Cooke v Turner
| Jurisdiction | England & Wales |
| Judgment Date | 26 June 1846 |
| Date | 26 June 1846 |
| Court | Exchequer |
English Reports Citation: 153 E.R. 1044
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 17 L. J. Ex. 106: in Equity, 15 Sim. 611; 16 L. J. Ch. 487; 11 Jur. 702. Approved, Evanturel v. Evanturel, 1874, L. R. 6 P. C. 1.
1CJ44 COOKB V. TUBNEIt 13M.&W.727. [727] cooke v. turner. June 26, 1846.-A condition, in a will of real estate, that if the devisee shall dispute the will, or the testator's competency to make it, or shall refuse, when required by the executors, to confirm it, the disposition in favour of such devisee shall be revoked, is valid in law. [S. C. 17 L. J. Ex. TOfi: in Equity, 15 Sim. 611 ; 16 L. ,T. Ch. 487 ; 11 Jur. 702. Approved, Evanturel v. Emntv.nl, 1874, L. K. 6 P. C. L] This was a case sent by the Vice-Chancellor of England for the opinion of this Court. The ease stated, in substance, that Sir Gregory Page Turner was duly found a lunatic in the year 1S23, under a commission of lunacy. The inquisition and the finding thereon were traversed, but the lunacy was established by the verdict of a jury in 1826, and that the commission was never superseded. In the year 1841, Sir G. O. P. Turner made a will, duly executed so as to pass real estate, whereby be gave certain coosideruble interests in hia real estate to his daughter, Mrs. Fryer, and, subject thereto, gave his property to her children, and in default of issue to his collateral relations; and in the will was contained the following clause :-"And my will further is, that if my said daughter, or her husband, or any person or persons in her, his, their, or any or either of their behalf, shall dispute this my will, or my competency to make the same, or if my said daughter and her husband, or either of them, shall refuse to confirm this my will, as far as he or she lawfully can, when required by my executors or either of them so to do, or if they or either of them, or any person or persons in the name or on behalf of them or either of them, shall lodge any caveat against proving the same, and if my said daughter and husband, or either of them, shall refuse or neglect to withdraw or cause to be withdrawn such caveat, fourteen days after request made by my executors or either of them to that effect; or if any proceedings whatsoever shall at any time be had or taken by any person or persons whomsoever, by any possible result of which any estate or interest could be in any way attainable by my said daughter, or her husband, or any person or persons in her right, of larger1 extent or value than is intended for her by this my will, and such proceeding shall not be formally disavowed, stayed, or resisted by [728] my said daughter and her husband, to the full extent of their, her, or his ability to do so, then [ revoke the use and disposition hereinbefore contained, for the raising and payment, during the life of my said daughter, in manner hereinbefore mentioned, of the aforesaid yearly sum of £2000, and also the use and disposition hereinbefore contained in her favour, in the event hereinbefore mentioned, of the rents and issues iinrl profits of my estate hereinbefore devised, atid also the liberty of residing in my said mansion-house, and all other benefits hereby given to or in trust for my suid daughter, or derivable by her under this my will, and in lieu thereof I devise to the use of my said trustees, by and out of the net rents, issues, and profits of my said real estate, thenceforth, the yearly sum of £300 only, during the natural life of my said daughter, by equal half-yearly payments, the said yearly sum to be paid into the proper hands of my said daughter, and not into the hands of any other person or persons whomsoever." Sir G. O. P. Turner died in 1843, without having revoked or altered his will, leaving Mrs. Fryer his only child and heiress at law; and she had no issue. Since tha death of Sir G-. O. P. Turner, Mrs. Fryer and her husband have disputed her father's will, and his competency to dispose of his property, and have refused to do anj act to coijfirm the will. jThe question submitted for the opinion of the Court was, whether or not Mrs. Fryer half thereby forfeited the devises in her favour contained in the will. ò The case was argued at the sittings after last Hilary Term (Feb. 13), by ! Peacock for the plaintiff. The condition annexed to this devise, that the devisee shj^ll do nothirig to contest the will, or the testator's competency to make it, is perfectly valid. There is no authority whatever- to shew that it is not. In Cleaver v. tipurliny (2 P. Wins...
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