Merryweather against Turner
| Jurisdiction | England & Wales |
| Judgment Date | 14 May 1843 |
| Date | 14 May 1843 |
| Court | Ecclesiastical Court |
English Reports Citation: 163 E.R. 907
IN THE ECCLESIASTICAL COURTS AT DOCTORS' COMMONS
S. C. 3 Notes of Cases, 55; 8 Jur. 295.
[802] merryweather against turner. Prerogative Court, May 14th, 1844.- Next of km are not barred by mere lapse of time, by acquiescence, or by the receipt of legacies, from requiring executors to prove a will in solemn form.-But where a will had been declared well proved in the Court of Chancery, after an order for an issue dev. vel non had been discharged on the petition of the heiress-at-Uw (also sole next of kin) and her husband, and an annuity bequeathed to her regularly received during fourteen years, this Court refused, at the prayer of the heiress-at-law and her husband, to call on the executors to prove that will in solemn form. [S. C. 3 Notes of Cases, 55; 8 Jur. 295.] This wag a question of calling in the piobate of the will with one codicil of William Turner, deceased, and requiring the executors to prove them in solemn form of law. The testator died on the 19th of September, 1829, a widower, leaving a Mrs. Merryweather, his only daughter, his heiress-at-law, and the only person entitled to his entire real and personal estate in case he should have died intestate. The will of the deceased was dated the 16th of May, 1829, and the codicil the llth of August in the same year. By the will, Mr. John Turner, Mr. John Hornblower Turner, Mr. William Wood, and Mr. William Taylor Abud were appointed executors and residuary legatees in trust. The testator bequeathed to Mis. Menyweather a legacy of 5001. and an annuity of 5001. during the joint lives of heiself and her husband , and, in case she should survive him, an additional annuity of 5001. The residue of his estate and effects, with the exception of a few small legc\cies, he bequeathed to his executors, upon trust for his grandchildren. Shortly after the death of Mr. Turner, and in Trinity Term, 1829, a caveat was entered in this Court, on behalf of Mrs. Merryweather and her [803] husband, against probate passing of this will and codicil; an appearance was given for the parties named as executors, and probate of the will and codicil prayed by them Upon the caveat being warned, a proctor appeared and prayed time to set forth his client's name and interest; and he was assigned to do so within three days; otherwise the probate Wcis to issue to the executors. Upon the second session of Michaelmas Term, 1829, an appearance was entered for Mrs. Merryweather, her interest was admitted; and an affidavit of scripts was exhibited by the proctor for the executors. Upon the third session of Michaelmas Teim the proctor of Mrs. Merryweather declared that he opposed the will and codicil; and he was assigned to give in an affidavit of scnpts, and in default of his complying with the assignation within three clays, probate of the will and codicil was to pass to the executors. The last assignation not having been complied with, probate of the will and codicil issued to the executors on the 3rd of December, 1829. Upon the same day-that the probate issued from this Court a bill was filed in the Court of Chancery, on behalf of the infant children of Mr. and Mrs. Merryweather, by their next friend, against their father and mother and the executors, praying that the will and codicil might be established, and the trusts thereof carried into execution by and under the decree and direction of that Court; that proper persons 908 MERRYWEATHER V. TURNER 3 CURT. 80. might be appointed to be trustees thereof; for a receiver, and that the executors [8041 might be restrained from receiving the deceased's real and personal estate. Upon the 6th of March, 1830, an answer was put in to this bill by the executors; and, in the month of June, 1830, the joint answer of the father and mother. By this last answer the will and codicil were admitted to be duly executed. In the same month Mr. and Mrs. Merry weather applied for payment of the legacy of 5001. which was paid by the executors. In the month of December, 1830, Mi. and Mrs, Merry-weather presented their petition to the Lord Chancellor, praying directions for payment of her annuity of 5001., and an order was made according to the prayer, and had been acted upon from that time, and payment of this annuity had been received up to Christmas, 1842. In Trinity Term, 1831, the will was declared to be well proved in the Court of Chancery without opposition. The cause came on for hearing in Hilary Term, 1832, when counsel on behalf of Mrs. Merry weather, the heiress-at-law, asked for and obtained, as of course, an order for an issue devisavit vel non. The issue having been settled was set down for hearing in Trinity Term, 1S32, before a special jury; the executors delivered briefs to counsel, and the necessary òwitnesses were in attendance, when the plaintiffs withdiew the record In Michaelmas Term, 1832, the executors made an application to the Court of Ohancery on the subject of the withdrawal of this issue ; and applied for and obtained leave to have the conduct of it, and to be plaintiffs therein; and they were directed to proceed to trial thereof forthwith. Notice of trial [805] was given for Hilary Term, 1833, and the cause was appointed for trial Mr. and Mrs. Merryweather thereupon presented a petition to the Court of Chancery, praying that the order for the trial of the issue might be discharged, they undertaking to admit the validity of tbe will and codicil, and submitting to have the trusts thereof performed and carried into execution under the direction of...
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Martyn James v Lorraine Anne Scudamore
...it is a suggestion equally against proof as the first, and it is one still more destitute of probability.” 180 In Merryweather v Turner (1844) 3 Curt 802, the deceased died in September 1829, a widower and a wealthy man. He was survived by his only child, Mrs Merryweather, who was according......
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Re Flynn, decd
... ... issued a writ and statement of claim which as amended asked the court to pronounce against the codicil and in favour of the will, in solemn form and, if necessary, that the grant of probate ... 318C–E ) ... Merryweather v. Turner ( 1844 ) 3 Curt. 802 ; In re Coghlan, decd. [ 1948 ] 2 All E.R. 68 , C.A ... ...
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Bermingham Estate, Re, [2007] O.T.C. Uned. 488 (SC)
...executor to the proof per testes : Bell v. Armstrong (1822), 1 Add. 365 at 370, 162 E.R. 129; Merryweather v. Turner (1844), 3 Curt. 802, 163 E.R. 907; Core v. Spence, referred to in Bell v. Armstrong , supra , at 374, and the same is true even when a next-of-kin is himself the executor nam......