Williams, formerly Cook v Goude and Bennet
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1828 |
| Date | 01 January 1828 |
| Court | Prerogative Court |
English Reports Citation: 162 E.R. 682
PREROGATIVE COURT
[577] williams, formerly cook v. g-oude and bennet. Preiogative Court, Trinity Term, 2nd Session, 1828.-When the opinions of persons apparently intending to depose fairly are contradictory as to capacity, particularly if facts shew the deceased was occasionally capable, the Court will infer a fluctuating capacity. The will of a person in such a state, of which probate was taken out four months after the deceased's death and not called in for two years and a half, pronounced for; there being satisfactory evidence of instructions, and of capacity at the time of the factum; the disposition contained being consistent with his affections, and its variation from a will executed before his mind became impaired being accounted for by a change of circumstances.-The influence to vitiate an act must amount to force and coercion destroying free agency , and there must be proof that the act was obtained by this coercion.-A legatee performing the duty of an executor in proving a paper is entitled to his costs out of the estate.- Semble, that an executrix (the widow) who, after taking probate and acting for many months under a will, by which she takes a smallei interest than by a former will, causes the later will to be opposed by questioning the deceased's capacity, and then refuses to propound such will, is liable to be condemned personally in the costs of a substituted residuary legatee who propounds and establishes the will; and such refusal, being tantamount to renouncing, would justify the Court in revoking the probate, and decreeing the administration with the will annexed to such residuary legatee. iHAao.Ecc.sra. williams v. goude 683 This case was argued at the sittings after Easter Term by the King's advocate and Dodson for Mrs. Williams : and by Lushington and Addams for Mr. Bennet. Judgment-Sir John Nicholl. This ease presents itself to the attention of the Court rathet in a peculiar shape-a shape which, at the outset, forcibly directs the Court in the view to be taken of the evidence. It may be proper to explain this peculiarity by adverting to some of the general facts before I proceed to the examination of the evidence, which more immediately regards the factum and validity of the instrument ultinetely to be decided upon. John Goude, the deceased in the cause, died on the 24th of June, 1822; he had originally been a sawyer in the dock-yard at Plymouth, and in 1792 married Margaret, now his widow,, and one of the parties in this cause. He continued his trade for some time, but in addition took a public house, which was managed by his wife, whence they removed to an inn called the Cross Keys, and finally entered upon the King's Arms Ina, or Goude's Hotel, the principal inn, posting house, and coach office at Plymouth [578] dock, now called Devonport. Having some time before his removal to the latter house abandoned his trade of sawyer and assisted in conducting the business of the inns, he selected as his department at the King's Arms the posting and the coaches, seldom coming in doors, except occasionally to carry in the first dish at dinners; but the management of the internal or house concerns was left entirely to his wife, the more active partner. The deceased was a good-natured, easy, rather indolent man, who loved his joke; his wife a bustling, managing woman, and piobably the profits of the business resulted in no inconsiderable degree from her exertions and oare: indeed, not only the domestic management, but a full share and proportion of the domestic authority also were exercised by her. The husband had a sister married at Devonport to one Cook, the carpenter of H.M.S. "Temeraire," and this sister had three children, one of them, the present party, now Mrs. Williams. The wife also had a sister married to one Bennet, a shoemaker, residing and settled at Witney in Oxfordshire, and she had at one period seven children, but at the death of thf deceased only six-one of whom, John Bennet, is a party to this suit. For some time the daughter of Mr. Cook lived at the inn as bar-maid ; but in 1813, in consequence of a misunderstanding, she left the situation, and in the same year Mary Bennet, a daughter of the wife's sister, came to assist in that capacity ò she fell into ill health-a decline-and in the spring'of 1816 she died. It is quite clear that the deceased was very fond of her, [579] was very anxious about her health and for her recovery, and much lamented her death. In October, 1816, he adopted a nephew of his wife, Thomas Bennet, a lad of eleven or twelve years old-became fond of him, put him to sctool, and played with him when at home. It also appears that about this time there was a misunderstanding with the Cooks: the quarrel might be principally between the wives, but whether the husband participated in the feelings, or only acquiesced in the wishes of his wife, the fact is, there was no interchange of family kindness. The deceased might occasionally call on his sister, more especially to take leave of her when she wag about to quit Devonport and go to Chatham; but tlere was no cordiality, nor the ordinary intercourse of affection after 1816. ib 1817^ with matters in this situation-the sister's daughter having quitted her situation in 1813, no communication being kept up with the sister and her family, one of the wife's nieces having died in the deceased's house, a lad taken of whom he was fond, and, what is unequivocal, about twenty letters written by the deceased to Bennet and his family in 1815 and 1816, shewing the strongest friendship and regard for tletn-it is under these circumstances, I say, that the deceased sets about making his will. The contents of that will it may be material to state. To his wife he gives £1000 absolutely, and the residue of his property for life; after her death he bequeaths the residue equally between the children of his own sister Cook, and [580] the children of his wife's^ sister Bennet: at that time Cook had three children, Bennet six, so that after the wife's death the Cooks had one third, the Beunets two thirds ò of this will John Bone and William Glencross were trustees and executors , it is formally drawn up, regularly executed, and attested by three witnesses, another person of the name of Bane, Burnet and Hearle, of whom we shall learn more hereafter. The will, then, of 1817 (the validity of which is acknowledged) is very favourable to the wife and to her family : and though it does not cut off the sister's family, yet it gives no interest nor benefit to the sister herself, not even a slight legacy as a mark of affection. 684 WILLIAMS V. GOUDE 1 HACKJ. ECC. 581 Attached to this will is a sort of codicil or direction in the deceased's own handwriting, signed, and attested by four witnesses; and the executors are those of the will. It is in these words :- "Plymouth Dock, 11th May, 1819 "This is to certify that neither brother or sister nephew or niece or any other-person shall enter these or any other premises where my wife Mary Goude shall reside, or call her to account for any property or demand any keys or any other thing I shall leave after my decease. After my wife's decease my will to be acted up to by my friends Messrs, Bone and Gleucross." This codicil, written before the capacity of the deceased is attempted to be impeached, shews his great affection £or and confidence in his wife, how anxious he was for her comfort and [581] gratification, and that she should not be disturbed in the enjoyment of the property ; and whatever may have been her influence over the testator, it is not suggested that it was of a nature to vitiate the act. indeed, it would be extraordinary if the influence of affection and of warm attachment is to take away the power of benefiting the object of that regaid. The influence to vitiate an act must amount to force and coercion destroying free agency-it must not be the influence of attection and attachment-it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground m support of a testamentary act. further, there must be proof that the act was obtarnecl by this coercion -by importunity which could not be resisted: that it was done merely for the sake of peace, so that the motive was tantamount to force and fear I state the principles here, though they will be more applicable to a later part of the case . but to return to the history. Thus stood matters in May, 1819, except that in October, 1818, the deceased had taken another son of the Bennets, an elder brother, John Bermet (the present party in the cause), to assist him in his business. In the beginning of June, 1819, the deceased had an attack of apoplexy: medical attendance was called in on the second of June, but it was not required after the "2'2ud. The effects of that attack must be examined more particularly hereafter, but it is proved that before the end of June he was so far recovered that he attended a meeting of coach contractors at Bath, and appeared qaite [582] restored, at least in mind. Between that time and his death he went from home to various places, for we find him in London, in Sussex, in Cornwall, frequently on visits at Exeter to his friend Church, a witness produced by Cook, on a visit to his friends at Witriey and Woodstock in October, 1820, in March, 1821, and in September, 1821 , in October, 1820, accompanied by his nephew Thomas, who took this opportunity of seeing his own family for the first time since he went to Devonport in 1816, in September, 1821, accompanied by his other nephew, John, who was in ill health and went for a change of air, but in Mutch, 1821, alone and unattended. These excursions were natural and beneficial to a person who had been once attacked by apoplexy ; especially as these young men, the Bennetb, were very steady, assisting him, when at home, in that department of the...
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