Fowler v Fowler
| Jurisdiction | England & Wales |
| Judgment Date | 26 May 1859 |
| Date | 26 May 1859 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 97
BEFORE THE LORD CHANCELLOR LORD CHELMSFORD.
See Clark v. Girdwood, 1877, 7 Ch. D. 18.
[250] fowler v. fowleb. Before the Lord Chancellor Lord Chelmsford. May 10, 11, 12, 26, 1859. / [See Clark v. Girdwood, 1877, 7 Ch. D. 18.] For the purpose of reforming an instrument, clear and unambiguous evidence must be produced, not merely shewing a mistake, but shewing the deed in its proposed state to be in conformity with the intention of all the parties at the very time of its execution, and a denial by one of the parties that the deed as it stands was not according to his intention at the time ought to have considerable weight. A deed of compromise between a mother and son recited a letter of the mother's (who was a widow), written before the son's marriage, stating that by her will her residuary estate would be divided equally between her four sons. The deed also recited that the mother was seised, or had power to dispose of real estate, the particulars whereof were specified in a schedule to the deed. It further recited disputes as to the effect of the ante-nuptial letter, and that to end them the arrangement was entered into effected by the deed. By the witnessing part, the mother covenanted that her executors would at her death pay to the son such a sum as should be found to be the amount to which he would have been entitled if her real and personal estate had consisted of the particulars specified in the schedule, and she had died without altering her will as it stood when the letter was written. The descriptions in the schedule comprehended not only property of which she could dispose, but other property of which she was tenant for life only, and which was intermixed with the former, and this was noticed in the schedule. Held, 1. That there was not sufficient controlling context to restrict the covenant to the value of her own property. 2. That without conclusive evidence of an intention on the part of both parties at the execution of the deed to enter into some other contract, it could not be reformed. 3. That until the amount to be paid was ascertained, there was no debt carrying interest. This was an appeal against an order of Vice-Chancellor Kindersley praying that so much of it as refused the application of the Petitioner Frederick Cook Fowler for himself and the Defendants, the executors of Mary Soame Fowler, for leave to file a bill to rectify an indenture of the 19th of June 1843, and, as directed, that all the property scheduled to that indenture should be taken into account and be considered as the property of Mary Soame Fowler in computing the sum to which the Defendant Eabert Cook Fowler was entitled under the indenture, might be reversed, and that such of the directions consequential thereon, as it might be necessary to alter, might be altered accordingly. [251] The question ia the case, so far as it was the subject of appeal, arose upon the above-mentioned deed of the 19th of June 1843, the Appellant contending that he was entitled to construe that instrument in a particular manner, or that if the deed would not bear the construction which he sought to place upon it, then that it ought to be reformed upon the ground of its not containing the true intention of the parties owing to a mistake which occurred in its preparation, aiicl which was overlooked at the time of ita execution. C. xxv.-4 98 FOWLEK V. FOWLER, 4 DBQ. Jc J. 251. The deed itself contained recitals of most of the facts necessary to introduce the question. Mr. Thomas Fowler, the father of the Appellant and of the Defendant Robert Cook Fowler, made his will, dated the 27th of September 1827, by which he gave the residue of his personal estate, and all his real estate in or over which he had any devisabl& interest or power of appointment, to his wife for life, and after her death, or in her lifetime with her consent, he authorized his sons John Thomas and Robert to sell the real estate, and after his wife's death to sell the personal estate, and to pay his son Frederick (the Appellant) 5000, and to divide the residue amongst his three sons and his five daughters, directing that one daughter, who had been advanced to the extent of 4000, should add it to the residue before being entitled to a share, and that if the daughters' share in the residue exceeded 10,000, the excess was to be divided amonggt the sons. The testator died in December 1830, leaving his wife Mary Soame Fowler him surviving. She afterwards executed three testamentary papers, namely, a [252] will, dated 23d of December 1855, and two codicils, one dated the same day as the will, and the other on the 7th of September 1836. By her will she devised all her real estate to trustees upon trusts for sale, and to stand possessed of the monies to arise from the sale, and also her residuary personal estate, upon trust, to divide such monies into as many shares as should be equal to the number of her children who should be living at her decease, or who dying in her lifetime should have a child or children living at or born after her decease, one of such shares to be paid to or held in trust for each of such children in manner thereinafter expressed. She also directed that the sum of 5000 bequeathed to her son Frederick should be brought into the account against him or his family, and that the shares of the residuary estate of her husband, by his will bequeathed to her sons respectively, and directed to be held in trust for her daughters respectively and their children, should be brought into account against her said children respectively and their respective families, and considered as part of their respective shares of the monies arising under the trusts of the recited will, it being the intention of the testatrix that the portions or fortunes of all her children and their families, whether derived from advances made to her sons by her upon their respective notes of hand, or from settlements made by her late husband in his lifetime, or under his will, or under her own will, should be equal in amount. Then she provided that her daughters' portions should not exceed altogether, under any circumstances, the sum of 13,000. In August 1837, Robert Cook Fowler was about to [253] be married to Miss Gooch. Being anxious to satisfy Mrs. G-ooch, her mother, as to his fortune and expectations, he wrote to his mother on the subject, and on the 4th of August 1837 she wrote to him a letter, upon the footing of which all the subsequent arrangements proceeded, and which ultimately produced the deed in question. The material part of that letter was as follows :-" With respect to the 20,000 you mention, I expect you eventually to receive that sum from me; after your three sisters have received their eleven or twelve thousand each, the remainder, as my will stands, will be divided equally between my four sons, and according as land may rise or fall, the s'hares may be more or less of course. You may tell Mrs. Gooch, to whom it is necessary to lay open these worldly affairs, that not one acre is mortgaged. There is not a debt of 20s. upon any part of the property ; and if it will be a satisfaction to her, I will go to my lawyer in London, meet her and you, and by deed secure the fourth part, whatever it may be at my departure hence, entirely out of my power to make any alteration against your interest." Soon after the date of this letter, and probably not without reliance upon the statements which it contained, the marriage of Robert Cook Fowler took place, and upon that occasion a marriage settlement was executed, bearing date the 21st of August 1837, by which Robert Cook Fowler covenanted to assure and settle all the estate, property and effects, both real and personal, which he should become beneficially seised or possessed of or entitled to, at law or in equity, under any gift, devise, bequest or appointment by his mother Mary Soame Fowler in his favour. [264] Differences and controversies afterwards arose between Robert Cook Fowler and hia mother, touching the force, nature and extent of the engagement contained in the letter of the 4th of August 1837, and it was as the deed, of the 19th June 1843 4 DEO. ft. J. 2H. FOWLER'V. FOWLEE 99 recited, " in order to determine all such differences arid controversies " that they entered into an amicable arrangement, the terms of which were embodied in the covenants and agreements contained in that deed. The deed was made between Mary Soame Fowler, of the one part, and Robert Cook Fowler of the other part. It recited...
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