William Brown against Amelia Brown
| Jurisdiction | England & Wales |
| Judgment Date | 26 January 1858 |
| Date | 26 January 1858 |
| Court | Court of the Queen's Bench |
English Reports Citation: 120 E.R. 327
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
S. C. 27 L. J. Q. B. 173; 4 Jur. N. S. 163. Applied, In the Goods of Brown, 1858, 1 Sw. & Tr. 32; In the Goods of Gardner, 1858, 1 Sw. & Tr. 110. Commented on, Wharram v. Wharram, 1864, 3 Sw. & Tr. 301. Applied, Wood v. Wood, 1867, L. R. 1 P. & D. 310; Burls v. Burls, 1868, L. R. 1 P. & D. 473; Homerton v. Hewitt, 1872, 25 L. T. 854. Followed, Sugden v. St. Leonards, 1876, 1 P. D. 154. Discussed, M'Ara v. M'Cay, 1889, 23 L. R. Ir. 143.
william brown against amelia brown. Tuesday, January 26th, 1858. executed a will, and afterwards executed a second will, which he took away with him. On his death the earlier will was found ; hut the second will could not be found. The solicitor, who prepared the second will, gave evidence, from recollection, of its contents, which were inconsistent with the first will, and revoked it. On a case where the Court had power to draw inferences of fact:-Held, that secondary evidence might be given of the contents of the last will, and that the evidence given sufficiently shewed that it revoked the first will.-That the facts that the second will was last seen in the custody of the deceased, and could not be found, raised a presumption that he had destroyed it, animo cancellandi, and cast on those seeking to establish the will the onus of rebutting that presumption ; and, this not being done, the Court held that A. died intestate. [S. C. 27 L. J. Q. B. 173; 4 Jur. N. S. 163. Applied, In the Goods of Brawn, 1858, 1 Sw. & Tr. 32 ; In the Goods of Gardner, 1858, 1 Sw. & Tr. 110. Commented on, Wharram v. Wharram, 1864, 3 Sw. & Tr. 301. Applied, Wood v. Wood, 1867, L. R. 1 P. & D. 310; Hurls v. Burls, 1868, L. R. 1 P. & D. 473; Homerton v. Hewitt, 1872, 25 L. T. 854. Followed, Siigden v. St. Leonards, 1876, 1 P. D. 154. Discussed, M'Ara v. M'Cay, 1889, 23 L. R. Ir. 143.] Ejectment. On the trial, before Lord Campbell C.J., at the Sittings after Michaelmas Term, 1857, the verdict was entered for the plaintiff, subject to the following case. 328 BROWN V. BROWN 8 EL. & BL 877. The plaintiff is the eldest son and heir at law of William Brown, deceased, late of Whitby: and the defendant is the widow of the said William Brown, deceased, and the mother of the plaintiff. William Brown, the father, bad four bods and two daughters, all of whom are still living. The plaintiff, who is the eldest child, was at his father's death of the age of thirty years; a daughter, Eleanor, who is the youngest child, waa then of the age of seventeen yeara. At the time of the making of his will first hereinafter mentioned, and from thence until the time of his death, William [877] Brown, the father, was seized in fee of real estates of about the value of 40,0001., including the messuage the subject of this action. He was also possessed of personal property of considerable value. In November 1846, and from thence until some time in the spring of 1855, William Brown, the father, was not on good terms with the plaintiff. On the 6th day of November 1846, William Brown, the father, being so seized and possessed as aforesaid, made his will in writing, which was duly executed and attested so as to pass real and personal estates. By this will the testator, after directing bis debts and funeral and testamentary expences to be paid out of his personal estate, and giving his household goods and furniture, plate, linen and china to his wife, the now defendant, for her absolute use, gave to the plaintiff an annuity of 501. per annum for his life, payable half yearly, the first payment to commence and be made at the expiration of six months after his wife's decease ; and after the plaintiff's decease bequeathed the principal sum of 20001. equally between and among the plaintiff's lawful issue, payable on their attaining their respective ages of twenty five years, the interest or dividends thereof in the mean time from the plaintiff's decease to be applied towards the maintenance, education and support of such issue during infancy. And the said testator by that will gave to his wife, the now defendant, to his cousin Eobert Porritt, and to bis friends John Chapman and Thomas Fishburn, all his real and personal estates and effects, to hold the same unto and to the use of his said wife, the said Robert Porritt and John Chapman and Thomas Fiehbum, their heirs, executors, administrators and assigns, Upon trust, after paying his debts and funeral and testamentary expences, to pay and apply the rents, dividends [878] and proceeds arising from the trust estates towards the support of his said wifa during her widowhood, and the maintenance, education and bringing up of all the testator's children then born or thereafter to be born; and, upon the decease or marriage of his said wife, then upon trust to pay the said rents, dividends and proceeds equally between and among all his children except the plaintiff, at and when they should attain their respective ages of twenty one years, for their respective natural lives. And the said testator by his said will declared and directed that the respective lawful issue of his said wife, except the plaintiff, should become entitled to the entirety of the said trust estates, moneys and effects in equal...
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