Moore and Metcalf v De la Torre v Moore
| Jurisdiction | England & Wales |
| Judgment Date | 23 January 1816 |
| Date | 23 January 1816 |
| Court | Ecclesiastical Court |
English Reports Citation: 161 E.R. 1016
IN THE ECCLESIASTICAL COURTS AT DOCTORS' COMMONS AND IN THE HIGH COURT OF DELEGATES.
Affirmed, p. 406, post. See Cutto v. Gilbert, 1854, 9 Moore, P. C. 145. Applied, O'Leary v. Douglass, 1878, 3 L. R. Ir. 331.
[375] moore and metcalf v. de la torre v. MooRE.(a) Prerogative Court, Hilary Term, Jan 23rd, 1816.-A mutilation of a will held to amount to a cancellation, and that cancellation not to revive a prior will of nearly similai import [Affirmed, p. 406, post. See ditto v. Gilbert, 1854, 9 Moore, P. C. 145. Applied, O'Leary v. Douglass, 1878, 3 L. E. Ir. 331.] Catherine Moore died August 16, 1813, possessed of a peisonal estate amounting to abont 30,0001.; she left three sons, Thomas, George, and Peter; Peter was a lunatic. The following testamentary papers were found at her death :- (A) "In the name of the Father, and of the Son, and of the Holy Ghost. Amen. " I, catherine de killikelly and moore, widow to the late George Moore, of Ashbrook, and Moore Hall, Esq., declare, before my God and man, my last will and testament, under my hand and [376] seal, in my perfect senses and good health, that if the Almighty pleases to call me to himself, on the road going to Ireland, or any where else, or by some other unforeseen accident, as we are all mortal, leave every thing I possess in Spain, England, Ireland, or any other part of the world, as property, lands, houses, money, jewels, plate, linen, and every kind of houseal furniture of every description, between my son Thomas Moore, and my son Peter Moore, if the latter gets back his senses again ; in case it is not God's will this should happen to him, pray his Br. Thomas Moore, to do by him as it would be most comfortable to be done to himself, if himself was the person inflicted by the divine hand. I name my son Thomas Moore sole executer of all I have, or will have, or possess. In my husband's will, made in Alicant the year 94, is expressed, that if any of my sons disobed me in any respect, I might give his share to any other of his sons^ as I pleased or thought proper. I now exclude and disinbeirite my eldest son, George Moore, (possessing all his father's lands in Ireland,) him and all his heirs for ever and ever, to have the least claim of title to any thing belonging to me; as likewise, any thing that his father left to my disposal upon no pretext whatever, for his ungratefulness, undutifulness, and disrespect to me, the best and fondest of mothers to him more than any of her other sons, [377] that brought John and Tom to be jealous of me on his account, when he got the last sum out of my power, aa only executrice, gives himself away for life, into a family that he knows in his heart were the means of his father's and brother's most miserable and untimely death , who the meanest (a) The author has been induced, in compliance with the suggestions of several of his professional friends, to give this case, both in the Court of Prerogative and the Court of Appeal, and also the case of Johnson v. Johnson, decided in the Prerogative Court in the course of the last year, a priority over many cases which have preceded them. It is thought that the important points of testamentary law, which have been agitated in both instances, will justify this preference. IPHlLLECCsm MOORE V. DE LA TORRE 1017 and moat ill-natured of sons, his recompence to me for all my sincere affection and tenderness I had ever for him in particular is to conclude hia ruin, without even leting me know one word, neither ask my advice, or wait for my answer, which he ought to have done, after so often protesting to me he would rather die than ones offend me, and that he was coming over to Spain, who can believe such a person. I declare before God, who ts the Searcher of hearts, that he has deceived me more than I can have words to express, therefore in my turn must renounce him to be my son, and errace him as much as possible out of my memory, till my latest breath, I leave my Br. Mr. Bryan Paul de Killikelly, one 100 pounds; my Sr. Fanny at Rouen in France, one IQQpounds, a year while she lives t pray for me; to my niece O'Neill de Arlox, fifty pounds a year while she lives, or for life; to Micaela Perez, for her good services, a piset a day for life; to my two nieces in Lisbon, fifty pounds each; to the nun Miss Morony in Paris, twenty pounds to pray for me ; to Do-[378]-loxea my grand niece, daughter to O'Neill de Arlox, fifty pounds to pray for me, to my nephew, Mr. Arthur, twenty pounds to pray for me, if please God I die in Ireland, I desire my son Thomas to- have me carried to Galway, to be buried in the Convent of Fryar's, of St. Dominick, near the place where my uncle, bishop Killikelly lays, as I should never consent to leave my bones on any spot belonging to my once dearly beloved son. I desire my son Thomas to have my funeral as simple as possible, no ostentation, but corresponding to me. I leave two thousand masses to be said for me from the day of my death, as fast as they clergy can say them, looking out forthe best and poorest livers, at 6 reals each mass , three high mass's, and the whole office, to be said before I am laid under ground, 20 pounds to be given to the poor the day of my burial; to Micaela Antonio, and Visenta, mourning, and an ounce each; to Margu. the French maid, her wages to be paid, her mourning, and an ounce besides, to Tomasas Sn. and nephew an ounce each: my nurse's son in Bilboa : two ounces my son Tom's nurse, and ounce Aug11. mourning, and an ounce of the 14 in Mr. Moore will to be portioned I only paid three of them, they must be paid by my son Tom, if I don't live to do it, of the two thousand mass's I leave to be said for the repose of my soul, 200 [379] of them must be offered in the Capueh in convent, in Aiicant, where my dear aunt is buried, and fifty in each church, and convent in Ahcant likewise for me; all my best siik cloaths to be cmt up and made into vestments, for the altar; all my other cloaths and linen to be divided between my Sr. Fanny and my niece Helen O'Neill; what they don't like of them I leave to Micaela, and the other good servants that shall attend me in my last sickness, paying them well besides; to my confessor 10 guineas to pray for me; let him and the other clergyman wha says mass for me and assits at my funeral, be payed as they ought to be. I leave a guinea to the woman who will dress my corps; if I die in London, 1 order my body to be buried at St. Pancras; the 9th and 30th day after my decease, to be said each day 33 masses if possble, they can do it; in case the Court of Spain dos not eontinue to pay the Spanish chapel here, I will take it for my Ace' to pay the clergy, the four now in it, 4 women, and the porter, besides the boy's school, and must get one for thirty-three girk at my expence. I have money here in the funds, besides six thousand dollars for this purpos, in my trunks in Spain. I have a small anuity here of twenty guineas a year, in peaceable time, this sum I leave foE ever and ever to have masses said for the icpose [380] of my soul particularly, must be offered by clergy without reprove from heaven. I leave Micaela and Margu, the bed and bedstead they lay on in my house in Aiicant, with two pair of sheets each, and to Mieaela 3 table-cloths, and 11 napkins with blue strips, I had three French ones; to my niece Helen O'Neill, 4 pair of my own sheets 4 middleing table-cloths, 2 dozen napkins, 1 dozen fringed towels, 1 dozen coarse new cloths, that she should pray for me, Mrs. Atby one hundred pounds. I thank God I have no debts to pay, but forgive my B* what he ows toe. I better my son Thomas in every thing which the laws of Spam permits, provided he don't marry hke his Br Geo. into a, family he knows I dislike, my niece da Arlox, will tell him one of them. George married without ever leting me know one word of his match, neither asked my advice, nor waited for my consent; for this reason exclude him far ever and ever, to claim any iribeintance 1018 MOORE V. DE LA TORRE 1 PHILL. ECO. 381 from mef nor do I wish ever to see him while I live, nor any body belonging to him, for earring my gray hairs to the grave with sorrow. I leave Pedro Perez, mourning; and an once to Maria, the old woman, that come to diner for chanty, half an onze to pray for me, to her son, the Capuchin Fryar, half an onze to say forty masses in my intention at a pisaet. I leave all my [381] power to my son Thomas, in regard to any property belonging to his Br Peter to manage it for him, till please God he gets back his five senses, excluding his B*. George to have any thing to say to him, except to give up by my commands the fortune his father left him in the Irish will, being a better Br. and dutiful son; and do declare, that George did not follow my advice about geting him back his senses, and for so doing I shall never forgive myself to have sent him from Spain, to be tutered by such an unworthy son as George has proved to me by his undutiful actions. My blessing to my two sons Thomas and Peter, may heaven shower upon them...
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