Short, on the Demise of Gastrell, Widow, against Smith, and Another
| Jurisdiction | England & Wales |
| Judgment Date | 28 November 1803 |
| Date | 28 November 1803 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 891
IN THE COURT OF KING'S BENCH.
S. C. 1 Smith 96. Applied, Kirke, 1828, 4 Russ. 452. Referred to, Hutch-inson v. Hutchinson, 1850, 13 Ir. Eq. R. 337. See Swinton v. Bailey, 1876-78, 1 Ex. D. 113; 4 App. Cas. 77.
[419] shokt, on the demise of gastkell, Widow, against smith, and another. Monday, Nov. 28tb, 1803. Where one devised lands to two trustees in trust for certain purposes, by a will duly executed and attested, and he afterwards struck out the names of one of those trustees and inserted the names of two others, leaving the general purposes of the trust unaltered, tho' varying in certain particulars ; and did not republish his will: Held that his intent appearing to be only to revoke by the substitution of another good devise to other trustees, as such new devise could not take effect for want of the proper requisites of the Statute of Frauds, it should not operate as a revocation; or at most it could only operate as a revocation pro tanto, as to the trustee whose name was obliterated; leaving the devise good as to the old trustee whose name was retained. [S. C. 1 Smith 96. Applied, Kvrke v. KirJce, 1828, 4 Euss. 452. Referred to, Hutch-inson v. Hutchinson, 1850, 13 Ir. Eq. E. 337. See Swinton v. Bailey, 1876-78, 1 Ex. D. 113; 4 App. Gas. 77.] In ejectment for certain premises in Gloucestershire, tried by consent before Lord Ellenborough C.J. at the sittings at Westminster, a verdict was, by the direction of his Lordship, found for the plaintiff, which the defendants were to be at liberty to move to set aside without costs: and on a motion so made, the Court directed the 892 SHORT V. SMITH 4 EAST, 420. facts to be put into the form of a special case for their opinion; when they appeared to be as follows : The lessor of the plaintiff was heir at law of Thomas Carwardine, who at the time of making his will as after mentioned and at his death was seised in fee of the premises in question, and of which the defendants at the time of bringing the action were tenants in possession. On the 27th of August 1795 Thomas Carwardine duly made and published his will, executed and attested so as to pass real estates, by which will the premises in question were expressed to be given to John Spillmari and Edward Aldridge. So much of the will as is printed in the common Roman letter is a copy of it in its original state as so published and attested. The testator afterwards made several alterations in the will, and among others struck out the name of John Spillman, and introduced the names of James Wood and John Adey, and did not afterwards republish his will. The parts which were struck out by the.devisor are printed within crotchets in the old black letter; the words added by him are in italics. After directing the payment of his debts and funeral expences, the devisor proceeded thus: "I do hereby give, devise, and [420] bequeath all my real and personal estates and effects of what nature and kind soever and wheresoever which I shall be possessed of, interested in, or entitled unto or in reversion at the time of my death, to [Jj0htt yiHlltattt IJtltt.] James Wood, Esq. banker, of the City of Gloucester, and Edward Aldridge of Bisley in the county of Gloucester, brewer; and Mr. John Adey of the City of Gloucester, pin-maker, or their heirs or assigns, whom I nominate, constitute, and appoint my executors of this my last will and testament upon trust as follows; my will and desire is, my sister Sarah Gastrill shall have only one shilling for her unnatural and illiberal behaviour towards me. I give and bequeath to my housekeeper Betty Tombs the house I now live in (the pew in the church to go with the house) for the term of years which are to come, and full power to renew in her own name with the Dean and Chapter of Gloucester. I also give her all fixtures, standards, together with all my household goods and chattels, viz. all my linen, plate, &c. &c. (except my tankard, &c.). I also give and bequeath her for her faithful services 2001. of principal money on Mr. Jefferies' estate at Minster worth, and 101. to buy her mourning. I will and order my executors before mentioned, or their heirs or assigns on the trust aforesaid, to sell all my estate at Sandhurst, both freehold and leasehold, for the most money they can get, as soon as they can conveniently after my decease; after all expence attending the sale be paid, the money arising from such sale to be distributed in six shares among my first cousins, &c. ,(no alteration was made in any of these bequests). I also give and...
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...whose name was obliterated, leaving the devise good as to the old trustee whose name was retained. Short on d#m. Gastrell v. Smith, 4 East, 419. So where a man duly devised land to two persons as joint-tenants in fee, and afterwards struck out the name of one of the devisees, and did not re......
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