John Utterton, and Frances Anne, his Wife, and Others, against Robins and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1834 |
| Date | 01 January 1834 |
| Court | Court of the King's Bench |
English Reports Citation: 110 E.R. 1269
IN THE COURT OF KING'S BENCH
john utterton, and frances anne, his Wife, and others, against robins and others. 1834. A will or codicil containing a devise of eal estates, but not duly witnessed, is good if confirmed by a subsequent codicil having the proper attestation, though the latter document be in no way annexed to the will or prior codicil, and though the attesting witnesses jbo the latter codicil did not see the former one, or the will : semble, however, that the instrument relied upon as confirming a previous one should distinctly refer to it. Testator by several unwitnessed memorandums subsequent to his will left a freehold house, acquired among other estates since the date of the will, to his daughter; and he afterwards (a)1 Sic in Year Book. (a)2 Sic in the printed rolls (Rotuli Parliamentorum, ut et petitiones, &c., vol. u p. 291). Qu. paviage? See Fitzh. N. B. 227, F, note (a). 2 Inst. 4. 1270 UTTEETON V. ROBINS ,1 AD. & E. 424. made the following codicil, which was duly attested:-"I make this a further codicil to my will; I give and devise all real estates purchased by me since the execution of my said will to the trustees therein named, their heirs, &c. to the uses and upon the trusts therein expressed concerning the residue of my real estates :" Held, that the house passed to the trustees, and not to the daughter. [S. C. 2 N. & M. 819. Referred to, Zichy Ferraris v. Hertford, 1843, 3 Curt. 514; Aaron v. Aaron, 1849, 3 De G-. & Sm. 480. Considered, Allen v. Haddock, 1858, 11 Moo. P. C. 449.] The Vice-Chancellor sent the following case for the opinion of this Court:- John Robins, being seised and possessed of divers freehold and leasehold estates, made and published his will duly executed and attested, bearing date the 12th of September 1823, and thereby, among other things, bequeathed a messuage on Brompton Terrace to certain persons to the use of his daughter Frances Anne Utterton, during the joint lives of herself and her husband, with remainders over. And he gave and devised the residue of his real and personal estate to trustees to certain uses, one fourth part of such residue being [424] limited to the same uses as were declared of the above messuage. By a codicil duly executed and attested, bearing date the 8th of May 1825, the testator, after reciting that he had purchased certain estates since the execution of his will, devised these last to the trustees therein named as to the residue of his estate therein mentioned, upon the trusts declared as to such residue. A memorandum in pencil appeared on the margin of the will, bearing date the 6th of August 1825, written and signed by the testator, but not attested, in the following words :-" As the house on Brompton Terrace is sold, I give my daughter, Frances Anne Utterton, my freehold house in Portugal Street, Lincoln's Inn Fields, purchased of Lady Bulkley, in lieu of the house on Brompton Terrace : it is conveyed to my son Joseph, but my desire and will is, that it should be assigned to my daughter in trust as the other property." The devise of the messuage on Brompton Terrace was struck through with a pencil. The testator, after the said 8th of May 1825, wrote and signed the following codicil, or memorandum, which, however, was not attested :-"Memorandum for my executors and trustees, 29th of August 1825. Whereas I purchased a house, freehold, of Lady Bulkley, in Portugal Street, Lincoln's Inn Fields, (per Lightfoot and Robson, and which is conveyed from Lady Bulkley to my son Joseph Robins, the deeds in my possession,) I give the said house, now in the occupation of Mr. Usher, tailor, as tenant at will, to my dear daughter Frances Utterton, wife of Colonel John Utterton, and to go to her family as settled according to the other property in my will: am certain that my son Joseph will assign it according [425] to my wish :-John Robins, Regent Street. I had given my said daughter a house at the west-end of Bromptou Terrace, which I since sold ; and the above is in lieu of the said house :-John Robins."...
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