Jones v Gregory
| Jurisdiction | England & Wales |
| Judgment Date | 07 December 1863 |
| Date | 07 December 1863 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 306
BEFORE THE LORDS JUSTICES.
S. C. 4 Giff. 468; 33 L. J. Ch. 679; 9 Jur. (N. S.), 1171; 9 L. T. 556; 10 Jur. (N. S.), 59; 12 W. R. 193.
[83] jones v. gregory. Before the Lords Justices. Dec. 7, 1863. [S. C. 4 Giff. 4G8 ; 33 L. J. Ch. 679 ; 9 Jur. (N. S.), 1171 ; 9 L. T. 556 ; 10 Jur. (N. S.), 59; 12 W. E. 193.] A bill was filed by an heir at law to have a will of real estate cancelled on the ground that it had been obtained by the direct fraud of persons taking a beneficial interest under it, of whom the principal Defendant was one. Held, by the Lord Justice Turner (the Lord Justice Knight Bruce doubting), that notwithstanding the statutes 21 & 22 Viet. e. 27 (Sir Hugh M. Cairns's Act), and 25 & 26 Viet. c. 42 (Mr. Eolt's Act) the bill was demurrable, the Plaintiff's remedy being only at law. This was an appeal by the Plaintiff from an order of Vice-Chancellor Stuart allowing a demurrer. The bill was filed by the heir at law of William Jones, to set aside his will as having been obtained by fraud. By this .will, dated the 29th of September 1849, the testator bequeathed to his 2 OB 0. J. A 8. K JONES V. GREGORY 307 niece Elizabeth Dike 100; to his nephew Samuel Dike 1000 ; to another nephew S. Llewellyn 100 ; to his housekeeper Elizabeth Gregory 7500 ; to his housekeeper the Defendant Jane Gregory 5500, and to a charity 200. After be-[84]-queathing to Elizabeth Gregory certain chattels, he gave his residuary real and personal estate to Dr. Williams and the Defendant T. P. Little, in trust to sell and to divide the proceeds between Elizabeth Gregory, Jane Gregory and several other persons. The testator appointed Dr. Williams, the Defendant Little, Elizabeth Gregory and Jane Gregory executors. The testator died in 1851, and the will was proved by the executors other than Dr. Williams, who refused to act. Elizabeth Gregory and Jane Gregory purchased from the trustees two houses in Stroud belonging to the testator. Elizabeth Gregory died in 1855, having disposed of her interest in them to Jane Gregory. The bill, which was filed against Jane Gregory and T. P. Little, contained allegations, to the effect that the testator at the time when he made his will was bedridden and imbecile, and that Jane Gregory and Elizabeth Gregory were his only attendants, and that they had complete control over him arid induced him to make this will when he was incapable of understanding its effect. The bill prayed that such part of the will as related to the two houses might bo declared void and be cancelled, or, if necessary, an issue might be directed to try whether the testator's real estate was effectually devised by the will, or that the Plaintiff might be at liberty to proceed by ejectment, and that the Defendants might, if necessary, be restrained from selling the real estate and from receiving the rents, and for a receiver and further relief. The Defendants demurred to the bill, and the demurrer was allowed by the Vice-Chancellor Stuart. A fuller statement of the allegations of the bill will be found in the report of the case before Hia Honour (4 Giff. 468). The Plaintiff appealed. [85] Mr. Harding, for the Appellant. The Court of Chancery anciently exercised a jurisdiction to set aside a will for fraud; Lucas v. Burgess (Reg. Lib. 1573, A, fol. 7); Munro, Acta Cancellarise (page 398); The Corporation of Feversham v. Parr (Reg. Lib. 1573, A. fol. 208); Herbert v. Lawns (1 Chanc. Rep. 12); Maundy v. Maundy Ib. 66); Welly v. Thornagh (Prec. Ch. 123); Goss v. Tracy (1 P. W. 287). This jurisdiction has not of late years been exercised, but it exists; Andrews v. Powys (2 Bro. P. C. 504), Kerrich v. Bransby (7 Bro. P. C. 437), Bennet v. Fade (2 Atk. 324), which are commented on in Middleton v. Sherbwne (4 Y. & C. 358); Webb v. Claverden (2 Atk. 424); Bamesley v. Powell (1 Ves. 119); Pembertmv. P&mburton (13 Ves. 289, 297, 301, 302); Armitage v. Wailswarth (1 Mad. 189); Jones v. Jones (3 Mer. 161); Scaife v. Scaife (4 Rusa. 309); Tatham v. Wright (2 Russ. & M. 1); Eaworth v. Marriott (1 M. & K. 643); Hopwood v. Lord Derby (1 K. & J. 255). It is established that a devisee may come to this Court to establish a will; Boyse v. Rossbomugh (Kay, 71); Boyse v. Coldough (1 K. & J. 73); Colclough v. Boyse (6 H. of L. Gas. 1); and there must be a correlative right in the heir to come to this Court to impeach...
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