Ilott v Genge
| Jurisdiction | England & Wales |
| Judgment Date | 19 July 1842 |
| Date | 19 July 1842 |
| Court | Ecclesiastical Court |
English Reports Citation: 163 E.R. 689
IN THE ECCLESIASTICAL COURTS AT DOCTORS' COMMONS
S. C. 1 Notes of Cases, 572. affirmed 1843, P. C. 265, 13 E. R. 304 (with note) See also Blake v Knight, p 563, post, Hudson v Parker, 1844, 1 Rob 34, Daintree and Butcher v Fasulo, 1888, 13 P. D 102.
ilott agavnst g-enge. Prerogative Court, July 19th, 1842.-A B. (deceased) requested two persons, present at the same time, " to sign a paper for him," which they did in his presence, the paper was so folded that the witnesses did not see any writing whatever on it, A B. did not state what was the nature of the papei in question. On the death of A. B. it was found to be his intended will --Held that it was not entitled to probate, the provisions of the 9th section of the 1 Viet. c. 26 not having been complied with. [S. C. 1 Notes of Cases, 572 . affirmed 1843, 4 Moore, P C 265 , 13 E R 304 (with note) See also Blake v Knight, p 563, post, Hudson v Patkei, 1844, I Rob 34, Daintree and Butcher v /Wo," 1888, 13 P. D 102 ] The Rev. H. Masterman, the vicar of Milton Abbas, in the county of Dorset, died on the 8th of December, 1841 On his death, a testamentary paper was found, dated the 8th of September, 1841, it was in the handwriting of the deceased, signed by,him, and the names of three witnesses appeared subscribed to it. The attestation clause was as follows.-"Signed, sealed, and delivered in the presence of us, this 8th day of September, 1841, Samuel Hopkins-Henry Eaton-John Chaffey." This clause not shewing that the 9th section of the 1 Viet c. 26 had been sufficiently complied with, the subscribing witnesses were applied to, to make an affidavit in the form required by the Prerogative [161] Court, they declined to do so, wheieupon the paper was propounded by Mr. Ilott, an executor named therein, and was opposed by Mrs Genge, whose interest (as the lawful second cousin of the deceased) in his effects, in case ie had died intestate, was admitted. The allegation given in by Mr. Ilott pleaded, in the first article, that this paper was written by the deceased with his own hand, that it was subscribed by the deceased, in thf presence of two witnesses present at the same time It then went on to plead "that on the 8th of September the deceased, at about four o'clock in the afternoon, called on S. Hopkins, the parish clerk of Milton Abbas, who was in his shop with H. Eaton, and said, I want you two to come to nay house to sign a paper for me , that Hopkins said we will come, that the deceased went back to his house , that Hopkins and Eaton shortly afterwards went to the testator's house, and found him in his study standing at a writing desk placed on a small table near the wall, that his back was turned to them as they entered; that on their entering he turned round and said, ' Mr. Hopkins, I want you to sign this paper for me ' That he then turned round again to his writing desk, and, still standing up, did something with the paper, and, as appeared to Hopkins and Eaton, from his attitude and manner, he was writing upon it. That after a short interval, during which the deceased was so employed, he moved the paper from the desk and put it on the table on which the desk was standing, and said, pointing with his fingers to the bottom thereof, ' Sign your names there.' That Hopkins then took the pen which was in the [162] ink-bottle, and which apparently the deceased had been just using, and signed his name in the testator's presence, and in the presence of Eaton, and Eaton also signed his name in the presence of Hopkins and of the deceased, but that the upper part of the paper was so folded or turned down as to conceal the writing on the concluding part thereof, so that Hopkins and Eaton could not see whether or no there was any signature or seal to it. That the deceased, on the same afternoon, called on J. Chaffey, and requested him to put his name to the paper, under those of Hopkins and Eaton, which he accordingly did; that the paper was again so folded or turned down as to conceal the writing on the concluding part thereof, but neither Hopkins nor Eaton were present when Chaffey signed." The second article pleaded the handwriting of the deceased to the paper The subscribing witnesses having been examined, it appeared by their evidence that the deceased did not sign the paper in their presence, and that they never saw his name or seal to the paper. The case came on for hearing. Haggard and R. Phillimore, in support of the will, argued that this was a will which the Court would be anxious to support. That in White v Tntstees of the Bnttsh Museum (6 Bing. 310) and Doe dem. Jackson v Jackson (coram Parke, B., North Circuit, 16th March, 1842) the question whether the signature of a testatoi to a will was 690 ILOTT V. GENGE 3 CURT. 163 made before the witnesses subscribed, was left as a fact to a jury, and a jury will presume the fact to be one way or the other on the reasonable probabilities of a case. That [163] in a Court of probate the judge will, in favour of a testamentary disposition, make the same presumption of fact as a jury would make ; that it would be most anomalous and inconvenient if, in the case of a will respecting real estate, a jury should presume it to have been signed by the devisor in the presence of witnesses, or to have been signed by him before the witnesses subscribed, and a Court of probate not make the same presumption in the case of the same will as respected the personalty. That in this case the reasonable probabilities were that the testator signed whilst the witnesses were present. They cited Farebiother v. Simmons (5 B. & Aid 333), Walli* v. Wallis (4 Burn. Eccl Law, 114) Trimmer v. Jackson (ib. 117), Jarman on Wills (c 8, p. 140), Williams's Executors (vol 1, p. 65). Addams and Curteis contra, contended that to hold this will to be sufficiently executed would be to repeal the 9th section of the 1 Viet, c 26, which wag expressly designed to prevent any paper operating as a will where the witnesses did not actually see the signature of the testator. That the signature under the present act must be made in their presence or the signature-not the will-must be acknowledged in their presence. That the Court could not presume this will to have been signed in the presence of the witnesses, when they, the witnesses, deposed that in their belief it was not signed in their presence. That presumptions of fact can only be made in the absence of evidence, and that to presume the fact of signature in the presence of [164] the witnesses in this case would be to do so in the teeth of the evidence In reply, Starkie on Evidence (p. 1685) and Peate v. Ongley (Coin. 196) were referred to. Judgment-Sir Herbert Jenn&t Fust. The Rev. H. Masterman died on the 8th of December, 1841 ; he left a will, all in his own handwriting, dated the 8th of September, 1841, signed by the deceased, and with an attestation clause, "Signed, sealed, and delivered in the presence of" (three persons), Samuel Hopkins, Henry Eaton, and John ChafFey The signature of the deceased, and the date of the year in which the execution took place, appear to have been inserted after the body of the will was written : the purport of the will is to give legacies to friends and servants. [The Court stated the contents of the will, and proceeded.] Now this is a will which the Court would be disposed to support if, under the circumstances, it can do so , there can be no doubt of the intention of the deceased that it should operate as a disposition of his property. The will is propounded by Mr. Ilott, the executor, who is a legatee in a sum of 4001, and is opposed by Mrs Margaret Genge, a second cousin of the deceased. The question is whether it is executed pursuant to the piovisions of the 9th section of the 1 Viet c. 26, inasmuch as the attesting witnesses did not see the testator write his name, so as to be [165] able to swear that he did so in their presence; whether there is sufficient evidence to satisfy the Court of the fact that the signature waa on the paper at the time the witnesses attested it; or whether there is sufficient evidence to satisfy the other alternative of the statute, namely, of the acknowledgment oJ the signature in the presence of the witnesses. Although in the allegation nothing is suggested as to acknowledgment of the signature, but the case is rested on actual signature, yet if, from the evidence of the...
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