Francis v Grover
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 818
HIGH COURT OF CHANCERY
S. C. 15 L. J. Ch. 99; 10 Jur. 280. See Cunningham v. Foot, 1878, 3 App. Cas. 992.
[39] francis . grover. June 26, 27, 30, July 1, Nov. 13, 25, Dec. 4, 5, 1845. [S. C. 15 L. J. Ch. 99; 10 Jur. 280. See Cunningham v. Foot, 1878, 3 App. Cas. 992.] The testator gave an annuity to A., and charged the same upon all his freehold and leasehold estate. He afterwards devised his freehold estates to trustees (who were also his executors) upon trust (subject to the charge) to and for the use of his grandson and his heirs. The trustees, being in possession of the estates, paid the 5 HAKE, 40. FRANCIS V. GROVER 819 annuity to A. during the minority of the grandson, and within twenty years before the filing of the bill by A. against the grandson. Held, that such payment of the annuity by the trustees prevented the claim of A. to the annuity from being barred by the Statute of Limitations, 3 & 4 Will. 4, c. 27, ss. 2, 3. That the grandson was not a trustee for the annuitant within the 25th section of the stat. 3 & 4 Will. 4, c. 27, or otherwise; and that, under the 42d section of the same statute, the annuitant was not entitled to recover the arrears of the annuity for more than six years before the filing of the bill. Where a will was written in ink, and formally executed, and the testator afterwards drew a line in pencil through a clause in the will: Held, that the erasure in pencil raised no presumption of revocation, and that, without other explanation, it was properly regarded not as a revocation of the clause, but as merely deliberative, or indicative of some future and incomplete purpose. John Key, by his will, dated in 1805, after giving an annuity of 200 to his mother, proceeded as follows: " I give and bequeath unto Margaret Evans, now living servant with me, an annuity of 20, to be payable during her life." (I) He then gave a life interest in a certain mill, or, in the alternative, an annuity of 50 to another person and proceeded : " I hereby charge and make liable all my freehold and leasehold estates, with and to the payment of the said several annuities given by this my will." The testator then gave, devised and bequeathed to W. Tait and B. Greenwood, their heirs, executors, &c., all his freehold and leasehold estates, upon trust (except as to the collieries and premises therein mentioned, and nevertheless subject to and charged with the said several annuities thereinbefore bequeathed) to and for the use of the first and other son or sons successively of his daughter, Elizabeth Grover, and their respective heirs, the eldest and first-born of such sons and his heirs to be preferred and take before the younger of such sons, and his heirs; with remainder to the daughters of the said Elizabeth Grover and their heirs, as tenants in common. The testator then disposed of the collieries and of his residuary estate, and gave an [40] annuity of 200 to his daughter and her husband, in succession, out of the rents of his estates; and appointed W. Tait and B. Greenwood his executors. The testator died in 1808. B. Greenwood proved the will and accepted the trusts of the devise; and he paid the annuity of 20 to Margaret Evans (afterwards the wife of John Francis) from the death of the testator until July 1827. In December 1829 the Defendant, Grover, the eldest son of the testator's daughter Elizabeth, attained his age of twenty-one, and entered into possession of the devised estates. In April 1844 John Francis and Margaret, his wife, filed their bill against the Defendant, Grover, stating that the personal estate of the testator had been fully administered, and that his leasehold estates had long since expired, and praying a decree for payment of the arrears of the annuity amounting to 343 out of the real estates devised to the Defendant; and, in default, that a sufficient part of such real estate might be sold for that purpose. The Defendant, Grover, by his answer, said it was true that the will, as executed by the testator, had contained the bequest of the annuity of 20 to Margaret Evans, but that the testator had afterwards cancelled such bequest by drawing a line in pencil through the whole of the same, which was still visible upon the original will. The answer also claimed the benefit of the statute 3 & 4 Will. 4, c. 27.(2) The executor and trustee was long since dead. A;t the hearing, Mr. Walker and Mr. Headlam, for the Plaintiffs. The drawing a line in pencil through some of the [41] words in a will does not amount to a cancellation of that part of the will: Martins v. Gardiner (8 Sim. 73). It is, at the utmost, deliberative, and indicative of some future intention : Doe d. Perkes v. Perkes (3 B. & A. 489), Hawkes v. HaivJces (1 Hagg. 321), Winsm- v. Pratt (5 Moore, 484). And the presumption of its merely deliberative character is strengthened by the formal character of the instrument as originally prepared : Edwards v. Astley (1 Hagg. 490); and by other circumstances : Parkin v. Bainbridge (3 Phillimore, 321). An alteration in pencil on a written instru- (1) A line was drawn with a pencil through the words in italics. (2) An Act for the Limitation of Actions and Suits relating to Real Property, &c- 820 FRANCIS V. GROVER 5 HABE, 42. merit is not regarded as final or conclusive like an alteration in ink: Ravenscroft v. Hunter (2 Hagg. 68). Nor has an instrument written entirely in pencil been considered as equally entitled with an instrument written in ink to be admitted to probate: Byrnes v. Clarkson (1 Phillimore, 22). It would defeat a testator's intention if a mark made upon a part of his will, with a substance which he might easily obliterate, should be held so effectually to revoke his deliberate act that he could not, by effacing the mark, restore that part of his will to its original force; and this, if it were a revocation, he clearly could not do : Burtenshaw v. Gilbert (Cowp. 49). Mr. Eomilly and Mr. Elmsley, for the Defendant. The substance, whether ink or pencil, in which the will of the testator is written, is perfectly immaterial; both may be obliterated: it is merely a question of more or less difficulty. This will appears with a legacy erased. That is pro tanto a revocation: Larkins v. Larkins (3 Bos. & Pul. 16). It is for those who insist upon the gift as a paj*t of the will of the testator to shew that the erasure [42] does not indicate the intention of the testator to revoke the legacy; and that the erasure was not made animo revocandi, but, on the contrary, was made under circumstances which are capable of explanation: Lillie v. Lillie (3 Hagg. 184), Barry v. Butlin (Id. 638). The presumption of law arising from the erasure is that the legacy has been revoked: Tagart v. Hooper (1 Curt. 291); Lambell v. Lambell (3 Hagg. 568). The striking of the legacy through with a pencil is a sufficient intimation of the intent to revoke: Bibb d. Mole v. Thomas (2 W. Bl. 1043), Doe d. Reed v. Harris (8 Ad. & El. 1; see 6 Ad. & El. 209); and such a mode of erasure was treated by Sir William Grant as a cancellation: Mence v. Hence (18 Ves. 348). The annuity in this case, even if not revoked, is barred by the stat. 3 & 4 W. 4, c. 27, ss. 2, 3. The payment in 1827 by the executor is not an admission which binds or affects the devisee: Putnam v. Bates (3 Euss. 188). [Other points were also discussed, upon which no decision was pronounced until a later stage of the cause.] July 1. the vice-chancellor [Sir James Wigram]. The Defendant, in this case, has insisted, first, that the will of the testator, John Key, whereby he bequeathed an annuity to the Plaintiff Margaret, was revoked by the pencil-mark, which appears to have been drawn through it. If the case turns upon this question it appears to me that it should be tried at law, the counsel for the Defendant insisting that the Court [43] ought not to make a decree for the payment of the arrears of the annuity until a Court of law should have determined the question against him. It was however said that the Defendant had another ground of defence, which rendered the decision of the first question of no importance, that the claim to the annuity was barred by the stat. 3 & 4 Will. 4, c. 27. I think the annuity is not barred by that statute. The annuity was paid, in the year 1827, by the party who was then actually in possession or receipt of the rents and profits of the estate, not adversely, but according to the trusts of the will. I do not think there is any ground for saying that the annuity is barred. The payment up to 1827 is sufficient to take the case out of the statute. It is, therefore, not at present necessary that I should give any opinion on the point urged by Mr. Walker, that the charge of the annuity on the real estate has created a trust; nor on the subordinate question raised on behalf of the Defendant, that the arrears of the annuity should be at least confined to six years before the filing of the bill. The form of the issue should follow that in Powell v. Mouchett (6 Madd. 216). Direct an issue whether the words "I bequeath," &c. (see p. 39), contained in a certain paper-writing, bearing date the 23d of October 1805, and produced in this cause, were part of the last will and testament of John Key. The Plaintiffs in equity to be Plaintiffs at law. The issue was tried at the Bristol Summer Assizes. The will was produced by the deputy-registrar of the Court of the Diocese of Llandaff, with the pencil-mark upon it, which appeared to have been drawn through the clause bequeathing the annuity; no other evidence [44] was given. The learned Judge (Mr. Justice Erie), before whom the issue was tried, directed the jury that the external act of cancellation 5 HAKE, 46. fRANCIS V. GROV1B. 821 was not of itself conclusive as to the revocation of the bequest, but that they were to determine from the nature of the act done, and the formal character of the will as it originally stood...
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Between Robert Knight since deceased and His Executors by amendment, and Richard Tomkinson, Plaintiffs; and George Bowyer, John Thomas Groves and Emma, his Wife, Charles Pugh, The Rev George Frazer Mathews and Ann Martha, his Wife, late Ann Martha Bridger, Edward Kynaston Bridger, Wilson Lomer, Charles Bridger, Charles King, Alexander Donovan, Samuel Sturgis, William Whitfield, Harriett Huntingford (since dismissed), John Samuel Bowles, George Warner, The Rev. John Tunnard, Clerk, John Taylor, John Matthews, and Sir George Bowyer, Baronet, Defedants
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