Burnham v Bennett
| Jurisdiction | England & Wales |
| Judgment Date | 03 August 1847 |
| Date | 03 August 1847 |
| Court | High Court of Chancery |
English Reports Citation: 63 E.R. 1172
HIGH COURT OF CHANCERY
S. C. 2 Coll. 254; 63 E. R. 723.
[513] buknham v. bennett. August 3, 1847. [S. C. ,2 Coll. 254; 63 E. B. 723.] By a settlement of 1813, stock was settled upon trust, in the events which happened, for such persons as a married woman should, during and notwithstanding coverture (among other modes), by her last will and testament in writing, or any writing purporting to be, or in the nature of, a will, to be by her duly signed, sealed and delivered in the presence of and to be attested by two or more credible witnesses, f ive, direct, limit and appoint. The husband of the donee died in 1819, and the onee in 1840. After the death of the donee of the power a writing was found in the form of a letter, and sealed on the outside only, purporting to bear date August 20th, 1816, and to be made in execution of the power, and concluding thus, " As witness my hand and seal," with a signature purporting to be that of the donee, and two other names in other handwriting, but with no memorandum of attestation. On a reference to the Master in 1847, as to the form and manner of the execution of this paper, no evidence could be produced but such as was afforded by the document. Held, that the document was not shewn to be a due execution of the power. This case is reported upon a former hearing in 2 Coll. 254. The question remaining to be determined was whether Mrs. Susannah Stephens had exercised a power given to her by a deed, dated the 17th of March 1813, whereby trustees were directed to hold trust funds, upon trust, to pay, assign and transfer all the trust stock, money and premises, and the respective funds and securities whereon or in which the same should be then placed or invested, unto and amongst all and every such one or more of the child or children of William Stephens by Susannah, his wife, in such parts, shares and proportions, at such times, in such manner and form, and subject to such conditions, restrictions and limitations, as the said Susannah Stephens should, at any time or times, notwithstanding her coverture, by any deed or writing, with or without power of revocation, or by her last will and testament in writing, or by any writing purporting to be, or in the nature of, a will, to be by her duly signed, sealed and delivered in the presence of and to be attested by two or more credible witnesses, give, direct, limit or appoint the same; and in default of such gift, direction, limitation or appointment, and also in case of any incomplete one, upon further trust, to pay, assign and transfer the said trust stock, monies and premises, or so much and such parts or part thereof, concerning which there should be either no. such disposition or no total or entire disposition, and the respective funds or securities whereon or in which the same should [514] be then placed or invested, unto and amongst all and every the child and children, whether sons or daughters, of the said William Stephens by the said Susannah, his wife, in manner therein mentioned. But in case there should be no such child or children of the said William Stephens by Susannah, his wife, or, being such, they should all die without attaining the age of twenty-one years and without leaving lawful issue, then upon trust to pay, assign and transfer the said stock, monies and premises, or the respective funds and securities whereon or in which the same should be placed or invested, unto or amongst such person or persons, and in such parts, shares and proportions, at such 1DEG.&SM.515. , BUENHAM V. BENNETT 1173 times, and in such manner and form, and subject to such conditions, restrictions and limitations, as the said Susannah, the wife of the said William Stephens, at any time or times, during and notwithstanding her coverture, by any deed or deeds, writing or writings, with or without power of revocation, or by her last will and testament in writing, or any writing purporting to be, or in the nature of, a will, to be by her duly executed in manner aforesaid, should give, direct, limit or appoint. The bill was filed by the surviving trustee of the deed, and the question remaining to be decided arose between two sets of Defendants, one claiming under, and the other in opposition to, the dispositions contained in a paper writing purporting to be an execution of the power, by way of a testamentary appointment, by Susannah Stephens. It was written on three sides of a sheet of letter paper, which was folded up, and sealed outside only, and indorsed "The Will of S. Stephens." It began as follows :- "On this day, August 20th, 1816. This is to certify, that I, Susannah Stephens, now wife of William Stephens, of the parish of Courtenhill, in the county of Northampton, being of sound mind, and authorised and empowered by [515] deed to give and bequeath my property as follows : I give and bequeath," &c. [Then followed various bequests, and the document concluded thus:] " This is my last will and pleasure, to the exclusion of every other. As witness my hand and seal, this date before mentioned. " susannah stephens." " Morris Ward. "J. Ward," The whole appeared to be in one handwriting, except the names " Morris Ward, J. Ward." The Defendants, who disputed the validity of the appointment, alleged by their answer that this paper was a fabrication, and was, in fact, not written before 1826; and, as evidence of this, the Defendants alleged; on information and belief, that in 1825 a case had been laid before Sir Samuel Eomilly,(l) as to whether a valid appointment could then be made by Mrs. Stephens, her husband being then dead; and that the opinion was in the negative. The answer also alleged other circumstances impeaching the genuineness of the document, but no evidence was gone into by any of the parties to the cause. By the decree it was referred to the Master to inquire whether the instrument was made during the coverture of Susannah Stephens, and at what time her signature was written, and at what time or times, and for what purpose, the names of Morris Ward and J. Ward, at the foot of the instrument, were written, and in what manner and form, and with what ceremonies (if any) the said Susannah Stephens executed the said instrument, and in whose presence, and under what circumstances, the three signatures were made. The Master, by his report of June 30, 1847, found that a will of the said Susannah Stephens had been produced to him, which was written on three sides of a sheet of letter paper, and signed by her; and that the document itself [516] and the signature thereto appeared to be in one and the same handwriting. That there was not any written form of attestation thereto, but that the names " Morris Ward " and " J. Ward " were written at the foot thereof as witnesses. And he found that the Plaintiff had contended, before him, that this instrument, which was dated the 20th day of August 1816, was not upon the face of it a good and valid execution of the power of appointment given to Susannah Stephens by the settlement; inasmuch as by the said settlement it was required that the instrument to be made in exercise of such power should be sealed by her. And he found, from the affidavit of a Defendant, named Kobert Stone, before referred to, that the said instrument, dated the 20th day of August 1816, with a codicil thereto annexed, was delivered by the said Susannah (1) The report accurately represents the statement of the answer, which was that a case had been laid before Sir Samuel Romilly in 1825; but there must have been some mistake in the pleading, for Sir Samuel Eomilly died in 1818. [Transferred from errata at the beginning of 1 De G. & Sim.-ed. E. E.] 1174 BETBNHAM V. BENNETT 1DE G. & SM. 517. Stephens to him, the said Defendant, Robert Stone, on the 23d day of February 1840, which is the day upon which the said codicil is dated; and that the said Defendant, Kobert Stone, delivered the said instrument, together with the said codicil, to Mr. George P. Hester, the solicitor of the said Susannah Stephens, by whom the said codicil was prepared; and that the said instrument and codicil remained in the possession of the said George P. Hester until the decease of the said Susannah Stephens. And that the said Defendant, Eobert Stone, and Susan, his wife, stated they had made diligent inquiries for the purpose of discovering where the said Morris Ward and J. Ward, the attesting witnesses to the said will, resided, and whether they were alive or dead; and they had been informed, and-believed, that the said Morris Ward was dead; and that all the inquiries which the Defendants had caused to be made after the person intended to be designated by the name of J. Ward had proved unsuccessful, though the Defendants had discovered two persons of the name of Ward, the initial letters of whose names are " J," but each of whom denied that he was the attesting witness to the will of the said Susannah [517] Stephens; and that, in consequence of the great lapse of time which had taken place since the execution of the said will of the said Susannah Stephens, and there being no address annexed to the names of the witnesses attesting the same, and the said Defendants being personally unacquainted with such witnesses, and the Defendants, John Ward, John Galliers, James Galliers and Sarah Galliers, refusing to give the Defendants any information on the subject, they, the said Defendants, were unable to adduce any evidence in support of the said instrument; and neither of the persons whose names were attached to the said instrument as witnesses being produced before the said Master, and the witnesses who had been examined viva voce before him denying any knowledge of the said instrument, or having seen it previously to its being exhibited to them in his presence, or when produced in...
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