Mayor, Aldermen and Burgesses of Gloucester v Osborn and Another
| Jurisdiction | England & Wales |
| Judgment Date | 21 July 1847 |
| Date | 21 July 1847 |
| Court | House of Lords |
English Reports Citation: 9 E.R. 760
House of Lords
Mews' Dig. iii. 299; xv. 1450; S.C. sub nom. Gloucester Corporation v. Wood, 3 Hare, 131, 7 Jur. 1125. Cited in Aston v. Wood, 1868, L.R. 6 Eq. 421; and see Willoughby v. Storer, 1870, 22 L.T. 897.
Will - Missing codicil - Uncertainty.
[272] The MAYOE, ALDERMEN, and BURGESSES of GLOUCESTER,-Appellants; JACOB OSBORN and JOHN S. SURMAN,-Respondents [Feb. 9, 10, 16, 17, 23, 24, 1846; March 10, June 28, July 21, 1847]. [Mews' Dig. iii. 299; xv. 1450; S.C. sub nom. Gloucester Corporation v. Wood, 3 Hare, 131, 7 Jur. 1125. Cited in Aston v. Wood, 1868, L.R. 6 Eq. 421; and see Willoughby v. Storer, 1870, 22 L.T. 897.] Will-Missing codicil-Uncertainty. A testator gave to his executors beneficially, in equal proportions, all his property, which he might not dispose of, subject to his debts and any bequests which he might afterwards make. He afterwards made a codicil in these words, " In a codicil to my will I gave to the corporation of Gloucester £140,000. In this I wish my executors would give £60,000 more to them, for the same purpose as I have before named. I would also give my friends " (several were named, with large legacies), " and I confirm all other bequests, and give the rest of my property to the executors for their own interest." No other codicil was produced. Held (affirming a decree of the Court of Chancery on a bill filed by the Corporation of Gloucester claiming the two legacies), that the purpose of both the legacies must be held to be the same, and that both failed for uncertainty of the purpose. James Wood, of the City of Gloucester, banker, died in April, 1836, seised of considerable freehold estates, and possessed of a very large personal estate, estimated at about £800,000. In December 1841, the Prerogative Court of Canterbury, after much litigation there (2 Curtis, 82), and before the Judicial Committee of the Privy Council upon appeal (2 Moore's Priv. C. Cas. 355), granted probate of the three following testamentary papers to Sir Matthew Wood, Jacob Osborn, and John S. Surman, the surviving executors named in the first: (A) " Instructions for the will of me, James Wood, esq., of Gloucester. I request my friends Alderman, Wood, of [273] London, M.P., John Chadborn, of Gloucester, 760 GLOUCESTER (CORPORATION of) V. OSBORN [1846-47] I H.L.C., 274 Jacob Osborn, of Gloucester, and John S. Surman, of Gloucester, to be my executors, and I appoint them executors accordingly; and I desire that they will take possession of and retain to themselves all my ready monies, securities, and personal estate, subject to the payment of my just debts, and such legacies as I may hereafter direct; and with respect to my real estate, I shall dispose of the same to such persons and in such parts as I shall by any writing endorsed herein direct. Witness my hand this 2d December, 1834.-jambs wood.'; (B) " I, James Wood, esq., do declare this to be my will for disposing my estates as directed by my instructions:-I declare my wish that my executors shall have all my property which I may not dispose of, and that all my estates, real and personal, shall go amongst them and their heirs in equal proportions, subject to my debts and to any legacies or bequests of any part thereof, if any, which I may hereafter make. In witness whereof I have to this my last will set my hand, this 3d December, 1834. " (Signed, in presence of three witnesses) jambs wood." (C) " In a codicil to my will I gave to the Corporation of Gloucester £140,000. In this I wish my executors would give £60,000 more to them for the same purpose as I have before named. I would also give to my friends Mr. Phillpotts £50,000 and Mr. George Council £10,000." [Four others were then named with large legacies, amounting together to £54,000.] " And I confirm all other bequests, and give the rest of my property to the executors for their own interest.-james wood. " Gloucester City, Old Bank, July 1835." The papers (A) and (B) were propounded by the executors, and paper (C) by some of the legatees therein named. Upon probate of these papers being granted, the appel-[274]-lants filed a bill in the Court of Chancery against the executors, for payment of the two sums of £140,000 and £60,000. The bill was afterwards amended, and the Attorney General was made a party defendant. Sir Matthew Wood, by his answer, said that several testamentary papers alleged to have been signed by the testator before December 1834, were referred to in the sxiit in the Prerogative Court, but no testamentary paper of his was found in his house after his death, save the said papers (A) and (B), and another paper writing made in 1834, expressive of his wish that John Chadborn should have the custody of his deeds and management of his affairs. And defendant stated that to the best of his knowledge and belief the testator did not in 1835, or at any time, make or sign the codicil (C), or any such codicil as was there referred to; and if he ever gave such legacies as there mentioned to the Corporation of Gloucester, the purpose for which they were given could not be ascertained, and they were therefore void. The answers of the respondents, Osborn and Surman, were to the same purport and effect, with this addition in Surman's, that even if paper (C) should be held to be valid-which he submitted to the judgment of the Court-yet the legacy of £140,000 must be deemed to be revoked by revocation of the alleged codicil referred to in paper (C) by the testator, which revocation, defendant submitted, must be presumed from the circumstance of such alleged codicil not being discovered sir-ce the testator's death. And this defendant insisted further, that assuming that no such revocation had taken place, or could be presumed, then the two alleged legacies were void for uncertainty. The Attorney General answered that he was a stranger to the matters stated in the bill, and he claimed, on behalf of charities generally, all such rights as he might be found entitled to. [275]...
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