Wintle v Nye

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeViscount Simonds,Lord Reid,Lord Tucker,Lord Keith of Avonholm,Lord Birkett
Judgment Date18 December 1958
Judgment citation (vLex)[1958] UKHL J1218-3
Date18 December 1958

[1958] UKHL J1218-3

House of Lords

Viscount Simonds

Lord Reid

Lord Tucker

Lord Keith of Avonholm

Lord Birkett


Upon Report from the Appellate Committee, to whom was referred the Cause Wintle against Nye, that whereas Monday the 17th day of November last was appointed for hearing Counsel upon the Petition and Appeal of Alfred Daniel Wintle, of Coldharbour, Wrotham, in the County of Kent, (Lieutenant-Colonel, The Royal Dragoons (Retired)), praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 16th of December 1957, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, and that the Petitioner might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of Frederick Harry Nye (Solicitor), lodged in answer to the said Appeal; Counsel were accordingly called in, and no Counsel appearing for the Appellant, he was heard for himself as well on Monday the 17th, as on Tuesday the 18th, Wednesday the 19th and Thursday the 20th, days of November last; and Counsel having been heard on behalf of the Respondent, as well on Thursday the 20th, as on Monday the 24th and Wednesday the 26th, days of November last; and due consideration being had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 16th day of December 1957, in part complained of in the said Appeal, be, and the same is hereby Set Aside: And it is further Ordered, That the Verdict of the Jury and the Decree of the Honourable Mr. Justice Barnard of the 20th day of May 1957, be Set Aside, except in so far as regards the words:

"and it is further ordered that the costs of Vera Sibeon Wells the first plaintiff be taxed as between party and party and paid out of the Estate"

and also except in so far as regards the words, "And it is further ordered that the 1st Plaintiff be at liberty to file her Civil Aid Certificate forthwith and that her costs be taxed as between Solicitor and Client in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act 1949": And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Probate, Divorce and Admiralty Division of the High Court of Justice with a Declaration, That the Will dated 4th August, 1937, of Kathleen Helen Wells is invalid so far as regards the words:

"4. I DIRECT that my said executor shall stand possessed of all the rest and residue of the real and personal property representing the first part of my estate including any property or investments appropriated or set aside to provide for any of the aforesaid annuities and falling in on the death of the annuitants and (except as hereinbefore mentioned) also the aforesaid second part of my estate UPON TRUST by and out of any ready moneys available therein and the sale conversion or appropriation of such part or parts of my estate as shall be required or necessary for the purpose to pay or make provision for my funeral and testamentary expenses and debts and the legacies and annuities bequeathed by this my Will or any Codicil hereto and the Duty on any legacy or annuity bequeathed free of duty as aforesaid as well as the duty payable on the third part of my estate devised and bequeathed to my Executor as hereinafter mentioned and subject as aforesaid and to the powers hereby or by law vested in my Executor and to every or any exercise of such respective powers my Executor shall stand possessed of the net residue of such first and second parts of my estate aforesaid UPON TRUST for the said Frederick Harry Nye his executors administrators and assigns absolutely to the intent that this gift shall not lapse.

5. I DEVISE and BEQUEATH the said third part of my estate unto the said Frederick Harry Nye his executors administrators and assigns absolutely to the intent that this gift shall not lapse and I REQUEST him to apply the same in such manner as in a letter to be hereafter addressed to him but not yet written I hope to state BUT I DECLARE that such request shall not create any trust of any kind whatsoever or raise any obligation on his part in law so to apply the same whether before my death my request shall have become known to him or not",

and that the codicil dated 13th November, 1939, to the said Will, is invalid: and with a Direction, that the said Will, except as aforesaid, be pronounced for in solemn form of law, and that the said codicil be pronounced against: And that such further Orders as are right should be made as to recalling the probate of the said Will and the codicil granted on 12th March, 1948, and as to granting fresh probate of the said Will, omitting the aforesaid beneficial bequests and devises to the Respondent as set out in Clauses 4 and 5 of the said Will; and omitting the aforesaid codicil:

And it is further Ordered, That the Costs incurred by the Appellant in the Courts below, and also the Costs incurred by him in respect of the said Appeal to this House, be paid out of the Estate of the Testatrix Kathleen Helen Wells, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Costs incurred by the Respondent in the Probate, Admiralty and Divorce Division of the High Court of Justice be paid out of the Estate of the aforesaid Testatrix, and that the said Respondent do bear and pay his own Costs of the Appeal to this House and in the Court of Appeal.

Viscount Simonds

My Lords,


The right to trial by jury is traditionally precious to the citizen. If their verdict is to be lightly set aside and either a new trial ordered or the opinion of an appellate court substituted for theirs, the value of that right would be substantially diminished. I have not, I hope, in my consideration of this case, failed to pay that jealous regard to the verdict of a jury which is its due.


This appeal, my Lords, is from an Order of the Court of Appeal of the 16th December, 1957, dismissing the Appellant's appeal from a judgment of Mr. Justice Barnard in favour of the Respondent, Frederick Henry Nye, a solicitor, upon the trial of an action with a jury in the Probate, Divorce and Admiralty Division of the High Court.


On the 12th March, 1948, a grant of probate of the will dated the 4th August, 1937, of Kathleen Helen Wells and a codicil thereto dated the 13th November, 1939, was made to the Respondent. She had died on the previous 6th December, 1947. On the 27th January, 1956, the Appellant, Colonel A. D. Wintle, who claimed to be interested in her estate in the event of her intestacy, together with another person, who has not now any concern in the matter, brought the action out of which this appeal arises against the Respondent. It is sufficient at this stage to say that he alleged ( inter alia) that at the time when the will and codicil were respectively executed the testatrix did not know and approve their contents. He claimed that the Court should revoke the grant of probate, pronounce against the validity of the will and codicil and grant to him and his co-plaintiff Letters of Administration of the estate of the testatrix. The Respondent denied the alleged want of knowledge and approval of the testatrix and counter- claimed that the Court should pronounce for the will and codicil in solemn form of law. Here was the issue, and it is not in dispute that it was for the Respondent to prove affirmatively the knowledge and approval of the testatrix.


A few words are necessary about the background of the case. The testatrix, whose mother had been a Miss Wintle, was born in 1871, and was therefore sixty-six years old when she made her will. She never married. She had one brother, Arthur, and a younger sister, Mildred. Her mother, from whom she derived almost the whole of her substantial fortune, died in 1909. She had by her will left her property equally between her three children, but by a codicil made in 1907 she revoked the gift of a share to Mildred and gave her only an annuity of £100. Her reason for doing so was that Mildred had become a Roman Catholic and the mother feared she might dispose of her property to that Church. The result was that she died intestate as to one- third of her estate, and her son Arthur, as her heir-at-law, became solely entitled to that part of it, almost the whole of it, which was real estate. Arthur and the testatrix, however, agreed to make further provision for Mildred and by a Deed of Settlement of the 16th March, 1910, covenanted to pay to trustees the sum of £9,000 and in the meantime to pay her interest at the rate of 4 per cent. per annum (i.e. £360) on protective trusts. In 1913 Arthur and the testatrix entered into a deed of partition whereby the whole of the property derived from their mother's estate was divided equally between them. In return for Arthur sharing the real estate with the testatrix she agreed to pay the whole of the sum of £360 due to Mildred under the Deed of Settlement.


After the death of their mother the testatrix and Mildred lived together, first at Clapham Park, then at Orpington, and finally, from 1929 onwards, at Leigh House, East Grinstead, where they stayed until the death of the testatrix. From the date of the deed of partition until her death her property consisted almost entirely of house property in Hove and Brighton. One of her houses in Hove she retained for her own use, staying there for two or three weeks at a time until 1937 and thereafter often going there for the day. On these visits...

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