The Mayor, Aldermen and Burgesses of Gloucester v Wood
| Jurisdiction | England & Wales |
| Judgment Date | 04 November 1843 |
| Date | 04 November 1843 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 326
HIGH COURT OF CHANCERY
S. C. 1 Ph. 493; 41 E. R. 720.
[131] the mayor, .aldermen and burgesses of gloucester v. wood. July 26, 27, 28, 29, Nov. 4, 1843. [S. C. 1 Ph. 493; 4.1 E. K. 720.] The testator, by his will, gave to his executors beneficially all his property which he might not dispose of, subject to his debts and any bequests which he might afterwards make; and made a codicil of a later date in these words: " In a codicil to my will, I gave to the Corporation of Gloucester ,140,000. In this, I wish my executors would give 60,000 more to them for the same purpose as I have before named." No other codicil was found containing any bequest to or mention of the Corporation. On a bill by the Corporation against the executors and the Attorney-General, for payment of the 140,000 and 60,000, and to have the interest of the Corporation therein declared: Held, that the purpose of both legacies must be deemed to have been the same, and to have been expressed in the codicil referred to as giving the first legacy. That in construing the codicil the Court must exclude from its consideration the proceedings before the Ecclesiastical Court on the question of the admission to probate of the will and codicil. That the Plaintiffs must be regarded as admitting in the suit that no other circumstances proper for the consideration of this Court, as affecting the claim of the Corporation to the legacies, were known. That a bequest of a legacy to an individual for a purpose expressed elsewhere, and which purpose, from some unexplained cause, is unknown to the Court, creates such an uncertainty that a Court of construction cannot declare the intention of the testator. That although it was improbable that the legacies to the Corporation were given in trust for a private person, yet there being no legal presumption that such was not the purpose referred to, the Court could not presume that because the legatee was a Corporation the legacy was therefore upon a charitable trust to which uncertainty of object would be no objection. That the proposition that the Court does not presume, and that merely precatory words do not create, a trust, supposes the whole intention of the testator, so far as it had been committed to writing, to be before the Court, and that the uncertainty is occasioned by the intention which is declared, and does not apply to a case in which, from the terms of the bequest, it would appear that there was a written expression of the intention of the testator which is not before the Court, and the uncertainty is occasioned by the absence of that written declaration. That it being the duty of the executors to protect the interests of the residuary legatees against the claims of other persons on the estate, the circumstance that the executors were also residuary legatees was immaterial to the case. Whether, if the Plaintiffs, on the construction of the codicil which was proved, would have been held entitled to the legacies, the Court would not, before it treated the absence of the missing codicil as evidence of revocation of the legacies, have inquired into the circumstances relating to that absence, qucere ? The Attorney-General appearing in support of a bill for a legacy-the bill being dismissed-held not entitled to costs. After dismissal of a bill for a legacy the Plaintiff applied to stay the transfer out of Court, pending an appeal from the decree, of a sum of stock which stood to the credit of the cause; and the Court ordered that, on the Plaintiffs undertaking to submit to any order the Court might thereafter make for payment of interest or costs, the transfer of the fund should be stayed, with liberty to the Defendants to apply for such transfer upon security to be given by them. 3 HAKE, 132. CORPORATION OF GLOUCESTER V. WOOD 327 In such a case the question must be considered as if the appeal were by the residuary legatees for payment of the residue, notwithstanding an appeal from the decree by the particular legatee. It is in the discretion of the Judge to stay the execution of a decree, although a case of irreparable mischief may not be shewn to be a necessary consequence of such execution. Consideration of the difference in the effect of a decree dismissing a bill as deciding that the position of the parties at the institution of the suit ought not to be altered, and a decree directing an act to be done which would vary that position. James Wood, of the City of Gloucester, made two testamentary instruments, dated respectively the 2d [132] and 3d of December 1834, which were admitted to probate as containing his will, and were then described as paper-writings marked A and B. The testator also made a third testamentary paper, dated July 1835, which was also admitted to probate as a codicil to the will. Paper A was as follows :-"Instructions for the will of me, James Wood, Esq., of Gloucester. I request my friends, Alderman Wood, of London, M.P., John Chadborn, of Gloucester, Jacob Osborne, of Gloucester, and John S. Surman, of Gloucester, to be my executors, and I appoint them executors accordingly ; and I desire that they will take possession of, and retain to themselves, all my ready money, securities, and personal estate, subject to the payment of my just debts, and such legacies as I may hereafter direct; and with respect to my real estate, I shall dispose of the same to such persons and in such parts as I shall, by my writing indorsed herein, direct. Witness my hand, this 2d of December 1834.-James Wood." Paper B was as follows :-" I, James Wood, Esquire, do declare this to be my will, for disposing my estate as directed by my instructions. I declare my wish that my executors shall have all my property which I may not dispose of, and that all my estates real and personal shall go amongst them and their heirs, in equal proportions, subject to my debts and to any legacies or bequests of any part thereof, if any, which I may hereafter make. In witness whereof I have to this my last will set my hand, this 3d day of December 1834.-James Wood." The codicil, bearing the date of July 1835, was in the following words :-"In a codicil to my will, I gave to the Corporation of Gloucester 140,000. In this I [133] wish that my executors would give 60,000 more to them for the same purpose as I have before named. I would also give to my friends, Mr. Phillpotts, 50,000, and Mr. George Council, 10,000; and to Mr. Thomas Helps, of Cheapside, London, 30,000; and Mrs. Elizabeth Goodlake, mother of Mr. Surman, and to Thomas Wood, Smith Street, Chelsea, each 20,000; and Samuel Wood, Cleveland Street, Mile End, 14,000; and the latter gentleman's family, 6000; and I confirm all other bequests, and give the rest of my property to the executors for their own interest.-James Wood, Gloucester, City Old Bank, July 1835," The testator died on the 20th of April 1836. No testamentary paper other than the foregoing was proved or propounded. In November 1841 the Plaintiffs filed their bill against Sir Matthew Wood, Jacob Osborne and John Surman Surman, the surviving executors of the testator, praying an account of what was due for principal and interest on the legacies of 140,000 and 60,000, and that the Defendants *might admit assets, or that the personal estate of the testator might be applied in a due course of administration ; and that, if necessary, the rights and interests of the Plaintiffs in the said legacies might be ascertained and declared; and that a sufficient part of the stock (part of the personal estate of the testator thereinbefore referred to) might be transferred into Court, to answer what might be found due for principal and interest on the said legacies. The bill was afterwards amended by adding the Attorney-General as a Defendant, and charging that he claimed some interest in the matters in question. [134] The Defendants answered separately. They stated it to be their belief that the codicil, dated July 1835, was a forgery, notwithstanding that the executors, in obedience to the Order in Council, made on the appeal from the Prerogative Court of the Archbishop of Canterbury, had taken or accepted probate thereof, together with the papers A and B. They denied that the Plaintiffs, as constituting the Corporation, 328 CORPORATION OF GLOUCESTER V. WOOD 3 HARE, 135. or in any other character or manner, were entitled to the said legacies ; for they said that, if the testator ever gave any such legacies, the purposes or purpose for which such legacies were given were not, or was not, and could not be, ascertained; and, therefore, that the same were or was wholly void, and there was no one who was, or could claim to be, entitled thereto. The Defendant, John Surman Surman, moreover, submitted that the legacy of 140,000 must be deemed to be revoked by the revocation of the alleged codicil, referred to in the codicil or paper-writing of July 1835; and that it must be presumed that such alleged codicil was revoked by the testator in his lifetime, from the circumstance that it had not been discovered after his death. The Defendants, the executors, admitted assets; and subsequently a sum of stock sufficient to answer the legacies and costs was transferred to the credit of the cause, without prejudice to any question therein. The answer of the Attorney-General made no specific claim, but submitted the question to the Court. At the hearing Sir Thomas Wilde, Mr. Swanston, Mr. Humphrey, Mr. Baily and Mr. James Wilde, for the Plaintiffs. [135] The points relied upon in the argument are distinctly considered in the judgment. On the construction of the codicil the following authorities were cited on behalf of the Plaintiffs:-Cook v. Fountain (3 Swans. 585), Morice v. Bishop of Durham (9 Ves. 399; S. C. 10 Ves. 527, 536), Hill v. Bishop of London, (1 Atk. 620), Gibbs v. Rumsey (2 V. & B. 294), Martin v. Douch (1 Cha. Ca. 198), Cruwys v. Golman...
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