O'Leary v Douglass
| Jurisdiction | England & Wales |
| Judgment Date | 02 July 1878 |
| Date | 02 July 1878 |
| Court | Court of Appeal |
Appeal.
Before BALL, C., CHRISTIAN and DEASY, L.JJ.
Wood v. GoodlakeENR 2 Curt. 129.
Birks v. BirksENR 4 Sw. & Tr. 23.
Moore v. De la TorreENR 1 Phill. 375.
Colvin v. Frazer 2 Hagg. Ecc. Cas. 266.
Methuen v. MethuenENR 2 Phill. 416.
Masterman v. Maberly 2 Hagg. Ecc. Cas. 235.
Henfrey v. Henfrey 4 Moo. P. C. C. 29.
Heming v. ClutterbuckENR 1 Bligh (N. S.), 479.
Strickland v. StricklandENR 8 C. B. 724.
Lemage v. Goodban L. R. 1 P. & M. 57.
In re Petchell L. R. 3 P. & M. 153.
Dempsey v. LawsonELR 2 P. D. 98.
Sheil v. O'Brien Ir. R. 7 Eq. 64.
Richards v. The Queen's ProctorUNK 8 Jur. 540.
Stoddart v. GrantUNK 1 Macq. 163.
Cutto v. Gilbert 9 Moo. P. C. C. 131.
Pepper v. Pepper Ir. R. 5 Eq. 85.
Leslie v. Leslie Ir. R. 6 Eq. 332.
Robinson v. ClarkeELR 2 P. D. 269.
Denny v. BartonENR 2 Phill. 575.
Busteed v. Eager Milw. 346.
Killican v. Parker 1 Lee's Eccl. Cas. 662.
Stoddart v. GrantUNK 1 Macq. 163.
Harwood v. Goodright, lessee of Rolfe Cowp. 87.
Hitchins v. BassettENR 3 Mod. 203.
Seymour v. NosworthyENR Hard. 376.
Pemberton v. Pemberton 13 Ves. 290.
Cutto v. GilbertUNK 18 Jur. 560; 9 Moo. P. C. C. 131.
Glazier v. GlazierENR 4 Burr. 2512.
Methuen v. MethuenENR 2 Phill. 426.
Hemming v. ClutterbuckENR 1 Bligh (N. S.) 479.
Busteed v. Eagar Milw. 348.
Birks v. BirksENR 4 Sw. & Tr. 31.
Moore v. De la TorreENR 1 Phill. 400.
Henfrey v. HenfreyENR 2 Curt. 468; aff. 4 Moo. P. C. C. 29.
Methuen v. MethuenENR 2 Phill. 416.
Dempsey v. LawsonELR 2 P. D. 107.
Masterman v. Maberley 2 Hagg. Eccl. Cas. 236.
Will Revocation Parol evidence Two identical testamentary instruments One only admitted to probate.
ToL. III.] CHANCERY DIVISION. 323 O'LEARY v. DOUGLASS (1). Appeal. 1878. One only admitted to probate. June 12, 13. July 1, 2. A testator executed, subsequently to the Wills Act, two testamentary papers, each duly attested, of different dates, but otherwise identical in their terms, and each purporting to dispose of all his property. It was proved by parol eviÂÂdence that the earlier paper was prepared in the first instance as a draft. It was indorsed as a draft will, and contained alterations ; and it further appeared by the parol evidence that, from immediate apprehension of the testator's death, this document was duly executed and attested as a will ; but that the second instrument was subsequently engrossed, and that the testator, saying to his solicitor, " Now, will you give me that will, and. I'll sign it," took away the second paper, read it, stated that it was all right, and executed it in the preÂÂsence of attesting witnesses : Held (reversing the decision of Warren, J.), that the second paper only should be admitted to probate. Per BALL, C.-The inference from the documents themselves was, that the first was superseded, or, in other words, revoked by the second; and this was borne out by the parol evidence of the intention of the testator as a matter of fact, independently of their construction. But upon this question the testator's intention at the time of executing the second instrument only was material. Per CHRISTIAN, L. J.-The effect of the parol evidence was to show that there was merely a conditional publication of the first testamentary instrument, to continue effectual only in the event of the testator's death before executing the engrossment to be subsequently prepared, but not otherwise ; and its making and publication was, therefore, so qualified as to provide beforehand for its own revocation by the act of making and publishing the formal engrossment. The principle laid down in 1 R. & M. 90 (Frazer v. Byng, in notis), that where different testamentary instruments are exactly coextensive in their proÂÂvisions, and in other respects are so nearly identical as to satisfy the Judge that they cannot exist together, probate will be granted of the latest in date, and that parol evidence will be resorted to, if necessary, in determining the intenÂÂtion, approved of and followed. APPEAL from a decree of the President of the Probate and. Matrimonial Division, admitting to probate two testamentary papers as together constituting the last will of Patrick Coleman. (1) Before Lux, C., CHRISTIAN and BEAST, L.JJ. The material facts are fully stated in the report of the case in the Court below (1 L. R. I. 45), and also in the judgments in this Court. Mr. S. Walker, Q. C. and. Mr. Houston, for the Defendant, the Appellant : In all cases where there is more than one instrument admitted to probate, it is for the purpose of securing completeness of dispoÂÂsition. But if you have two instruments which are identical, and. the latter adds nothing to the first, there the completeness of disÂÂposition is preserved by admitting the last only to probate, for everything in the first is in it. It is always a question of intention whether the two instruments are inconsistent or incapable of standÂÂing together, or whether one supersedes the other, or was intended wholly as a substituted provision. The grounds for so holding the instrument to be inconsistent are two-the surrounding circumÂÂstances and the dispositions of the two instruments taken together. Now, one would think that if, in an emergency like this, a draft will is executed, and subsequently an engrossment from that draft, and both are alike, and as both speak from the death of the testaÂÂtor, the latter would be absolutely a substitute for the earlier one, as nothing was wanting for the complete disposition of the estate : 1 Williams on Executors, 168. In Wood v. Goodlake (1) there was a conflict between instructions for a will and a will executed afterÂÂwards, and the Judge says, " What is the character of the paper of the 2nd. of December ? It merely purports to be instructions for a will." Birks v. Birks (2) shows that parol evidence of the surÂÂrounding circumstances under which a will is executed is admisÂÂsible : 1 Jarman, 161. This is a case of substitution of disposition, not exactly of revocation. Moore v. De la Torre (3) is directly in point : Colvin v. Frazer (4) ; Methuen v. Methuen (5). In Master-man v. Maberly (6) there was a will and two codicils, and then a will to the same effect as these, and that alone was admitted to probate. In Henfrey v. Henfrey (7) it was stated to be against the (1) 2 Curt. 129. (5) 2 416. (2) 4 Sw. & Tr. 23. (6) 2 Hagg. Eco. Cas. 235. (3) 1 Phill. 375. (7) 4 Moo. P. C. C. 29. (4) 2 Hagg. Eco. Cas. 266. VOL. III.] CHANCERY DIVISION. whole practice of the Court that two wills, both disposing of the whole property, should be included in one probate. Repetition is the strongest evidence of substitution Heming v. Clutterbuck (1). In Doe d. Strickland v. Strickland (2) the real question was whether the will was a duplicate will or not ; but that is not this case. The real question is what dispositions did the testator intend, and all documents properly executed will be admitted to probate; and so, in Lemage v. Goodban (3), probate was granted of two papers, because there was a residuary clause in the first which was not in the later one ; and so it was also in In re Petchell (4). Dempsey v. Lawson (5) is really an authority for us, for it shows that even this will only be done where the intention is clear. The observaÂÂtions of the Judge in Sheil v. O'Brien (6) show the present is practically a case of revocation. Counsel also referred to Richards v. The Queen's Proctor (7) ; Stoddart v. Grant (8) ; Cutto v. GilÂÂbert (9) ; Pepper v. Pepper (10); Leslie v. Leslie (11); _Robinson v. Clarke (12) ; Denny v. Barton (13) ; Busteed v. Eager (14). Mr. Butt, Q. C., Mr. 0' Hagan, Q. C., and Mr. Kenny, for the Plaintiffs, the Respondents : We contend that these two documents should be admitted to proÂÂbate, as constituting together the last will of the deceased. Although the execution of the first will was a provisional measure, it was a final and complete will; it could not be made conditionally on his not making another ; and, moreover, there is no evidence to show the deceased did attach such a condition to the making of it. It was his last will and testament ; a will cannot be delivered as an escrow, it must be an absolute will. The only testamentary intention the deÂÂceased had was to sign this document as his last will and testament ; and it is the only one you can deal with see Wills Act, section 20. This is not another will ; the second will here is the same as the (1) 1 Bligh (N. S.), 479. (2) 8 C. B. 724. (3) L. R.1 P. & M. 57. (4) L. IL 3 P. & M. 153. (5) 2 P. D. 98. (6) Ir. It, 7 Eq. 64. (7) 8 hr. 540. (8) 1 Maeq. 163. (9) 9 Moo. P. C. C. 131. (10) Ir. R. 5 Eq. 85. (11) Ir. It. 6 Eq. 332. (12) 2 P. D. 269. (13) 2 Phill. 575. (14) Milw. 346. first. When the deceased signed the first will, there was a perÂÂfectly valid will, which could only be revoked in the manner pointed out by that section, and parol evidence cannot be adÂÂmitted to give that second will an operation which it has not. Parol evidence is inadmissible to show the circumstances under which the first will was executed ; that must be shown by the words of the will itself ; parol evidence is only admissible to throw light on these words. The moment the deceased made the will, it was his last will, and his intention of executing another could not affect it, and he could only revoke it in the manner pointed out by the statute. If the deceased put words in the will to the effect that it should only operate in certain contingencies, that might be good, but these words cannot be replaced by parol evidence. But there is no parol evidence here to qualify the execution of the will ; the will is not the writing, it is the testamentary disposition : the necessity of having the intention declared in writing is entirely a creation of statute. A will does not necessarily imply writing ; and when revocation is spoken of, that means not revocation of the writing but of the disposition. The writing is not the...
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