Whiteley v King and Others
| Jurisdiction | England & Wales |
| Judgment Date | 05 November 1864 |
| Date | 05 November 1864 |
| Court | Court of Common Pleas |
English Reports Citation: 144 E.R. 303
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 11 L. T. 342; 10 Jur. N. S. 1079; 13 W. R. 83.
whiteley v. klnu and others. Nov. 5th, 1864. [S. C. 11 L. T. 342; 10 Jur. N. S. 1079 ; 13 W. II 83.] Where a will and codicil (the drafts of which were produced) were proved to have been left by the attorney who drew them with tlie testator after execution, but were not forthcoming after his death,-declarations of the testator to various members of his family down to a few days before his death, expressive of his satisfaction at having settled his affairs, and intimating that his will was left with his attorney, were held to have been properly admitted, to rebut the presumption that the will and codicil had been destroyed by the testator animo revocandi. Thia was an action of ejectment brought by the plaintiff, the grandson and heir-at-law of one John Whiteley, to recover certain lands in the county of York, which were claimed by the defendants as devisees under a will made by John Whiteley on tho 6th of December 1859, and a codicil dated the 17th of December, 1861. The will, which revoked all former wills, was not to be found at the death of the testator; but a draft was produced by one Sutelitf'e, the attorney who prepared [757] it, and in whose custody it had remained down to December, 1861. The cause was tried before Blackburn, J., at the last Summer Assizes at Leeds. It appeared that, at that time, the testator was desirous of making some alteration in his will, and wrote to Sutclift'e requesting him to let him have the will, and giving him instructions for a codicil thereto ; that SutclifYe accordingly went to him with the will and codicil; that the testator executed the codicil; that Sutclift'e was requested, either fcy the testator or by one of his daughters who was present, to leave them with the testator; that he did so; and that he saw no more of them : nor did it appear that they had ever been seen by any one since. The testator died in 1863. In order to rebut the presumption arising from the absence of the will and codicil that the testator had destroyed them, evidence was offered on the part of the defendants, of repeated declarations made by the testator to different members of his family, down to a short period before his death, expressing his satisfaction at having settled his affairs, and telling one person that he had named him one of his executors, and...
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Isabella Flood and Henrietta Flood, Plaintiffs; William Houghton Russell, Defendant. Robert Grove Annesley and Louisa Thornhill, Intervenients. in the Goods of Warden Hatton Flood, Deceased. in the Goods of Warden Hatton Flood, Deceased
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