Winter v Winter
| Jurisdiction | England & Wales |
| Judgment Date | 17 December 1846 |
| Date | 17 December 1846 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 929
HIGH COURT OF CHANCERY
See In re Scott [1900], 1 Q. B. 382; [1901], 1 K. B. 237.
[306] winter v. winter. Dec. 5, 7, 17, 1846. [See In re Scott [1900], 1 Q. B. 382; [1901], 1 K. B. 237.] The testator, by a will made before the Wills Act (7 Will. 4 and 1 Viet. c. 26) came into operation, bequeathed a share of his residuary estate to one of his sons, who was also thereby made one of the devisees in trust and executors of his estate. The son died after the Wills Act came into operation, leaving issue; and after his death the testator made a codicil to his will, altering a bequest to another child, but in other respects confirming his will. Held that the gift to the son did not lapse, but that the same, so far as it was real estate, descended to the heir at law of the son, and so far as it was personal, to his executrix, under a will made before the Wills Act came into operation. That under the 34th section of the Wills Act the effect of the re-publication of the V.-C. XII.-30 930 WINTER V. WINTER 5 HAKE,307. will by the codicil was the same as if the testator had at the date of the codicil made a will in the words of the will so republished. The testator, John Winter, by his will, dated the 13th of November 1833, after f iving certain pecuniary legacies, gave and devised unto and to the use of his son, ohn Palmer Winter, and J. C. Cameron, their heirs and assigns, all his freehold and copyhold estates; and by the same will he gave and bequeathed unto the said John Palmer Winter and J. C. Cameron, their executors, administrators and assigns, all his leasehold and other [307] personal estate and effects, upon trust that they, the said John Palmer Winter and J. C. Cameron, or the survivor of them, should, in their or his discretion, sell the same, and stand possessed of and interested in the monies, and the rents, issues and profits of the said real and personal estate, until such sale, upon trust to pay and discharge his the said testator's debts, legacies, and funeral and testamentary expenses, and to stand possessed of and interested in the surplus thereof in trust, as to, for, and concerning one equal sixth part or share thereof for his (the testator's) son, the said John Palmer Winter, for his own use and benefit absolutely; and as to the other five sixth parts or shares for his (the said testator's) other children and grandchildren severally, as in the said will respectively mentioned. And the testator appointed the said John Palmer Winter and J. C. Cameron the executors of his will. Anna Maria, a daughter of the testator, to whom a sixth share of the residuary estate was given by the will, died in March 1838, intestate and unmarried. The said John Palmer Winter, the testator's said son, one of the devisees in trust and executors, and the residuary legatee of the sixth part of the real and personal estate of the testator, died on the 23d of November 1838, having by his will made in 1824 bequeathed all his estate, real and personal, to Mary, his wife, and appointed her his executrix. Mary, the widow of John Palmer Winter, proved this will on the 8th of December 1838. ' The testator, John Winter, made a codicil, dated the 16th of February 1839, and thereby, after charging the share of his estate given by his will to his daughter, Mary G-illman, with the amount of a certain debt, he directed that, after the decease of his said daughter, the remainder of the benefit given to her by his will should [308] go to other persons mentioned in his said codicil, and in all other respects he thereby ratified his said will. On the 22d of August 1840 the testator, John Winter, made another codicil, which did not alter the foregoing devises or bequests. The testator died on the 5th of February 1843. The will was proved by J. C. Cameron, the surviving executor, by whom the greater part of the freehold, copyhold and leasehold estates were sold before the institution of the suit, and the proceeds invested in the Government funds. The bill was filed by Charles Winter, the eldest son of John Palmer Winter, who was the eldest son of the testator, John Winter, against the other children and the executor of the said testator, and the widow and executrix and the younger children of John Palmer Winter, praying that the rights of the several persons claiming to be interested in the real and personal estate of the testator might be ascertained and declared by the Court. The facts were found by the Master's report, and the cause was heard for further directions. . The principal question arose upon the effect of the 33d and 34th sections of the Wills Act, 7 Will. 4 and 1 Viet. c. 26,(1) with reference to the sixth share of [309] the residuary real and personal estate, devised and bequeathed to John Palmer Winter, the son of the testator, John Winter. (1) For the 33d section, and the construction of that section, see Johnson v. Johnson, 3 Hare, 157. The 34th section enacts, "That this Act shall not extend to any will made before the 1st day of January 1838; and that every will re-executed or re-published or revived by any codicil shall, for the purposes of this Act, be deemed to have been made at the time at which the same shall be re-executed, republished or revived." SHARE, 310, WINTER V. WINTER 931 Mr. Komilly and Mr. Frederick Jones, for the' Plaintiff. The effect of the 34th section is not to alter the date of the will, by bringing the date of the will down to the date of the codicil; but the effect is to give a retrospective operation to the Act, and thereby make the Act to govern the construction of the will, which, without the aid of the codicil, it would not have done. In other words, the will is, by means of the codicil, brought within the operation of the Act for the purposes of construction, and in order so to bring it, the will must be read as if it had been made at the date of the codicil: but for the purpose of determining the subject or object with which it deals, the will must be treated as being made at the time at which it actually bears date. The hypothesis or fiction that the will was made at the date of the codicil is adopted to give effect to the provisions of the Act; but it is not pursued further than is necessary for that object, nor to the extent of transferring the date of the instrument from a time at which the object of the testator's bounty existed unto a time at which such object had no existence. With regard to the effect of the 33d section, they cited and relied on Johnson -v. Johnson (3 Hare, 157). Mr. Walker and Mr. Torriano, for the Defendant, Mary Winter, the widow and executrix of John Palmer Winter, argued in support of the like construction. They insisted that the testator must, at the time he made the codicil, be deemed to have known the law and the operation of the Wills Act upon the gift; and that, [310] knowing it, he would have relied upon the effect of the former disposition, when revived by the codicil: Skinner v. Ogle, (Prerog. Court Cant., 7th May 1845; reported in the Jurist, vol. 9, p. 42). The arrival of a will made before the Wills Act, by a republication since that Act, has been held to bring it within the operation of the new law. Andrews v. Thornton (3 Q. B. 177), Brooke v. Kent (3 Moore, P. C. C. 334). Mr. Willcock, for the younger children of John Palmer Winter. Mr. Kenyon Parker and Mr. Stinton, for the Defendant, Mary Gillman, one of the daughters of the testator. Mr. Wood and Sir Walter Eiddell, for the Defendants, the other children of the testator, John Winter. The construction of the Wills Act, which would require the Court to read the will as if of one date for one purpose, and as of another date for another purpose, is a construction too technical and artificial to be adopted, unless it be absolutely necessary. Where is the necessity of such a construction? The will may, without inconsistency, be read for all purposes as if made at the date of the codicil. The testator at that time must be regarded as revising and finally settling the testamentary disposition of his property. If the testator gave a legacy to a child who was dead, it would be clearly a mistake, artid a nullity; but if the testator actually made such a mistake, it was not the intention of the Legislature to correct his error. The object of the Act was to guard against the negligence of testators, but not against their mistakes. /After making a will, and disposing of property amongst children, there was a com-[311]-mon tendency to postpone any further testamentary act, although the death of some of the children might have materially altered the circumstances of those who were justly supposed to be objects of the testator's bounty. It was in such cases that the Legislature interposed by the Act, and prevented the children of a deceased child from suffering by the delay of the testator. . When, however, the testator set himself to the task of revising his...
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