Doe D. Henry Eustatius Strickland v Sir George Strickland, Bart
| Jurisdiction | England & Wales |
| Judgment Date | 08 December 1849 |
| Date | 08 December 1849 |
| Court | Court of Common Pleas |
English Reports Citation: 137 E.R. 693
IN THE COURT OF COMMON PLEAS
[724] doe n. henry eustatius strickland v. sir george strickland, bart. Dec. 8,1849. The testator executed a will in Yorkshire, in 1776, he then having four sons. A fifth son being born in 1777, the testator, in 1778, executed in London what was apparently intended to be a copy of, and was dated on the same day as, the Yorkshire will, and at the same time made a codicil in duplicate,-the ostensible object of the codicil being, to make provision for the newly-born son. The testator's third son died in 1795. The testator died in 1808, leaving the other four sons him surviving. After his death, the Yorkshire will, with one copy of the codicil, were found in an open portfolio upon his library table, with erasures in both, the effect of which would be, in a certain event, to give to the eldest son certain estates which otherwise would have gone to the younger sons in succession. The London will, with the other copy of the codicil, were found, without alteration, locked up in a drawer in the same table. In the portfolio was also found an undated and unfinished sketch of a will. The Yorkshire will, and the codicil found with it, were proved by the testator's widow and executrix. After the death of all his brothers, the testator's fifth son brought an ejectment against the heir of his eldest brother, claiming under the limitations contained in the unaltered (or London) will and codicil.-At the trial, the judge left it to the jury to say,-first, whether the London will was executed by the testator as a separate and independent will, or whether the Yorkshire will and the London will, with the duplicate codicil annexed to each, formed one will, the last will of the testator; telling them, that, if they were satisfied that all the documents together formed one will in two parts, an alteration or obliteration in one part, was, in point of law, an alteration or cancellation of the corresponding portion of the other part, and that the will, so altered, became the last will of the testator,-secondly, whether the alterations, when they were made by the testator, were intended by him to be final, and to stand as his last will, or were merely deliberative, and intended to exist only until he made a future will. The jury found that the two wills and the codicil were intended to form one will, and that the alterations in the Yorkshire will, and in the codicil found with it, were intended to be final:-Held, that these two questions were properly submitted to the jury, and that the direction of the judge was correct in point of law.-Held, also, that it was no ground for a new trial, that the judge left to the jury as a question of fact, that which he should himself have decided as a matter of law,-unless the objection was presented to the notice of the judge at the trial. This was an action of ejectment whereby the lessor of the plaintiff sought to recover certain estates in the county of York. [725] The declaration contained two demises, both by Henry Eustatius Strickland, the one laid on the 3rd of December, 1839, the other the 3rd of May, 1838. The defendant, who was let in to defend as landlord, pleaded not guilty. The cause was tried before Alderson, B., at the last York spring assises. The facts that appeared in evidence were as'follows :-Sir George Strickland, Bart., of Boynton, in the county of York, the father of the lessor of the plaintiff, and grandfather of the present defendant, on the 18th of July, 1776, being then in Yorkshire, made a -will, which was duly executed and attested, as follows :- "In the name of God, amen : I, Sir George Strickland, of Boynton, in the county of York, Bart., do make this my last will and testament, in manner following, that is to say, I give to my wife my house at Newton, with the farm I now occupy there, for her life : I also give to her my house at Hildenley, with the estate here, for her life : I also give to her, my house at Awburn, with the land I now occupy there and [al]so the farm in the occupation of Thomas Dobson, for her life : I also give to her all the stock and (a) As to pleading in denial of the operation of instruments, see 3 N. & M. 50, n. (a) 4 N. & M. 322, n, (b) 5 Mann. & K. 464, 1 M. & G. 208. 694 DOE V. STRICKLAND 8C.B.726. every thing that shall be upon any of the above-mentioned grounds at the time of my decease, desiring her to leave, as near as conveniently may be, the stock of equal value upon the several grounds above-mentioned, or money equivalent thereto, to those who shall succeed her therein: I also leave to her, after the payment of my debts and all other expenses due from me, all the money which I shall leave at the time of my decease, with all arrears of rent due to me at that time, and all other money due to me at that time from any other person, together with all my Bank bills, and all other bills, and all money owing to me on Government or any security whatever: [726] Now, my meaning is, that, if I should leave any money upon Government or any other security whatever, that she should receive the interest of it for life, and that she should leave it to such of my younger children as she thinks proper, or else that it should be divided equally among all my younger children : And I give to her any of my books or furniture that shall be in my house at Boynton at the time of my decease, that she shall chuse: I also give her all my carriages, horses, and stock of sheep and other things that shall be, at the time of my decease, upon any ground I occupy at that time at Boynton, Carnaby, or elsewhere, with all my tea, table, and Sheffield plate, or any other she shall chuse to take. My estate at North Bruton, by a settlement made by my father (a), will go to my son William : and my estate at Boynton, by my marriage-settlement, will also go to him. I further give him the lease I have at Boynton, from Pocklington School; also the land late belonging to Sir Griffith or Mr. Boynton; and also the land and appurtenances I bought there; and also my estate at Carnaby : Now, my meaning is, to give him the above lease and land at Boynton, and estate at Carnaby, provided that he will relinquish to the purposes of this will, to be hereafter mentioned, the "estates at Wintringham, East Heslerton, and Knapton, which would otherwise devolve to him by a settlement made by my father: but, should he determine to retain those estates, then I leave my estate at Carnaby, with the before-mentioned lease and land at Boynton, to my son George, for his life : I also leave to him, for his life, my estates at Newton and Kirby : I also leave him my estates at Wintringham, East Heslerton, e f27] and Knapton, for his life, provided my son William will take my estate at arnaby, with the estates above-mentioned at Boynton, instead of them; in which case, I would have the proportion of the jointure payable to my wife out of the estate at Carnaby, to be paid out of the estate'at Wintringham: And, should my son William retain the estate at Wintringham, I give my son George, for his life, all the land and houses and appurtenances that I have bought there: I also impower my son George to settle, out of the estates left to him, 3001. a year, as a jointure, upon his wife, and 50001. out of the same as fortunes for his children : I also leave to him all the stock and every thing which shall be upon my farm at Newton, or belonging thereto, at the time it comes into his possession. That part of my estate at Newton which I have settled upon my wife for her life, I mean for my son George to inherit after her decease: Now, I leave the above-mentioned estates to my son George, subject to the payment of 1001. a year to each of my unmarried daughters, so long as they continue unmarried, and to be paid to them half-yearly: I also leave my estate at Hildenley, after the decease of my wife, to my son Charles, for his life; and my estates at Birkwith, Easton, and Suerby, to him for his life, with a power to settle out of the above estates 3001. a year upon his wife, and 50001. out of the same as fortunes for his children: I leave the above-mentioned estates to my son Charles, subject to the payment of 501. a year to each of my unmarried daughters, so long as they continue unmarried, and to be paid to them half-yearly : I also leave my estates at Fraisthorp, Willsthorp, and Awburn, to my son Walter, for his life, to inherit what is left to my wife for her life, after her decease, with a power to settle out of the above estates 3001. a year, as a jointure, upon his wife, and 50001. out of the same, as fortunes for his children: I leave the above-mentioned [728] estates to my son Walter, subject to the payment of 501. a year to each of my unmarried daughters, so long as they continue unmarried, and to be paid to them half-yearly. Such parts of my estates as I have left to my wife for her life, I mean to devolve to such of my sons as I have afterwards left them to. I give to my younger sons a power to dig up or cut down anything upon any of the estates I have left them for their lives. In case my (a) In the copy of the will executed in London on the 15th of May, 1778, the words were,-" by a settlement made by my father's will, will go," &c. C. B.729. DOB V. STRICKLAND 695 son George should die before.my son Charles, I then leave all the estates I have left to my son George, to my son Charles, for his life, he paying to my son Walter, and to each of my unmarried daughters, so long as they continue unmarried, 1001. a year over and albove the annuities before mentioned (a)1. [But, if my son Charles should be dead at the time of the decease of my son George, I then give all the estates I have left to my son George, to my son Walter, for his life, he paying the same annuities as my son Charles would have done. And, whichever of my sons Charles or ffalter should die first, I leave the...
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