Warren v Postlethwaite
| Jurisdiction | England & Wales |
| Judgment Date | 26 June 1845 |
| Date | 26 June 1845 |
| Court | High Court of Chancery |
English Reports Citation: 63 E.R. 658
HIGH COURT OF CHANCERY
S. C. 14 L. J. Ch. 422; 9 Jur. 721.
[108] warren v. postlethwaite. May 26, 1845. [S. C. 14 L. J. Ch. 422 ; 9 Jur. 721.] A married woman, having power under her marriage settlement to dispose of personal estate by a will to be signed and published by her in the presence of two or more credible witnesses, made her will in pursuance of the power, and signed her name at the foot of it. Then followed the signature of three witnesses, and below those signatures was a memorandum in the handwriting of the testatrix, to the effect that the will had been signed and sealed by her in the presence of the above three witnesses. Upon the examination of the witnesses after the death of the testatrix two of them deposed to the testatrix having signed the will in the presence of all the witnesses, but the third stated her belief that the will had been signed before the witnesses entered- the room. Held, that, coupling the memorandum with the testimony of the witnesses, there was sufficient evidence of signing in the presence of the witnesses, or two of them, to satisfy the requisition of the power in that respect. Held, also, that the testatrix calling the witnesses to attest her will, sealing it, and declaring if to be her act (which circumstances were given in evidence) thereby published her will within the meaning of the power. Held, further, that as no attestation clause was required by the power, the omission of any statement as to publication in the memorandum (considered as an attestation clause) was immaterial. Held, therefore, under all the circumstances of the case, that the will was a due execution of the power. Where an attestation clause is not required the mere circumstance that there is an attestation clause specifying certain things does not exclude evidence that other things were done besides those which are attested. Legacies of stock given by a married woman by her will, executed in pursuance of a power, Held, notwithstanding the stock was misdeseribed, to be specific; and the costs of a suit instituted by the executrixes, who were also the residuary legatees of the testatrix for the purpose of having the trusts administered, directed to be borne rateably by the specific legacies. Sir William Elias Taunton by his will directed one-eighth of the proceeds of the sale and conversion of his residuary real and personal estate to be invested upon certain trusts for the benefit of his daughter Elizabeth, and such husband as she might happen to marry, and the children of such marriage; and he gave power to his daughter to revoke or alter the trusts, with the consent of the trustees, and to declare new trusts. The eighth share so given to Elizabeth Taunton consisted of 1853, Is. 3, 10s. per cent. Bank annuities, 630, 3s. 3 per cent, consols, and three shares in the Oxford Canal; she was also absolutely entitled from other sources to 1900 3 per cent, consols, and two shares in the Oxford Canal. In July 1832, in contemplation of the marriage of Elizabeth Taunton with William Postlethwaite, a settlement was executed, by which the trusts of the one-eighth were duly revoked, and by which that eighth, together with the other property before mentioned, was vested in trustees upon trust to pay the dividends and interest of the whole to the intended husband for life, then to the intended wife for life, and, after the decease of the survivor, upon trust to apply the principal funds to or amongst the issue of the marriage, and, in default of isstfe, upon trust to pay, [109] assign and 2 COLL. 110. WARREN V. POSTLETHWAITE 659 transfer the stock and the five canal shares to such persons, in such proportions, and in such manner and form as the intended wife should, notwithstanding her coverture, by any deed or deeds, instrument or instruments in writing, to be by her sealed and delivered in the presence of, and attested by, two or more credible witnesses, or by her last will and testament in writing, or any writing in the nature of, or purporting to be, her last will and testament, or any codicil or codicils thereto, to be by her, notwithstanding her coverture, signed and published in the presence of the like number of witnesses, direct or appoint, give or bequeath the same; and in default of appointment in trust for such persons as might then be the wife's next of kin, and would have been entitled to the same under the Statute of Distributions, if she had died unmarried and intestate. There was no issue of the marriage. Mrs. Postlethwaite made her will, dated the 23d July 1834, in her own handwriting, whereby, after referring to the power in the settlement, she disposed of the stock which was the subject of the power, and gave the residue of her estate to her sisters, Frances Smith and Charlotte Warren, and appointed them her executrixes. At the foot of this will the testatrix signed her name and affixed her seal; then followed the signatures of three of her servants, a footman and two maids, and underneath was written the following memorandum :-" Signed and sealed at Hambrook House, this 23d day of July 1834, in presence of the above witnesses, all servants in the house." The testatrix died a few days afterwards, and administration with the will annexed was granted to her executrixes. Mr. Postlethwaite died in April 1843. The bill was filed by the administratrixes against the surviving trustee under the will, the next of kin of Mrs. Postlethwaite, and other parties, praying a declaration that the will was a due execution of the power contained in the [110] settlement, and that the trusts of it might be carried into execution. The first question was whether the will had been duly signed and published 1 The three servants who signed their names at th foot of the will were examined on both sides. All of them agreed in stating that a few days before the testatrix's death she had, at Hambrook House, in the presence of all of them, sealed the instrument in question, and that she had at the same time declared it to be " her act" or " her will" (one of the witnesses speaking to the word " act" only), and that they then, in her presence and in each other's presence, wrote their names under the signature of the testatrix. Two of the witnesses stated that the testatrix, previously to sealing the document, spoke of it as her will, and two (but not the same two) deposed to her having signed it in the presence of the witnesses before they signed it. One of these witnesses, however (the man servant), made this statement in his cross-examination, having spoken doubtfully on the subject in his examination-in-chief. The witness, who would not depose to seeing the testatrix sign, stated that she believed the will was signed before the witnesses entered the room. Mr. Swanston and Mr. James, for the Plaintiffs, contended that the will was a due execution of the power. They observed that, considering the memorandum at the foot of the instrument as an attestation, the omission in it of all reference to publication would not affect the validity of the instrument. The attestation not being required, it was competent to the Plaintiff to shew by parol evidence that the formalities required by the power were duly complied with; and here it was clear that acts amounting to publication had taken place. The memorandum, however, was in fact no attestation at all. It seemed to have been added by the testatrix after everything else had been done. [Ill] They referred to Lempriere v. Valpy (5 Sim. 108), Mackinky v. Sison (8 Sim. 561), Doe d. Spilsbury v. Burdett (4 Ad. & Ell. 1). [The Vice-Chancellor mentioned M'Queen v. Farquhar (11 Ves. 467).] Mr. Maule, for the surviving trustee under the will. Mr. Freeling, for one of the next of zkin of Elizabeth Postlethwaite. There is here an attestation clause. It is immaterial whether it follow the names of the witnesses, orprecede them and refer to them as the following witnesses. The whole was written at the same time. The attestation clause existed before the witnesses entered the room. [THE vice-chancellor. I think that highly probable.] Then the question is whether it shews what they attested. It is submitted that signing and sealing is 660 WAEEKN V. POSTLETHWAITE 2 COLL. 112. not equivalent to signing and publishing : George v. Rielly,(l) [112] and, if so, can the three persons who signed their names to this document be considered-as witnesses to (1) 2 Curt. 1. According to the law of England, publication of a will, in the strict sense of the expression, means the act of the testator in declaring, in the presence of a certain number of witnesses, that it is his will: 3 Nels. Abr. 27 ; Peate v. Ougley Com. 197; Strode v. Perrier, 1 Mod. 267; Boil v. Clark, 3 Mod. 211. The word "publication," however, has been applied to less formal acts of a testator than that which is above specified; as in the case of his desiring the witnesses to " take notice;" Wallis v. Wallis, 4 Burn's Eccl. Law. 100 (9th ed.); his delivery of the instrument as a deed (the witnesses not knowing it to be his will); Trimmer v. Jackson, Id. 102; and his placing it unattested in the custody of his intended executor; Miller v. Brown, 1 Hagg. 209. (See also Ward v. Swift, I C. & M. 171; Johnson v. Johnson 1 Cr. & M. 140; Curties v. Kenrick, 3 M. & W. 461; Simeon v. Simeon, 4 Sim. 555 ; and the other cases mentioned supra in argument.) It has been also held that, if a man draw up his own will, send it to counsel, receive it back with counsel's alterations, seal, subscribe his name, and write on it " This is my will," though there be no witnesses to it, yet this is a good publication : Bartlett v. Ramsden, Vin. Abr. Devise (N. 2), pi. 16. Publication has also been described as "that by which a person designates that he means to give effect to a paper as his will;" per Gibbs, C. J., 7 Taunt. 355; and also as a "statement by the testator, at the,time of making his...
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