Jones v Godrich
| Jurisdiction | UK Non-devolved |
| Judgment Date | 11 December 1844 |
| Date | 11 December 1844 |
| Court | Privy Council |
English Reports Citation: 13 E.R. 394
ON APPEAL FROM THE PREROGATIVE COURT OF CANTERBURY.
Mews' Dig. tit. Evidence, VI. Examination of Witnesses, 8. Privilege, a. ii.; tit. Will, I. Testamentary Capacity, g. Soundness of Mind. On point (i.) as to testamentary capacity (5 Moo. P.C. 20), see Banks v. Goodfellow, 1870, L.R. 5 Q.B. 549; and note to Harwood v. Baker, 1840, 3 Moo. P.C. 282; (ii.) as to effect on onus probandi of fact of testatrix residing with beneficiary (5 Moo. P.C. 20), see Cockcraft v. Rawles, 1845, 4 N. of C. 237 (on subject of undue influence generally, see note to Barry v. Butlin, 1838, 2 Moo. P.C. 192); (iii.) as to attorney's privilege (5 Moo. P.C. 46), cf. Bursill v. Tanner, 1885, 16 Q.B.D. 1; Ramsbotham v. Senior, 1869, L.R. 8 Eq. 575; Burton v. Darnley, Ld., L.R. 8 Eq. 576 n; Ex parte Campbell, 1870, L.R. 5 Ch. 703; Heath v. Crealock, 1873, L.R. 15 Eq. 357; (iv) noviter ad notitiam perventa (5 Moo. P.C. 47), commented on in Anon. 1855, 9 Moo. P.C. 434; and see The Newport, 1857, 11 Moo. P.C. 155; The Laura, 1865, 3 Moo. P.C. (N.S.) 181; (iv.) as to costs out of estate (5 Moo. P.C. 48), see Boughton v. Knight, 1873, 3 P. and D. 77-80.
ON APPEAL FEOM THE PEEEOGATIVE COURT OF CANTERBURY. PRYCE JONES,-Appellant; FRANCIS GODRICH,-Respondent * [Dec. 4, 5, 6, 9, and 11, 1844]. Principles, upon which a Court of Probate proceeds in the admission of * Present: Lord Langdale, Mr. Baron Parke, the Right Hon. Dr. Lushington, and the Right Hon. T. Pemberton Leigh. 394 JONES V. GODEICH [1844-45] V MOORE, 17 testamentary papers of persons of alleged incapacity, from age or infirmity [5 Moo. P.C. 19, 20]. Testatrix being of the age of eighty-six, and, as alleged, of feeble and impaired mind, having no near relations, by her Will and two Codicils gave to her medical attendant (who was a stranger to her in blood, but in whose house she resided) the bulk of her property, appointing him sole Executor and residuary legatee. The Will was executed in his house, and prepared by his attorney, and was at variance with her previous testamentary dispositions, which were in favour of her distant relatives. The Prerogative Court being satisfied of the testamentary capacity of the Testatrix, upon the balance of evidence negativing the alleged fraud, admitted the Will and Codicils to proof. On Appeal, the sentence, so far as it related to the Will and first Codicil, affirmed by the Judicial Committee of the Privy Council; but a further allegation, pleading facts, noviter ad notitiam perventa, being brought in, the second Codicil was pronounced against, and the sentence of the Prerogative Court to that extent, reversed [5 Moo. P.C. 47]. An attorney who prepared a testamentary .paper, at the instance of the party benefitted by it, is not privileged, on the ground of .professional confidence, to withhold from the Court, facts relating to contemporaneous acts, upon which he founded his opinion of the testamentary capacity of the partv making the Will [5 Moo. P.C. 46]. This was a business of proving, in solemn form of law, the Will and two Codicils of Harriet Loyd, late of Little Chelsea, in the county of Middlesex, spinster. [17] The Will was dated the 13th of February 1836, and the Codicils were respectively dated the 13th of December 1836, and the 5th of September 1838. The particulars of these instruments it is not necessary to^ state further, than as they are set forth in the Judgment. The cause was promoted by the Respondent, the sole Executor and residuary legatee named in the Will, against the Appellant, who1 was one of the Executors named in a previous Will of the deceased, bearing date the 22nd of December 1834. The deceased went to reside at the house of the Respondent, Mr. Godrich, a surgeon, in 1835, and died there on the 25th of September 1838, at the age of eighty-six. The personal property of the deceased was above £9000. This amount, however, was exclusive of leasehold premises claimed by the Respondent under an assignment, dated the 7th of November 1835, in consideration, of £980, and exclusive of £1200 11s. three per cent. Consols, also claimed by him under a transfer, by power of attorney, dated the 5th of September 1838, and also exclusive of six Exchequer Bills for £800, claimed as a gift from the deceased on the same 5th of September 1838. The above stock was stated by the Respondent to have been given to him in consideration, of his maintaining the deceased for the remainder of her life, and the Exchequer Bills as a present, with a view to save legacy duty at her death. [18] The Respondent also obtained a power of attorney for the transfer of £448 8s. lOd. Long Annuities, in the same month of September 1838, which, were then of the value of £7060, or thereabouts; but the transfer of such stock was demurred to by the authorities at the Bank of England, and the same remained standing in the name of the deceased at the time of her decease, forming the bulk of her personal estate. The facts and circumstances of the case were pleaded at great length, and witnesses examined on both sides: the material allegations and proofs are fully stated in the Judgment. The grounds on which the testamentary papers were opposed in the Court below, and upon the appeal, were, that the Testatrix was, at the respective dates of the papers propounded, of very advanced age, and enfeebled mind, and under the undue influence of the Respondent, in whose house she lodged, he being her medical attendant, the sole Executor and residuary legatee; that under such circumstances, coupled with his conduct generally in regard to her property, and that the papers propounded (which were at variance with her former testamentary dispositions) were prepared from, his instructions and by his attorney, and executed in his house, the evidence was insufficient to- entitle them to probate. 395 V MOORE, 19 JONES V. GODRICH [1844-45] The Appeal was argued by Mr. Turner, Q.C., and Dr. Haggard, for the Appellant ; and The Solicitor-General (Sir Frederick Thesiger), and Dr. Addams, for the Respondent. The following cases were cited and referred to:-[19] Paske v. Ottat (2 Phill. 323). Ingram v. Wyatt (I Hagg. Ecc. Rep. 384; and 3 Hagg. Ecc. Rep. 466). Middleton v. Forbes (cited 1 Hagg. Ecc. Rep. 395). Barry v. Butlin (2 Moore's P.O. Cases, 480). Dwrling v. Loveland (2 Curteis, 225). Gibson v. Jeyes (6 Yes. 266). Pratt v. Barker (1 Sim. 1; S.C. 4 Russ. 507). Hunter v. Atkins (3 Myl. and K. 113). Durnell v. Cor field (1 Robertson, Ecc, Rep. 51). Gibson v. Russell (2 Y. and Coll. N.R. 104). Welles v. Middleton (1 Cox, 112). The Right Hon. Dr. Lushington (January 17, 1845).-Harriet Loyd, the Testatrix in this cause, died on the 25th of September 1838. She left several testamentary papers. Mr. Godrich, the sole Executor and residuary legatee in. a Will dated the 13th of February 1836, propounded that Will, and also two Codicils thereto, bearing date the 13th of December 1836, and the 5th of September 1838. Mr. Pryce Jones, an executor in a Will dated the 22nd of December 1834, opposed the probate of the Will and Codicils propounded by Mr. Godrich. The Judge of the Prerogative Court, on the 3rd of December 1841, pronounced for the validity of the Will and Codicils set up by Mr. Godrich, and from that decision, Mr. Pryce Jones appealed to Her Majesty in Council, and their Lordships have now to determine, whether that decree ought to be in. whole or in part reversed, or, in other words, whether the Will of 1836 and the Codicils thereto are sufficiently proved. The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case. Three things must be proved; capacity, testamentary intention, and execution, [20] Before we consider the evidence (which in these Courts is called the evidence to the factum) of these papers, we must first look to the admitted facts in the cause, and this for the purpose of forming an, opinion, as to what degree of proof is necessary to sustain the validity of the Will and. Codicils. The deceased, at the time of making the Will, was of a very advanced age, certainly not less than eighty-six. She was resident in the house of Mr. Godrich, who was her medical attendant, and the Will and Codicils give the bulk of the property to him, who was no relation to the Testatrix. The Will was made by Mr. Lane, a stranger to the Testatrix, and the solicitor of Mr. Godrichf Now all these circumstances necessarily awaken the vigilance of the Court, and require that the proof shall be full and satisfactory. The onus probandi is always upon those who set up a testamentary instrument; and when facts like these appear, the evidence to prove the affirmative must be stronger than in ordinary cases. The extreme age of the deceased will require stronger proof as to capacity, because at periods so advanced, the mental faculties are often found to decay and fluctuate; so when a Will is made in favour of a medical man in, whose house the testatrix is resident, the Court must be upon its guard against undue influence, for practising which there is so much opportunity: and where a Will under such circumstances is made by a solicitor who had no previous knowledge of the deceased, the Court must be sure that he distinctly understood her, and acted as her agent, and not as the agent of the legatee, who sent him. The law of England has prescribed no restrictions upon testamentary dispositions, as to who may be the legatees. Where that power is exercised in favour of [21] guardians, trustees, solicitors, medical attendants, or persons standing in a similar relation, to the deceased, the degree of proof required will be greater or less according to circumstances; but if the Court be satisfied that there was adequate capacity, testamentary intention, untainted by fraud, and a due execution, the instrument is valid. Fraud cannot be presumed, but the...
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