Underwood v Wing
| Jurisdiction | England & Wales |
| Judgment Date | 18 July 1854 |
| Date | 18 July 1854 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 655
BEFORE THE LORD CHANCELLOR LORD CRANWORTH, MR. JUSTICE WIGHTMAN AND MR. BARON MARTIN.
S. C. 3 Eq. Rep. 794; 24 L. J. Ch. 293; 1 Jur. N. S. 169; 2 W. R. 641; 19 Beav. 457; 30 L. J. Ch. 65; 8 H. L. C. 183; 11 E. R. 397 (with note). On the point as to presumption of survivorship, see In re Green's Settlement, 1865, L. R. 1 Eq. 289; In re Phene's Trusts, 1870, L. R. 5 Ch. 145. Cf. In the Goods of Alston [1892], P. 142; In re Beynon [1901], P. 141. On point as to gift over on occurrence of contingency, see In re Tredwell [1891], 2 Ch. 656. Cf. Elliot v. Smith, 1882, 22 Ch. D. 236.
[633] underwood v. wing. Before the Lord Chancellor Lord Cranworth, Mr. Justice Wightman and Mr. Baron Martin. Dec. 13, 15, 1854; Jan. 31, Feb. 3, 1855. [S. C. 3 Eq. Rep. 794 ; 24 L. J. Ch. 293 ; 1 Jur. N. S. 169 ; 2 W. R. 641 ; 19 Beav. 457 ; 30 L. J. Ch. 65 ; 8 H. L. C. 183 ; 11 E. R. 397 (with note). On the point as to presumption of survivorship, see In re Green's Settlement, 1865, L. R. 1 Eq. 289 ; In re Phene's Trusts, 1870, L. R. 5 Ch. 145. Cf. In the Goods of Alston [1892], P. 142 ; In re Beynon [1901], P. 141. On point as to gift over on occurrence of contingency, see In re Tredwell [1891], 2 Ch. 656. Cf. Elliot v. Smith, 1882, 22 Ch. D. 236.] A testator by his will bequeathed personal estate to J. W. upon trust for his the testator's wife absolutely, and in case his said wife should die in hia lifetime he directed that all his said estate should be held by his said trustee upon certain trusts (which failed), and subject to those trusts he bequeathed all his property to J. W. absolutely. Held, that the gift to J. W. was dependent on the event of the testator surviving his wife, and that J. W. did not become entitled from the mere fact of the gift to the wife failing to have practical operation. The testator and his wife were shipwrecked and drowned at sea, one wave sweeping both of them together into the water after which they were never seen again : on the question being raised between the next of kin of the testator, and J. W. who claimed under the limitations of the will : Held, first, that the onus of proof that the husband was the survivor was upon J. W., secondly, that it was requisite to produce positive evidence in order to enable the Court to pronounce in favour of the survivorship, and thirdly, that no such evidence having been produced the next of kin was entitled. By the law of England the question of survivorship, in cases of the above description, is matter of evidence and not of positive regulation and enactment as in the French Code, and in the absence of evidence there ia no conclusion of law on the subject. The next of kin stands as to personalty in the same position as the heir at law as to realty, and the person claiming against him must make out his title. This was an appeal by the Defendant William Wing, from a decree of the Master of the Rolls dated the 18th July 1854, whereby His Honour declared the Plaintiff to be entitled to the residue of the personal estates of John Underwood and Mary Ann his wife, the testator and testatrix in the cause. The following are the facts out of which the question between the parties arose. On the 4th October 1853, John Underwood and Mary Ann his wife, in contemplation and under the intention of going to sea on a voyage to Australia, duly made signed and published their respective last wills and testaments, both bearing date the 4th October 1853, and containing mutual dispositions for the benefit of the survivor of them the said testator and testatrix. [634] John Underwood, by his said will, disposed of his real and personal estate in the words and form following : - ." I direct that all my just debts funeral and testamentary expenses may be fully paid and satisfied I give and devise all and 656 UNDERWOOD V. WING DE O. M. & 0. 836. singular my lands tenements and hereditaments and real estate whatsoever and wheresoever to which I am or any person or persons in trust for me is or are seised or entitled and all and singular my gooda chattels monies and securities for money and all other my personal estate and effects whatsoever and wheresoever and of what nature or kind soever which I or any person or persons in trusts for me or for my benefit shall be possessed of or interested in at the time of my decease unto and to the use of William Wing of No. 163 Bond Street in the county of Middlesex watchmaker bis heirs executors and administrators according to the several natures and qualities thereof respectively upon trust for my wife Mary Underwood her heirs executors administrators and assigns absolutely. And in case my wife shall die in my lifetime then I direct that my said real and personal estate shall be held by my said trustee upon trust for such of them my three children Catherine Underwood Frederick Underwood and Alfred Underwood as being sons or a son shall attain the age of twenty-one years and being a daughter shall attain that age or marry under that age to be equally divided between or among them share and share alike. And in case all of them my said children shall die under the age of twenty-one years being sons or under that age and unmarried being a daughter then I give devise and bequeath all my real and personal estate as aforesaid unto and to the use of the said William Wing his heirs executors administrators and assigns to and for his and their own absolute (sic in oriff.) and benefit." And the said testator appointed [635] his said wife and the said Defendant William Wing executrix and executor of his said will. Mary Ann Underwood (called in her husband's will Mary Underwood) by her will, after referring to certain powers in that behalf conferred upon her by the will of her late father John Tulley, disposed of the property which she was thereby empowered to appoint, in the words and form following:-"Now in exercise of the power so given or reserved to me as aforesaid and of every other power or authority in any wise enabling me in this behalf I do hereby devise bequeath and appoint all the said hereditaments and premises and sum and sums of money and all other the real and personal estate devised or bequeathed to or in trust for me by the said will of my said father John Tulley deceased and all my estate and interest whatsoever under the said will and all arrears of the said income dividends and annual proceeds that may be due to me at the time of my death unto and to the use of my husband John Underwood his heirs executors administrators and assigns according to the natures and qualities thereof respectively (subject to the estates and interests of my children therein under or by virtue of the will of the said John Tulley deceased). And in case my said husband should die in my lifetime then I devise bequeath and appoint the said hereditaments and premises and sum and sums of money and arrears of income aforesaid unto and to the use of William Wing of No. 163 Bond Street in the county of Middlesex watchmaker his heirs executors administrators and assigns to and for his and their own absolute use and benefit. And I do hereby nominate and appoint my said husband and the said William Wing executors of this my will." On the 12th October 1853, Mr. and Mrs. Underwood [636] and their three children, Catherine, Frederick and Alfred, embarked together on board the ship Dalhousie, then lying in the River Thames, and bound on a voyage from the port of London to Sydney, and on the same day the ship put to sea in prosecution of her voyage. On the morning of the 19th October, the ship was wrecked and lost in the British Channel off Beachy Head, and Mr. and Mrs. Underwood with their children, and every person on board except one sailor Joseph Reed, were drowned. It appeared, however, that one of the children, Catherine, survived her parents and brothers for a short time, being seen alive for several minutes after they had sunk. The Defendant, W. Wing, who was no relation but only an intimate friend of the family, duly proved the will of Mr. Underwood on the 8th November 1853, and the will of Mrs. Underwood on the 15th December 1853. On the 7th January 1854, letters of administration of the goods of Catherine Underwood were granted to the Plaintiff, Elizabeth Girdler Underwood, who was the mother of Mr. Underwood; and on the 19th January 1854 she filed the bill in the present suit, praying an account of the personal estate of John Underwood, and of the separate personal estate of Mary Ann Underwood,(1) and that the rights of the Plaintiff, as adminis-[637]-tratrix of Catherine Underwood, in the residue of the personal estate of John Underwood and in the said personal estate of Mary Ann 1DBG.H. ft 0.638. UNDERWOOD V. WING 657 Underwood might be ascertained and declared. The bill alleged that the deaths of John Underwood, Mary Ann Underwood, Frederick Underwood and Alfred Underwood took place at the same moment of time, and were proximately occasioned by the shock of a large wave or surge which broke violently over that part of the ship where they were all standing clasped together, and then and there so sunk or submerged them while in that position that not one of them again rose to the surface of the sea or reappeared alive, and the last-mentioned four persons in fact perished simultaneously by the force of instantaneous submersion in the sea on the 19th day of October 1853 ; that under the circumstances aforesaid neither of them the said John Underwood and Mary Ann his wife survived the other of them; that the said Catherine Underwood survived her parents and brothers and thereby became the sole next of kin of her father and of her mother. The bill charged that the limitations and bequests in the will of John Underwood contained for the benefit of William Wing were wholly contingent and dependent upon the event (which did not happen) of Mary Ann Underwood dying in the lifetime of him John Underwood, and that...
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