Dyke v Walford
| Jurisdiction | UK Non-devolved |
| Judgment Date | 11 December 1846 |
| Date | 11 December 1846 |
| Court | Privy Council |
English Reports Citation: 13 E.R. 557
ON APPEAL FROM THE CHANCERY COURT AT YORK.
Mews' Dig. tit. Crown, c. Crown Property, 1. Generally-g. Escheat, 4, On failure of representative; tit. Will, VII. Probate and Letters of Administration, a. S.C. 12 Jur. 839; 6 St. Tr. (N.S.) 699. On point (i.) as to meaning of jura regalia, approved of in A.-G. of Ontraio v. Mercer, 1883, 3 A.C. at p. 778; (ii.) as to ecclesiastical element, in English law of execution, cited in Juttendromohun Tagore v. Ganendromohun Tagore, 1872, L.E., Ind. App. Suppt. at p. 64; see also A.-G. v. Brodie, 184, 6, 6 Moo. P.O. at p. 19; (iii.) as. to appeal lying to Privy Council in ecclesiastical cases, considered in Gorham y. Exeter (Bishop of), 1850, 7 St. Tr. (N.S.) 1084. As to Duchy of Lancaster, see A.-G. of Duchy of Lancaster v. Devonshire {Duke of), 1884, 14 Q.B.D. 195. The York customary succession (5 Moo. P.C. 492) was abolished by 19 and 20 Viet., c. 94, repealed by S. L. R. Act, 1892.
[434] ON APPEAL FROM THE CHANCERY COURT AT YORK. FRANCIS HART DYKE.- 'Appellant; THOMAS WALFORD,- 'Respondent * [Dec. 8, 9, 10, and 11, 1846]. Origin of the jurisdiction of the Church, in cases of Testament and Intestacy ; not distinctly traceable. The Church never had, at any time, in this country, by law, any beneficial interest in the property of intestates, but merely the right or duty of jurisdiction and administration, and the right of possession, for the latter purposes [5 Moo. P.C. 488]. The right to goods belonging to persons dying intestate, without leaving husband or widow, and without kindred, as bona vacantia, has, from the earliest times, been vested in the King, in right of His Crown [5 Moo. P.C. 494]. In 1377, Edward III., by charter, granted to his son, John of Gaunt, Duke of Lancaster, the county of Lancaster, as a County Palatine, within the Duchy of Lancaster, " et quaecumgue alia libertates et Jura Regalia ad Comitem Palatvnum pertinentia, adeo integre et libere sicut Comes Cestriae infra eundem Comitatum. Cestriae dinoscitur obtinere." By subsequent Charters, and Acts of Parliament, the Duchy, and such rights as were originally granted with it, became vested in Her Majesty, by a title distinct from. Her Crown. Held, that the words of the Charter carried the right to bona vacantia, as Jura Regalia, to the County Palatine; and that the Queen, being1 entitled to the Duchy of Lancaster, separate from the Crown of England, was entitled 1 the goods of a bastard * Present: Lord Brougham, Lord Langdale, Mr. Baron Parke, Sir Herbert Jenner Fust, the Right Hon. Dr. Lushington, and the Right Hon. T. Pemberton Leigh. 557 V MOORE, 435 DYKE V. WALFOBD [1846] intestate, dying without next of kin, in right of her Duchy of Lancaster, and administration granted to the nominee of Her Majesty, in right of Her Duchy [5 Moo. P.C. 496]. Held also, that it was not necessary for the Duke of Lancaster to show an enjoyment of such right, by the Earl of Chester, as, in the absence of evidence to the contrary, the Court would presume the enjoyment of the right, by the Earl of Chester [5 Moo. P.C. 498]. The question arising upon this appeal, respected the title of Her Majesty to the personal property of an intestate bastard, who died domiciled in the County Palatine of the Duchy of Lancaster; whether, in virtue of Her prerogative, as Queen of England, or whether it [435] devolved on Her Majesty in. right of Her Duchy of Lancaster. The proceedings originated in the Consistorial and Episcopal Court of Chester, in a cause of granting letters of administration of the goods, chattels, and credits of Ann Rothwell Wignall, otherwise Ann Rothwell, late of Preston, in the county of Lancaster, who died in that county in 1840, a minor, a bastard, spinster, and intestate, leaving personal property, within the county, of the value of £3500. The deceased was born within the County Palatine, and died domiciled there. In the Court, at Chester, a Proctor, duly authorized, having alleged that the deceased's personal estate and effects had devolved to Her Majesty, in right of Her royal prerogative, and that Her Majesty, by warrant, dated the 7th of April, 1842, had appointed George Maule, the Solicitor for the Treasury, Her nominee, for procuring letters of administration of the effects of the deceased for her use, prayed that letters of administration might be granted to George Maule. This application was opposed by a Proctor, who alleged, that Her Majesty had, by a warrant, bearing date the 28th of May, 1842, appointed John Teesdale, then Her Solicitor for the Duchy of Lancaster, Her nominee, and denied that the estate and effects of the deceased had devolved upon. Her Majesty, in right of Her royal prerogative, but, on the contrary, alleged that such estate and effects devolved upon Her Majesty, in right of the Duchy of Lancaster, and prayed that letters of administration [436] might issue to John Teesdale, as the nominee of Her Majesty, in right of Her Duchy and County Palatine of Lancaster. The interest of Her Majesty, in right of Her Duchy and County Palatine, being denied, an Act on Petition, was brought in, wherein the Proctor for the Crown alleged, that the estate and effects of the deceased had devolved on Her Majesty, in right of Her royal prerogative. By the answer on behalf of the Duchy, the interest of Her Majesty, in right of Her Prerogative, was denied; and it was alleged, that the deceased died domiciled within the County Palatine of Lancaster; that at the several times of the making and granting of the Charters and Letters Patent of the 51 Edw. III. and 13 Rich. II. the Earl of Chester possessed and enjoyed, within the county of Chester, the right to take and have, to his own use and profit, the goods, chattels, credits, and all personal estate and effects whatsoever, within the said county of Chester, of, and belonging to, every person who should die domiciled therein, intestate, and without next of kin; that King Edward the Third, by his Charter and Letters Patent of 28th of February, in the 51st year of his reign, did, in consideration, among other things, of the earnest probity and excellent wisdom of his son, John, Duke of Lancaster, in the said Charter and Letters Patent, called King of Castile and Leon, and Duke of Lancaster, of his, the said king's, certain knowledge and cheerful heart, with the assent of the prelates and nobles being in his, the said king's, then present Parliament, called together at Westminster, grant (among other things), in the words following:-" Concessimus pro nobis et haeredibus nostril, praefato filio nostro quod ipse ad totam vitam suam habeat [437] infra Gomitatum Lanca-striae Gancel-lariam suam ac brevia sua sub sigillo suo pro offlcio Cancellariae deputando con-signanda justitiarios suos tarn ad placita Coronae quam ad quaecumque alia placita communem legem tangentia tenenda ac cognitiones eorundem et quascumque execu-tiones per brevia sua et ministros suos ibidem faciendas et quaecumque alia liber-tates et jura regalia ad Comitem Palitinum pertinentia adeo integre et libere sicut Comes Cestriae infra eund'em Commitatum Cestriae dinoscitur obtinere (deci- 558 DYKE V. WALPORD [1846] V MOORE, 438 mis quintisdecimis et aliis quotis et subsidies nobis et haeredibus nostris per com-munitatem regni nostri et decimis et aliis quotis per clerum ejusdem regni nobis concessis et imposterum concedendi-s aut eidem clero per Sedem Apostolicam im-positis et imponendis ac perdonationibus vitae et membrorum in casu quo aliquis ejusdem comitatus aut alius in eodem coinitatu pro aliquo delicto vitam vel mem-brum. amittere debeat ac etiam superioritate et potestate corrigendi ea quae in Curiis eju-sdem filii nostri ibidem erronice facta fuerint vel si idem filius noster aut ministri sui in justitia in Curiis ejusdem filii nostri inibi facienda defecerint semper salvis]." That afterwards, and during the life of the said John, by another Charter, in the 13th year of the reign of King Richard the Second, after reciting that the said John, by petition to King Richard the Second, exhibited in the King's Parliament, holden at Gloucester, had suggested that, by pretext of the general words in the said Charter and Letters Patent of Edward the Third, he, the said John, had exercised and held, from the time of the grant of the said King (among other things), his, the said John's, Exchequer in the County of Lancaster, and all things to such Exchequer pertaining: and reciting also, that he, King Richard the Second, with the assent of the Prelates, Dukes, [438] Earls, Barons, and Commons, of the realm of England, in the same Parliament assembled, by his Letters Patent, had declared that he, the said John, should and might, by virtue of the said general words, use all and every the premises by him theretofore used, by pretext of the same general words, as is premised: and, further, that the said King Richard, of his special grace, had granted, for him and his heirs, to the said John, that he might have his Exchequer in the said County of Lancaster, and Barons and other Ministers necessary to the same Exchequer, and also all jurisdictions, executions, and customs whatsoever, in the same, his Exchequer, which were reasonably used in the King's Exchequer of England, and might fully and reasonably use and enjoy them - there : the said King Richard the Second, with the assent of his then present Parliament, did grant unto the said John (among other things), in the words following, that is to say: " Laeto corde et ex certa scientia nostra concessimus pro nobis et haeredibu-s nostris praefato avunculo nostro quod ipse et haeredes sui masculi de corpore suo legitime procreati habeant infra Comitatum Lancastrian G ancellariam suam ac brevia sua sub sigillo suo pro officio Cancellariae deputando conservanda Justitiarios suos tarn ad placita Coronae quam ad quaecumque alia placita com-munem legem...
To continue reading
Request your trial
-
Lane Kult Pill Onga v Theresia Bob and Others
...of the English ecclesiastical courts in cases of intestacy and the meaning of the term “Ordinary” is traced in Dyke v Walford (1846), 5 Moore 434, 13 E.R. 557. See also “An Introduction to Testacy and Intestacy in Papua New Guinea” (1994) paper by Mac Robb.5 Court document no....
-
Re Sir Thomas Spencer Wells. Swinburne-Hanham v Howard
... ... Middleton v. Spicer ( 1783 ) 1 Bro. C. C. 201 ; Dyke v. Walford ( 1846–48 ) 5 Moo. P. C. 434 ; Megit v. Johnson ( 1780 ) 2 Dougl. (K. B.) 542 ; and Taylor v. Haygarth ( 1844 ) 14 ... ...
-
Philip A. Mitchell Jr. v Micolette Mitchell Jr
...Vol III, at pp 494 et seq, and in the judgment of the Privy Council in ( Dyke v Walford (1848), 5 Moo PCC 434, 6 State Tr NS 699, 6 Notes of Cases 309, 12 Jur 839, 13 ER 537, PC, 3 Digest (Repl) 428, 237). Briefly stated, it is this. The clergy never had, by law, any beneficial interest in ......
-
Re Estate of Johns [1971–72] PNGLR 110
...the residuary estate of a person dying intestate without husband or wife should be adopted (see Dyke v Walford (1846) 5 Moo PCC 434; 13 ER 557) in view of the provisions of s20 of the Probate and Administration Act 1913–1940 to which regard must be had and which in this instance limits the ......