Boyse v Rossborough
| Jurisdiction | England & Wales |
| Judgment Date | 23 February 1857 |
| Date | 23 February 1857 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 1192
House of Lords
S.C. sub nom. Boyse v. Rossborough, Kay, 71; 3 De G. M. and G. 817. See next case.
Will - Legal Devisee - Pleading.
REPORTS OF CASES heard in the House of Lords, and decided during the Sessions 1857-59. By charles clark, Barrister-at-Law. Vol. VI. J. T. KOSSBOKOUGH COLCLOUGH and Wife,-Appellants; JANE S. BOYSE - Respondent [February 23, 1857]. [S.C. sub nom. Boyse v. Rossborough, Kay, 71; 3 De G. M. and G. 817. See next case.] Will-Legal Devisee-Pleading. A bill to establish a will against an heir-at-law may be maintained at the suit of a mere legal devisee not charged with any trust or duty under the will The Attorney-General (Sir R. Bethell), when this appeal was called on, siaid: I appear for the Appellants, and the question involved in the case is, whether the Court of Chancery has jurisdiction to entertain a bill at the suit of a simple legal devisee of real estate, to establish a will in which there are no trusts declared by the will, and where no equitable relief is prayed nor administration of the estate sought under the direction of a court of equity. The Vice-Chancellor Wood decided, on demurrer to the bill (1 Kay, 71), that such jurisdiction did exist; and, on appeal, his decision was affirmed by the unanimous opinion of the Court of Appeal, consisting of the Lord Chancellor and the two Lords Justices (3 De Gex, Macn. and Gor. 817). I have anxiously considered this question (which, to a great degree, was involved in the argument upon the appeal against the decree of the Court of Chancery in [2] Ireland (see the next Case), and I feel myself constrained to say that I am unable to support an appeal against the decision of the Court below. I believe that the Court of Chancery has jurisdiction to entertain, at the suit of a simple legal devisee, a bill to establish a will, and also, e converse, a bill by an heir-at-law to have an issue directed for the purpose of ascertaining whether or not it is the will of the testator. Under these circumstances I must submit to have the judgment of the Court below affirmed. Judgment of the Court below affirmed with costs. Lords' Journals, 23 February 1857. -7 JANE STRATFORD BOYSE,-Appellant; JOHN T. ROSSBOROUGH and MARY GREY WENTWORTH ROSSBOROUGH, his Wife,-Respondents [June 16, 17, 19; July 3, 4, 7, 10, 11, 14, 15, 1856; March 13, 1857]. [Mews' Dig. xv. 233, 630, 631, 632, 634, 635, 636, 646, 648. S.C. 26 L.J. Ch. 256 ; 3 Jur. N.S. 373; 5 W.R. 414; and, in Courts below, Kay, 71; 2 Eq. R. 675; 3 De G. M. and G. 817; 23 L.J. Ch. 305; 18 Jur. 205; 2 W.R. 91. On point as to (i.) undue influence, discussed and adopted in Parfitt v. Lawless, 1872, L.R. 2 P. and D. 469; (ii.) criteria of testamentary capacity (6 H.L.C. 45), cited in Boughton v. Knight, 1873, L.R. 3 P. and D. 67; and cf. Banks v. Goodfellow, 1192 BOYSE V. ROSSBOROUGH [1856-57] VI H.L.C., 3 1870, L.R. 5 Q.B. 549; (iii.) issues to try validity of wills, followed in Lovett v. Lovetf, 1856, 3 Kay and J. 1; and cf. Tredegar v. Windus, 1875, L.R. 19 Eq. 614.] Will-Capacity of Testator-Heir at Law-Bight to Issue Ejectment-Verdict- New Trial-Alteration of Order-Influence-Equity Jurisdiction-Order against Wife to Pay Debt of Husband.' In a bill filed by an heir-at-law to impeach a will of real estate as having been obtained by undue influence or fraud, the Court of Chancery has a discretion to direct an issue devisavit vel non, or merely to remove obstacles out of the way of the heir asserting his legal title. This House will not interfere with the exercise of that discretion, unless it appears that injustice has been or is likely to be its consequence. Undue influence may exist in the form, of bad companionship and bad example, and yet not be sufficient to invalidate a will made under its operation. To be within the meaning of the rule of law, so as to produce that effect, it must be an influence exercised by coercion or by fraud. But actual violence is not necessary to constitute coercion. Imaginary terrors may be sufficient for that purpose. In order to set aside the will of a person of sound mind, it must be shown that the circumstances under which it was executed are inconsistent with any hypothesis but that of undue influence, which cannot be presumed, but must be shown to have been [3] exercised, and exercised in relation to the will itself, and not merely to other transactions. Whether in a trial at law ordered by the Court of Equity, there has or has not been misdirection, equity is not bound by one verdict; but for its better satisfaction may direct, a new trial. What is a proper direction considered. Qu. Whether a consent to a particular form of order can be given by a married woman ? Though during her husband's life and after his death she acted under that order, she was allowed to make it one of the grounds of appeal to this House. A suit was instituted against a married woman and her husband in respect of property devised to her. After a decree, which among other things directed an account, the Master reported a sum as due from both. An order was made on the widow to pay this sum into Court within a limited time. This sum wast composed of rents received from the property in dispute before and during the marriage and after the death of the husband. Qu. Whether such an order could be, under such circumstances, valid? This was an appeal against orders and a decree made in the Court of Chancery in Ireland, in a suit instituted to determine whether a certain paper writing, dated 6th August 1842, wasi the will of one Caesar Colclough. The Appellant had been the wife of the testator, but had married again. The female Respondent was his heiress-at-law. Mr. Colclough was born in the year 1766, and spent much of the early part of his life in France. In 1802 he came to England, but went back again to France, and on the sudden recommencement of the war was, with all the other British subjects then resident there, detained as a prisoner in France. In 1814 he returned to England. He was possessed of considerable estates in Wexf ord in Ireland, and visited that country, where, in November 1818 he married Jane Stratford Kirwan, daughter of John Kirwan, Esq., one of His Majesty's Counsel. The settlement made on this marriage secured to the lady an income of 500 a year. After this period it appeared that he was accustomed to spend much of his time on the Continent, [4] but in 1840 he purchased a mansion at Cheltenham, called Boteler House, and there he principally resided till his death. In the summer of 1842 he was attacked with influenza, and died on the 23d of August in that year. The testator, in the month of July 1824, made a will, giving all his real and personal property to trustees, on trust to pay debts and funeral expenses, and an annuity of 1500 to his wife (provided she did not marry again), and a like annuity to his mother, " (provided she never receives into her house H.L. x. 1193 38a VI H.L.C., 6 BOYSE V, BOSSBOROUGH [1856-57] M. A. R., her niece, who endeavoured, by most wicked means, to make mischief in my family)." He gave the sum of Is. to the Rev. David Colclough, and to Csesar Colclough, the son of that person, 100 per annum, and to his brother Agmond 50 per annum, and the rest of his property he left to accumulate " until one of the male descendants of Caesar or Agmond, or other child of one of my heirs, shall be brought up from the age of four years old to that of twenty-one, in England or Edinburgh, he then to inherit the whole." No other will was made by the testator till, in the course of his last illness, on the 5th of August 1842, he made one, the instructions to prepare which, it was sworn, were given only two days before. In that will he gave Boteler House to his wife and her heirs for ever; he appointed trustees, and directed them to secure an annuity of 4500 to his wife for life, in addition to her annuity under the marriage settlement. This sum was to be raised from the personal, or, in case of that being deficient, from the real estate, and if, after payment of the purchase-money of that annuity any surplus should remain in the hands of the trustees, they were " to pay the same to the person or persons entitled to the residue of my real estate." In the course of the proceedings which afterwards took place, it was stated that this will was executed twice, first on the 4th and again on the 5th of August, in consequence [5] of the devise of Boteler House having been, by mistake, omitted from the first copy. The attesting witnesses on both occasions were James Fbrtnam, a surgeon at Cheltenham (the medical attendant to Mr. Colclough), and G. E. Williams, a solicitor there, by whom the will had been prepared. On the next day, however, namely, the 6th of August 1842, Mr. Colclough, who, it was alleged, had that day told the solicitor that his wife " had always behaved well to him, and he would do what was right," executed the following will, the validity of which was now in contest:- " The last will and testament of me, Caesar Colcough, of Tintern Abbey, in the county of Wexf ord, and of Boteler House, Cheltenham, Esquire. I give and devise all and singular my real and personal estate to my dear wife, Jane Stratford Colclough, her heirs, executors, administrators, and assigns, to and for her and their own absolute use and benefit. But as to any estate vested in me, upon trust or by way of mortgage, subject to the equities affecting the same respectively. " I appoint the said Jane Stratford Colclough executrix of this my will, hereby revoking every other will, by me at any time heretofore made. " In witness whereof I have to this my will set my hand, the sixth day of August, in the year of our Lord, 1842. caesar colclough. " Signed by the said testator, as his last "jambs fortnam, Surgeon, Cheltenham. " G. E. williams, Solicitor, Cheltenham." will and testament...
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Table of Cases
...ER (D) 201 (May) 134, 146–147, 148, 149, 151 179, [1994] 2 FCR 822, ECHR 147 Boyse v Rossborough (1857) 6 HLC 2, 3 Jur NS 373, 5 WR 414, 10 ER 1192, [1843–60] All ER Rep 610, 29 LTOS 27, HL 85 Bradshaw v Hardcastle [2002] All ER (D) 219 (Nov), ChD 80 Brassington, in the Goods of [1902] P 1,......