Joseph Emanuel Allen, - Appellant; Sir Thomas Herbert Maddock, - Respondent
| Jurisdiction | UK Non-devolved |
| Judgment Date | 19 February 1858 |
| Date | 19 February 1858 |
| Court | Privy Council |
English Reports Citation: 14 E.R. 757
ON APPEAL FROM THE PREROGATIVE COURT OF CANTERBURY.
Mews' Dig. tit. Will; II. Testamentary Instruments; h. 3. Codicils and Wills. S.C. 6 W.R. 825. See In the Goods of Sunderland, 1866, L.R. 1 P. and D. 200; Anderson v. Anderson, 1872, L.R. 13 Eq. 385; In the Goods of Heathcote, 1881. 6 P.D. 32.
ALLEN V. HADDOCK [1858] XI MOOEE, 427 [427] ON APPEAL FROM THE PREROGATIVE COUKT OF CANTERBURY. JOSEPH EMANUEL ALLEN,-Appellant; Sir THOMAS HERBERT HADDOCK,- Respondent * [Feb. 19, 1858]. Incorporation of an imperfectly attested testamentary paper, intended as a AM 11, in a subsequent duly-attested Codicil. An unattested paper, which, would have been incorporated in an attested Will or Codicil, executed according to the Statute of Frauds, is now in the same manner incorporated, if the Will or Codicil is executed according to the requirements of the Wills Act, 1 Viet., c. 26, sec. 9 [11 Moo. P.C. 455]. Where there is a reference in a duly-executed testamentary instrument, to another testamentary instrument, imperfectly executed, but by such terms as to make it capable of identification, it is necessarily a subject for the admission of parol evidence, and such parol evidence is not excluded by the 1st Viet., c. 26 [11 Moo. P.C. 4:54:, 455]. If the parol evidence satisfactorily prove that, in the existing circumstances, there is no doubt as to the instrument referred to, it is no answer, that by possibility, circumstances might have existed in which the instrument could not have been identified. A married woman, having- power under a settlement to make a Will, in the year 1851 made a testamentary instrument, in her own, hand-writing, which she intended to operate as a Will, but which was not attested according to the requirements of the 1st Viet., c. 26, sec 9. In 1856, she duly executed a Codicil, which was headed, " This is a Codicil to my last Will and Testament." This Codicil contained no reference to the testamentary paper of 1851, which was not produced at the time the Codicil was executed, but was found at her death in a trunk in a room in the deceased's residence, enclosed in a sealed envelope, on which was endorsed " Mrs. Anne Foote's WTill." The Codicil was found in a drawer in her bed-room. No other Will or testamentary paper was found. Held (affirming the decree of the Prerogative Court): First, that as there was a distinct reference in the Codicil to a " last WTill and Testament," and as no other Will had been found, the testamentary paper of 1851 was, by parol evidence, sufficiently identified as the " last Will " referred to by the Codicil of 1856. Secondly, that, though informally executed, the testamentary paper of 1851 was incorporated with, and made valid by, the duly-executed Codicil of 1856, and probate granted to both papers as together containing the last Will and Codicil of the Testatrix. The question in this appeal was, whether by the following words in a Codicil, made in 1856, " This is [428] a Codicil to my last Will and Testament," and the circumstances of the case, a testamentary paper made in 1851, and intended by the Testatrix as her Will, but which was informal, not being attested as required by the Wills Act, 1st Viet., c. 26, sec. 9, was sufficiently referred to and identified, as to become incorporated, and acquire validity from the duly attested Codicil. The appeal arose out of a cause instituted in the Prerogative Court of Canterbury, of proving in solemn form of law the last Will and Testament, with a Codicil thereto, of Anne Allen (formerly Foote, widow), the wife of the Appellant, promoted by the Respondent, one of the executors named in the Will, against the Appellant. The Will, which was in the hand-writing of the deceased, was dated the 1st of December, 1851, and was attested by one witness only. It was made by the deceased, while under coverture, in virtue of a power conferred upon her by a settlement made on her marriage. By this instrument the deceased left pecuniary legacies to certain persons of the name of " Drew," her brothers and nephews, and her jewellery to some * Present: The Right Hon. Dr. Lushington, the Right Hon. T. Pemberton Leigh, the Right Hon. Sir Edward Ryan, and the Right Hon. Sir Cresswell Cresswell. 757~ XI MOORE, 429 ALLKN V. MADBOCK [1858] friends, and appointed the Rev. Wood, Curate of Christ Church, Bath, and Sir Thomas Herbert Maddock, executors. The Codicil was dated the 13th of September, 1856, the day previous to the deceased's death, and was as follows:-" This is a Codicil to my last Will and Testament. I bequeath to my faithful servant, Eliza Baker, now residing with me at No. 29, New King Street, in the City of Bath, the sum of one hundred pounds, with as much of my furniture as in the opinion of my Executor will be sufficient to furnish a sitting-room and a bed-room. This legacy is to be duty free. I bequeath the sum of one hundred [429] pounds to Nicholas Drew, residing in the City of Worcester, tailor. This legacy is to be duty free. I bequeath one hundred pounds to Edward Drew, of the City of Bristol, Brightsmith. This legacy is to be duty free. I bequeath my best service of china and my cheffonier to John Taylor, of No. 34, New King Street, in the City of Bath. I bequeath my red cashmere shawl, dark blue silk dress, and toilet glass, to Mary Ann Taylor, of 34, New King Street, in the City of Bath. I also bequeath to her my black dress cap, half a dozen slips and half a dozen night gowns." This Codicil was signed and attested by two witnesses. The testamentary paper of 1851, and the Codicil of 1856, were propounded in an allegation given in by the Respondent, which pleaded the fact of the settlement made in the year 1840, on the marriage of the deceased with the Appellant, under which she was empowered to dispose of her property by Will, notwithstanding her coverture; and alleged that the Will was written by the deceased herself on the day it bore date, and signed by her in the presence of one Hoare, who attested the same.' That the Codicil was prepared by her directions arid instructions, and duly executed and attested. That since the year 1846, she had lived apart from the Appellant, and had assumed the name of " Foote," and from the time of her separation until her death had been generally known by such name and no other. That after separating herself from the Appellant, she had frequently declared her intention to benefit her relations and others by her Will, and in allusion to such Will frequently spoke of the Respondent, with whom she was in the habit of corresponding, as her friend, who would manage [430] her affairs in case of her death; that shortly after the date of the Will, in the year 1851, and subsequently, she declared she had made her Will, and had appointed the Respondent an executor thereof. That the Testatrix, in executing the aforesaid Codicil to her Will, meant and intended to confirm and give effect thereto, and that by the words, " This is a Codicil to my last Will and Testament," appearing written at the beginning of the Codicil, the Testatrix meant and intended to refer to her aforesaid Will as being such Will. That the Testatrix. having been in a state of ill health for some short time before her death, became seriously ill on the 8th of September, 1856, and on the following day was attended at her residence in New King Street, Bath, by Frederick Field, a surgeon, who visited her daily from that time until her death, which took place on the 14th of the same mouth; that on the morning of the previous day, the Testatrix, being desirous to make a Codicil to her Will, spoke to Field on the subject, and in direct allusion to such Will, addressing him, said, " I wish you to do something for me in respect to my Will," or to that very effect; and Field, having consented to comply with her desire, proposed visiting her again in the course of the same day. That in the course of the afternoon of such day he accordingly again attended the Testatrix, when she entered on the subject of her wishes, and stated that she desired to leave something to her servant, and also some other trifling legacies to friends; and added, " I wish to do this by a Codicil to my Will," or " in addition to my Will." That from the dictation of the Testatrix, she being confined to her bed, Field then proceeded to write the Codicil, and on reaching that part in which the [431] Testatrix desired that her servant, Baker, should have as much furniture as her executor might deem sufficient for furnishing a sitting-room and bed-room, he inquired of the Testatrix who was the executor of her Will; when she immediately replied, " Sir Herbert Maddock," and at the same time said there was another executor, but did not mention his name, and added, that Sir Herbert Maddock would be the acting person. That the Codicil, having been completed and executed by the Testatrix, the Testatrix, on being asked by Field where the Will was deposited, said, " Oh! my Will is in my safe keeping," and then, by her direction, the Codicil was placed in a drawer in a chest of drawers, in the Testatrix's bedroom, and locked up therein. 758 ALLEN V. HADDOCK [1858] XI MOORE, 432 That on this occasion the Testatrix was very ill, and was fully aware that her life was in danger, and that her death might occur in a very short time. That in allusion thereto, she requested Field immediately on her death to write to her friend Sir Thomas Herbert Maddock, her executor, whose address she mentioned, and inform him of the event, and she at the same time directed her servant, Baker, to take charge of her keys, and desired her not to give them up to any person, except to Sir Thomas Herbert Maddock. That the Testatrix had in her possession, at her residence in New King Street, several Indian trunks, two of which, having an inscription 011 a brass plate " No. 1, Mrs. A. Foote," and " No...
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