Hindson v Weatherill
| Jurisdiction | England & Wales |
| Judgment Date | 30 May 1854 |
| Date | 30 May 1854 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 886
BEFORE THE LORDS JUSTICES.
S. C. 23 L. J. Ch. 820; 18 Jur. 499; 2 W. R. 132, 507.
[301] hindson v. weatherill. Before the Lords Justices. May 29, 30, 1854. [S. C. 23 L. J. Ch. 820; 18 Jur. 499; 2 W. R. 132, 507.] An attorney had advanced to a client in humble circumstances the necessary funds to prosecute actions of ejectment, which were conducted by the attorney, and terminated in a compromise, on which the client received a large sum of money. During the proceedings the widow of the client's brother wrote a letter to the client saying that she had little money to spare, but wished to do all she could so that justice might be done to every branch of the family. The attorney wrote an answer to this letter by the client's direction, saying, that if the client succeeded, substantial justice should be done to all to whom the client was related. Neither the brother's widow, nor any of the client's relatives, gave him any assistance in prosecuting the actions. The attorney, by his directions, prepared a will, which the client executed, and under which the attorney took large benefits, but in which benefits were also given to relatives of the testator. It did not appear that the letter of the brother's widow, or the answer to it, was referred to in the course of the preparation of the will either by the attorney or the client. Held,- 1. That the will was not made under any mistake or misapprehension caused by the attorney. 2. That the circumstance of a solicitor preparing for a client a will containing dis positions in his own favour, does not of itself take away the right of the solicitor to be for his own benefit a devisee or legatee. 3. That the considerations applicable to a gift inter vivos from a client to his solicitor are not universally applicable to a testamentary disposition. Where a Defendant tendered himself for examination viva vote below, and the Plaintiff opposed his examination, the Court of Appeal declined acceding to a proposition of the Plaintiff to examine him. This was an appeal from the decision of Vice-Chancellor Stuart, declaring that a solicitor of a testator, to whom the testator by his will and codicil had made gifts of realty and personalty, was a trustee of these gifts for the testator's heir at law and next of kin. The case is reported in the First Volume of Messrs. Smale and Giffard's Reports, page 604, and the facts are there fully stated. The following is a short summary of them :- The testator John Hindson was, in 1844, a farm labourer. He employed Mr. WeatheriH, the Appellant, in that year as his attorney in two actions of ejectment to try the validity of a will of one Richard Hindson, whose heir at law the testator was, and to recover certain lands at Tolsby. The Appellant supplied the requisite funds for these proceedings, pending which the testator applied to [302] some of his relatives for assistance, but without obtaining any from them. One of them, however, named Margaret Hindson, the widow of Robert Hindson, the testator's brother, wrote to John Hindson a letter, in which she said, " You, of course, are the person most interested, as I consider you without doubt the heir to the landed property. You dying without an heir, my son Thomas Robert Hindson would succeed you as heir to the landed property. I know I have no claim upon anything myself, but I am interested for my children. I hope you will exert yourself in the cause that justice may be done. I have little money to spare ; but in this case I wish to do all SDEO. M. ftO.MS. HINDSON V. WEATHERILL 887 I can that justice may be done to every branch of the family. It is many years since I heard anything from you, but I hope you will answer this." To this letter John Hindson sent an answer, written at his direction by Mr. Weatherill, and signed by himself, in which he said, " If I succeed in setting the will aside, substantial justice shall be done to all parties to whom I am related." The action was compromised by the payment to the testator of £4300 and the costs, amounting to about £1000 more. After this, in July 1850, the testator sent for Mr. WeatherilL, and gave him instructions for the will in question. He said that he wished to confirm by it a gift which he had previously made to Mr. Weatherill of a promissory note for £1000. The will was prepared and read over to the testator, who then said that he had changed his mind as to certain property at Tolsby, that he did not know his London relatives even by name, and had never seen them; that they had rendered him no assistance in procuring the property which he had to dispose of; and that he would, therefore, alter in the Appellant's favour the devise of his property at Tolsby. The [303] Appellant desired the testator not to make any alteration in his will, so far as he the Appellant was to benefit thereby, but the testator insisted on the alteration, which the Appellant at length consented to make, on condition that a third person should be present to hear the testator's wishes before the will was executed. An old friend of the testator, named Reade, accordingly attended, and after the will so altered was read over to the testator, said to him, "Now, John, is this disposition of your property as you wish it to be]" The testator replied, " Yes, it is ; and I would have done more for him (the Appellant) if he would have let me." The will was dated the 18th of July 1850, and thereby, after bequeathing various legacies, the testator confirmed the gift of the £1000 advanced on the promissory note. He then devised the lands at Tolsby to the Appellant and one John Redman during John Redman's life, the rents to be equally divided between them. At John Redman's decease the testator devised the premises unto and to the use of the Appellant, and his heirs and assigns for ever; and he gave all his personal estate to the Appellant and William Wilkinson, whom he appointed his executors, upon trust to call in and convert the same into money, and thereout to pay his debts, funeral and testamentary expenses, and certain legacies, and to divide the clear residue into four parts, and to pay and divide the same between the children of his sister Sarah Jackson, and of his brother Robert Hindson, and his sister Elizabeth Cole and her children, and Hannah Hindson and her child, in manner in the will expressed. By a codicil dated the 25th of October 1850, the testator, after revoking the residuary bequest of his personal estate, directed that the whole of the interest arid divi-[304]-dends of his personal estate should be paid to his two sisters, and the survivor of them, for their lives respectively ; and after the decease of the survivor of them, he directed his executors, after setting apart a legacy of £100, to divide the residue among the children of his sister and brother, Mary Jackson and Robert Hindson, both then deceased, and of his sister, Elizabeth Cole. The testator died on the 14th of January 1851, a bachelor. His only brother, Robert Hindson, died in his lifetime, and the Plaintiff, Thomas Robert Hindson, was the eldest son of Robert Hindson, and the heir at law of the testator. The Plaintiff entered a caveat in the Ecclesiastical Court, at York, to stay the probate; and a suit had been prosecuted in that Court by the executors, to establish the will and codicil, which were established by a decree directing probate to be granted to the executors on the 16th of December 1851. The Plaintiff then filed the present bill, praying for an account of the personal estate of the testator, and for declarations that notwithstanding the transfer and indorsement of the promissory note for £1000, the same formed part of the estate of the testator ; that the devise of the hereditaments at Tolsby, so far as respected any estate and interest of the Appellant therein, was void, and that he was to the extent of such estate and interest a trustee for the Plaintiff as the heir at law of the testator. The answer of the Appellant stated to the above effect, and further stated that the testator, though he was when first known to the Appellant a farm labourer, was the son of a farmer, and that he was a man of ordinary education in that station; that he was an intelligent person ; that after his accession to his fortune he devoted 888 HINDSON V. WEATHERILL 5 PB O. M. & 0. 308. [305] himself to sporting, but that he was not a person of intemperate habits as was alleged by the bill; that the testator resided at a distance of several miles from the Appellant; that the gift of the promissory note was spontaneous, and accompanied by expressions of gratitude, and that the testator repeated these expressions frequently ; that he was estranged from his relatives with whom he had kept up no intercourse ; and that the will was exactly in conformity with the instructions of the testator. Mr. Daniel and Mr. Renshaw, for the Plaintiff. The Vice-Chancellor's decision is founded upon the general principle, well established by authority, that the burden of proving the fairness of a gift from a client to a solicitor is upon the solicitor. Here the solicitor has not discharged himself of this burden; on the contrary, it appears that the client was labouring under an error as to the conduct of his relatives, of which error the Appellant was fully cognizant, as he had written the answer to Mrs. Robert Hindson's letter. The Appellant cannot retain a benefit so obtained, Huguenin-v. Baseley (14 Ves. 273). In Hwffhlm v. HougMon (15 Beav. 278-298) the Master of the Rolls said, "I am of opinion, as I lately held, in a case of Cookt v. Lamotte (15 Beav. 234), that whenever one person obtains, by voluntary donation, a large pecuniary benefit from another, the burden of proving that the transaction ia righteous, to use the expression of Lord Eldoii, in Gibson v. Jeyes (6 Ves. 266), falls on the person taking the benefit. But this proof is given, if it be shewn...
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