Dickinson and Others v Stidolph
| Jurisdiction | England & Wales |
| Judgment Date | 02 November 1861 |
| Date | 02 November 1861 |
| Court | Court of Common Pleas |
English Reports Citation: 142 E.R. 828
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
Approved, Sugden v. St. Leonards, 1876, 1 P. D. 248.
[341] dickinson and others v, stidolph (a). Nov. 2nd, 1861. [Approved, Sugden v. St. Leonards, 1876, 1 P. D. 248.] In order that an unattested paper may be adopted as part of a duly attested will, it must be referred to by the will in such a manner as shall, with the assistance of pw-ol evidence when necessary and properly admissible, leave no doubt of its identity. --Where a codicil refers to too memorandums, and only one is found, effect must be- given to that which is found,-for, either the ordinary presumption must prevail, that the missing paper was destroyed by the testatrix ammo revocandi, or the principle must be applied that the apparent testamentary intentions of a testator are not to be disappointed, merely because he made other dispositions of his property which are unknown by reason of the testamentary paper which contained th$m not beiijg forthcoming.--Operation of a duly-attested codicil, though it relate only to perscjnal estate, as a republication of the will, so as to pass lands purchased between the idates of the will and codicil.-Effect of alterations and obliterations made by the testator. This was an action of ejectment brought by the direction of the court of Chancery to recover possession of three undivided fourth parts or shares of and in certain freehold messuages, lands, and premises situate in the city of London and county of Middlesex respectively. The defendant was the tenant in possession at the time of the commencement of the action, and defended for the whole of the lands and premises ; and, in pursuance of a judge's order that the trial of the cause should take place in Middlesex, the cause came on to be tried before Erie, C. J., at the sittings for Middlesex after Easter Term, 1860, when, by;the direction of his Lordship, a verdict was found for the claimants, ($) The plamtiffs were " James Dickinson, William Stourton and Sarah Sophia Ann| his wife, William Lambert arid Harriett his wife, William Farr Stourton an infant by the said William Stourton his guardian, and George William Dickinson." U C. 1. (. 8.) J42. DICKINSON V. STIDOLPH 829 with liberty for the defendant to move that the verdict for the claimants should be set aside and a verdict entered for the defendant. In Trinity Term, 1860, a rule was accordingly obtained by the defendant; and in the same term the claimants by their counsel appeared to shew cause, when it was ordered, by consent of the parties, that the following case should be stated for the opinion of the court:- [342] John Whitehead, before and at the time of the making of his will hereinafter mentioned, and thenceforth continuously until his death, was seised in fee-simple of the reversion of and in the said lands and premises expectant on the determination of the estates for life of Ann Whitehead, Mary Whitehead, Charlotte Whitehead, and Caroline Whitehead, respectively, and the survivors and survivor of them, such reversion being liable to be divested by the survivor of them leaving any child of her body living at her death. The said John Whitehead by his will, dated the 3rd of November, 1817, and duly executed and attested, devised the said reversion unto his wife Hester Mary Whitehead, her heirs and assigns ; and the said John Whitehead died so seised of the said reversion on or about-the 6th of March, 1819, without having revoked his said will, and leaving his said wife Hester Mary Whitehead him surviving. Nine testamentary papers, copies of which were set out in the bill in Chancery which accompanied the case, were admitted to probate in common form in Doctors' Commons on the 28th of April, 1823, as the will and codicils of the said Hester Mary Whitehead. Printed fac-simile copies of these several documents with the alterations, obliterations, interlineations, and errors of grammar and orthography were used on the argument, and were as follows,-the italics representing the parts which in the originals were obliterated, and the words within brackets denoting the interlineations,- " Alpha Cottage Eegent Park, (No. 3.) "August 27th, 1819. " I give and bequeath the freehold property I have at Tunbridge and the money no i. I may hav^ in the bank at my death to be equally to be divied between my sisters Mra. Ibbotit, Mrs. Dickeson, Mary Diokenson, James Dickenson, daughter and son of Joseph and [343] Charlotte Dickeson, and Sarah Ibbott and Joseph Ibbott, the property to be sold and to be divied between them equally share and share alike. I hear by appoint Mrs. Sarah Ibbott my sole executrix to this my last will revoking all former wills excepting two memorandums dated 10 May, 1819, which are to remain in force with this my last will. " H. M. whitehead. " Witness, James Fisher. "Caroline Fisher. "Frances Weller." ; "I make this codicil to my will the property that I had left to my brother William no. -2. ;HamKm StKdolph I revoke and desire the share of my property that was left t0 him may be equally divided between George Dickenson, James Dickenson, Mary Dickinson, and Mra Sarah Ibbott and Mrs. Dickenson my sisters and that my front drawing-room clock be sola and the money to be divided as above that they share and share a like." (No. 1.) : "Alpha Cottages Regent Park May 10 [Nover 16] 1819. As the state of my xo s. mind owing to the irretrievable loss of my ever beloved husband and since his death the cruel treatment of my brother for no cause whatever his conduct has added very much to my distracted mind therefore I leave what property I may die possess of after my just debts are paid I desire I may be buried by the side of my ever beloved husband by Mr. Fisher 61 Green Street I desire my property may be devided James Dickinson, George Mary Dickenson Joseph and Sarah [Ibbott] WiUiam and Henry Ladd Ibbott the children of my two sisters to be equally divied betiveen them share and share a like every thing to be sold and turned in to money except the [344] things here after mentioned Know one of the above to receive their part till they have reached the age of 21j-James Dickenson to continue his schooling till the age of 14,-and the money to jbe paid jointly by those that are to sh;ire my property I give my piano to Mary Dickenson and after her death to her brother James and so on to the next 830 DICKINSON V. STIDOLPH 11 C. B. (N; 3.) 345. heir I give to my dear old friend my diamond buttea-fly Mrs. Marks wife of James Marks coach maker New Road and after her death to Mrs. Ibbott my oldest sister the larye [diamond] butterfly J give Mrs. Ibbott my gold watch chain and seale I give Mrs. Varnham wife of Mr. Charles Varnham my front drawing-room clock and my back to drawing clock to Mary Diekenson and to James Dickenson at the age of ^1 my beloved huabands watch aa it is / do desire the above James Mary \George] Dickenson and Joseph and Henry Ladd and William Ibbott will pay jointly and quarterly and every one of them part of leJiat I may die possess of twelve pounds a year to my good and faithful servant Frances Wetter during her life I give also to her the bed she sleeps on and the furniture in the same room and likewise all the furniture in the kitchen except the clock \Jor her good cmulunf] I give that to James Dickenson my jewels plate furniture clothes picture except those I leave to my friends to be all sold and the p money to be equally devied between Mrs. Ibbott and Mrs. Dickenson [and Charlotte Mary Dickenson] and their children glass and china I give to Maria, wife [of James Fisher] Green Street my work box and to Mrs. Sarah my work table to Caroline Fisher. " Witness my hand this day "MayW, 1819, " Witness, James Fisher. " hester mary whitkhead. "November 16, 18l'J"(). [345] (No. 2.) " 17 Alpha Cottage, "November 16, 1819. no. 4. !'I Hester Mary Whitehead...
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