Drake v Drake and Others
| Jurisdiction | England & Wales |
| Judgment Date | 28 February 1860 |
| Date | 28 February 1860 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 392
House of Lords
Mews' Dig. xv. 664, 869, 872. S.C. 29 L.J.Ch. 850; 3 L.T. 193; and, below, 4 Jur. N.S. 727; 6 W.R. 791. Adopted in Charter v. Charter, 1874, L.R. 7 H.L. 377. Distinguished in In re Ely, Tottenham v. Ely, 1891, 65 L.T. 452; and cf. Garland v. Beverley, 1878, 9 Ch.D. 219; Cope v. Henshaw, 1866, 35 Beav. 423.
Will - Uncertainty - Name - Description - Evidence.
[172] MARY FRANCES TYRWHITT DRAKE,-Appellant; FREDERICK W. T. DRAKE and Others,-Respondents [Feb. 27, 28, I860]. [Mews' Dig. xv. 664, 869, 872. S.C. 29 L.J.Ch. 850; 3 L.T. 193 ; and, below, 4 Jur. N.S. 727; 6 W.R. 791. Adopted in Charter v. Charter, 1874, L.R. 7 H.L. 377. Distinguished in In re Ely, Tottenham v. Ely, 1891, 65 L.T. 452 ; and cf. Garland v. Beverley, 1878, 9 Ch.D. 219 ; Cope v. Henshaw, 1866, 35 Beav. 423.] 392 DRAKE V. DRAKE [i860] VIII H.L.C., 173 Will-Uncertainty-Name-Description-Evidence. A. name and a description of a legatee were given in a will, which, taken together, could not be applied to any one person; evidence of the state of the family was admitted, and an affidavit of the solicitor who prepared the will was offered to show what had been the cause of the mistake: Held that this affidavit was not admissible in evidence. A testator devised a life interest in an estate to his " sister Mary Frances T. D.:" he had no sister, but he had a sister-in-law, of that name. After making other devises and bequests, he gave the residue equally among four persons, one of whom was thus named and described, " my niece Mary Frances T. D." He had no niece who bore those two names conjointly; he had nieces who bore one or other of those names : Held, affirming the judgment of the Court below, that the bequest as to the fourth part was void for uncertainty. Sir Hugh Richard Hoare, bart., deceased, by his will dated 25th April 1854, after devising a house in Eaton-square to a nephew, gave a messuage and hereditaments, with the furniture therein, at Burnham, in the county of Buckingham, to " my sister, Mary Frances Tyrwhitt Drake," for life. He then made other devises and bequests, appointed Frederick William Tyrwhitt Drake and two other persons, his executors; and finally gave the residue of his real and personal estate to " the said Frederick William Tyrwhitt Drake, John Palmer, my niece, Mary Frances Tyrwhitt Drake, and Jane Labbett, equally between them." The testator died in January 1857. At the time of his will and his death, he had no sister nor niece with the names of Mary Frances Tyrwhitt Drake. His only relation who did bear those names was the Appellant, who was not his sister but his sister-in-law, and she, therefore, [173] claimed to be the person intended by the will. The claim was disputed, and the Respondents, the executors, in October 1857, filed their bill in Chancery for the purpose of having the question of construction decided. In January, 1858, an inquiry was directed to ascertain who was the heir-aHaw, who the next of kin, and what sisters and what nieces there were alive at the time of the testator's death. The Master found as to the last two subjects of inquiry, that the testator had only two sisters, Jane Lethbridge and Frances Ann Hoare, and two sisters of his wife, namely, the Appellant, and Louisa Isabella Partridge, and eleven nieces of his own, and twenty-three nieces of his wife, four only of whom bore either of the Christian names mentioned in the will, namely, Frances Isabella Drake, Mary Caroline T. Drake, Frances Charlotte T. Drake, and Mary Elizabeth T. Drake. The last-named lady formally disclaimed all interest. An amended bill was then filed. Evidence was adduced, and amongst other affidavits the Appellant proposed to file an affidavit by Mr. Henry Messiter, the solicitor who prepared the will, in which the deponent set forth the instructions he had received for that purpose. On the hearing, this affidavit was rejected; and, on the 15th July 1858, the Master of the Rolls declared that, according to the true construction of the will, the residue was to be divided into four parts, and " that the gift of one of such parts to the testator's niece, ' Mary Frances Tyrwhitt Drake,' is void for uncertainty," and decreed and gave directions accordingly (...
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