Mitchell and Mitchell v Gard and Kingwell

JurisdictionEngland & Wales
Judgment Date01 December 1863
Date01 December 1863
CourtProbate, Divorce and Admiralty Division

English Reports Citation: 164 E.R. 1200

IN THE COURT OF PROBATE AND IN THE COURT FOR DIVORCE AND MATRIMONIAL CAUSES.

Mitchell and Mitchell
and
Gard and Kingwell

mitchell and mitchell v. gard and kingwell. May 15 and 27, 1862.- Will.-Residuary Legatee -Instructions.-Legacies omitted -B. gave certain instructions to G. for her Will, of which she made him, G., residuary legatee. After the Will was drafted, B. said ahe wished to leave three other legacies, naming the legatees. G said it should be attended to, but subsequently read over the Will to B. without adding such legacies, and B. signed it On the trial of certain issues at Exeter, the jury found that deceased was of sound mind, and 3SW&TR. 76. MITCHELL V. GARD 1201 negatived undue influence; that B. had given the instructions for the further legacies; that at the time of execution thej were absent from B.'s mind, but present to G.'s mind, who knew that they were absent from B 's mind.-Byles, J., thereupon directed a verdict on the issue, " Will or not Will of deceased," to be entered for the plaintiffs opposing the Will, with leave to G to move to set aside. After argument,-[76] The Court held that the paper-writing so executed was the Will of the deceased, and made the rule absolute to enter verdict for the defendants on that issue In this ease the plaintiffs had called in the probate of the will of Maiy Gregory, grantee! in common form, on the 18th of October, 1862, to the defendants, the executors therein named, who propounded the will Certain issues were sent down from this Court for trial at the spring assizes for the county of Devon. The questions for the juiy, as settled by the registrar, were to the following effect--1. Was the will duly executed according to the statute? 2. Was the deceased of unsound mind'? 3 Whether or not the will was the will of the deceased ? 4 Whether the execution thereof was procured by the undue influence and control of the deiendant Gard ? The issues were tried at Exeter on the Hth and 16th of March, when a special jury found a verdict for the defendants on the first, second, and fouith issues. As to the third issue, the learned judge, Byles, J , put the following questions to the jury :- "Do you think that instructions were given to insert, and did the testatrix intend that there should be inserted, as legatees, the names of Mrs Gillard, Mrs. Pernam, and Mrs. Egg before the execution of the will? " Were those instructions in the memory of Mr. Gard when he procured the execution of the will'" The jury answered these questions in the affirmative. " Were the instructions absent from the deceased's mind at the time of the execution, and was Mr. Gard aware of that, or did she execute the will under the erroneous belief that those legacies had been, or would be given, and did he know that'" Foreman of the jury . " We apprehend they were absent from her mind and preseat to his." " Was he aware that they were absent from her mind 2" [77] " We think that he was aware " Verdict was entered for the plaintiffs on the third issue, with leave for the defendants ta move, and for the defendants on the first, second, and fourth issues, with leave for plaintiffs to move ou fourth issue. Mr. Karslake, Q.C (Mr. H T. Cole with him), now shewed cause against a rule obtained by Mr. Collier, calling on the plaintiffs to shew cause why a verdict should not be entered for defendants on the third issue [Sir C Cresswell read Bylea, J , note of the evidence given on the trial, which, for the present purpose, is sufficiently stated in the judgment.] And the learned counsel urged that, to entitle such a will in its entirety to probate, the person obtaining it being beneficial residuary legatee, must satisfy the Court or jury that it contaiaed the whole mind of the testator at the time of execution. The testatrix must have intended, when she put her name to that paper, to give effect to the instructions which she had given, but the jury have found that a part of those instructions were intentionally omitted by Mr. Gard. Mr Collier, Q C , Mr. Coleridge, Q.C. (Dr. Wambey and" Mr. H. C. Lopes with them), argued in support of the rule No question of fraud can arise on these pleadings. The finding of the jury as to the state of testatrix's mind is, that she intended to have given the legacies omitted, but the will without them was read over to her, a competent testatrix, undue influence negatived, and she signed the will as read. How can...

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  • Table of Cases
    • United Kingdom
    • Wildy Simmonds & Hill A Practitioner's Guide to Probate Disputes - 2nd edition Contents
    • 29 Agosto 2022
    ...52 Sol Jo 716, 99 LT 881, PD&A 29, 64 Minns v Foster [2002] All ER (D) 225 (Dec), ChD 66 Mitchell and Mitchell v Gard and Kingwell (1863) 3 Sw & Tr 275, 164 ER 1280 225 Morris deceased, Re; Lloyds Bank Ltd v Peake (Hurdwell cited) [1971] P 62, [1970] 2 WLR 865, [1970] 1 All ER 1057, 113 Sol......

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