Mcgregor and Another v Topham and Others
| Jurisdiction | England & Wales |
| Judgment Date | 23 July 1850 |
| Date | 23 July 1850 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 51
House of Lords
Mews' Dig. xi. 424; xv. 640. S.C. in Ch. 3 Hare, 488.
Equity - Practice - Heir - at - law - New Trial.
m'gregor v. topham [1850] m h.l.c., 132 [132] PATRICK M'GREGOR, and CORDELIA, his Wife -Appellants; THOMAS TOPHAM, and ELIZA HENRIETTA, his Wife, and JOSEPH ARROW-SMITH, and JOHN TOPHAM,-Respondents [July 9, 12, 20 and 23, 1850]. [Mews' Dig. xi. 424; xv. 640. S.C. in Ch. 3 Hare, 488.] Equity-Practice-Heir-at-law-New Trial. There is no absolute rule in a Court of Equity requiring that Court, as of course, to grant a second trial in an issue of de-visavit vel non, when the first trial has terminated against the heir at law, if the Judge in Equity is satisfied that no new light can be thrown on the subject by a further investigation. Though there may be an outstanding legal estate, which compels the heir at law to come into equity, he cannot, on that account, claim a right to have the issue tried a second time, if the Court, in the exercise of its discretion, should deem the first verdict satisfactory. In every such issue the Court of Equity requires that all the attesting witnesses to a will shall, if it is possible to procure their attendance, be examined. Circumstances under which the Court of Equity, in the exercise of its discretion, was held properly to have refused a new trial. This was an appeal against a decree of the Vice Chancellor Wigram (3 Hare, 488-496), refusing a new trial of the issue which had been tried in this case, and which resulted in a verdict for the respondents. Richard Wrightson, late of Cockerton House, in the county of Durham, who was beneficially entitled under the will of his aunt, Mrs. Nanny Garth, to certain freehold and copyhold estates then vested in trustees, died at his residence there, on the 29th of April, 1830, [133] without issue. His widow Eliza Henrietta, now one of the respondents, took possession of his property. She claimed to be entitled to all his real and personal estates, in virtue of a will alleged to have been made by him on the 29th of December, 1829, by which he devised all his freehold and copyhold estates whatsoever to the said " Eliza Henrietta, her heirs, sequels in right, executors, administrators and assigns, etc." The appellant Cordelia M'Gregor, was the sister of Richard Wrightson, and claimed to be his heiress at law. She had some time before married the other appellant, Patrick M'Gregor, against the will of her brother, and had, since that marriage, been living at variance with him. Her general residence had been in Scotland, but she had occasionally been in England, and in the year 1837 was at Darlington, where the respondents lived, and received certain monies due under the will of a Mr. Michael Hardcastle, to Mrs. M'Gregor, as one of the grandchildren of a Mr. John Hardcastle. On that occasion they executed a release to the trustees of Mr. Michael Hardcastle's estate, upon payment of the amount due to Mrs. M'Gregor alone,-a fact which was much relied on by the respondents, as shewing that the appellants did not, at that time, cast any doubt on the will of Richard Wrightson, for if they had done so, they would have claimed for Mrs. M'Gregor the amount due to her brother, Richard Wrightson, as well as that which was due to herself. On the 30th of July, 1842, the appellants filed a bill in Chancery against the respondents, impeaching the validity of the will of Richard Wrightson, and claiming hia property for his sister Cordelia, as heiress, at law. The property, which chiefly consisted of lands and tenements of the manor of Bondgate in Darlington, in the county of [134] Durham, had in the meantime been made the subject of settlement on the marriage of Mrs. Wrightson with Thomas Topham, under a deed dated on the 15th of December, 1831, and the legal estate therein was vested in the respondents Arrowsmith and John Topham, as trustees under the settlement. The bill was therefore filed against Topham and his wife, and the two trustees, and alleged that the will was either not signed by Richard Wrightson at all, or was signed by him, not on the 29th of December, 1829, but, about the latter end of the month of March, or the beginning of April 1830, and that Richard Wrightson had at that time become wholly incapable of self government in consequence of using in excess wine and spiritous liquors, in the use of which he had been encouraged by his wife (the respondent, Mrs. 51 ni h.l.c., 136 m'gregor v. topham [1850] Topham), by " positive directions given to the servants never to allow wine to be wanting, day or night, for his use, but always to place the same in his way, and in a convenient place for his use and enjoyment." The bill charged that by reason of habits and intoxication, indulged in towards the end of the year 1829, and the beginning of the year 1830, his mind became so seriously affected as to render him totally incapable of giving any instructions for a will, or transacting business of the most ordinary character, and that this was especially the case after the hour of dinner, and that in fact very shortly after the month of March, 1830, he was attacked by delirium tremens, brought on by previous intemperance. The bill further charged that no instructions were ever given to the attorney or solicitor who prepared the will, by Kichard Wrightson in person, but that the same were prepared by Eliza Henrietta Wrightson, without any communication with him, and that no draft of the will -was ever delivered, or read over, or explained to [135] Richard Wrightson, but was prepared by the directions of the said Eliza Henrietta alone, and that, if ever executed by him, was executed by him without his understanding the same, and at a late hour after dinner, and at home, when he was in a helpless and senseless state, and labouring under extreme inebriation; and further that the name purporting to' be his signature was not his signature, but was a forgery. The respondents by their answer denied all the allegations and charges in the bill; averred that the will was made on the 29th of December, 1829, and while Richard Wrightson was of sound and disposing mind, memory and understanding, and set out the will, which was very short, and was written on a. single sheet of paper, and was alleged to have been " signed and sealed by Richard Wrightson," and was attested by Francis Mewburn, George Hind, and Jane Fenny." The answer alleged the will to have been made after tea, upon a day when Mr. Mewburn, the solicitor who prepared it, had spent the day with the testator for the purpose of arranging his affairs, and when they had dined together as early as three o'clock, and had taken only two or three glasses of wine each after dinner. The cause came on to be heard before Vice-Chanoellor Sir James Wigram, on the llth of January, 1844, when the appellants having proved that Cordelia M'Gregor was sister and heiress at law of the deceased, an issue devisavit vel non was granted, and further directions and costs were reserved. An application was afterwards made by the appellants to change the venue from Durham to London, or Westminster, as they alleged that in consequence of the influence and connections1 of Mr. Mewburn, they could not have a fair and unprejudiced trial at the Durham assizes; but this application was refused. The issue accordingly came on for trial at [136] Durham at the spring assizes of 1844, and after a trial which lasted three days, the jury returned a verdict for the plaintiffs in the issue, the respondents: in this appeal. The appellants on the llth of November, 1844, moved before Vice Chancellor Wigram, for a new trial; his Honour refused to make any order therein, but directed the costs to be costs in the cause. The cause was then set down for further directions, and came on to be heard on the 23rd of January, 1845, when the Vice Chancellor made a decree dismissing the bill with costs. These were the decrees appealed against. Sir F. Kelly and Mr. R. Palmer (Mr. Crompton and Mr. Milward were with them), for the appellant. There is no principle of law which declares that one verdict is to be for ever and finally binding on an heir at law. On the contrary, he is rather favoured than otherwise, in the facilities afforded him for trying the validity of any will, which would operate against him as a disherison. If there was not, from the particular circumstances of the case, any impediment of a legal or equitable kind, the heir at law would be at liberty to proceed by ejectment, without restraint; and if he failed in the first trial, he might go on again, subject only to the restriction of costs, and the interference of an equitable restraint against the perpetual repetition of actions; Bootle v. Blundell (19 Ves. 494). But for the legal impediment occasioned by the existence of an outstanding legal estate, the heir at law would be under no necessity of appealing to the house to relieve him from the consequences of this j udgment. If this legal estate was not outstanding, a new ejectment might be brought; but now he has no other course than to appeal against the decree. It is wholly without authority or [137] principle, that, under circumstances such as exist here, a new trial should be refused. The heir at law does not ask to reverse the decision of the Court below, so as to have a 52 m'gbegor v. topham [1850] m h.l.c., iss decision on the will itself in her favour, but she claims to be allowed the advantage of a new trial, in order to enable the Court of Equity to decide justly and satisfactorily on the merits. The case here is one of a nature to justify the demand for the fullest inquiry. The whole case of the will, which is to disinherit the heir at law, depends on the character and evidence of one individual, who was one of the attesting...
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