Cooper against Bockett
| Jurisdiction | UK Non-devolved |
| Judgment Date | 02 February 1846 |
| Date | 02 February 1846 |
| Court | Privy Council |
English Reports Citation: 13 E.R. 365
ON APPEAL FROM THE PREROGATIVE COURT OF CANTERBURY.
Mews' Dig. tit. Colony, I. General Principles, 4. Judges and Courts; tit. Contract, C. 5. Illegal Contracts, c. Contrary to Statute ii.; tit. Public Officer, A. Judicial Capacity, 1. Judges, c. Salary. S.C. 10 Jur. 145; 3 Moo. Ind. App. 435. On point (i.) as to alienation of official salaries, cf. the provisions of s. 53 of the Bankruptcy Act, 1883 (46 and 47 Vict. c. 52); Ex parte Huggins, 1882, 21 Ch.D. 91; and Ex parte Saunders (1895), 2 Q.B. 424; and see also Liverpool Corporation v. Wright, 1859, Johns. 359, and notes to Ryall v. Rowles, 1747-50 (1 Ves. Sen. 348), in 1 Wh. and T. L. C., 7th ed., at p. 141; (ii.) as to allowance of costs out of fund, see Luximon Row v. Bajee Row, 1831, 2 Knapp, at p. 65; and cf. Croker v. Hertford (Marquis of), 1844, 4 Moo. P.C. at p. 368; Bremer v. Freeman, 1857, 10 Moo. P.C. at p. 374; Dimes v. Dimes, 1856, 10 Moo. P.C. at p. 440; Scouler v. Plowright, 1856, 10 Moo. P.C. at p. 458; and Boughton v. Knight, 1873, 3 P. and D. 77-80. For general powers of Judicial Committee as to costs, see O. in C. of 13th June, 1853, s. 1 (Stat. R. and O. Rev. iv. 306.
COOPER V. BOCKETT [1844-46] IV MOORE, 419 [419] ON APPEAL FROM THE PREROGATIVE COURT OF CANTERBURY. HENRY SPENCER COOPER,-Appellant; DANIEL SMITH BOCKETT, THOMAS COOPER, and the Rev. JERMYN PRATT-Respondents [June 17, Dec. 17 and 18, 1844*; Jan. 17, 1845; and February 7, 1846 f]- The factum of a Will, held under the circumstances of the case, to be sufficiently proved, though one of the subscribing witnesses deposed that he did not see all that the testator wrote, only the large initial of his Christian name; and the other witness stated that she did not see what he wrote, but that he acknowledged the paper to be his Will, in their joint presence [4 Moo. P.C. 442]. Evidence of illiterate witnesses as to acts not affecting their interests, when opposed to the probable acts of an educated man, no fraud being in question, is to be received with great caution [4 Moo. P.C. 438, 439]. The Will contained alterations and erasures affecting the amount and objects of the testator's bounty, the existence of which, at the time of the execution, the attesting witnesses could not depose to: Held by the Judicial Committee, in the absence of all direct evidence as to the alterations and erasures, that the presumption of law was, that such alterations and erasures were made after the execution of the Will, and Probate of the Will granted in its original form [4 Moo'. P.C. 452, 453]. This was an Appeal from the Prerogative Court of Canterbury, in a cause of granting Letters of Administration of the goods, etc., of Robert Henry Spencer Cooper, a retired Captain of the Royal Engineers, who died on the 17th of April 1843. After his death a Will was found in his writing-desk, enclosed in a sealed envelope, endorsed, or superscribed, " The Will of Robert Henry Spencer Cooper, 9, Pall Mall East, 7th January 1843." It occupied one page of a sheet of letter paper, and was wholly in the handwriting of the deceased, was subscribed by him, and bore date [420] the 7th January 1843, and purported to have been executed in the presence of two subscribing witnesses: it had several obliterations and alterations, and was as follows: - " This is the last Will and Testament of me, Robert Henry Spencer Cooper, a retired Captain of Royal Engineers. I will all my property, after my decease, and funeral expenses paid, to be converted into those funds of the Bank of England yielding now £3 per cent, per annum; and the annual proceeds, after deducting the following life annuities, to go to my brother, Henry Spencer Cooper, barrister- \ die without issue at-law, and, at his death, to the lawful issue he may leave. If he leave none, I will such family Captain Symonds, of Lymington, Hampshire, to go to the persons of the Pratt family, of Norfolk, not to that one married to Lord Rendlesham, nearest related to my mother's family, whose father resided formerly at Bury St. Edmund's, Suffolk. Out of the said annual proceeds I will an annuity of one hundred pounds sterling, clear of duty, to my aunt, Mrs. Charlotte Moyle, of Croomshill, Greenwich, during the term of her natural life. Also, I will an annuity of one hundred pounds sterling yearly to the sister of my late father, Mrs. Caroline Randall, duty free, during the term of her natural life. Also, I will an annuity of seventy pounds sterling, duty free, to Mary Jenkins, niece to the above Mrs. Moyle, during the term of her natural life, duty free. Also, I will twenty pounds sterling, duty free, yearly, to [421] Thomas Cooper, son of , uncle Thomas Cooper, during the term of his natural life, and while he is in distress and unem- * Present: Lord Langdale, Mr. Baron Parke, the Vice-Chancellor Knight Bruce, and the Right Hon. Dr. Lushington. f The Lord President (Lord Wharnclifie), Lord Brougham, the Vice-Chancellor Knight Bruce, and the Right Hon. Dr. Lushington. J The words in italics were written upon those underneath, but not so as to render the latter illegible. 365 IV MOORE, 422 COOPER V. BOCKETT [1844-46] ployed.* And, in the event of Mrs. S. Skyring, of Somerset House, dying, and leaving her father and mother in distress, I will yearly to the said parents of Sky-ring, J. and S. Stonoham, thirty pounds yearly for their natural life, and to the survivor, free of duty. I name-executors to this my Will, Daniel Smith Bockett, whom I of the Law Life Assurance Society, 60, Lincoln's Inn, and to I will one hundred to pounds sterling, and my brother, Henry Spencer Cooper above named. (L.s.)ade at 9, Pall Mall East, this seventh Jan. 1843." " Codicil: To my man, Wm. Cobbett, I will fifty pounds, clear of tax. Witnesses to ) geokge ckittenden. R. H. S cooper. the said will. - maky crittenden. f 9, Pall Mall East. . Signature. ! Servants at house." A caveat having been entered by the Appellant, the natural and lawful brother and only next of kin of the deceased, the Will was propounded in solemn form of law. The ground on which the Appellant opposed Probate, was, that the testator had not signed the Will until after the witnesses, and, consequently, had not complied with the requirements of the Statute, 1 Viet., c. 26, s. 9. An allegation having been asserted and [422] brought in on behalf of the Respondents, the two subscribing witnesses, George Crittenden and Mary Crittenden, his wife, were examined in chief; and on interrogatories. To the first article of the allegation, George Crittenden deposed: " I am porter at the house, No. 9, Pall Mall East. I have been there about ten or eleven months. It is a house let out in private chambers; my wife is porteress there. Captain Robert Spencer Cooper was living in the house when I went there, and he continued there until his death. I and my wife attended him, but he had a servant of his own. At first, a female servant, but latterly, and at the time of his death, a man servant. I recollect witnessing his Will perfectly, but the day or the month I could not say; as near as I can tell, it was about three months before he died. I had been out for him with a letter to Mr. Cooper, his brother, in the Temple, and on my return, about one o'clock, I went to his room to tell him that I had not found Mr. Cooper at home, and that I had put the letter into the letter-box. I found him writing at a table, and when I had delivered my message, he desired me to sit down, and when I had been sitting so about five or ten minutes (and he was writing during that time), he said to me, that he wished me to put my name to something; his words were, ' I want you to sign your name to this paper' (that was the paper before him); 'will you?' I said, 'I don't know what I am going to sign, Sir.' He said, ' Oh, you need not be afraid, for this is my Will.' I then rose up for to sign, and he then said, ' You had better fetch your wife up stairs first,' and I said, ' Shall I do so, Sir?' and he said, ' Yes.' From that I went, and fetched her up, and when we went into his room, we found him standing at the table which he had been writing at, with a pencil in [423] his hand, and as he was standing he wrote my name and my wife's name in pencil. My wife asked him if he knew how to spell her name, and he said ' Yes,' and repeated it, ' Crittenden,' and my wife said, that was right. Then he sat himself down, and called us to the table, and he put the Will towards me, and said, ' You sign your name there,' pointing to my name, which he had written in pencil, and I took the pen, and wrote my name over the pencil-mark. Then he said to my wife, ' Now, you sign your name on this pencil-mark,' pointing to the one under mine; ' you'll write your name better than he has done his;' then my wife signed her name. Then Captain Cooper took the pen from my wife, and wrote, and when he had done so, he said, looking up at me, ' This is my name, in your presence,' and I understood then that he was writing his own name. I did not see all he wrote, but I saw him make the large ' R ' of * The sentence printed in italics was erased by zig-zag scratches of the pen, but was not illegible. f On ihe left of the witnesses' names was a bracket, from which a circumflex line was drawn, intended, apparently, to enclose a space for their signatures, but the space not being sufficient, the line was passed by the last letter of the first witness's name. 366 COOPER V. BOCKJ3TT [1844-46] IV MOORE, 424 his name, and there was a black seal at the left-hand corner quite, but there was nothing said about that, and after he had wrote his name, he said, ' Now you have done some good for yourselves,' and nothing more passed. He said, ' Mrs. Critten-den, I don't want you any more; you can go;' and my wife went down stairs. I stopped a few minutes...
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