Waters v Waters
| Jurisdiction | England & Wales |
| Judgment Date | 14 December 1848 |
| Date | 14 December 1848 |
| Court | High Court of Chancery |
English Reports Citation: 64 E.R. 263
HIGH COURT OF CHANCERY
[591] waters v. waters. Nw. 18, 21, Dec. 14, 1848. , The only course taken in a suit to establish a will is to direct an issue; but the object of this being to satisfy the Court directing it, a verdict, at once the result of a well-conducted and fair trial, and the affirmation of what is by that Court itself thought to be the truth, ought not to be disturbed without substantial ground for believing that on a second trial other evidence of a weighty nature bearing against the existing conclusion can and will be produced; and, therefore, where no substantial ground for such belief was shewn, the Court refused to grant a second trial. . When an allegation of a matter of fact has been once fairly investigated between 264 WATERS V. WATERS 2DE G.& SM. 592. the litigating parties before a competent judicature, the unsuccessful party not having been taken by surprise, nor being able to allege mistake, accident or any subsequent discovery of a material kind, the investigation should be considered sufficient, and the judgment thereupon conclusive as between those parties. 3. It is within the ordinary practice of the Court of Chancery to make a decree conclusively affecting the freehold and inheritance of land upon one investigation of disputed facts, as well where there must be a jury, as where it is in the discretion of the Court to have or dispense with a jury; and although there has been no consent or acquiescence on the part of the unsuccessful party desirous of further investigation. 4. Where there has been an establishing suit and verdict in favour of the Plaintiff, the heir is not entitled to more favour than a devisee, unless in the sense that the burden of proof is in that case upon the Plaintiff. It is properly incident to an issue between the devisee and heir that one trial should be conclusive between the parties, though the conduct of the unsuccessful party may have been perfectly fair, and although neither consent nor acquiescence can be alleged against him; and this is equally true whether the issue relates to a will questioned by a Plaintiff or a Defendant in equity. The bill in this cause was filed by Benjamin Waters, the sole acting devisee and executor, in trust, of the will and codicil of his father, Francis Waters, an aged and infirm man, against the eldest son and heir at law of the testator, and his widow and his other surviving children and certain grandchildren, for whom provision was made by the will and codicil. The bill stated the will and codicil at length. The will was an holograph ; it was dated the 12th of January 1847. By the will, which was of some length, the testator gave to his wife, Ann Waters, two houses and other hereditaments, with his household goods, for her natural life, and, after her decease, for the purposes therein declared; and he also gave to his eldest son, the Defendant, Thomas Waters, certain hereditaments therein described, which he charged with any debts due by him to Thomas Waters; also, he gave to Benjamin Waters and Eichard Jones, their heirs, executors, administrators and assigns, certain other hereditaments, in the will described, in trust to receive the rents and profits for his son, William Waters, and to pay [592] the same to him weekly or monthly as they should think it would do him most good, and after his death to go to all his children, share and share alike; also, he gave to his son, Benjamin Waters, and Eichard Jones, their heirs, executors, administrators and assigns, certain other premises, in trust, to receive the rents, and to pay the same to his two grandchildren, the Defendants, Thomas Lasbury and Benjamin Lasbury, in equal shares, and after their decease to their children; but if they should die without children, then to come back to all his children, share and share alike; also, he gave and bequeathed to Benjamin Waters certain premises therein mentioned; also, he gave to his said son, the Plaintiff, Benjamin Waters, and Eichard Jones, their heirs, executors, administrators and assigns, certain other premises, in trust, to receive the rents and profits for his two grandchildren, Sarah Jones and Eobert Waters Jones, and after their deaths to their children; but if they should leave no children, then he f ive the same to all his own children, share and share alike. Also, he gave to enjamiri Waters and Eichard Jones, after the decease of his wife, Ann Waters, the two houses given to his wife for life; and also certain other premises in trust for his daughter, Ann Smith, and her children. And as to other premises which the testator had given to his wife, Ann Waters, for her life, he gave the same, and certain other premises particularly specified, amongst and between the testator's sons, Thomas Waters, William Waters, Benjamin Waters, his daughter, Ann Smith, Eachael Lasbury's two children, Thomas Lasbury and Benjamin Lasbury, Sarah Jones's two children, Sarah Jones and Eobert Jones ; that was, to Eachael Lasbury's children one share, and Sarah Jones's children one share; also, he gave to his son, Benjamin Waters, and Eichard Jones, certain other premises, particularly described; and whatever was left after all his just debts and law expenses were settled, he gave the same [593] unto all his children and grandchildren, share and share alike; and he gave to Benjamin Waters and Eichard Jones all rents and monies, and other monies 2DEG.&SM.594. WATERS V. WATERS 265 which should be due at the time of his decease, to divide the same amongst all his said children and grandchildren. And he appointed his son, Benjamin Waters, and Richard Jones his executors in trust of his will. This will was signed by the testator on the day of its date, and purported to be duly attested by three witnesses. By a codicil, dated the 14th of January 1847, which was written upon a blank sheet attached to the will, the testator devised and bequeathed certain premises therein described, which were not included in his will, and all other freehold or chattel-real property, which he might die possessed of, and which was not devised or bequeathed by his said will, unto Benjamin Waters and Bichard Jones, upon trust, as to.one-sixth part, for his son Thomas; as to another sixth, for his son William; as to another sixth, for his son Benjamin ; as to another sixth, for his daughter, the wife of Richard Smith; as to another sixth, equally to be divided between his two grandchildren, Thomas Lasbury and Benjamin Lasbury; and as to the remaining sixth, equally to be divided between his two grandchildren, Sarah Weight and Robert Waters Jones, children of his deceased daughter Sarah. The testator's signature to the codicil was attested by two witnesses, being other persons than those who attested the will. It appeared that the testator was an illiterate person, and that the will was a document consisting of several sheets of paper which he had himself prepared long previously. The codicil, however, was prepared by and was in the handwriting of Mr. Hamlyn, one of the attesting witnesses to its signature. [594] The following facts appeared from the statements in the original bill, as they were either proved or admitted:- That the testator died on the 15th of January 1847. That Richard Jones by deed disclaimed all the devises and bequests contained in the will and codicil; and that, in May 1847, Benjamin Waters applied to the Prerogative Court of Canterbury for probate, but that Thomas Waters, the eldest son, having caused a caveat to be entered, a suit was in course of prosecution in the Prerogative Court between Benjamin Waters and Thomas Waters as to the validity of the will. The Plaintiff, by his original bill, prayed that the rights of the several parties to the real and personal estate of the testator might be declared ; and that, if necessary, the will and codicil might be established, and the trusts thereof performed; and that the premises devised by the testator upon trust for the payment of his debts might be sold or mortgaged for that purpose; and that the deficiency might be raised out of the other estate and effects of the said testator in due course of administration; and for an appointment of a receiver of the real estates, pending the suit in the Prerogative Court; and that the personal estate of the testator might be properly secured during that suit. By a supplemental bill the Plaintiff stated that since the filing of the original bill he had obtained probate in the Prerogative Court, and he sought the appointment of a receiver. The Defendant, Thomas Waters, by his answer, admitted the existence of the paper-writing of the 12th of January 1847, and that it was executed by the testator in the presence of two witnesses, namely, one William Plummer and one Samuel Baker; but he alleged that such paper-writing was attested as having been executed in the presence of three witnesses, viz., William Plummer and Samuel Baker, and of one Sarah Baker, but who was not, as the [595] Defendant had been informed and believed, present when Francis Waters executed the paper purporting to be his will; and that a paper-writing purporting to be a codicil to the alleged will, and dated the 14th of January 1847, was executed by Francis Waters, and was attested in the form required by law; and that such last-mentioned paper-writing was in the words and figures, or to the purport and effect, of the alleged codicil in the original bill stated ; but he said he believed that the testator, Francis Waters, was not of sound and disposing mind and memory and understanding when the paper-writings, or either of them, were or was so executed by him, and that he was then incapable of making any testamentary disposition ; and the Defendant said he believed that Francis Waters did make several other wills and codicils, but that he cancelled or revoked the same; V.-C. ix.-9* 266 WATERS V. WATERS 2 DE G. & SM. 596. and he submitted...
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