Bertram Hindmarsh, - Appellant; Margaret Charlton, - Respondent
| Jurisdiction | UK Non-devolved |
| Judgment Date | 11 March 1861 |
| Court | House of Lords |
| Date | 11 March 1861 |
English Reports Citation: 11 E.R. 388
House of Lords
Will - Attestation - Costs.
Mews' Dig. xv. 348, 353, 354. S.C. 7 Jur. N.S. 611; 4 L.T. 125; 9 W.R. 521; and, below, 1 Sw. and Tr. 433. Followed in In the Goods of Swift, 1900,17 T.L.R. 16; and Wyatt v. Berry (1893), P. 5; and cf. In the Goods of Maddock, 1874, L.R. 3 P. and D. 170; and In thr Goods of Blewitt, 1880, 5 P.D. 117.
VIII H.L.C., 160 HINDMARSH V. CHARLTON [1861] [160] BERTRAM HINDMARSH,-Appellant; MARGARET CHARLTON,- Respondent [March 8, 11, 1861]. [Mews' Dig. xv. 348, 353, 354. S.C. 7 Jur. N.S. 611; 4 L.T. 125; 9 W.R. 52] ; and, below, 1 Sw. and Tr. 433. Followed in In the Goods of Swift, 1900,17 T.L.R. 16 ; and Wyatt v. Berry (1893), P. 5; and cf. In the Goods of Maddock, 1874, L.R. 3 P. and D. 170; and In thr Goods of Blewitt, 1880, 5 P.D. 117.] Will-Attestation-Costs. To make a valid subscription and attestation to a, will there must be either the name of the witness or some mark intended to' represent it. A correction of an error in a previous writing of his name, or his acknowledgment- of it, or the adding of a date to it, will not be sufficient for that purpose. The signature, or acknowledgment, of the testator must be made in the presence of two witnesses, present at the time, and they must, after he has so- signed, or so acknowledged his signature, subscribe the will in his presence. A testator produced his will to A., and signed it in A.'s presence. A., whose name consisted of four words, the first of which began with " F," then, in the testator's presence, signed his own name, but by accident left his first initial letter uncrossed, so that it stood as if it was " T." He afterwards advised the testator that there ought to be two witnesses to the will, and in the afternoon of the same day, B. being present, the testator produced his1 will, and showed and acknowledged his signature in the presence of both A. and B. B. then wrote his name, and at his desire A. added the date, and then observed and corrected the first initial of his own name by crossing the T, and so making it F: Held, affirming the judgment of the Probate Court, that the will was not duly attested within the 1 Viet. c. 26, s. 9. No misconduct was imputed: no costs were given. The Respondent had instituted a. suit in the Probate Court against the present Appellant, for the purpose of obtaining letters of administration of the personal estate of Joseph Hindmarsh, deceased, who died on the 26th December, 1857, leaving her, his sister (married to Thomas Charlton), his next of kin. She alleged that her brother died intestate. The Appellant pleaded that the brother did not die intestate, but on the 17th December, 1857, made and duly executed a will, under which the Appellant claimed as residuary legatee. The parties being thug at [161] issue, the Court of Probate made an order for trial, and the issue came on for trial at the Durham Spring Assizes in 1859, before Mr. Justice Byles; when, under the direction of the learned Judge, the jury returned a verdict for the Defendant, declaring the will to have been duly executed, but leave was reserved to- the Court of Probate to enter the verdict for the Plaintiff in the suit, that Court being at liberty to draw inferences of fact, if it should think fit to do so. A motion for that purpose was accordingly made before the Judge Ordinary. The notes of the evidence taken at the trial were furnished by Mr. Justice Byles, and were to the following effect:-Dr. Blair White, a physician at Newcastle, said, " I attended Joseph Hindmarsh. On the 17th December 1857, I went into Hindmarsh's bed-room; two papers were pro1-duced by the housekeeper in the presence of Hindmarsh. Mr. Wilson, the other medical attendant, was present. I gave the papers into Hindmarsh's hands, and asked, if that was his signature? Hindmarsh put on his spectacles, examined the paper and the signature, and said, ' Most decidedly, this is my handwriting, and this is my will.' This was in the presence of Mr. Wilson and myself. I took the will from Hindmarsh's hand and signed it in that room. I remember Mr. Wilson signing the date, because I requested him to do so." Mr. Frederick William Napoleon Wilson, surgeon, said, " On the forenoon of the 17th. December 1857 I saw Mr. Hindmarsh. I was asked by him to sign his will as a witness, and the will was brought out, both parts, He looked at it, and said, that was his will. I wrote at the bottom, ' Witness to the above will and testament and signature,' and then my name, ' Fred. Wm. Nap. Wilson,' on both papers. In the afternoon, Dr. White came. In the room Dr. White 388 HINDMARSH V. CHARLTON [1861] VIII H.L.C., 162 ex-[162]-amined the patient as to his health. The doctor and I then went...
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...Wyatt v Berry [ [1893] P 5], per Gorell Barnes J). It seems to me to follow from those decisions, and also from Hindmarsh v Charlton [ (1861) 8 HLC 160], that, on that facts of the present case, the attestation of the will of 9 February 1949, was not in the form required by the Wills Act, 1......
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