Harwood v Baker
| Jurisdiction | UK Non-devolved |
| Judgment Date | 17 December 1840 |
| Date | 17 December 1840 |
| Court | Privy Council |
English Reports Citation: 13 E.R. 117
ON APPEAL FROM THE PREROGATIVE COURT OF CANTERBURY.
Mews' Dig. tit. Will, I. Testamentary Capacity, g. Soundness of Mind. As to criterion of testamentary capacity in mental disease, see Banks v. Goodfellow, 1870, L.R. 5 Q.B. 568; Boughton v. Knight, 1873, 3 P. and D. 73; Smee v. Smee, 1879, 5 P.D. 84; Murfett v. Smith, 1887, 12 P.D. 116; Roe v. Nix (1893), P. 55; and notes to Barry v. Butlin, 1838, 2 Moo. P.C. at p. 492; Dufaur v. Croft, 1840, 3 Moo. P.C. 148; and cf. Waring v. Waring, 1848, 6 Moo. P.C. 341; and Delafield v. Parish, 1862, 25 N.Y. 9.
[282] ON APPEAL FROM THE PREROGATIVE COURT OF CANTERBURY. CHARLES HARWOOD,-Appellant; MARIA BAKER,-Respondent * [11th, 12th, 16th and 17th Dec. 1840]. A Will executed by a Testator on his death-bed in favour of his wife, to the exclusion of the other members of his family, the Testator being of a weakened and impaired capacity at the time of the factn.ni, from disease affecting the brain, which produced torpor, and rendered his mind incapable of exertion unless roused, pronounced against: the disposition in the Will being a total departure from, and contrary to, the previous expressed intentions of the Testator. To constitute a sound disposing mind, a Testator must not only be able to understand that he is by his Will giving the whole of his property to one object of his regard, but he must also have capacity to comprehend the extent of the property, and the nature of the claims of others, whom by.his Will he is excluding from participation in that property [3 Moo. P.C. 290]. This was an Appeal from a sentence of the Prerogative Court of Canterbury, revoking Probate of the Will of Thomas Edward Baker, granted in common form to Mary Ann Baker, afterwards Mary Ann Harwood, the widow of Thomas Edward Baker, and the sole Executor and Universal Legatee named in the said Will; the facts and circumstances of the case are fully set forth in the Judgment. The case was argued by Sir William Follett, Q.C., and Dr. Addams, for the Appellant; and Mr. Pemberton, Q.C., and Dr. Phillimore, on behalf of the Respondent. The arguments on both sides turned wholly on a [283] comparison of the evidence adduced, and of the degrees of credit due to the several witnesses; but the decision, containing an exposition of the capacity necessary to constitute a testamentary disposition, is given at length. Ingram v. Wyatt (1 Hagg. Ecc. Rep. 384), Marsh v. Tyrrell (2 Hagg. Ecc. Rep. 84), and Barry v. Butlin (2 Moore, P.C. Cases, 480; and 1 Curteis, Ecc. Rep. 614), were referred to. * Present: Lord Brougham, Mr. Baron Parke, Mr. Justice Bosanquet, and Mr. Justice Erskine. 117 Ill MOORE, 284 HARWOOD V. BAKER [1840] Mr. Justice Erskine.-This case came on upon Appeal from the sentence of the Prerogative Court of Canterbury, by which the learned Judge of that Court revoked the probate which had been granted of the Will of Thomas Edward Baker, late of Bath Place, Kensington. Mr. Baker died in the night of the 27th of March 1833, and shortly after his death, a caveat was entered on behalf of Mr. George Baker, a relation, but not the next of kin of the deceased, against the issuing- of any probate of the paper in dispute; but that caveat having been afterwards withdrawn, probate was, on the 18th of April 1833, granted in the common form to. the widow of the deceased as sole Executrix, and who was also the Universal Legatee under the Will. In the month of May 1834, Mrs. Baker married the Appellant Harwood, and she died in the month of October 1835, having by her Will, executed under a power, appointed her husband sole Executor. In the month of January 1836, the probate which had been granted to Mrs. Baker was called in by Maria Baker, who alleged herself to be next of kin, and who was admitted to oppose the Will; and thereupon the paper was propounded by Mr. Harwood, in a common con-[284]-didit, upon which three witnesses were examined-Mr. William Knight, Solicitor, the drawer of the Will, Mr. William Smith, a friend of the deceased, and Mr. James Pollock, who attended the deceased in his last illness as the assistant of Mr. Andrew Carrick, a Surgeon and Apothecary. The two former were attesting witnesses to the Will. The third attesting witness, Sophia Reade, was not examined in chief by Mr. Harwood, but was examined upon interrogatories by Maria Baker. Several other witnesses were afterwards examined on allegations asserted and admitted on both sides, and four several testamentary scripts of the deceased, besides that propounded as his Will, were brought in annexed to the affidavit of script of Mr. Harwood. The learned Judge having heard the cause on the 5th of August 1837, by his Decree pronounced against the force and validity of the pretended Will, upon the ground that the evidence adduced was not sufficient to prove that the deceased was a capable Testator. From this Decree the present Appeal has been instituted by Mr. Harwood, and the case was very ably argued in December last, when Judgment was deferred, and now, after a careful examination of all the evidence in the cause, their Lordships concur in the opinion expressed by the learned Judge below, that the party propounding the Will has not satisfactorily proved, as he was bound to' do, that the paper in question does contain the last Will and Testament of the deceased. As their Lordships do not however view some of the evidence in the same light in which it was viewed by the Court below, it will be necessary to state the particular grounds upon which they have come to the same result. It appears by the evidence, that Mr. Baker died [285] about 12 o'clock in the night of the 27th March 1833 ; that the paper propounded as his Will was executed about 7 o'clock in the evening of that day. According to the evidence of Carrick, one of his medical attendants, at 9 o'clock that evening, Mr. Baker was nearly insensible, unconscious, incapable of any act whatever-he was actually dying. The Will, when produced, is found to be signed only with a mark, and had evidently been with a very feeble hand. When, therefore, a Court finds that the paper propounded as the Will of the deceased was executed in the manner stated, only two hours before he is found by his medical attendant in an unconscious and dying state, and only five hours before his death, it becomes the duty of the Court to require the most satisfactory proof, that at the time when the Will was executed, the deceased was not only aware of the disposition he was making of his property, but that he was in a state of mind to judge of the propriety of that disposition. The infirmity of mind suggested by the Respondent, and relied on by the Court below, is not an incapacity arising from any delusion or from any constitutional or long-established infirmity of mind, but one occasioned by a recent accession of bodily disease affecting the brain, and producing torpor, and thereby rendering the mind incapable of exerting those faculties which are essential to a sound and disposing mind and memory. In order, therefore, to form an accurate opinion of the condition of the mind of 118 HARWOOT) V. BAKER [1840] III MOORE, 286 the deceased at the time of making his Will, it will not be necessary to go further back than the 21st of March 1833, when he was first seized with the illness which terminated in [286] his death on the 27th of the same month; for before that time it is admitted by all parties that the deceased was fully competent to make any testamentary disposition of his property. The earliest account that the evidence furnishes of the nature of the attack and the early progress of the disease, is that which is derived from the statement made by Mrs. Baker, in a letter to Mr. Flooks, a friend of the deceased. This letter is dated April 6th, 1833, about nine days after her husband's death, in which she says, " It is now a fortnight last Thursday (this would be the 22nd of March) since my dear Mr. Baker went into town to attend a meeting of the Bank Directors to declare a dividend, and as he went through Temple Bar he felt himself seized with a violent shivering fit. He however proceeded to the Bank of England, and got, as soon as possible, before a great fire; still the shivering continued, to that degree, that he was unable to go and hear the speaker's speech, which vexed him very much, and he got in a coach, and returned home. When he came back, his looks nearly frightened me to death. We placed him instantly in a hot bed, and from that moment I never left him. He died on the following Wednesday. He was sensible to the last moment; but the stroke, which was paralytic, deprived him of the use of his right side;'"- and then she proceeds to allude to the making of the Will, and Mr. Smith's visit. Mr. Carriek was called in on the 22nd of March, and he says'he found the deceased in bed, very ill, having a high degree of fever and erysipelas-affection of the brain, producing a considerable degree of stupor. Carriek then adds, " During the few days he continued to live, I saw him repeatedly, at least four times a-day. [287] For a day or two the disorder was stationary-one could not say he was better or worse-but the bowel complaint continued obstinately; debility gradually increased, and stupor also continued. The brain was implicated, so that he required to be roused before he would speak, though he was quite rational, and expressed his feelings correctly, in reply to the medical inquiries addressed to him. He was not irrational-there was no delirium-only when not roused, he sank into a depressed state of drowsiness and stupor, such as I have described. He knew me perfectly well, and all about him, when roused from the stupor, in which he would have continued if not disturbed. When roused, he answered my questions very rationally, but immediately relapsed into a state of stupor. He was exceedingly drowsy. As far as...
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