Sir Francis Burdett, Bart. and Others, v Doe dem. Spilsbury and Another. Skynner and Others v The Same
| Jurisdiction | England & Wales |
| Judgment Date | 18 August 1843 |
| Date | 18 August 1843 |
| Court | Court of Common Pleas |
English Reports Citation: 134 E.R. 943
IN THE COURT OF COMMON PLEAS
S. C. 10 Cl. & F. 340; 8 E. R. 772 (with note).
[386] sir francis burdett, bart. and others, v. doe dem. spilsbury and another. skynner and others v. the same. August 18, 1843. [S, C. 10 CI. & F. 340; 8 E. E. 772 (with note).] Held, by the House of Lords; (Lord Lyndhurst C., Lord Brougham, and Lord Campbell;) assentientibus Tindal C. J., Grurney B., Williams B., Coleridge J., Erskine J., Manle J., Wightman J.; disseritientibus Parke Bi, Patteson J., Colt-man J., Eolfe B.,-reversing a judgment of the Exchequer Chamber, and affirming a judgment (given on different grounds) in B. K.,-that a power of appointment "by a will to be signed, sealed, and published by A. B., in the presence of, and attested by, three credible witnesses," is well executed by an instrument concluding 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, this 12th of December 1789;" such instrument being signed by A. B., and a seal appearing opposite to such signature, and the words " Witness C. D., C. F., G. H.," appearing in the usual place of attestation, and it being shewn, by extrinsic evidence, that the instrument was; in fact, so signed, sealed and published. These were actions of ejectment brought to recover the possession of certain lands, respectively situate in Derbyshire and in the town and county of the town of Nottingham. The former came on for trial before Tindal C. J. at the Derbyshire Lent assizes, 1834, the latter before Littledale J. at the Nottingham Lent assizes in the same year, when verdicts were found for the respective plaintiffs, subject to the opinion of the court-of King's Bench upon special cases. These cases were argued in H. T. 1835, and were in M. T. in the same year determined in favour of the respective defendants in error (see 4 Ad. & Ell. 1, 6 N. & M. 259). The special cases were afterwards turned into special verdicts, upon which judgment was entered for the defendants in error. These verdicts stated, in substance, as follows:- Lydia Henning Ward was the only child of Joseph Ward, and, at the time of the execution of the indenture of settlement hereinafter mentioned, was seised in fee-simple in possession of the hereditaments, thereby [387] settled, situate in the parish of Elwall and in Twyford and Stenson, which are within the parish of Barrow-upon-Trent, being part of the estates in question, and was seised in fee-tail, with remainder to herself in fee-simple, of certain hereditaments in Willington by her also settled, being other parts of the estate in question. She was also seised in fee-simple of other hereditaments in WiMington and Repton, the residue of the estates in question, and by her also settled, , Of these last-mentioned hereditaments and of the other parts of the property settled by Lydia Henning Ward, upon her said marriage, situate in'the counties of Nottingham and Leicester, Francis Ward, the father of the said Joseph Ward, died seised in fee, leaving Joseph Ward his eldest son and heir. Joseph Ward, by his will, dated the 16th of June 1767, devised all his real estate to his daughter, in fee. Joseph Ward died, leaving his said daughter him surviving. . . . On the 6th of December 1787, L. H. Ward intermarried with William Augustus 944 BTJBDETT V.. SPIESBTORiXT 6 KAS. & G.8ft Skynner, having previously executed a settlement, bearing date the 4th and 5th of December 1787, whereby the hereditaments in-Elwall, Twyford, and Stenson were limited to the use of trustees and their heirs, during the life of L. EL Ward, upon trust, from time to time, to receive the rents, and to pay the same to such person as she should appoint, and after the decease of L. H. Ward, to the use of such person or persons, and for such estate and estates, and upon such ends, intents, and purposes, . L. H. Ward, whether covert or sole, by her last will and testament in writing, or any writing purporting to be, or in the nature of, her last will and testament, or bjr any codicil or codicils thereto, to be ,by 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 in default thereof and subject thereto, to the use of W. A. [388] Skynner and his assigns, for life, without impeachment of waste; remainder to the use of the trustees and their .heirs during his life, to preserve contingent remainders, &c. And as to the hereditaments in Willington and Kepton-, to the use of W. A. Skynner and his assigns for life, without waste, remainder to the use of the trustees and their heirs during his life, to preserve, &c., remainder to the use of L. H. Ward, for life, without waste; &c. &c. And after the several deceases of W. A. Skynner and L. H. Ward, remainder, as to the hereditaments in El wall, Twyford, and Stenson, and as to all other the hereditaments thereinbefore granted and released, to certain uses [which had failed to take effect]; remainder to the use of such person or persons, for such estate and estates, and upon such trusts, and to and for such ends, intents, and purposes, as L. H. Ward, whether covert or sole, :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 by her signed, sealed, and published in the presence of, and attested by, three or more credible witnesses, or by any deed or deeds in writing or writings, with or without power of revocation, to be by her sealed and delivered in the presence of two or more credible witnesses, after the death of W. A. Skynner, in case of her surviving him, should give, devise, direct, limit, or appoint; and in default thereof, and subject thereto, to the use of L. H. Ward, her heirs and assigns. The special verdict then stated the facts necessary to shew the nature of the claims of the several parties, and that L. H. Skynner (formerly Ward) died on the 30th of September 1789, leaving the following instrument in writing, purporting to be Tier last will and testament. " I, Lydia Henning Skynner, wife of William Augustus Skynner, Esq., of Gould's Green, in the parish of Hillingdon, in the county of Middlesex, do publish and de-[389]-clare 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 L. Ward, for her life, the rents, &c. (setting out the appointments); and, hereby revoking all former wills and codicils, 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, "lydia henning skynnek. in the year of our Lord one thousand seven hundred and eighty-nine. "lydia henning skynner (L.S.). "Witness, Charles Ball. "Elizabeth Ball. "Ann Ball." It was also found that the said instrument, purporting to be the last will and testament of the said Lydia Henning Skynner was signed, sealed, and published by her in the presence of the said Charles Ball, Elizabeth Ball, and Ann Ball, and attested by them; and that their attestation was in manner and form as appears on the said instrument. Upon these special verdicts judgment having been pronounced, pro forma, for the defendants in the ejectments, writs of error were brought and argued in the Exchequer Chamber, before Tindal C. J., Park J., Bosanquet J., Vaughan J.rColtman J., Parke B., Bolland B., Alderson B., and Gurney B. In Hilary vacation, 1839, the court of error pronounced judgment, reversing that of the court of King's Bench (see 9 Ad. & E. ,936, 1 P. & D. 670). 6MAN,*r S.m BURDETT V,SPILSBURY 945 The cases were then carried by writ of error to the House of Lords, and were argued, the judges being [390] present, on the llth, 12th, and 20th of May 1842, by Sir W. Follett and Pemberton for the plaintiffs in error, and Sir F. Pollock and Bethell for the defendants in error. Besides the cases referred to by the learned judges, in delivering their opinion in the House of Lords, the following authorities are those which were principally relied upon in argument:-Hands v. James (2 Com. Rep. 531), Croft v. Pawlet (2 Stra. 1109), Hougham v. Sandys (2 Sim. 95), Allan v. Bradshaw (1 Curtis, 110), Waterman v. Smith (6 Sim. 629), Simeon v. Simeon (4 Sim. 555), Lempriere v. Valpy (5 Sim. 108), Cwteis v. Kenrick (3 M. & W. 461, 9 Sim. 443), Mackinlay v. Sissan (8 Sim. 564), Brooke v. Mitchell (6 M. & W. 473). The question submitted for the opinion of the judges was as follows :- "Was the power given to the testatrix L. H. Ward by the settlement of the 4th and 5th days of December 1787, duly and effectually executed by her will, dated the 12th of December 17891" : ; The judges differing, their several opinions were, on the 19th of June 1843, delivered seriatim as, follows:- wightman J. My lords, upon the question referred by your lordships to the consideration of the judges, whether the will of L. H. Skynner is or is not a good execution of the power contained in her marriage-settlement, I am of opinion that it is. .By the power, she is enabled to devise by her last will and testament, or any writing purporting to be such, "to be by her signed, sealed,.and published in the presence of, and attested by, three or more credible witnesses." An instrument in writing purporting to be the [391] last will and testament of L. H. Skynner was, in fact, signed, sealed, and published by her in the presence of three witnesses, and was attested by them, by writing their names under the word " witness." The power does not require any form of attestation, but only that the instrument shall be attested by three witnesses, in...
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