Roberts v Kerslake
| Jurisdiction | England & Wales |
| Judgment Date | 17 July 1855 |
| Date | 17 July 1855 |
| Court | High Court of Chancery |
English Reports Citation: 69 E.R. 663
HIGH COURT OF CHANCERY
S. C. 3 W. R. 616.
Practice. Suit to establish a Will. Issue devisavit vel non. Insanity. Costs of Heir.
[751] roberts v. kerslake. July 12, 13, 17, 1855. [S. C. 3 W. E. 616.] Practice. Suit to establish a Will. Issue devisavit vel non. Insanity. Costs of Heir. Heir at law, Defendant in a suit to establish a will, disputing the will on the ground of insanity, does not as of course lose his costs of the trial of an issue devisavit vel worn, although he has gone into evidence to prove insanity, and failed; but the question of costs is in the discretion of the Court: obiter. Circumstances under which the heir in such a case will lose his right to costs, both at law and in equity. Henry Eoberts, by his will, dated and executed on Sunday the 4th of December 1853, devised and bequeathed all his property, both real and personal, to his wife, the Plaintiff, her heirs, executors, administrators and assigns, and appointed her his sole executrix. [752] The testator died in February 1854, entitled to considerable real and personal estate. He left the Defendant, Mary Ann, wife of the Defendant, Kerslake, his only sister and sole heiress at law. The Defendants having disputed the will, the Plaintiff filed her bill to have it established, praying for an issue or an action in the usual form. The Defendants by their answer insisted that the will was invalid, on the ground that the testator was, as they averred, of unsound mind at the time of its execution. On the 10th of June 1854, upon motion for a decree, the Court decreed an issue devisavit vel non, to be tried at the next Warwick Assizes, with the usual directions as to a special jury and tales. The issue was tried accordingly, and resulted in a verdict in favour of the will. The material facts in evidence upon the trial are mentioned in His Honour's judgment. The Defendants moved for a new trial, which was ordered by the Vice-Chancellor; but upon appeal to the Lords Justices, His Honour's order was discharged. The cause now came on for further directions upon the equity reserved. Mr. James, Q.C., and Mr. Bagshawe, Q.C., for the Plaintiff. A verdict having been found in favour of the will, the [753] order establishing the will is of course. The only question is as to costs. The Plaintiff does not ask that the heir should pay 664 EGBERTS V. KERSLAKE IK. &J. 754. costs; all she contends for is this, that the Defendants, having by their answer set up insanity, and occasioned great additional expense at the trial by their unsuccessful attempts to set aside the will on the ground of insanity, are not entitled to costs. The rules on the subject of costs in cases of this description were laid down by Lord Hardwicke in Berney v. Eyre (3 Atk. 387, a.d. 1746). They are these: That if a devisee brings a bill merely in perpetuam rei memoriam, and the heir at law does nothing more than cross-examine the witnesses who are produced to confirm the will, he is entitled to his costs. If he examines witnesses to encounter the will, then he shall not have his costs. This is where the bill does not pray relief, or is not brought to a hearing. But when the cause is brought to a hearing, if the heir at law has an issue directed to try the will, and the will is established, as he has a right to be satisfied how he is disinherited, he shall have his costs. If he sets up insanity or any other disability against the person who made the will, and fails, he shall not have his costs. These rules have been acted upon ever since the date of Lord Hardwicke's decision. And in the recent ease of Grove v. Young (5 De G. & S.), Sir James Parker, V.-C., not only refused the heir the costs of the suit, including the costs of the action-for it was an action that was directed in that case and not an issue-but made him pay the costs of the issue as to fraud and improper practices, and of his going into evidence in support of them. Mr. Kolt, Q.C., and Mr. Cairns, for the Defendants. [754] This suit was instituted, not by the heir, but by the devisee seeking to have the will established; and where that is the case, the question whether the heir is or is not to have his costs, does not, as the Plaintiff contends, depend simply upon whether the heir does or does not set up insanity as a defence; but it depends upon this, whether insanity has been set up properly and with reasonable ground, and whether the conduct of the heir at the trial has or has not been vexatious. This question is one which in all such cases is in the discretion of the Court, and where the defence of insanity has not been unreasonably or improperly made-where the conduct of the heir at the trial has not been vexatious, the Court gives him his costs at law as well as in equity. The authorities from the earliest times support this view. Thus in Crew v. Joliff...
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...(2 Russ. & Myl. 390). Mr. R. Palmer and Mr. Prendergast, for the heir at law:-Wright v. Wright (5 Simons, 449); Roberts v. Kerslake (1 Kay & J. 751); Grave v. Young (5 De G. & Sra. 38). Mr. Selwyn and Mr. Little, for James Hawksworth and children. Mr. Plummer, for Emma Green. Nov. 16. the m......
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...under the circumstances of this case (Daniel's Chancery Practice, p. 10J2, Gtove v Young, 5 De G-. & Sm. [281 j 41 ; Roberts v. Ketlake, 1 K. & J 751; Smith v Dear mm, 1 Y & J. 278); secondly, that if the Court would not adopt the rule of the Court of Chancery, it would at least place him i......