Burgoyne v Showler
| Jurisdiction | England & Wales |
| Judgment Date | 28 June 1844 |
| Date | 28 June 1844 |
| Court | Ecclesiastical Court |
English Reports Citation: 163 E.R. 945
IN THE ECCLESIASTICAL COURTS AT DOCTORS' COMMONS
S C. 3 Notes of Cases, 201, 8 Jur. 814. Referred to, Reeies v. Lindsay, 1869, Ir. R 3 Eq 509; Clarke v. Clarke, 1879, 5 L R Ir. 49. Applied, Leech v. Bates, 6 Notes of Cases, 708. Referred to, Wright v Sanderson, 1884, 9 P D 153, Harries v Knight, 1890, 15 P. D. 1890, 15 P. d. 180. In the Estate of Phiibbs, [1817] p 94
burgoyne t. showler Prerogative Court, June 28th, 1844-Presumptions law as to compliance with the requisites of the 9th section of the 1 Viet c. 26.- If upon the face of a will, to which there is no memorandum of attestation, there be the signature of the testator at the foot or end thereof, and the subscriptions of two witnesses, in the absence or death of the witnesses the pnma facie presumption is, that the testator signed in the joint presence of the two witnesses, and that they subscribed in his presence.-If (in the same case) the subscribing witnesses do not remember the facts attendant upon the execution of the will, the presumption is the same -If the subscribing witnesses negative compliance with the requisites of the 9th section, the will cannot be pronounced for, unless their evidence be rebutted, by shewing-1st That the witnesses cannot be credited, or-2nd That upon the statement of the facts their memories are 946 BURGOYNE r RHOWLER 1 ROB ECC 6 defective.-Alterations on the face of a will, unaccounted for by evidence, are prioia. facie presumed to have been made after execution. [S C. 3 Notes of Cases, 201 , S Jur. 814. Referred to, Reei& v. Lindsay, 1869, Ir. R 3 Eq 509 ; Claike v. Claike, 1879, 5 L R Ir. 49. Applied, Leech v. Mates, 6 Notes of Cases, 708. Referred to, WnghA v Sanlemmi, 1884, 9 P I) 153. Hani* v KnigU, 1890, 15 P. D 180 , In the Estate of PhMs, [1917] P 94 ] James Chaleraft, a law stationer, died on the 17th of January, 1844 He left a will, dated the 25th of September, 1839, which was found, enclosed in an envelope, in a bureau in which the deceased kept papers of importance. The will was written on the two first sides of a sheet of foolscap papei , it was signed at the foot or end by the deceased, and there was the following attestation clause - [6] " Signed, sealed, published, and declared by the said James Chalcraft for bis last will and testament, in the presence of us who have hereunto set our names as witnesses " Then followed the signatures of the two witnesses, "Benjamin Howton," "William Sibley." Upon the face of the will were several alterations and obliterations, some legacies being struck out, others altered by substituting different sums from those originally written Upon inquiry of the subscribing witnesses they were unable to state whether the alterations in question were upon the face of the will at the time of execution, and they were also very doubtful whether the deceased signed his name in their joint presence Mr. Burgoyne, the executor named in the will, piopouudecl it, without the alterations, against the next of kin of the deceased, and he also cited certain legatees whose legacies were increased by the alterations, and who were consequently interested in procuring probate of the will as altered, to see...
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Wang Din Shin v Nina Kung
...on probate and leading authorities, including Harris v Knight, (1890) 15 P.D. 170, and Burgoyne v Showler, 1 Bobertson Ecclesiastical 5, 163 ER 945. 391. It must be borne in mind, however, that leading textbooks and authorities on the subject refer to the equivalent of s.5 (1) of the Wills ......
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Nina Kung v Wang Din Shin
...testify that they cannot remember whether the testator did in fact sign in their joint presence. (Burgoyne v Showler (1844) 1 Rob Ecc 4; 163 ER 945; Wright v Sanderson (1884) 9 PD 149; Harris v Knight (1890) 15 PD 170; In the Estate of CR Phibbs [1917] P 199. The presumption is rebuttable a......
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