Anderson v Elsworth
| Jurisdiction | England & Wales |
| Judgment Date | 02 July 1861 |
| Date | 02 July 1861 |
| Court | High Court of Chancery |
English Reports Citation: 66 E.R. 363
HIGH COURT OF CHANCERY
S. C. 30 L. J. Ch. 922; 7 Jur. (N. S.) 1047; 4 L. T. 822; 9 W. R. 888. See Coutts v. Acworth, 1869, L. R. 8 Eq. 567.
[154] anderson v. elsworth. Jime 25, 26, 27, 29, July 1, 2, 1861. [S. C. 30 L. J. Ch. 922; 7 Jur. (N. S.) 1047 ; 4 L. T. 822; 9 W. K. 888. See Cmtts v. Aeworth, 1869, L. E. 8 Eq. 567.] A voluntary deed, whereby an aged and infirm, though not incapable, donor made an immediate gift of her whole property, without power of revocation, and without sufficient evidence that she fully understood the effect of the instrument, set aside, after her death, at the instance of the heir at law. This bill was filed by certain persons claiming to be devisees, and one of them heir at law of Mrs. Elizabeth Marston, and it prayed as follows :-" That the deed executed by the said Elizabeth Marston under the circumstances in the bill mentioned, and expressed to be dated the 3d of January 1859, might be set aside and delivered up to be cancelled; and that, if necessary, the Defendant, Mary Elsworth, might be decreed to convey all the real estates of the said Elizabeth Marston, deceased, to the several persons to whom the same were devised by the said will of the said Elizabeth Marston, in the shares and manner in the said will mentioned." The bill also prayed for an injunction and a receiver. The bill alleged that Mrs. Marston, at the time of making her will, was entitled, under the will of her late husband, to a dwelling-house and farm lands at Kearby-cum-Netherby in the parish of Kirkby Overblow, in the county of York, one moiety of which she held for the life of one Peter Houghton, and the other in fee. After the death of her husband she occupied the farm and dairy. Her brother, John Anderson, was entitled to the remainder in fee of the one moiety, and died, leaving a son, who was his heir. Elizabeth, Marston retained possession of the entirety after the death of Houghton in 1855, in the belief that she was entitled to the whole, [155] no claim being made in respect of the rents and profits after Houghton's death. In 1843 Elizabeth Marston employed as her solicitor Mr. Clayton, of Netherby, to prepare her will, dated the 12th of January 1853, whereby, after directing all her just debts, &c., to be first paid out of her personal estate, and if the same should be insufficient, then out of the rents and profits of her real estate, she gave and devised unto all and every the child and children of her brother, John Anderson, one undivided third part or share of and in all and every the said dwelling-houses, lands and hereditaments; to hold the same undivided third part or share unto all and every the children of her brother, John Anderson, in equal shares, as tenants in common; and as to another undivided third part or share in the said hereditaments, she devised the same to all and every the child and children of her brother, G-eorge Anderson, in equal shares, as tenants in common; and as to the remaining third part or share in the said hereditaments, she devised the same to all and every the child and children of Isaac Normington, in equal shares as tenants in common. She then gave and bequeathed the residue of her real and personal estate in three equal shares to the same persons; and appointed her nephews, John Anderson, Thomas Anderson and Isaac Normington, joint executors of her will. The will was attested by Mr. Clayton and his clerk. The bill alleged that, some time after the date and execution of the said will, Elizabeth Marston "fell into a state of infirm health and great debility," and that in the month of March 1858, when she was residing at the house of Isaac Normington, she was in a state of mental imbecility, and was generally unconscious and unable to recognise the persons who were about her. In April 1858 she expressed a wish to go to the house of her niece, Mary Elsworth, 364 ANDERSON V. ELS WORTH 3GIFF.156. at Harrogate. [156] Mrs. Normington accordingly sent her to Harrogate, and from that time she remained there until her death, on the 29th of January I860. On the 3d of January 1859 she executed the deed of gift of the whole of her property to Mary ElswOrth, without power of revocation, which was registered at Wakefield. The bill alleged that Mary Elsworth, under that deed, entered into and still was in possession of the real estate; that the Plaintiffs never heard of any such deed during the lifetime of Mrs. Marston, and the fact of its execution was kept concealed from them. It remained in Mary Elsworth's possession ; and on the day of the funeral of Elizabeth Marston, the Plaintiffs and Defendants, and other persons who had been attending the funeral, being together at an inn at Kirkby Overblow, Mr. Peter Taylor, of Knaresborougb, solicitor, produced a document, and stated that Elizabeth Marston had not left a will, as she had not anything to make a will of. He then proceeded to read the document, which appeared to be a conveyance of all the real estate of the said Elizabeth Marston to the Defendant, Mary Elsworth, for her own absolute use. The Plaintiffs expressed great surprise, in answer to which the said Mr. Taylor stated that it had met with Mrs. Marston's approbation; that the said Mary Elsworth then left the room; no other explanations were given; and the Plaintiffs had never seen a copy of the deed. Peter Taylor, the solicitor who prepared the deed, deposed that he acted as Elizabeth Marston's solicitor since September or October 1857. He admitted that the first occasion on which he so acted was in the year 1857; that several times in the latter part of the year 1857 Mrs. Marston came to his house about the sale of a piece of land. On the first of these occasions she remained three or four hours, and during the greater part of that time was in the room of [157] his housekeeper, Jane Crawford, with whom she dined and conversed. On the 23d of December 1857 she duly executed the deed of conveyance of this piece of ground, and received the purchase-money for the same. She herself assisted in settling the accounts, and though untidy in her person and dress, was then of perfectly sound mind, memory and understanding. In the latter end of December 1857 Mrs. Marston again called at deponent's office to fetch away some title-deeds which he delivered to her personally. Deponent did 'not see her again till the latter end of 1858. On the 31st of December 1858 he saw her, he believed, at her own request, at Mary Elsworth's house. On that occasion he was struck with the improvement in her personal appearance, as she was then very clean and neatly dressed, and appeared much stouter in her person, and in very good health. Deponent further said that, no one being present at the interview, Mrs. Marston told deponent that she had sent for him, as she was desirous of making some final disposition of all her property (which consisted of certain...
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