William Wing, - Appellant; Richard Angrave, John Tulley, and Others, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 29 February 1860 |
| Date | 29 February 1860 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 397
House of Lords
Mews' Dig. vi. 587, 812; xiv. 1676. S.C. 30 L.J.Ch. 65; and, below, sub nom. Underwood v. Wing, 4 De G. M. and G. 633; 3 Eq.R. 794; 24 L.J.Ch. 293; 1 Jur. N.S. 169; 2 W.R. 641. On point as to presumption of survivorship, followed in In re Green's Settlement, 1865, L.R. 1 Eq. 289; and cf. In re Phene's Trusts, 1870, L.R. 5 Ch. 145; In the Goods of Alston (1892), P. 142; and In re Beynon, 1901, 17 T.L.R. 324. On point as to gift over on occurrence of contingency, cf. Elliott v. Smith, 1882, 22 Ch.D. 236.
Will - Death - Presumption of Survivorships - Union of Characters - Costs.
[183] WILLIAM WING,- Appellant; EICHARD ANGRAVE, JOHN TULLEY, and Others,- Respondents [Feb. 6, 7, 29, I860]. [Mews' Dig. vi. 587, 812; xiv. 1676. S.C. 30 L.J.CL 65; and, below, sub nom. Underwood v. Wing, 4 De G. M. and G. 633 ; 3 Eq.R. 794 ; 24 L.J.Ch. 293 ; 1 Jur. N.S. 169; 2 W.R. 641. On point as to presumption, of survivorship, followed in In re Green's Settlement, 1865, L.R. 1 Eq. 289; and cf. In re Phene's Trusts, 1870, L.R. 5 Ch. 145 ; In the Goods of Alston (1892), P. 142 ; and In re Beynon, 1901, 17 T.L.R. 324. On. point as to gift over on occurrence of contingency, cf. Elliott v. Smith, 1882, 22 Ch.D. 236.] Will - Death - Presumption of Survivorships - Union of Characters - Costs. There'is no presumption of law arising from age or sex as to survivorship among persons whose death is occasioned by one and the same cause. Nor is there any presumption of law that all died at the same time. The question is one of fact, depending wholly on evidence, and if the evidence does not establish the survivorship of any one the law will treat it as a matter incapable of being determined. The onus probandi is on the person asserting the affirmative. Two persons, husband and wife, made their separate wills. In the husband's will the property was given to his wife, " and in case my wife shall die in my lifetime," then to W. W. in trust for the children on their coming of age, and in case all of them should die under age then to W. W. for his absolute use and benefit. In the wife's will (made under a power given by her deceased father, in default of the exercise of which the property was to go to relatives specifically named) the property was given to the husband (subject to interests in the children), " and in case my husband should die in my lifetime " then to W. W. absolutely. The husband and wife and two children perished at sea, being all swept off the deck by one wave, and all disappearing together : Held, that there was no presumption that the husband had survived the wife, or the wife the husband. Held also (Lord Campbell, Lord Chancellor, diss.), that on the true construction of the wills, it was necessary for W. W. to show affirmatively that one or other had survived, and that in the absence of such proof, the property went to the relatives specifically named in the will of the wife's father, as if there had been no will by the husband, nor any appointment by the wife. Held, likewise (Lord Campbell, Lord Chancellor, dus.), that the union of the characters of legatee under the husband's will, and appointee under the wife's will, did not place W. W. in a situation of greater advantage than if the two characters had been held by different persons. The appeal was dismissed with costs. This was a suit instituted by Richard Angrave, the Respondent, for the purpose of having the trusts of the will [184] of John Tulley carried into execution, under the direction of the Court of Chancery. John Tulley, by his will, demised and bequeathed all his real and personal estate to trustees, in trust, to convert the same into money ; to apply the interest to the maintenance and education of his daughter and only child, Mary Ann, till twenty- 397 VIII H.L.C., 186 WING V. ANGRAVE [i860] one, or marriage, then to pay her £500; then, for her separate use, during her life; on her decease, for her children, to vest, as to sons, at twenty-one; as to daughters, at twenty-one, or marriage: if the children should all die before any interest vested in them, " on trust for such person or persons as his said daughter, notwithstanding coverture, by her last will, should direct and appoint, and in default of, or subject to any such direction or appointment, in trust for " his sister, Jane Chart, and his brothers, T. and G. Tulley, and his sister, Mary Tulley. The testator died on 12th October 1832, leaving his daughter and Jane Chart, and the others who were to take, in default of appointment, him surviving. This will was operative only as far as personal estate was concerned. In June 1834, Mary Ann Tulley married John Underwood. There were three children issue of the marriage, a daughter, Catherine, born in 1835, and two sons born in 1838 and 1840. By orders of the Court of Chancery the trust estate, on the death of John Tulley's first executors, became vested in the Appellant, William Wing, and the Eespondent, Kichard Angrave. On the 4th October 1853, Mary Ann Underwood, by her will, duly made and attested, under the power contained in her father's will, appointed all the property she took under that will as follows: " unto, and to the use of my husband, John Underwood, his heirs, executors, ad-[185]-ministrators 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, etc. unto and to the use of William Wing, of No. 163, Bond-street, in the county of Middlesex (meaning the Appellant), his heirs, executors, administrators, and assigns, to and for his and their own, absolute use and benefit." She named her husband and Wing executors of the will. John Underwood, on the same 4th day of October 1853, duly made his will, and thereby devised and bequeathed the whole of his real and personal estate as follows: " unto and to the use of William Wing, of 163, Bond-street, in the county of Middlesex, watchmaker, his heirs, etc., according to the several natures and qualities thereof respectively, upon trust, for my wife, Mary Ann Underwood, her heirs, etc. absolutely; and in case my said 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 my three children, to be equally divided among them; and, in case all of them shall die under the age of twenty-one, being sons, or unmarried, being a daughter, then I give and devise all my real and personal estate unto and to the use of the said William Wing, his heirs, etc., to and for his and their own absolute use and benefit." And he named his wife and the Appellant, William Wing, his executrix and executor. On the 13th day of October 1853, John Underwood and his wife and their three children, embarked together in the Dalhousie, an emigrant ship, bound on a voyage to Australia, and on the 19th day of October following, the ship [186] was wrecked off Beachy Head, and the father, mother, and three children were all drowned at sea. Wing proved the wills of both John Underwood and his wife, and Mrs. Underwood, senior, in January 1854, took out letters of administration to the goods of her granddaughter, Catherine, who was seen alive after her parents had perished. In the same month she filed a bill against Wing, praying for an account of the personal estate of John Underwood, and of the separate personal estate of his wife, and that her own rights as administratrix of Catherine in the residue of the two personal estates might be ascertained and declared. The bill alleged that in the events which had happened no beneficial right in the personal property vested in Wing. The answer was filed in February 1854, and evidence was taken on the subject of the deaths of Mr. and Mrs. 'Underwood and their children. John Heed, the only person who escaped from the wreck, stated that the vessel in which John Underwood and his wife, with their three children, sailed for Australia, foundered in the British Channel, about 16 miles to the south-west of Beachey Head, on the 19th of October 1853, and that every person on board, except the witness, perished. That for some time previously to sinking the ship was lying on starboard beam ends; and that, while so lying, John Underwood and Mary 398 WING V. ANGRAVE [i860] VIH H.L.C., 187 Ann, his wife, and two of the children, namely, Frederick and Alfred, were all standing together on the quarter gallery, " I don't believe it was a minute before a sea came and swept them all off; they seemed to go off all at once; I don't think they were separated. I saw no more of them." When struck by a wave, they were carried by such wave over the stern of the vessel into the sea. " They were clasped together in this manner; the boys had hold of the mother, and [187] the father had his arms round them all; and they were in that state when the sea swept over the vessel; that was the last I saw of them." Catherine Underwood (the other child) was not with her parents and brothers when they were so swept from the vessel; she was lashed by Reed to a spar, but she also perished very shortly afterwards; but he saw her hanging upon the spar, and, as he thought, alive, after he had lost sight of them. Mr. Wotton, a medical man (examined on the part of the Plaintiff), explained the process of drowning. In his opinion, assuming the four persons in question to have been in a continued state of submersion, death would take place in the case of all in two minutes at the outside. Two persons, both in health, being totally submerged at the same moment, asphyxia would ensue in the case of each at the same instant, as nearly as he could conceive. A person of seventy...
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