Durling and Parker against Loveland
| Jurisdiction | England & Wales |
| Judgment Date | 19 March 1839 |
| Date | 19 March 1839 |
| Court | Ecclesiastical Court |
English Reports Citation: 163 E.R. 393
IN THE ECCLESIASTICAL COURTS AT DOCTORS' COMMONS
[225] dueling and parker against loveland Prerogative Court, Hilary Term, March 19th, 1839.-The will of an aged person of doubtful capacity prepared by a solicitor, who was appointed an executor and one of the residuary legatees, pronounced; against, and the parties propounding it condemned in costs -Bare execution in such a case is not sufficient.-The principles of law applicable to such cases. This was a business of proving the will of Francis Petworth, a publican, of Chisel-hurst, Kent, who died on the 7th of Aprrl, 1838, a widower, without children, aged 76, leaving property to the amount of about 18501. The will was propounded by the executors, and was opposed by Charlotte Loveland, the niece, and only next of kin of the deceased. The will in question, which was dated on the 8th of March, 18,38, and was executed in due form, purported to give the whole pioperty, real and personal (there being a small real estate, but the bulk of the property being in the public funds), to the executors, in trust, to pay three annuities of 101. each, to Mary Cross, who had been the deceased's housekeeper from the period of his wife's death, about twenty years back, to John Jupp, the brother of the deceased's wife, and who had been employed by him for many years as ostler, till he became incapable of work, and to the widow of hia deceased brother, to whom he hud given that bum annually since her husband's death , the remainder of the property, real and personal, was left to the two executois, Mr John Durling, the landlord of a public-house at Bexley, a fnend of the deceased, and Mr. John Frederick, a, solicitor (the drawer of the will), a partner in a fiim at Lewisham, in Kent, this firm having been on former occasions employul by the deceased. [226] The Queen's advocate and Phillimore supported the will, which was opposed by Haggard and Jenner for the next of kin. Judgment-tiir Hmbert Jenntr. Before I consider the cireumstanceb ot this ciibe connected \\ith the preparation of this paper it may be necessary to allude to a question whieh arises in this case, and in all cases where the drawer of a will takeb a beneht to a \ery considerable extent under rt, that ib, considerable with reference to the amount of the property which is the subject of the disposition tn the argument addressed to the Court by the Queen's advocate, in support of the paper propounded, its attention wa& called to a recent judgment of the Judicial Committee of the Pnvy Council in the case of Baity v. Pmthn (I Curt t .'57), m which it became necessary for that Court to consider the doctrine and principles to be acted upon with reference to the circumstance I have stated, where the drawer of a will takes a, considerable benefit under the instrument. It would seem that in that case the doctrine with reference to this point had been carried, in argument, to a somewhat larger extent than their Lordships were inclined to assent to, and it was proper, therefore, to ascertain the real doetrine and principles to be acted on; and Mr Baron Parke, in his judgment, takes care to 3tate with great accuracy and preeision the principles which ought to be followed But I [227] must say that, in E. & A m.-13* 394 PURLING V. LOVELAND 2 CURT. 228 leading that judgment, though [ accede to every one of the doetnnes and principles laid down in it, I am not aware that this Court has ever acted on any other or diffeient piinciples ; that it has ever held that, hi any individual case, or unless where the particular circumstances of the case require it, where the drawer of a will takes a considerable benetit under it. he was bound to do moie than shew that the deceased had a knowledge of the contents of the will; it never has been the doctrine of this Court that it is necessary in all cases to prove that the will was read over to the deceased, or that it was drawn from instructions given by him It never was the doctrine of this Court, whatever may have fallen from this chair, that, without leading o\er or without instructions, it is impossible to pronounce for such a will I never understood the doctrine of this Court to go beyond this, namely, that it is a circumstance which should awaken the vigilance and jealousy of the Court to watch and see whether, by some means or other, a knowledge of the contents was brought home to the deceased, or it was shewn that it was the intention of the deceased to make such a disposition of his propeity, which the Court would accept as sufficient proof, notwithstanding that the drawer of the will took a considerable bench't under it I do not apprehend that there is any technical inle which requires pi oof that a will has been lead by or to the deceased, or that it wab prepared from instructions given by him. Even in Pablu v. Ollatt (2 Phill. 323) rt was not laid down that such [228] proof was necessary , but if the Court was satisfied that the instrument did contarn the real intentions of the testator, although there was no proof of reading over, and no proof of instructions, it would grant probate of it. Nothing can be more clear and distinct than the law as laid down by Mr Baron Parke as to the doctrine and principles applicable to cases wheie any person, solicitor or not, draws a will under which he takes a benefit-that, generally speaking, it is a circumstance of suspicion, greatei or...
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...Ecc. Rep. 466). Middleton v. Forbes (cited 1 Hagg. Ecc. Rep. 395). Barry v. Butlin (2 Moore's P.O. Cases, 480). Dwrling v. Loveland (2 Curteis, 225). Gibson v. Jeyes (6 Yes. 266). Pratt v. Barker (1 Sim. 1; S.C. 4 Russ. 507). Hunter v. Atkins (3 Myl. and K. 113). Durnell v. Cor field (1 Rob......