Anna Maria Welch and Lucy Allen Welch, -Appellants; Nathaniel Phillips, -Respondent
| Jurisdiction | UK Non-devolved |
| Judgment Date | 13 December 1836 |
| Date | 13 December 1836 |
| Court | Privy Council |
English Reports Citation: 12 E.R. 828
ON APPEAL FROM THE PREROGATIVE COURT OF CANTERBURY.
Mews' Dig. tit. Will; VIII. Establishment of Wills; d. Proof of Will; 3. Onus of Proof. Approved, on point as to presumption, in Patten v. Poulton, 1858, 1 Sw. and Tr. 60; and in Homerton v. Hewitt, 1872, 25 L.T. 854.
ON APPEAL FROM THE PREROGATIVE COURT OF CANTERBURY. ANNA MARIA WELCH and LUCY ALLEN WELCH,-Appellants; NATHANIEL PHILLIPS,-Respondent * [December 13, 1836]. The Rule of Law is, that if a Will be traced to the possesion of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself, and that presumption must prevail, unless there is sufficient evidence to repel it, and to raise a higher degree of probability to the contrary. The onus of proof in such cases lies upon the party propounding the Will [1 Moo. P.C. 302]. This was an appeal from a decree of the Prerogative Court, admitting to probate the copy of a Will, dated the 29th May 1825, as the last Will of Mrs. Hannah Leader Arnold, the mother of Emma Docia Phillips, the wife of the respondent; the deceased having made and published a previous Will on the 8th of November 1820, which was found at her decease uncancelled, and, as it was insisted, unrevoked, by the subsequent instrument of the 29th May 1825. The facts and circumstances of the case, as proved in evidence, and upon which the question of intention turned, are fully stated in the judgment. Respecting the principles of law, which allow a previous uncancelled Will to be set up by the destruction or revocation of a subsequent one,- [300] Dr. Adams and Mr. Whately, for the Appellants.-Cited, 4 Burn's Ecc. Law, 198 (b); Exparte HelUer, 3 Atk. 798; Glazier v. Glazier, 4 Barn. 2512, Lofft, 575; Wilson v. Wilson, 3 Phil. 543; Usticke v. Baivden, 2 Adams, 116; Kirkcudbright v. Kirkcudbright, 1 Hag. 325; Colvin v. Fraser, 2 Hag. 266; Littie v. Lillie, 3 Hag. 184. Dr. Phillimore and Dr. Lushington, for the Respondent.-Cited, Richards v. Mumford, 2 Phil. 23 ; Gibbens v. Gross, 2 Adams, 455 ; Helyar v. Helyar, 1 Lee. 472 ; Whitehead v. Jennings, ib. 510; Ewt v. Ewrt, ib. 511; Moore v. De la Tone, 1 Phil. 375, 406; Norton and Dickens v. Head, 3 Phil. 26, 32; Johnston v. Johnston, 1 Phil. 447. Mr. Baron Parke.-There are two questions, both of fact, for the decision of their Lordships on this appeal. First, whether the deceased cancelled or destroyed a second Will, animo revocandi; and secondly, whether, if she did so, she intended to revive a prior Will, or to die intestate. The learned Judge of the Prerogative Court, though with much doubt and hesitation, gave his opinion that the second Will was not revoked, and therefore decreed probate of an authentic copy of it. Upon a careful consideration of the evidence which has been laid before us, and been commented upon with great acuteness and ability on both sides, we feel our- * Present:-Lord Brougham, Mr. Baron Parke, Mr. Justice Bosanquet, and the Chief Judge of the Court of Bankruptcy [The Hon. Thomas Erskine]. 828 WELCH V. PHILLIPS [1836] I MOORE, 301 selves obliged to come to the conclusion, that the second Will was revoked, and that the deceased did mean the former Will to take effect. These facts were admitted on both sides: that the [301] deceased made a Will on the 8th November 1820, by which she left to...
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...is then on the party who seeks to rely on its contents: Theobald on Wills §7–058, citing (among other cases) Welch v Phillips (1836) 1 Moo. P.C. 299. The reason for that presumption, as explained in Welch v Phillips, is that a will is a document of considerable importance which, if the test......
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