Tatham v Wright
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1830 |
| Date | 01 January 1830 |
| Court | High Court of Chancery |
English Reports Citation: 39 E.R. 295
HIGH COURT OF CHANCERY
S. C. 5 Cl. & Fin., 670; 4 Bing., 489; 6 Scott, 58; 2 Nev. & P., 305; 7 A. & E., 313; 7 L. J. Ex. (O. S.), 340; see Lord Tredegar v. Windus, 1875, L. R. 19 Eg., 613.
START Reports of CASES ARGUED AND DETERMINED in the HIGH COURT OF CHANCERY, during the Time of LORD CHANCELLOR BROUGHAM. 1831. By JAMES RUSSELL and J. W. MYLNE, Esqrs., Barristers-at-Law. 1837. Vol. II. tatham v. wright. Nov. 18, 1830; April 29, 30, May 11, Noo. 25, 1831. [S. C. 5 Cl. & Fin., 670; 4 Bing., 489 ; 6 Scott, 58; 2 Nev. & P., 305; 7 A. & E., 313; 7 L. J. Ex. (O. S.), 340; see Lord Tredegar v. Win/his, 1875, L. B. 19 Eg., 613.] A motion for a new trial of two issues was made upon three grounds: 1st, the alleged improper summing up of the Judge; 2dly, because the weight of evidence was against the verdict; and 3dly, because only one of the attesting witnesses was examined at the trial. The motion was refused on the ground that, upon the evidence alone, without regard to the summing up of the Judge, the Court would not have been satisfied if the jury had given a different verdict; and because the two attesting witnesses, who were not examined, were present in Court on the trial of the issue, and tendered to the party moving for a new trial, who declined to examine them. SenMe, the rule is not universal that, on the trial of an issue devisavit vd non, all the attesting witnesses must be examined at law. Semble, that rule does not apply, where the bill is filed by the heir at law, to restrain the devisee from setting up a legal estate as a bar to the ejectment. The bill was filed by the heir at law of John Marsden against the persons who took interests under a will of John Marsden, dated the 14th of June 1822, and a codicil to it, dated the 23d of February 1825. The case stated by the Plaintiff was, that the testator had been, from his youth upwards, weak, childish, and incapable of transacting business; that, for more than twenty years before his death, he had been entirely under the control of his agent and steward, the Defendant George Wright; [2} that the will and codicil had been prepared by Wright's direction ; and that Marsden, without comprehending the provisions of these instruments, which were extremely complex and artificial, executed them under Wright's control and influence. The prayer was, that the will might be declared to have been obtained by fraud and undue influence, and to be void. The bill also alleged that the legal estate in Marsden's freeholds was outstanding, and prayed that the Defendants might be restrained from setting up any outstanding legal estate as a defence to any action at law which the Plaintiff might commence. The Defendants by their answer stated that a considerable part of the freeholds was vested in mortgagees, but they could not further set forth whether the legal estate of any part of the testator's lands was outstanding. Many witnesses were examined in the cause, both on the part of the Plaintiff and on the part of the Defendants. Among those who were examined for the Defendants were Mr. Bleasdale, the Rev. Robert Procter, and Edward Tatham, the TATHAM V. WEIGHT 2 RUSS. & M. 3. three attesting witnesses to the will and codicil. Mr. Bleasdale was the attorney who prepared the will, and had known the testator from his infancy. He deposed in the most unequivocal manner to the perfect capacity of the testator to dispose of his property-to the due execution of the will and codicil-to their strict conformity to the testator's instructions and wishes-and to his perfect understanding of their import and effect. Procter, in his examination in chief, stated that, at the time of the "execution of the will and codicil, John Marsden was of great imbecility of mind and of weak understanding, but his memory was good on the few [3] subjects upon which he conversed; and that he was capable of making a plain straightforward will or codicil to a limited extent." On his cross-examination he said that, "in his opinion and belief, John Marsden was totally incompetent to transact any business, or to manage his own affairs or property, or to give any proper directions or orders about the aame; that he never was capable of knowing his own property, either as to extent or value, or of buying or selling, or contracting for anything more than ten or twenty shillings in amount, or of giving instructions for any conveyances or leases; that he was totally incapable of giving directions for making calculations of the respective values of different lands, or of understanding in the least degree such calculations when made; that John Marsden had not the power to follow his own inclinations, or to act as he wished, without the restraint or control of the Defendant George Wright, in matters of consequence, and that he had not a will of his own in such matters; that he did not think John Marsden was capable of giving written instructions or directions for his will to Giles Bleasdale, or to any other person ; and that, in his opinion, John Marsden was not capable of comprehending, combining together, and judging accurately of the nature and consequences of any legal instrument creating a variety of new rights and interests." Edmund Tatham, in his examination in chief, stated that John Marsden was " of weak mind and deficient understanding, but was of sufficiently sound and disposing mind, memory, and understanding to make a plain and simple will or codicil, though not to make an intricate or complicated will or codicil." In his cross-examination he deposed " that John Marsden was of a weak mind and defective judgment; that he was infirm in these respects throughout the whole of the period [4] of the witness's acquaintance with him, up to the time of his last illness, which was after the year 1825; that he was liable to be made the dupe of designing and interested persons; that he was not capable of transacting business, or of managing his own affairs or property, or of giving proper instructions or orders about the same ; that he was not capable of comprehending, combining together, or judging accurately of the nature and consequence of any legal instrument creating a variety of new rights and interests; and that he seemed to be afraid of offending Wright." Both these witnesses entered, in their cross-examination, into minute details of circumstances to corroborate their opinions of the extreme imbecility of Mr. Marsden. Two issues of devisavit vel -non were directed. On the trial, the devisees, who were Plaintiffs in the issues, called only Bleasdale to prove the due execution of the will and codicil, and did not examine either Procter or Tatham ; but their counsel stated that they had served xubpcemas on both these persons; that both of them were in Court, and the Defendant might examine them if he pleased. The Defendant did not call them. The issues were tried at York before Mr. Justice Park : the jury found a verdict in favour of the will and codicil, and the Judge was satisfied with the verdict. A motion for a new trial was now made on behalf of the heir. Mr. Brougham and Mr. Duckworth, for the motion. Mr. Bickersteth, Mr. Frederick Pollock, and Mr. Walker, amtm. [5] In support of the motion it was contended, 1st, that the'Judge, in summing up, had riot presented the evidence fully and fairly to the jury ; 2dly, that the verdict was not supported by the evidence; and 3dly, that the Plaintiff's in the issues were bound to have examined all the three attesting witnesses. The argument on the first two points consisted of a commentary on the evidence of the witnesses who had been examined on the trial, and of criticisms on the observations made by the Judge. On the third point it was contended, on behalf of the heir, that, on the trial of an issue of devisarit vel non, it was imperative on the party claiming under the will to 2RUSS. SM. 6. TATHAM V. WRIGHT 297 examine all the three attesting witnesses (Toumsend v. Ives, 1 "Wilson, 216 ; Ogle v. Cook, 1 Yes., sen., 178; Sullen v. MieJiell, 2 Price, 399; Booth v. BlumleU, 19 Ves., 494; Cooper, 136). The only exception from this rule was when the circumstances were such that, by the common rules of evidence, proof of the witness's handwriting might be substituted for the testimony of the witness himself ; as when the witness was dead, or was abroad, or was insane, or after diligent search could not be found : and it was to cases of this description that Lord Thurlow referred, when, in Powd v. Cleaver (2 Bro. C. C., 504), he expressed a doubt " whether the rule had ever been laid down so largely that a will could not be proved without examining all the witnesses, although the practice had been to examine all." On the other hand, the devisees contended that the rule, requiring all the attesting witnesses to be examined, applied only where the devisees came into a Court of Equity to have the will established. In the present case [6] they did not ask the assistance of the Court: they asked for no decree, except that the bill should he dismissed. The Plaintiff in the suit had transferred the jurisdiction from a Court of Law to a Court of Equity, merely on the ground that outstanding legal estates might be set up to defeat any action which he might bring to recover possession : and, on the trial of an issue directed under such circumstances, it was sufficient to prove the will in the same way as it would have been proved in case he had brought an ejectment. Even if the bill had been filed by the devisees to have the will established, instead of being filed against them to have the will declared void, it would not have been incum-l ent on them, under the special circumstances of the case, to examine Procter and Tatham. Those persons, in their depositions in the cause, had given evidence against the validity of the will and codicil which they had solemnly attested; it would bo absurd to consider them as the...
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