Lewis v Thomas

[26] lewis v. thomas. March 11,1843. A. T., a person of unsound mind, living in the family of M. D., became entitled as heiress at law to certain lands. M. D. received the rents and profits of such lands for thirteen years during the life of A. T., and eleven years after her death, when M. D. died. M. D. had procured A. T. to execute a will devising part of her estate, and also indentures for conveying other parts, to M. D. and her heirs. Held, that M. D. had founded her title upon the instruments which she had procured A. T. to execute in her favour; that her claim to the lauds in question must be deemed to be under, and not against, A. T.; and that there was, therefore, no adverse possession as against A. T., or those claiming under her. That procuring instruments of conveyance and devise to be executed by a person of unsound mind was a fraud within the stat. 3 & 4 Will. 4, e. 27, s. 26 : semble. That, after issues had been directed, on motion, to try the validity of the instruments executed by A. T., and whether she was of sound mind, the order being submitted to, it was no longer open to those claiming under M. D. to insist, at the hearing, that the claim of the heirs of A. T. was barred by the Statute of Limitations, 3 & 4 Will. 4, c. 27, Thomas Davies died in 1811, intestate, being at the time of his death seised, to him and his heirs in fee-simple, of lands in the county of Glamorgan, subject to a term of 1000 years, created by way of mortgage, and entitled for an equitable estate to lands copyhold of inheritance, according to the custom of the manor of Coity Wallia, in the same county, subject to a mortgage to E. Evans, to secure which the premises had been surrendered to a trustee to the use of the mortgagee, and also entitled to other lands copyhold of inheritance, according to the custom of the manor of Ogmore,. in the same county. Thomas Davies left Thomas Bennett Davies, his son and heir at law, and heir according to the custom of the manors, and Mary Davies, his widow, who was entitled to her free-bench in the copyhold lands of the manor of Ogmore, and to her dower of the freehold estate, subject to the mortgage term. The rents and profits were received either by Thomas Bennett Davies or Mary Davies until November 1815, when Thomas Bennett Davies died intestate, leaving Alice Thomas, the sister of his paternal grandfather, his heiress at law, and heiress according to the custom of the several manors. Alice Thomas had resided in the family of Thomas Davies for many years before his death : and after his death she continued, during all the remainder of her life, to reside with Mary Davies, his widow. It appeared that the rents and profits of the freehold and copyhold premises were received by Mary Davies, after [27] the death of Thomas Bennett Davies, until her own death, and were never received by Alice Thomas, except in so far as Mary Davies might have applied them, or any part of them, for the use of Alice Thomas, Under a power of attorney, dated the 8th of April 1818, signed with the mark of Alice Thomas, and expressed to be executed by her, in consideration of her love and affection for Mary Davies, the reversionary interest of Alice Thomas in the copyhold premises of the manor of Ogmore, subject to the free-bench of Mary Davies, was surrendered at a court baron of the manor, holden on the 21st of May 1818, to the use of Mary Davies and her heirs. E. Evans, the mortgagee of the copyholds in Coity Wallia, being in 1827 paid off by D. Jones, by an indenture dated the 25th of January 1827, also signed by Alice Thomas, and to which E. Evans, Mary Davies, D. Jones and the trustee were also parties, the mortgage of Evans was transferred to Jones;, 284 LEWIS V. THOMAS 3 HARE, 28. and in consideration of the said payment by him, and also in consideration of the regard and affection which Alice Thomas had for her niece-in-law, Mary Davies, Alice Thomas thereby covenanted to surrender the said copyhold premises to the use of D. Jones and his heirs, subject to the equity of redemption of the same; and D. Jones covenanted that, on repayment of the mortgage money and interest, he would surrender and reconvey the premises to the use of Alice Thomas and her assigns for her life, and, after her decease, to the use of Mary Davies and her heirs; and it was thereby covenanted that, in the meantime, the said Alice Thomas should continue seised thereof, subject to such trust. At a court baron, holden on the 9th of July 1827, the premises were surrendered by the trustee, and D. Jones was admitted tenant of the premises pursuant to the indenture. [28] Alice Thomas died in January 1828, leaving the Plaintiff, Jane Lewis, and the Defendant, Martha Gower, her co-heiresses at law, and co-heiresses according to the custom of Coity Wallia, and the Plaintiff, Jane Lewis, alone co-heiress according to the custom of Ogmore. In October 1838 Mary Davies proved in the Ecclesiastical Court an instrument, dated the 20th of February 1818, attested by three witnesses, purporting to be the will of Alice Thomas, whereby she devised all her freehold and copyhold lands and hereditaments in the county of Glamorgan to her niece-in-law, Mary Davies, her heirs and assigns, and appointed Mary Davies her executrix. Mary Davies died in December 1839, having by her will devised the said freehold and copyhold lands to trustees, in trust for the separate use of Sarah Thomas for her life, with remainders to the children of Sarah Thomas, subject to an annuity which she bequeathed to J. Llewellyn. The bill was filed in September 1840 by Jane Lewis against the devisees of Mary Davies and the annuitant under her will, and against D. Jones and Martha Gower, stating that Alice Thomas had been for many years, and long before the death of Thomas Davies, of unsound mind, alleging various facts in proof thereof, and praying that the will, power of attorney and assignment might be declared to be fraudulent and void, and that the surrenders of the said copyholds might also be declared void and of no effect, and that the pretended will and other instruments might be delivered up to be cancelled, and praying other relief consequential on such declaration. [29] Sarah Thomas and her children, the devisees under the will of Mary Davies, denied the alleged insanity of Alice Thomas, and, by their answer, submitted that it appeared by the statements of the bill that the alleged right of the Plaintiff, so far as related to the freehold estate, accrued in the year 1811, on the death of Thomas Davies, and had therefore been effectually barred by lapse of time, and by the effect of the statute for the limitation of actions and suits (3 & 4 Will. 4, c. 27, s. 2); and, as to such of the copyhold or customaryhold hereditaments as Thomas Davies was entitled to for an estate of inheritance according to the custom of the manors respectively, but which, as to the legal estate, were vested in trustees, they submitted whether, his estate therein being merely equitable, any right of free-bench, or in the nature thereof, attached to such equitable estate, and whether the alleged right to such estate did not also accrue on the death of Thomas Davies, and was not in like manner barred. June 2, 1842. After the answers of all the Defendants were put in the Plaintiff moved that issues might be directed to be tried for the purpose of determining the questions raised upon the validity of the instruments impeached by the suit. (See Fullagar v. Clark, 18 Ves. 481; Kent v. Burgess, 11 Sim. 361; and Golden v. Ulyate, Id. 372, 377, and other cases there cited.) Upon this motion the Master of the Rolls ordered that the parties should proceed to a trial at law in the Queen's Bench at the next Assizes for Glamorgan, upon the following issues, viz.:-First, devisavit vel non, under the will of Alice Thomas, in, &c., dated the 20th of February 1818 : secondly, whether Alice Thomas ever executed the deed-poll or power of attorney of the 8th day of April 1818 in, &c.; and, if she executed the said deed-poll or power of attorney, whether she was of [30] sound mind at the time she executed the same: thirdly, whether Alice Thomas was of sound mind at the time of the execution of the indenture of the 25th of January 1827 in, &c., and fully understood the contents and effect thereof; and, fourthly, whether the said deed-poll of the 8th day of April 1818, and HARE, 31. LEWIS V. THOMAS 285 the said indenture of the 25th day of January 1827, or either and which of them were or was obtained from Alice Thomas by fraud. The learned Judge (Sir E. M. Eolfe), before whom the issues were tried, certified the fact of such trial and the finding of the jury on the several issues as follows:- On the first issue, that Alice Thomas did not devise by her will, dated the 20th of February 1818, in the said issue mentioned. On the second issue, that Alice Thomas did execute the deed-poll or power of attorney in the said issue mentioned, dated the 8th of April 1818, but that she was of unsound mind at the time of the execution thereof, and had been of unsound mind for the last thirty years of her life. On the third issue, that Alice Thomas was of unsound mind in the month of January 1827, and at the time that she executed the indenture in the said issue mentioned, and that she did not fully understand the contents and effect thereof. And, on the fourth and last issue, that the said deed-poll or power of attorney, and indenture in the said issue respectively mentioned, were both of them obtained from Alice Thomas by fraud. The Plaintiffs, after the trial of the issues, went into evidence to prove the execution of the several instruments by the parties, and the surrenders and admittances on the court rolls of the...