Andrew v Motley
| Jurisdiction | England & Wales |
| Judgment Date | 06 February 1862 |
| Date | 06 February 1862 |
| Court | Court of Common Pleas |
English Reports Citation: 142 E.R. 1243
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 32 L. J. C. P. 128.
andrew v. motley. Feb. (5th, 18f 2. [S.C..T2L, J.C.I1. 128.1 A will is not revoked by mere abandonment: to operate a revocation, there must be some equivocal act of cancellation or obliteration by the testator himself or by some person in his presence and by bis direction. This was an action of ejectment brought to recover the possession of cottages and land in the parish of Coningsby, in the county of Lincoln. The cause was tried before Pollock, C. B., at the Summer Assizes at Lincoln, in 1861, when the following facts appeared in evidence :- James Andrew, who resided at Friskney, near Waintteet, in the county of Lincoln, by a will dated the 14th of June, 1786, devised and bequeathed as follows : - " First, I give, devise, and bequeath to my brother John Andrew, of Brig, in the county of Lincoln, labourer, one shilling. Item: t give, devise, and bequeath to my brother Bobert Andrew, of Gonld, nigh [515] Holden, in the county of York, labourer, 101 of good and lawful money of Great Britain : but, if my said brother Robert:should die before my decease, then my will is that 51. of the last-bequeathed 101. legacy shall devolve and be given to my nephew Robert Andrew, the son of my brother Thomas () The case is now pending in the Exchequer Chamber. 12544 ANDREW V. MOTLEY 12 C. B. (N. S.) 516. Andrew, of Snifcterby, in the county of Lincoln, hereinafter mentioned, and the other 51., the other part of the said 101. above bequeathed to my brother Kobcrt Andrew, I give, devise, and bequeath to my nephew Robert Andrew, the son of my brother Richard Andrew, of Snitterby, in the county of Lincoln, hereinafter mentioned, provided my said brother Robert should die before my decease. Item : I give, devise, and bequeath to Ann Andrew, daughter of my brother George Andrew, late of Gofiherton, in the county of Lincoln, deceased, one shilling. Item: [ give, devise, and bequeath to my brother Richard Atidrew, of Snitterby, in the county of Lincoln aforesaid, all that house, yard, garden, lands, and appurtenances thereunto belonging, and which I now hold under lease of the demesnes of Lincoln Cathedral at and under the rent of 2s. 6rL, payable yearly, To have and to hold the said reversionary, with the lease and profit arising therefrom, unto him my said brother Richard during his natural life and the natural life of Jane the wife of the said Richard Andrew ; and, at the decease of both of them, whichever1 may be the longer liver, my will is that then that the said house, yard, garden, and appurtenances, on which said premises my said brother Richard now liveth, together with the lease and profits arising therefrom, I give, devise, and bequeath to my nephew James, the son of my brother Thomas Andrew, of Snitterby aforesaid Item : I give, devise, and bequeath to Sarah Marshal, of Snitterby, in the county of Lincoln aforesaid, widow, my sister, 11. Item : I give, [516] devise, and bequeath to William Marshal, son of the aforesaid Sarah Marshal, now a servant, 51. of good and lawful money of Great Britain : but, if he the said William Marshal should die before my decease, that then the aforesaid legacy of 51. shall be given to his sister Mary Marshal. Item: I give, devise, and bequeath to Francis Andrew, of Friskney, grazier, one shilling. Item : I give, devise, and bequeath to James Legard, now of Kirton (otherwise James Andrew), son of Elizabeth Legard, late of Friskney aforesaid, all those three messuages or tenements, and two acres of land, be the same more or less, lying and being in the parish of Coningsby, abutting on the Witham Bank south, and north on the Wiltuorc Kenii, and now in the several tenures of William Moore, John Motley, and other under tenants, during his natural life, and from thence to pass to heir and lieirs for ever, without any power to sell, mortgage, or convey for longer than each heir may for his or her own natural life. But, if the said .fames Lugard (otherwise Andrew) should die without issue, I then give, devise, and bequeath the said three messuages or tenements and two acres of land, be the same more or less, lying and being in Coningsby aforesaid, to my nephew James Andrew, son of Thomas Andrew, of Snitterby aforesaid, To have and to hold the same during his natural life, and from thence to pass to his heir and heirs for ever, without any power to sell, mortgage, or convey for longer than each heir may for his or her own natural life. And I also appoint Robert Walker, of Friskney, grazier, to be executor in trust for the said James Legard (otherwise Andrew), to act with power as be shall deem most proper. The rest, residue, and remainder of my estate, with my goods and chattels, plate, and whatsoever and wheresoever1 to me appertaining or belonging, I give, devise, [517] and bequeath to my brother Thomas Andrew, of Snitterby aforesaid, whom I corrstitute and appoint whole and sole executor of this my last will and testament, he paying my just debts, legacies, and funeral expenses " This will was produced from the Consistory court of Lincoln. The plaintiff claimed as heir-at-law of the devisee in remainder. The witnesses were,-Thomas Cousins, John Marfoot, and Thomas Ad kins. Upon the death of the testator, James Legard, the tenant for life, entered into possession of the premises in question, and continued therein until his death (intestate and without issue) in 1857. '1 he defendant claimed under a subsequent supposed will of Janres Andrew, dated the 4th of June, 1788, which, it appeared, was found by the house-keeper of James Legard, after his death, in a box with the probate of the first will arrd other papers, and. was handed by her to John Marshall, who was the heir-at-law of the devisee in remainder in the second will mentioned, and who was the real defendant in this cause. The second will was as follows :- "I, James Andrews of Fostney, otherwise Friskney, in the county of Lincoln, being of sound mind, memory, and understanding, do make, ordain, constitute, and appoint this' my last will and testament in manner and form following, viz. Imprimis, I give, devise, and bequeath to James Ledger, the sou of Elizabeth Ledger, of Friskney 12 C. B. (N. S.)51B. ANDREW ?'. MOTLEY 1245 aforesaid, all that messuage, tenement, and boot yard situate, lying, and being at Snitterby, in the county of Lincoln aforesaid, and which I now hold under lease of the executors in trust of the Cathedral church of Lincoln, To have and to hold the same, with proper renewarices thereof, unto him the said James Ledger, with full power hereby to sell out or otherways at any time to dispose of the same : but, if the said James Ledger should die without issue, not [518J having disposed of the siiicl lease, that then my will is, the said lease, with proper renewances, shall devolve to and become the right of James Andrews, the son of Thomas Andrews, of Snitterby, in the county of Lincoln aforesaid. Item : I give, devise, and bequeath to James Ledger, of Friskney, in the county of Lincoln aforesaid, and now boarded at Kirtxni, nigh Boston, all those three messuages or tenoments, with each and every of their appurtenances, situate, lying, and being at Coningsby, in the county of Lincoln aforesaid, and now in the several tenures of John Motley, Thomas Hands, and Thomas Blackbourne, To have and to hold the same to him the said James Ledger aforesaid, and to his hairs, for ever. And my will further is that the aforesaid three tenements lying and being in Coningsby aforesaid shall not be sold or by any means otherways disposed of until the said James Ledger shall have issue born in wedlock. And provided the said James Ledger should die without issue, then my will is that the afore-mentioned three tenements lying and being in Coningsby aforesaid, with their appurtenances, shall devolve to and become William Marshall's (the son of my sister Sarah Marshall, of Snitterby, in the county of Lincoln aforesaid), and to his heirs for over. Item: I give, devise, and bequeath to my brother...
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