The Countess de Zichy Ferraris and J. W. Croker against The Marquis of Hertford
| Jurisdiction | England & Wales |
| Judgment Date | 17 March 1843 |
| Date | 17 March 1843 |
| Court | Ecclesiastical Court |
English Reports Citation: 163 E.R. 794
IN THE ECCLESIASTICAL COURTS AT DOCTORS' COMMONS
S. C. 2 Notes of Cases, 230; 7 Jur. 262. Affirmed nomine Croker v. Marquis of Hertford, 1844, 4 Moore, P. C. 339; 13 E. R. 334 (with note).
the countess de zichy ferraris and J. W. croker against the marquis or hertford. Prerogative Court, March 17th, 1843.-A will is not valid unless executed in conformity with the law prevailing in the country where the testator is dbuaiciledj and the fact of the property (personal) bequeathed by such will, being locally situate in another country, and of the will being duly executed according to the law of that country, will work no distinction.-A testator, by will, duly executed in the year 1823, directed his executors to pay legacies which ha should give by any testamentary writings signed by him, whether witnessed or not. Held, that such clause could not give effect to legacies bequeathed by an unattested paper made subsequently to the 1 Viet c. 26.-A testator, previous to the 1st of January, 1838, had made a will and several codicils; some duly exeeuted, others only signed by the testator. Subsequently to the 1st of January, 1838, he made and signed a codicil (B), but the same was not duly attested. Sabsequently to this, by a codicil (C) duly executed and attested, he ratified and confirmed his will and "codicils." Held that the codicil (B) was not so identified with (C) as to be ratified by or incorporated with (C), the word " codicils " being more completely and properly applicable to the codicils made previously to the 1st of January, 1838.-The 1 Viet. c. 26 applies to wills made previous to the 1st of January, 1838, if any alteration is made therein after that time. [S, C. 2 Notes of Cases, 230; 7 Jur. 262. Affirmed nomine Croker v. Marquis of Hertford, 1844, 4 Moore, P. C. 339; 13 E. R 334 (with note).] Francis Charles Seymour Conway, Marquis of Hertford, died at his residence in London on the [4^] 1st of March, 1842, having made several testamentary papers, to wit:- (A) A will dated 25th of February, 1823, duly exeeuted and attested. Twenty-nine codicils of various dates, but all dated prior to the 1st of Januaiy, 1838. Some signed only by the testator, others duly executed and attested, (B) A codicil, dated 28th of October, 1838, signed by the marquis, but unattested. (C) Ditto, dated 26th of April, 1839, duly executed and attested. (D) Ditto, dated 13th of August, 1839, signed by the marquis, but unattested. (E) Ditto, dated 20th of May, signed by the marquis, but anattested. By his will the marquis appointed his son, Lord Yarmouth (the present Marquis of Hertford), Lord Lowther, Mr. J. W". Croker, Mr. Hopkinson, Mr. de Horsey, and Captain Meynell to be his executors. In the month of June, 1842, probate of the will; of the tw'enty-nine codicils made previous to the 1st of January, 1838, and of the codicil of the 26th of April, 1839 (C) (tfae present Marquis of Hertford having renounced probate), were granted to the five other executors. The will (A) contained (inter alia) the following clauses:- "Whereas I have heretofore made several codicils or testamentary papers, which it is my wish shall be considered as part of my will, now I do hereby ratify and confirm all and every such codicils and testamentary writings." " I direct my executors to pay the several lega-[470]-cies given by this my will, or by such codicils or testamentary papers as aforesaid, or which I shall give by any codicils or testamentary wntings under my hand, or signed by me, and whether witnessed or not." "I hereby ratify and confirm all codicils and testamentary writings as aforesaid which I wish to be considered as if incorporated in this my will." 3CUR1.OT. THE COUNTESS FERRARIS V. TOE MARQUIS OF HERTFORD 795 Paper (B), all in the handwriting of the testator, was as follows:- " 1 hereby give and bequeath to Charlotte Countess of Zichy Ferraris, to be held by her for her own sole and separate use, the stock or shares of which I may die posseted in the United States Bank, which now, I believe, exceed three thousand, Milanj October 28th, 1838.-Hertford. And I also give and bequeath to my friend, the Right Hon. John Wilson Croker, all my stock and shares in the Virginia United States Bank, which, I think, are one hundred thousand dollars.-Hertford. October 28th, 1838, Mflan." Paper (C) was as follows:- " I had in former codicils given as much as possible to Lady S , now I wish to withdraw all, except 7001. a-year, which, under my old family settlement, I am entitled to bequeath to any for life. I direct this to be a first and primary charge upon all the manors in the county of Warwick to which I am absolutely entitled, and over which I have a disposing power, and I hereby ratify and confirm my said will and codicils, except as before excepted." (Signed and duly attested.) Paper (D)-all in the testator's handwriting. [471J " This is a codicil to the last will and testament of Francis Charles Lord Hertford. For several years I hare thought of and frequently altered my decisions about the Regent's Park, but now it becomes me to settle; so I give my leasehold house and premises, and all it contains, excepting plate and two old entailed pictures by Canaletti, to Charlotte Countess Zichy Ferraris, and to her heirs and assigns. In testimony of which I sign this codicil, this 13th August, 1839.-Hertford-." Paper (E), all in the testator's handwriting. " I have ako one thousand pounds of long annuities, which is a stock for about thirty years longer; this I give and bequeath to Charlotte Zichy Ferraris, my ward. And 1 declare this a codicil, as if it formed part of my will and testament. May 20th, 1840,-Hertford-." The Countess de Zichy Ferraris called on the executors to take probate of papers (B, D, and E). Mr. Croker called on his co-executors to join with him in taking probate of paper (B). The four other executors having declined to take probate of any of these papers, and Mr. Croker declining to take probate of any but (B), the Countess de Zichy Ferraris propounded papers (B, D, and E) in an allegation which pleaded (rater alia) 3rd article. "That the testator, in the month of October, 1838, being resident at Milan (a city in the Austrian dominions, and subject to the laws, usages, and customs of Austria), and in which city the said testator had a house and an establishment, and having a mind and intention to make an addition to his last will and testament^ and codicils thereto, and meaning such addition to form part of his said [472] will, and be incorporated tbere, as expressed in his said will, did with his own hand draw up and reduce into writing the aforesaid codicil bearing date the 28th of October, 1838, and in testimony of his aforesaid intention that the same should form part of his said will, and be incorporated therein, he did on the said 28th day of October, 1838, being the day of the date thereof, execute the same, in conformity with the laws, usages, and costoMS of, and in the form required and observed in, the Austrian dominions, to wit, by setting and subscribing his title of honour or signature thereto, as the same now appears, as nod for a further codicil or part of his will." 4tt article, " That such codicil is a good and valid codicil by the laws, usages, and customs of Andaria, and that the law of Austria would give effect to such a paper." [The opinions of advocates and lawyers of that country were vouched in support of this article.} 5A article. " That the testator being of sound mind, memory, and understanding, and having an intention to make an addition to his aforesaid last will and testament, and, among other things, to ratify and confirm the same, and the codicils thereto, and, among others, the codicil of the 28th of October, 1838, did with his own hand draw up and reduce into writing a further codicil to his aid will, bearing date the 26th of April, 1839; and duly executed the said codicil in the presence, &c. And the said testator in and by the said codicil ratified his said will and codicils, and, among others, the codicil beariag date the 28th of October, 1838." Mr. J. W. Croker propounded paper ^B) in a sepa-[473]-rate allegation, substantially the same as that on behalf of the Countess de Zichy Ferraris, but pleading in addition, 796 THE COUNTESS FERRARIS V. THE MARQUIS OF HERTFORD 3 (STBT. 474. " That the whole of the stock, shares, goods, or property in and by the said codicil bequeathed (whether to Mr. Croker, or to the countess) was, at the time of the making of the said codicil, and still is, locally situated in the United States of America only, and not elsewhere." The admission of these two allegations was opposed by the present Marquis of Hertford, the residuary legatee named in the will. Jenner and Elphinstone for the residuary legatee. The Queen's advocate and Haggard for the Countess de Zichy Ferraris. Harding and E. Phillimore for Mr. Croker. Addams for the executors, who appeared formally. The points discussed in argument were (a)- 1st. The law, arising from the fact of paper (B) being made at Milan, at a time when the testator was resident in that city, occupying a house, and having an establishment there. The cases cited on this point were Stanley v. Bemes (3 Hagg. Ecc. 373). The Annamdale Peerage case (3 Ves. 198). 2nd. The fact of the stock and shares, be-[474]-queathed by paper (B), being locafly situate in America. Cases cited. Re Moresby (1 Hagg. Ecc. 378), Stanley v. Bernes (3 Hagg. Ecc. 373), Burge on Colonial Law (4 vol. pt. 2, c. 12), Story on Conflict of Laws (pp. 78-678). 3d. The law, arising from the fact of the will (A) having reserved power to bequeath future legacies, and the legal effect on papers (B, D, E). Cases cited. Habergham v. Vincent (2 Ves. jun. 204; 4 R C. C. 353), Rose v. Cunynghame (12 Ves. 29), Hooper v. Goodwin (18 Ves. 156). 4th. The law, arising...
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