Harris v Knight
| Jurisdiction | England & Wales |
| Date | 1889 |
| Year | 1889 |
| Court | Court of Appeal |
Probate - Lost Will - Contents proved by Oral Evidence.
W. K. died in 1877. At his funeral his widow produced a document, which she stated to be the will of W. K. It gave her a life interest in his property, which consisted of a freehold house and land, and divided it after her death among the sons and daughters of the testator. The document was subscribed with three names, one of which purported to be the name of W. K., written in his own handwriting; the other two names were those of friends of the testator. At the funeral the defendant, who was the eldest son of W. K., said that the document was no will of his father's, and that the signature was not in his writing. But he took no steps to assert his right as heir-at-law, and the widow continued to occupy the house and land until she died in July, 1885, without, however, taking any step to prove or establish the will she had so produced. After her death the will could not be found; and the plaintiff, who was one of the daughters of the marriage, propounded the alleged will, and pleaded that although it was lost the Court ought to grant probate of it. Both the persons whose names were subscribed to the lost document were dead. No copy or draft of such document could be found, and it was not proved that it bore any date or contained any attestation clause; but its existence and contents, and the handwriting of the testator, and that of one of the two friends of his who had subscribed it, were proved to the satisfaction of Butt, J., who granted probate of the will.
On appeal, held, by Lindley and Lopes, L.JJ., Cotton, L.J., dissenting, that Butt, J., was justified in presuming that the lost will was duly executed, and in granting probate accordingly.
APPEAL from Butt, J.
The plaintiff, Emma Jane Harris, propounded a non-existent paper, which purported to be the last will and testament of her father, William Knight, who died in 1877; and the defendant, the eldest son and heir-at-law of the deceased, opposed probate, alleging that the will was not duly executed, that the testator did not know and approve of the contents, and that the contents of the will were not correctly set forth in the plaintiff's statement of claim.
William Knight was a gardener, living at Caversham in Oxfordshire, and his estate consisted of a double house, with land attached to it, which it was stated had been purchased with the money of his wife, who managed his business. At Wm. Knight's funeral his widow produced a written paper, which she stated was her husband's will. It gave a life interest to her in the freehold, which was directed to be divided after her death among the sons and daughters of the testator. The paper was subscribed with three names, one of which purported to be the name of Wm. Knight, the deceased, written in his own handwriting; but the defendant, who read the paper at the funeral, said at once it was no will of his father, and that the signature stated to be his was not in his handwriting. The executrix, the widow, took no steps to obtain probate of the document, and the defendant, on the other hand, took no steps to assert his rights as heir-at-law, but allowed his mother to live on the freehold undisturbed down to July 17, 1885, when she died. She drew up two wills, but neither of them was completely executed. In 1886 the plaintiff took out letters of administration to the estate of his father as having died intestate; and the defendant, his sister, the wife of James Harris, now propounded the contents of the paper read at the funeral of Mr. Knight, which was alleged to be his last will and testament. The paper itself was not forthcoming, and there was no evidence as to its execution, nor as to when it was executed, and it was not shewn that it contained an attestation clause. There was, however, evidence to shew that the body of the paper was in the form of a will, and that it was followed by three signatures, one of which purported to be that of Wm. Knight. Both the attesting witnesses were dead, but there was evidence to identify the signature of one of them. As to the signature of the testator, there was a direct conflict of testimony. Witnesses called for the plaintiff stated that Wm.
Knight told them he had made a will containing provisions similar to those read out at the funeral from the will — while witnesses for the defendant stated that, shortly before his death, Wm. Knight told them that he had made no will. The plaintiff accounted for the disappearance of the paper by evidence that in July, 1885, when Mrs. Knight, the widow of the testator, was on her death-bed the paper was in her possession when the defendant called to see his mother, and that it was never seen again after his visit. The account given by the defendant of what passed at his interview with his mother was that, when he went into the room where his mother lay ill, she ordered her daughter and another woman who was there out of the room. When they had gone she told him to take a paper out of the pocket of her dress. He searched the pocket, but could find no paper, whereupon his sister was called up, and she explained that the paper having fallen out of her mother's pocket she had placed it on the bed, and it was found between the mattress, and in the bed. The daughter was then sent out of the room again, and Mrs. Knight thereupon tore up the paper, put the pieces in her pocket, saying that it did not concern any of her children. The paper he said was quite different from that read at the funeral. The plaintiff in her evidence denied that any fragments were found in the pocket of her mother's dress after the defendant's visit. The other facts will be found in the judgment.
The case was heard before Butt, J., without a jury.
C. A. Middleton, for the plaintiff.
A. Statham, for the defendant.
BUTT, J. There are certain facts in this case which are established beyond all controversy. In the first place, it is clear that a document in the shape of a will, bearing the name of the testator, the name of one Earles, and the name of Caleb Heningham, existed at the time of the testator's death, and had been in existence two years before his death: that it was placed on his coffin at his funeral, and that it was handed to defendant by the widow, and read by him. Another matter not in dispute is, that the contents of the document, whether a valid will or not, were practically those set forth in the plaintiff's statement of claim.
The part as to the executorship is not admitted; but the part as to the disposition of the property is admitted. The real question in the case has been this, was that document so read at the funeral really signed by the testator and attested by the two witnesses — in other words, was it duly executed? Now, in the first place, the son-in-law, James Harris, who was present at the funeral and who heard it read, speaks with perfect confidence as to the fact that the name which undoubtedly appeared at the end of the document was the testator's handwriting; and he has sworn also with equal distinctness, to the name of Earles, one of the attesting witnesses. The disposition which the will makes of the property was a reasonable disposition, and there is abundant evidence that it was the disposition which the testator desired. Now, the testator having died in 1877, the defendant, being heir-at-law, and having, as he said, made up his mind that the will was not a valid document, and that the signature was not his father's, and that therefore it was no will — takes no steps to assert his rights until 1885, when his mother died. That certainly raises a presumption, I will not say an irrefutable presumption, but one not lightly to be excluded from one's purview of the case, against his present contention. That document has disappeared, and there has been a grave contention as to how it came to disappear. It has been suggested that it got into the hands of the defendant and that he made away with it. But though there are circumstances raising grave suspicion, I do not think it at all necessary to decide that he made away with it. I prefer to believe on the whole, that it was the widow who destroyed it. I do not mean wickedly or with any intention of doing a wrong to her children — but under the impression that, though it left the greater part of the house to her five daughters, it left them no land by which they could get into that house, and it would...
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