Barry v Butlin

JurisdictionUK Non-devolved
CourtPrivy Council
Judgment Date08 December 1838
Date08 December 1838

English Reports Citation: 12 E.R. 1089

ON APPEAL FROM THE PREROGATIVE COURT OF CANTERBURY.

Pendock Barry Barry
-Appellant
James Butlin,-Respondent 1

Mews' Dig. tit. Will, I. Testamentary Capacity, h. Undue Influence and Fraud, also VIII. d. 3 Onus of Proof, f. Costs. S.C., below, 1 Curt. 614. Followed in Mitchell v. Thomas, 1847, 12 Jur. 967; Guardhouse v. Blackburn, 1866, L.R. 1 P. and D. 116; Tyrrell v. Painton (1894), P. 151; Farrelly v. Corrigan (1899), A.C. 567; and Shama Churn Kundu v. Khettromoni Dasi (1899), L.R. 27 Ind. App. 10. Cf. also Cleare v. Cleare, 1869, L.R. 1 P. and D. at p. 657; and Hastilow v. Stobie, 1865, 1 P. and D. 69. On point as to costs, see note to Armstrong v. Huddleston, 1838, 1 Moo. P.C. 492.

ON APPEAL FROM THE PREROGATIVE COURT OF CANTERBURY. PENDOCK BARRY BARRY,-Appellant; JAMES BUTLIN,--Respondent f [December 4, 5, 6, 7, and 8, 1838]. The onus of proving a Will being on the party propounding it, is in general discharged by proof of capacity, and the fact of execution; from which the knowledge of and assent to its contents by the Testator will be assumed. The fact of a party preparing a Will, with a Legacy to himself, is at most only one of suspicion, of more or less weight according to the circumstances, demanding, however, the vigilant care of the Court in investigating the case before granting probate: and though evidence of the instructions given by the deceased, and the reading over of the instrument are the most satisfactory proofs of the Testator's knowledge of the contents, they are not the only description of proof by which the cognizance of the contents of the Will may be brought home to the deceased, even in a case of doubtful capacity. A Will prepared by the deceased's solicitor, under which he took a considerable benefit, the only son of the deceased being excluded ; the deceased being of weak, though of testable capacity, under the circumstances pronounced for, affirming the sentence of the Prerogative Court, with costs. A charge in the nature of conspiracy and fraud being introduced in an allega tion, by a party opposing probate; for a collateral purpose not material to the suit, the Judicial Committee affirming the judgment of the Prerogative * Present: Lord Lyndhurst, Mr. Justice Bosanquet, Sir Herbert Jenner, and the Right Hon. Dr. Lushington. f Present: Lord Brougham, Mr. Baron Parke, Mr. Justice Bosanquet, and the Chief Judge of the Court of Bankruptcy [Sir Thomas Erskine]. P.O. i. 1089 35 II MOORE, 481 BABRY V. BUTLIN [1838] Court condemned the party with costs, from the time of giving in his allegation, together with the costs of Appeal. Pendock Barry, of Tollerton Hall, in the County of Nottingham, the Testator, respecting the validity of whose Will the present Appeal arose, died on the 13th [481] of March 1833, at the age of seventy-six years, a widower, leaving behind him the Appellant, his son and heir, and only next of kin. On the 24th of September 1827, the deceased executed his Will in duplicate, at the house of Percy, his attorney, in the presence of two witnesses, whereby he appointed the Eespondent, James Butlin, sole Executor and Residuary Legatee, and amongst other Legacies bequeathed to Percy £3000, to Butlin £2000, and to White-head, his butler, £3000. The validity of this Will was disputed by the Appellant, on the ground that the execution was procured by the fraud and conspiracy of Percy, Butlin, and White-head, at a time when the deceased was of unsound mind, and wholly incapable of making or executing a Will, or of doing any act requiring thought, judgment, and reflection. The Respondent propounded the above Will for Probate in the Prerogative Court of Canterbury. A caveat having been entered by the Appellant, allegations and exhibits were brought in by both parties, and witnesses examined in support thereof. [482] The facts and circumstances pleaded, and material to the issue, are stated very fully in the judgment. After various interlocutory proceedings, the Judge of the Prerogative Court, Sir Herbert Jenner, on the 5th of September 1837 (reported 1 Curteis, Ecc. Rep. 614), pronounced for the force and validity of the Will. The Appellant appealed from this sentence to the Queen in Council. Mr. Cresswell, Q.C., and Dr. Addams, for the Appellant. The Queen's Advocate (Sir John Dodson), and Mr. Thesiger, Q.C., for the Respondent. The following authorities were referred to: Hunter v. Atkins (3 Myl. and K. 113); Pratt v. Barker (4 Russ. 507); Ingram v. Wyatt (1 Hagg. Ecc. Rep. 384, 391); Gibson v. Jeyes (6 Ves. 266). Mr. Baron Parke (Dec. 24).-The rules of law according to which cases of this nature are to be decided, do not admit of any dispute, so far as they are necessary to the determination of the present Appeal: and they have been...

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168 cases
  • Perrins v Holland and Others
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 8 Diciembre 2010
    ...that very strong and clear evidence of the factum and of free and active testamentary intention might establish the executor's case.” 28 Barry v Butlin (1838) II Moore 480 is a decision of the Privy Council on appeal from the Prerogative Court of Canterbury. As such it is binding on courts ......
  • Melbourne Smith and Lillian Brown v Elridge Brown
    • Caribbean Community
    • Eastern Caribbean Supreme Court
    • 30 Septiembre 2008
    ...Counsel Ms. Bradshaw also said that the burden of proof of the testatrix's knowledge and approval lies on the party setting up the will:Barry v Butlin (1838) 2 Moo PCC 480 at 482; Cleare & Foster v Cleare (1869) LR 1 P&D 655. The burden is discharged prima facie by proof of capacity......
  • Re R, Decd
    • United Kingdom
    • Probate, Divorce and Admiralty Division
    • Invalid date
  • Wintle v Nye
    • United Kingdom
    • House of Lords
    • 18 Diciembre 1958
    ...Appeal were unanimously of opinion, correctly stated by the learned Judge by reference in particular to the judgment of Baron Parke in Barry v. Butlin, 2 Moore's Privy Council Cases, at p. 482. It is not the law that in no circumstances can a solicitor or other person who has prepared a wil......
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