Colvin v Fraser and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1829 |
| Date | 01 January 1829 |
| Court | Prerogative Court |
English Reports Citation: 162 E.R. 523
PREROGATIVE COURT
{107] colvin v. eraser. Prerogative Court, Michaelmas Term, 4th Session, 1827. -A next of kin, contesting a will propounded by an executor, may take out a decree citing all persons interested under the will "to see proceedings." On motion. John Farquhar, late of Fonthill Abbey, died on the 6th of July, 1826 ; and, on the loth of December following, letters of administration were gran ted to John Farquhar Fraser, his nephew, and one of the next of km, on the suggestion that the deceased had died intestate. That administration had since been called in upon a decree to shew cause " why a probate of the will and codicil of the deceased, or of an authenticated copy thereof, under seal of the Supreme Court of Judicature at Fort William in Bengal, should not be granted to David Colvin, one of the executors therein named." The will and codicil were respectively dated on the 7th of March, 1814. Phillimore and Lushington for the next of kin, now moved the Court to direct decrees (by letters of request, if necessary) to see proceedings, to be issued against the several surviving executors and all parties interested under the said will and codicil. Dodson for the executor, submitted that the course proposed to be pursued was navel, and would be attended with great expence and delay from the very numerous legatees whom it would be necessary to serve in Scotland, and that it would lead to no beneficial result, inasmuch as all the parties under the will would be bound by the acts of the surviving executor. 524 BURROWS V. BURROWS 1 HAGG ECC 103. [108] Judgment-Sir John Nicholl. This is an application at the instance of a next of kin-himself called upon to see a will and codicil propounded-for a decree against all persons interested under the papers, either as legatees 01 otheiwise, to "see proceedings," aa it is technically expressed. Ceitairily, in the usual course of practice, such decrees iasue only against the next of kin of a, testator, and at the promotion of the executor, or of the person propounding a will. But in the case of Colder v. Caldei, which occurred here in 1792, the party obtained a decree against all persons in general to appear and propound a will-that case arose upon a change of circumstances in the testator, occasioned by his marriage and the birth of a child The application, then, ig not unprecedented, and the present case is under very special circumstances A will which was executed in the East Indies, so far back as the year 1814, is now attempted to be set up, and the ground of opposition is, as I understand, that it has been revoked And although it is true that the act of the executor-being the appointee of the deceased-would, to a certain extent, bind all persons interested under the will; yet some party might, peihaps, at a future time allege collusion It ia, therefore, highly expedient, in a case of this nature, to pursue the course which is proposed; particularly as the grant of the decree cannot occasion any prejudice to the adverse party; for the inconvenience, if any, will fall upon the next of km who make the application. The Court directs the decree to issue; and re-[109]-commends that, as some of tke legatees may happen to be dead, care should be taken to cite their representatives ò the decree should be framed in the largest terms-against all persons in general Motion granted.
English Reports Citation: 162 E.R. 856
PREROGATIVE COURT
[266] colvin v. fbaser and others. Prerogative Court, Hilary Terra, By-Day, 1829.-A will being executed in duplicate, one part of which was proved to have been in, and was never traced out of, the deceased's possession and was not found at his death, the prima facie presumptions are ò first, that the testator destroyed the part in his own possession ; and, second (if the first be not repelled), that he intended thereby to revoke the duplicate not in his possession The deceased pronounced dead intestate.-The prima facie presumption that the deceased revoked a will, which was in his own possession, but is either not found at all at his death, or is found cancelled; and the prima facie legal consequence that a duplicate, not in his possession, is revoked thereby, may be rebutted by a strong combination of circumstances leading to a moral conviction, or by direct positive evidence.-In order to rebut a presumption of law (e g as to the destruction of a will by a testator), declarations unsupported by circumstances strongly marking their sincerity, and confirming their probability (especially where their stringency depends on the exact words of a casual expression), cannot safely be relied on - Declarations, coupled and consistent with conduct and acts are of weight in proof of intention, so are those not depending on the precise words of a particular expression, but on the tenor of an extended conversation, especially if not liable to the suspicion of insincerity ; still more if repeatedly made in confidential communications. [See further, nomine Schoolmasters of Scotland v. Ftawi, p. 613, post] John Farquhar, formerly of Calcutta, but late of London, the deceased in this cause, was found dead in his bed at his house in the New Koad, on the morning of the 6th of July, 1826, being then seventy-six years of age, he left behind him Elizabeth Willoughby (wife of Peter Trezevant) the daughter of a deceased brother; John Farquhar Fraser, and Dame Charlotte (wife of Sir William Templar De La Pole), children of a deceased sister ; and James and G-eorge Mortimer, Charlotte (wife of William Aitken), and Mary (wife of James Lumsden), children of another deceased sister; the only persons in distribution in case he had died intestate. On the loth of September, 1826, administration of the goods of the deceased, as dying intestate, was granted to John Farquhar Fraser. A copy of a will and codicil (executed, in duplicate or triplicate, by the deceased in India) having been received by David Colvin, the party in this cause, authenticated under seal of the Supreme Court of Judicature at Fort William, in Bengal, a decree issued at his instance, (a) On the 8th of June a decree had not been made , the case being under agreement. 2 HAGG EGG. 267. COLVIN V. FEASER 857 calling upon Mr. Fraser to bring in the administration, duel shew cause why the same should not be r&-[SS 7J-votedT and probate of the will and codicil be granted to Mr. CoLvin.(a) (a) A comparative statement of the will and codicil of the 7th of March, 1814; of paper A -f and seript No. 1: Will and Codicil-Dated 7th March 1814: Paper A and Script No. 1- "I, John Farqubar, agent for the manufacture of gunpowder at Ishapore in Bei^jal, being about to embark for Europe, and being in sound and disposing mind, do hereby bequeath my real and personal property as follows. To my nephew John Fraser, and niece Lady Pole, each 5001. sterling money of Great Britain : to nay friend George Wilson, at presents one of my agents, 10001. of the same denomination: to Sir John Royds, one of the puisne Judges in the Supreme Court of Judicature in Bengal 5001. of the same denomination: to George Davidson, Esq. Mint Master of Bengal, 10001. of the same denomination: to Alexander, David, and James Colvin (brothers), and Alexander Colvin, their nephew, 3001. each, to commence from the time of the respective arrival of the parties in any part of Great Britain : to my old friend Dr. George French, professor, or some time since professor of chemistry in the Marisehal College of Aberdeen, 3001. of the above denomination : to Colonel or Lieut. Colonel Calcraft 3001. i all the above sums to be paid to the respective persona named during the natural term of their lives annually. I likewise bequeath for the purpose of promoting learning, as far as they differ from the will and codicil of the 7th of March, 1814. The passages in Italics are the clauses which are not contained in script, No. 1: in other respects, except as is hereafter noticed, and with some slight verbal variations, the three instruments coincide. For an account of paper A, and script No. 1, see the 14th article of Mr. Colvin's allegation, infra, p. 273 .-the 9th, 10th llth; and 12th articles of Mr. Fraser's allegation, p. 280,-and the 6th and 9th articles of Mr. Colviu's second allegation, pp. 287, 8. Paper A is also noticed in the judgment* See infra, p. 315, et seq. " This is the last will and testament of me John Farquhar of Gloucester Place, Portman Square, in the county of Middlesex, Esquire. "I give devise and bequeath all my estate of what nature or kind soever not herein otherwise disposed of unto my executors hereinafter named their heirs executors and administrators for the purpose of promoting learning in manner following . viz. To apply " such snm as may be sufficient for salaries of the following professors who are to teach during the whole of the summer, as I know from my own experience that nothing is no contrary to the acquisition of knowledge as the long vacations in the Scottish universities: viz. I bequeath for the salary of the professor of Greek 2001. sterling; for th$ salary of the professor of the second class, called the semi-class, the same sum: for that of the professors of the third and fourth classes the same sum to each : the above Bums to be paid annually in lawful money of Great Britain to the new professors of all the universities or colleges of Scotland beginning with Aberdeen, next St. Andrews, next Glasgow, and lastly Edinburgh : likewise 2001. sterling for the salary of a professor of Mathematics, payable in the same manner, at each of the above seminaries: and my will is, that if the present professors will agree to teach during the wide year without any other vacations than those established by law, and fourteen days aboot Midsummer, in that case that they shall in the first instance be offered the option and reeeive annually the above...
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Mrs Eveline Dawson v Ms Ann Dawson
...of proving that the will was not destroyed animo revocandi is upon the party propounding its contents (see, e.g., Colvin v Fraser (1829) 2 Hagg. Ecc. 266 at [325]). The standard of proof is the balance of probabilities (see, e.g., Royal National Institute for Deaf People v Turner at [147]) ......