Sir Francis Burdett, Bart, and Others, - Plaintiffs in. Error; John Doe, on the several Demises of the Rev. Francis Ward Spilsbury, Clerk, and Another, - Defendant in Error
| Jurisdiction | England & Wales |
| Judgment Date | 18 August 1843 |
| Date | 18 August 1843 |
| Court | House of Lords |
English Reports Citation: 8 E.R. 772
House of Lords
Mews' Dig. x. 1425, 1433; S.C. 7 Scott N.R. 66; 6 Man. and Gr. 386. Discussed and applied in Vincent v. Sodor and Man (Bishop of), 1850, 5 Exch. 693; and see Hudson v. Parker, 1844, 8 Jur. 790.
Power, Execution of - Attestation.
X CLARK & FINNEU.Y, 340 BURDETT V. SPILSBURY [1842-43] [340] Sir FRANCIS BURDETT, Bart, and Others,-Plaintiffs in. Error; JOHN DOE, on the several Demises of the Rev. FRANCIS WARD SPILSBURY, Clerk, and Another,-Defendant in Error [May 11, 12, 20, June 14, 1842 ; June 19, August 18, 1843]. SKYNNER v. SPILSBURY. Power, Execution of-Attestation. [Mews' Dig. x. 1425, 1433; S.C. 7 Scott N.R. 66; 6 Man. and Gr. 386. Discussed and applied in Vincent v. Sodor and Man (Bishop of), 1850, 5 Exch. 693; and see Hudson v. Parker, 1844, 8 Jur. 790.] Lands were limited to such uses, etc. as L. H. W. should appoint by her last will and testament, in writing, to be by her signed, sealed, and published in the presence of and attested by three or more credible witnesses. L. H. W. signed and sealed an instrument (before stat. 1 Viet. c. 26) containing an appointment commencing thus:-"I, L. H. W., do publish and declare this to be my last will and testament;" and ending thus: " I declare this only to be my last will and testament: In witness whereof I have, to this my last will and testament, set my hand and seal, the 12th day of September," etc. The attestation was thus:-" Witness, C. B., E. B., A. B."- Held by the House of Lords (reversing a judgment of the Court of Exchequer Chamber, and concurring in the opinion of the majority of the Judges), that the attestation was sufficient, and that the power was well executed. This was an action of ejectment brought in the Court of King's Bench, by the Defendant in Error against the Plaintiffs in Error, to* recover possession of lands in Derbyshire. The cause was tried at the Derbyshire spring assizes in 1834, and a, verdict was found for the Defendant in Error, subject to the opinion, of the Court of King's Bench upon a special case, with liberty to either party to turn the same into a special verdict. The special case was argued in the King's Bench, and the unanimous judgment of that Court was for the Plaintiffs in Error (4 Adol. and E. 1; 6 Nev. and M. 259). The Defendant [341] in Error thereupon turned the special case into a special verdict, which, among other things not material to be here mentioned, stated that by indentures of settlement, dated the 4th and 5th December 1787, and made on the marriage of Lydia Henning Ward with William Augustus Skynner, certain of the lands in question, of which L. H. Ward was seised in fee simple, were limited after her decease, and in default of issue of the marriage, " to the use of such person or persons, for such estate and estates, upon such trusts, and to and for such ends, intents and purposes, as she the said L. H: Ward, whether covert or sole, and. notwithstanding her then intended or any future coverture, by her last will and testament, in writing or by any writing purporting to be, or in the nature of, her last will and testament, or by any codicil or codicils thereto, to be l y her signed, sealed, and published in the presence of, and attested by, three or more credible witnesses, should give, devise, direct,, limit, or appoint; and for want of such gift, etc. to the use of the said L. H. Ward, her heirs and assigns for ever:" That the said marriage between L, H. Ward and W. A. Skynner was duly solemnized the 6th of December 1787: That the said L. H. Ward or Skynner died the 30th September 1789, in the lifetime of her said husband, without leaving any issue of the marriage, but leaving Benjamin Ward her uncle and heir-at-law surviving, and also leaving an instrument in writing, which was partly as follows: - " I, Lydia Henning Skynner, wife of W. A. Skynner, Esq. of, etc. do publish and declare this to be my last will and testament. I appoint my beloved husband' W. A. Skynner my executor, and my beloved mother, Lydia Ward, executrix with him. I give to my beloved mother for her natural life, the rents, etc. of the mes-[342]-suage, etc. and hereditaments at Etwall, etc. in the county of Derby, and after her death to go to my beloved husband W. A. Skynner, his heirs, etc. for ever." The instrument, after disposing of certain stocks, proceeded thus: " And as to all the-re.st and residue of my estates, real and personal, whatsoever and wheresoever, etc.,, 772 BUBDETT V. SPILSBURY [1842-43] t X CLARK & FINNELLY, 343 I give, devise, and bequeath, the same, and every part and parcel thereof, unto my beloved husband W. A. Skynner, his heirs, executors, administrators and assigns, absolutely for ever, etc. I declare this only to be my last will and testament: In witness whereof I have, to this my last will and testament, contained in one sheet, set my hand and seal, the 12th day of September, in the year of our Lord 1789. " Witness: " lydia henning skynner (l.s.). " charles ball, eliz. ball, ann ball." (The instrument did not at all refer to the power of appointment.) By the special verdict it was further found that the said instrument in writing, purporting to be the last will and testament of the said L. H. Skynner, was signed, sealed, and published by her in the presence of the said C. Ball, E. Ball, and A. Ball, and attested by them, and their attestation was in manner and form as appears on the said instrument: That the said B. Ward, the uncle and heir-atlaw of the said L. H. Skynner, also* departed this life in August 1790, having by his will devised his estates, real and personal, to his nephew Benjamin Spilsbury, since deceased, of whom Francis Ward Spilsbury, one of the lessors of the Defendant in Error, is the eldest son [343] and heir-at-law, and the other lessor of the Defendant in Error is now the heir-ai law of the said L. H. Skynner: That the said W. A. Skynner departed this life in February 1833; and the Plaintiffs in Error claim title under him. The judgment of the Court of King's Bench having been entered on this verdict, a writ of error was brought thereon in the Exchequer1 Chamber, where the same was argued in 1837 ', and the judgment of the King's Bench was reversed in 1839, by a majority of four to three Judges (9 Adol. and E. 936 ; 1 Perry and Dav. 670). The present writ of error was brought to reverse that judgment. Another writ of error was brought at the same time, to reverse a like judgment, in an ejectment brought by the same Defendant in Error, on demise of the same persons, to recover other lands comprised in the same marriage settlement, and appointed by the said instrument, by L. H. Ward [Skynner v. Spilsbury]. The only question in both cases-which came to be argued together-was, whether the said instrument was so executed and attested as to satisfy the terms of the power reserved to L. H. Ward in the settlement. The Common Law Judges (hereinafter mentioned) were present at the arguments on the llth, 12th, and 20th of May, and 19th of June 1842. Mr. Pemberton and the Solicitor-general, for the Plaintiffs in Error in both cases, argued generally* that the conditions and forms prescribed for the exer-[344]-cise of the power given by the marriage settlement were duly complied with, by the executing and attesting of the will of the donee of the power in the manner found by the special verdict; for that Lydia Henning Skynner signed, sealed, and published her last will and testament in the presence of three credible witnesses; and all that appeared on the face of the instrument itself. The Attorney-general and Mr. Bethell, for the Defendants in Error, contended that the power authorizing Mrs. Skynner to dispose of the property by her will, required not only that it should be signed, sealed, and published in the presence of three witnesses or more, but also that the several facts of signing, sealing, and publishing of it should be attested by the witnesses; and there was no attestation or due publication of the instrument in question. The following cases were cited and commented on: Hands v. James (Comyns' Kep. 531), Croft v. Pawlet (Strange, 1109), Brice v. Smith (Willes1 Rep. 1), M'Queen v. Farquhar (11 Ves. 467), Wright v. Wakeford (17 Ves. 454; 4 Taunt. 213), Doe v. Peach (2 Mau. and Selw. 576), Wright v. Barlow (3 Mau. and Selw. 512), Doe v. * The full reports, before referred to, of the judgments in the Courts below, and the full statements of the opinions of the Judges that here follow, render it unnecessary to report the arguments of Counsel on this occasion : those for the Plaintiffs in Error are comprised in the opinions given by Lord Chief Justice Tindal, Mr. Baron Gurney, and Justices Williams, Coleridge, Erskine, Maule, and Wight-man. The arguments for the Defendant in Error are contained in the opinions delivered by Barons Alderson, Parke, and Rolfe, and Mr. Justice Patteson. 773 X CLARK & FINNELLY, 345 BURDETT V. SPILSBURY [1842-43] Pearce (6 Taunt. 402), Hoodie v. Reid (I Madd. 516; 7 Taunt. 355), Stanhope v. Keir (2 Sim. and Stu. 37), Butter v. Burtt (cited in 4 Adol. and E. 15; 6 Nev. and M. 281 n.), Ward v. Swift (3 Tyrw. 122; 1 O. and M. 171), Hougham v. Sandys (2 Sim. 95), Simeon, v. Simeon (4 Sim. 555), Lempriere v. Valpy (5 Sim. 108), Curteis v. Kenrick (3 Mee. and W. 461), Mackenley v. smom- (8 Sim. 561), Brook v. Wilson (6 Mee. and W. 473), Waterman v. Sm*& (9 Sim. 629), ^e v. Bradshaw (1 Curt. Ecc. Rep. 110). [345] All these cases will be found again cited and their application explained, in the subjoined opinions of the learned Judges. At the close of the arguments, the following question was put to the learned Judges:-"Was the power given to the testatrix, Lydia Henning Ward, by the settlement of the 4th and 5th days of December 1787, set...
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