Parker v Nickson
| Jurisdiction | England & Wales |
| Judgment Date | 25 April 1863 |
| Date | 25 April 1863 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 69
BEFORE THE LORD CHANCELLOR LORD WESTBURY.
S. C. 1 N. R. 298; 32 L. J. Ch. 397; 9 Jur. (N. S.), 451; 7 L. T. 813; 11 W. R. 533.
[177] parker . nickson. Before the Lord Chancellor Lord Westbury. Jan. 15, 16, 23, 1863. [S. C. 1 N. K. 298 ; 32 L. J. Ch. 397 ; 9 Jur. (N. S.), 451 ; 7 L. T. 813 ; 11 W. R. 533.] The words in a will " I acknowledge N., my second cousin, to be my next of kin and heir at law to all my real and personal property situate in the parish of M.": Held, to be an effectual gift to N., who was in fact neither heir nor next of kin of the testator. This was an appeal from the decision of Vice-Chancellor Stuart allowing a demurrer to the whole bill with leave to amend. The bill, so far as it is material to be stated, alleged in substance as follows:- That Samuel Newns by his will, dated the 3d of December 1832, devised to and to the use of his trustees, their heirs and assigns, certain real estate in or adjoining to Lloyd Street, in Chorlton-upon-Medlock, upon trusts for his wife for life, and after the death of his wife in moieties for his brother John and his children, and his "brother William and his children. That the testator's brothers, John and William, died in the testator's lifetime, the former without issue, and the latter leaving the Plaintiffs Bertha Parker, Isabella Edwards and Enoch Newns, his children him surviving, of whom Enoch Newns was the testator's heir at law. The testator died in the year 1845, and his wife, who survived him, in January 1857. That the Plaintiffs never heard of any revocation by the testator of his will j but that on the 18th of July 1861 the Defendant Thomas Nickson obtained probate of the will and of a codicil, which was as follows :- " I Samuel Newns of Greenhays in the parish of Manchester in the county of 70 PARKER V. NICKSON 1DB Q. J. ft S. ITS. Lancashire acknowledge Thomas Nickson my second cousin shopkeeper No. 21 Chester Street Chorlton-upon-Medlock in the parish [178] of Manchester in the county of Lancashire to be my next of kin and heir at law to all my real and personal property situate in the parish of Manchester in the county of Lancashire If my wife survives me in two years after my wife's death my second cousin Thomas Nickson and next of kin to take possession of all my real and personal property and to pay all my just debts according to my will Thomas Nickson my second cousin his [sic] my next of kin and heir at law as my brother John is dead and has left no issue The reason I give Thomas Nickson this written document is I am affraid [sic] my executors will not put my will into Court as they wanted me to burn my will Executed this 3d day of February in the year of our Lord 1843. "The mark x of samuel newns. " Witnesses-Samuel Ankers, John Jones." The bill stated that the allegation made by the codicil, that the Defendant Thomas Nickson was the heir at law and next of kin of the testator, was without foundation, and sought a declaration of thjg rights of all parties in the testator's real estate, and an injunction to restrain the Defendant from selling it. The demurrer was allowed on the ground, that, upon the allegations in the bill, irrespectively of the question of the construction of the codicil, the Plaintiff's title to sue was not sufficiently made out. Mr. Malins and Mr. Bird, for the Appellants. There is no express devise in this codicil to Thomas Nickson, the words of acknowledgment of his heirship-words less strong, indeed, than words of declaration [179] would have been, but simply having reference to his relationship to the testator-being insufficient to constitute him devisee ; Jackson v. Craig (15 Jur. 811). Neither is there any devise by implication ; Adams v. Adams (1 Hare, 537). But, even assuming that a devise was contained in these words, it was a devise made to Thomas Nickson, under a particular character, viz.:-that of the testator's next of kin and heir at law, which he did not fill; and is, consequently, within the principle laid down in Kennell v. Abbott (4 Ves. 802). If not, it still must fail, on the ground that, being inconsistent with the dispositions of the will, and, so far as it goes, a revocation of them, it was a revocation made, as clearly appears from the conclusion of the codicil, under the mistaken belief that the testator'* brothers, John and William, were each dead, without issue; Campbell v. French (3 Ves. 321); Doe d. Evans v. Evans (10 Ad. & Ell. 228). Mr, Karslake, for the Respondent Thomas Nickson. Upon the statement of facts, appearing upon the face of this bill, the intention of the testator to put Thomas Nickson in the position of his devisee and universal legatee is sufficiently indicated ; and that being so, the language in which that intention is expressed is not to b& regarded ; Sheppard's Touchstone (page 416). But, in fact, the language used is not inapt. The corresponding expressions of the Roman law were "Titium heeredem facio ex asse, ex semisse,"and the like: and in the older English conveyancing forms, we find devises in such form as " I permit my estate to descend to my heir," without the formality of saying, " I make him my heir, [180] and give my estate to him."' Jackson v. Craig was perfectly different to the present case, as was, also, Adams v. Adams. It is said, however, that even assuming the intention to be sufficiently indicated, the testator created Thomas Nickson such devisee and legatee under a misapprehension of his real situation. But misapprehension alone, in such a case, is not sufficient to avoid the devise. In all cases, in order to bring about that result, there must be-what is wholly absent here-a false assumption by the devisee of a particular character, which alone can be supposed the motive of the testator's bounty ; Kennell v. Abbott (4 Ves. 802); Giles v. Giles (1 Keen, 685); EisUm v. Cobb (9 Sim. 615; 5 Myl. & Cr. 145); and if that is absent, the devise will not be invalidated by mere misdescription, either of its objects; Schloss v. Stiebel (6 Sim. 1); Doe d,. Gains v. Rouse (5 C. B. 422)...
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