Barnes v Vincent and Others

V MOORE, 202 BARNES V. VINCENT [1846] ON APPEAL FROM THE PREROGATIVE COURT OF CANTERBURY. RALPH BARNES-Appellant; GEORGE GILES VINCENT and Others,- Respondents * [Feb. 4, 1846]. The Prerogative Court refused probate to a Will of a feme covert made in pursuance of a power, because it was, upon the face of it, not executed according to the requisites of the power. Held, on appeal by the Judicial Committee of the Privy Council, reversing- such sentence, that such Will was entitled to probate, the Ecclesiastical Courts having no jurisdiction to inquire as to the due execution of the power, but simply to grant probate, leaving it to a Court of Equity to determine the question, of the due execution of the power. This was an Appeal from a decree of the Prerogative Court of Canterbury, pronounced on the 17th of [202] March 1845, in a cause or business, of proving, in solemn form of law, the Will of Susanna Ireland, deceased (the wife of the Very Reverend John Ireland, late Dean of Westminister), bearing date the 17th of February 1826, which purported to be made by virtue and in pursuance of certain powers and authorities given to, and vested in her for that purpose, by an indenture of settlement of the 28th of January 1794. The cause was promoted by Ralph Barnes, one of the executors named in such Will; against George Giles Vincent, and the Reverend William Short, the executors, and also against Sarah Douglas Edwards, Elizabeth Galley, and Susan Soper, the nieces and residuary legatees, named in the Will of the Very Reverend John Ireland, also deceased, who would have been entitled to her separate estate and effects, under and in virtue of the indenture of settlement, in case she had died intestate. By the indenture of settlement, (being the settlement made previously to, and in contemplation of, the marriage of the deceased, with the Very Reverend John Ireland,) several sums of money and securities were assigned to, and became vested in, the Reverend Nutconibe Nutcombe, Clerk, and John Jeffrey Short, upon trust, after the solemnization of the marriage, for the use of John Ireland, for life, with remainder to the use of his wife, for her life, in case she should survive him, and after the decease of the survivor of them, upon certain trusts for the benefit of their children, and in case there should be no children, and John Ireland should survive his wife, then, at his decease, upon trust for such person or persons, in such parts, shares, and proportions, manner and form, and for such ends, intents, and purposes, and [203] subject to such limitations as Susanna Ireland should, by any deed, to be attested by two or more witnesses, or by her last Will and Testament, to be by her signed and published in the presence of, and attested by, the like number of witnesses, direct or appoint, and in default of, and subject to, such direction and appointment, upon trust for the absolute use and benefit of John Ireland, his executors, administrators, and assigns. There were no children of the marriage, and Susanna Ireland, during her coverture, in pursuance of the power so vested in her, made and executed the Will in question, bearing date the 17th of February 1826, which was signed and sealed, but not published, in presence of two witnesses. The Will was as follows: - " After the death of the Dean of Westminster, I bequeath my fortune as follows. To my sister in law, Mrs. Short, of Bickham, one hundred pds. sterling. To my sister in law, Mrs. William Short, one hundred pds. sterling. My fortune to be then divided into 2 equal shares, one share to be given into the hands of trustees : I appoint for this trust, the Revd: Tho^. Vowler Short, of Christchurch, Oxford; the Revd: William Short, (his brother,) Vicar of Chippenham; and Ralph Barnes, Esq1-. attorney at law, of Exeter: this half of my fortune is to A used for the benefit of my brothers * Present: The Lord President (the Duke of Buccleuch), Lord Brougham, Lord Cottenham, Lord Campbell, and the Vice-Chancellor Knight Bruce. 468 BARNES V. VINCENT [1846] V MOOEE, 204 George and Bartholomew Short. The principal money being secured during their lives on government security, one-half of the income of this moiety to be paid to my Bartholomew ^ brother A for his life; the other half to be used for the bene A t of my brother George and his children; some portion of it to be allotted to my [204] brother for his life, the rest to his children. After the death of my two brothers the whole to be allotted, as the trustees shall think fit, to the use of my brother George's children. The principal money to be divided between them, or the interest only given them, whilst the principal remains secured. The other half of my fortune I bequeath to the eight persons here mentioned :-Eliz. Susanna Short, Frances Short, Francis Baring Short, Elizabeth Hodgkinson Short, children of John Jeffery Short; Thomas Vowler Short, William Short, Jane Susanna Short, Laura Short, children of my brother William Short. These eight persons to have equal shares of this half of my fortune; and if any of them die before the Dean of Westminster, I desire that their share be divided equally between such of the eight as are alive. " I appoint for executors of this my Will the Rev?: Thomas Vowler Short, the Rev?: William Short, (my two nephews,) and Ralph Barnes, Esq., attorney at law, Exeter. " Susanna Ireland." (L. S.) "February 17th, 1826." & sealed " Signed A in the presence of HumpT...