Sugden v Lord St. Leonards

JurisdictionEngland & Wales
Date1875
CourtCourt of Appeal
[IN THE COURT OF APPEAL.] SUGDEN AND OTHERS v. LORD ST. LEONARDS AND OTHERS. 1875 Nov. 25; Dec. 21.1876 March 13. SIR J. HANNEN (PRESIDENT). COCKBURN, C.J., JESSEL, M.R. and JAMES, and MELLISH, L.JJ. and BAGGALLAY, J.A.

Probate - Lost Will - Presumption of Revocation - Secondary Evidence of Contents - Interested Witness - Declarations of Testator - Contexts of Will not completely proved - Hearing of Cause by Judge of Probate Division without a Jury - Re-hearing - Appeal - 20 & 21 Vict. c. 77, ss. 35, 39, 61, 62, 63 - Probate Court Orders of July, 1862, Rules 47, 49, 52, 59, 60 - Judicature Act, 1873 (36 & 37 Vict. c. 66), ss. 19, 22, 49 - Judicature Act, 1875 (38 & 39 Vict. c. 77), s. 18 - Rules of Supreme Court, Order XXXIX., Rule 1; Order LVIII., Rules 2, 14.

The contents of a lost will, like those of any other lost instrument, may be proved by secondary evidence.

Brown v. Brown (8 E. & B. 876) approved and followed.

Declarations, written or oral, made by a testator, both before and after the execution of his will, are, in the event of its loss, admissible as secondary evidence of its contents (Mellish, L.J., dissenting as to declarations made after the execution of the will).

Quick v. Quick (3 Sw. & Tr. 442) overruled.

The contents of a lost will may be proved by the evidence of a single witness, though interested, whose veracity and competency are unimpeached.

When the contents of a lost will are not completely proved probate will be granted to the extent to which they are proved.

When a cause in the Probate Division has been heard before a judge without a jury, the evidence being given vivâ voce, the parties may, if they please, apply for a re-hearing under Rule 60 of the Probate Court Orders of July, 1862, or they may, without doing so, appeal from the decision of the judge, on the facts as well as the law, to the Court of Appeal.

THE plaintiffs, the Hon. and Rev. Frank Sugden, the Hon. Charlotte Sugden, and John Reilly, propounded, as executors, the contents of a lost will dated on or about the 13th of January, 1870, of the Right Hon. Edward Burtenshaw Baron St. Leonards, late of Boyle Farm, in the county of Surrey, deceased, who died at Boyle Farm on the 29th of January, 1875, at the age of ninety-three. They also propounded eight codicils to the said will, such codicils being produced and filed in the registry.

The declaration, after alleging, 1st, the due execution of the will and codicils, went on to allege:—

2. That the said will never was revoked or destroyed by the testator, nor by any other person in his presence or by his direction, with the intention of revoking the same, and that the same was, at the time of his death, a valid and subsisting will, but that the same cannot be found.

3. That the contents of the said will were, in substance or to the effect, as follows:— “This is the last will and testament of me, Edward Lord Saint Leonards. I appoint my son the Honourable and Reverend Frank Sugden, my daughter the Honourable Charlotte Sugden, and my son-in-law John Reilly, trustees of this my will (the said John Reilly being substituted as trustee for his brother Francis Reilly after the execution of the said will, such substitution being confirmed by the said second codicil). I devise to the use of the said Honourable and Reverend Frank Sugden, the Honourable Charlotte Sugden, and John Reilly, and their heirs, my estates of Childerley Hall, in the county of Cambridge, of Sutton Scotney House, in the county of Hants, of Peasemore, in the county of Berks, of Tilgate Forest Lodge, in the county of Sussex, and of Boyle Farm, and the aits in the river Thames. Together with my land and cottages at Thames Ditton, in the county of Surrey, to hold the same (but subject to the charges hereinafter made thereon) upon the following trusts: Upon trust for my grandson Edward Burtenshaw Sugden for his life, and after his death for his first and other sons successively in tail male, and subject thereto for my grandson Henry Frank Sugden for his life, and after his death for his first and other sons successively in tail male, and subject thereto for my grandson Walter Sugden for his life, and after his death for his first and other sons successively in tail male, and subject thereto In trust for my said son Frank for his life, and after his death for his eldest son Frank for his life, and after his death for his first and other sons successively in tail male, and subject thereto for my son Frank's second son Edward for his life, and after his death for his first and other sons successively in tail male, and subject thereto for my son Frank's third son Henry Richard for his life, and after his death for his first and other sons successively in tail male. And I hereby direct that the trustees of my said will shall, out of the rents and profits of the trust estates, keep up and pay the fire insurances on all the buildings situate on the said estates. And I further direct that no trees shall be cut down on the Tilgate Farm Lodge Estate, which has been let on a long lease, during the present tenancy to the annoyance or detriment of the tenant thereof. I give all my household furniture, books, plate, pictures, marble, bronzes, and china at Boyle Farm to my said trustees, to hold the same as heirlooms, to descend and be enjoyed with real estates hereinbefore devised so far as the rules of law and equity permit. I give unto my said grandson Edward Burtenshaw an immediate legacy of 750l. And also all my carriage horses and farm horses, carriages, carts, with the trappings, and clothing belonging to them, and all my stable and garden implements, and all my wine and other spirits, and also my dairy stock, and the hay, corn, and stock in or belonging to my stables, and my household linen and household stores absolutely, with the exceptions hereinafter stated. I devise to my daughter Charlotte for her life, my house and grounds at Thames Ditton, at present let to the Reverend F. Style, together with two cottages adjoining thereto, the one let to …. Potter, and the other to …. Bartlett. Also Saint Leonards Farm, together with the house on the said farm at present let to Mr. Lewis, and two small houses on the same farm, one being let to Mr. Crowther and the other to Mr. Wardrop. And I direct that the said Reverend F. Styles shall be at liberty to remain as tenant of the said house and premises at his present rent during the life of my said daughter, but in case he shall cease at any time to be tenant thereof during her life, then I direct that my said daughter shall have power to let the same at rack rent during her life, and upon the death of my said daughter I devise the said house and premises, farm, and cottages hereinbefore given to my said daughter for her life, to my said trustees, to hold the same upon the same trusts and subject to the same limitations as I have hereinbefore declared concerning my Childerley Hall and other estates hereinbefore devised. I give to my daughter Charlotte a legacy of 6000l., which I direct to be paid out of the policy moneys of 10,000l. insured on my life. And I also direct that as she will be beginning housekeeping she shall have out of my farming stock two cows, to be selected by herself, out of my conservatory two dozen plants, also to be selected by herself, and two dozen bottles of my old sherry. And I further direct that my grandson Edward Burtenshaw do deliver to her two loads of hay and two loads of straw. I also give to her the harp which was given to her by me some years ago, and I direct that she shall be at liberty to select and take out of her bedroom at Boyle Farm such ornaments and articles of furniture, many of which have been given to her by her mother and me, or purchased by herself, as she may think fit. And I also give her the sum of 750l. to enable her, if she so desires, to make an addition to one of the houses devised by me to her for life, but I direct that it shall be entirely in her discretion whether to add or not to add to either of the said houses.

“And I further direct that my executors pay the sum of 2000l. to the trustees of the settlement of my daughter Juliet, made on her marriage with Kenneth Dixon, payable by my bond to the said trustees. I direct my house and establishment at Boyle Farm to be kept up by my executors at the cost of my estate for one month after my death for the use of my daughter Charlotte. I direct my executors to pay to my daughter Charlotte 60l. per annum during the life of an aged person, to be named by her, to be applied by her for the benefit of that person. And I appoint my son Frank, my daughter Charlotte, and the said John Reilly, executors of this my will, and I give to the latter 200l. for his trouble.

“This is an addition to my will. I devise my estate of Kingsdown, in the county of Kent, to the use of the trustees of this my will, their heirs and assigns, upon the following trusts: namely, upon trust for my son Frank for his life, and after his death for his son Frank for his life, and subject thereto for his first and other sons successively in tail male, and subject thereto for my son Frank's second son Edward for his life, and after his death for his first and other sons successively in tail male, and subject thereto for my son Frank's third son Henry Richard for his life, and after his death for his first and other sons successively in tail male, and subject thereto upon the same trusts as are hereinbefore declared with respect to my Childerley Hall and other estates hereinbefore devised in trust. Provided, however, and I direct that if my personal estate shall be insufficient for the payment in full of the pecuniary legacies bequeathed by me, and to discharge my testamentary and other expenses, until they shall have been fully paid, my son Frank shall only receive 300l. a year out of the income of the Kingsdown estate, the rest of the income to be applied to make up the deficiency. I further charge my estate of Kingsdown with the...

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