Wood v Cox
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1837 |
| Date | 01 January 1837 |
| Court | High Court of Chancery |
English Reports Citation: 40 E.R. 801
HIGH COURT OF CHANCERY
S. C. 1 Keen, 317; 5 L. J. Ch. (N. S.), 361; 6 L. J. Ch. (N. S.), 366; 1 Jur. (O. S.), 720. See Briggs v. Penny, 1849, 3 De G. & S. 542; Shelley v. Shelley, 1868, L. R. 6 Eq. 549; Irvine v. Sullivan, 1879, L. R. 8 Eq. 678. Cf. In re Hanbury [1904], 1 Ch. 415.
a hy. & cr. m. wood v. cox 801 [684] wood v. Cox. March 9, August 30, 1837. [S. C. 1 Keen, 317; 5 L. J. Ch. (N. S.), 361 ; 6 L. J. Ch. (N. S.), 366; 1 Jur. (O. S.), 720. See Briggs v. Penny, 1849, 3 De G. & S. 542 ; Shelley v. Shelley, 1868, L. R. 6 Eq. 549; Irvine v. Sullivan, 1879, L. R. 8 Eq. 678. Cf. In re Hanbury [1904], 1 Ch. 415.] A testatrix by her will bequeathed all her personal estate to C., whom she appointed one of her executors, for his own use and benefit for ever, trusting and wholly confiding in his honour that he would act in strict conformity with her wishes. Afterwards, on the same day, she executed a testamentary paper, which contained a list of a number of persons by name, and among others, the name of the person who was her sole next of kin, with the several sums to be given to them respectively, and concluded with a declaration that such was the testatrix's wish. Held, upon appeal, that C. took the personal estate for his own use absolutely, subject only to the payment of the legacies specified in the testamentary paper, and three other sums, which, by his answer, C. admitted that the testatrix had directed him, and which he submitted, to pay. The will of Sarah Crompton, dated the 25th of April 1833, so far as is material, was in the following words :-" I hereby devise, give, and bequeath all my house in Bryanstone Square, and all the furniture, jewels, plate, and effects therein, and also all my monies whatsoever, and all my estate, property, and effects whatsoever and wheresoever, both real and personal, and of whatsoever nature or kind the same may be, unto Sir George Matthias Cox, Bart, [and Thomas Wilson their] his heirs, executors, administrators, aiid assigns, for his and their own use and benefit for ever, trusting and wholly confiding in his honour, that he will act in strict conformity with my wishes. I hereby appoint the said Sir George Cox, and Thomas Wilson, solicitor, the executors of this will, and hereby revoke all former wills." On the same day the testatrix dictated another testamentary paper, which was as follows :- "Miss Mary and Miss Betsey Trussell, for life, 100 a year to be equally divided between them. Mr. James Jones, 50 per annum for life. "Miss Clements, 100, as a present. " My cousins, the children of James Heald of Chelmsford, a Quaker, 20 to each of his children. " Old Mrs. Sarah Jones, 10 per annum for life ; and [686] after her death, to her daughter, and after her death, to her (the daughter's) daughter. "Elizabeth and Lydia Wood, daughters of Joseph Wood, 50 a-piece. "Hannah Wood, widow, 100. "Daniel Wood, her father, 100. " Mr. Curtis, 50 per annum for life. " Miss Cordelia Jane Clode, 20. "My coachman, 100. " Mary Kite, 100. "Jones, 20 and his mourning to the late Mr. Clifton. "Fanny Bales, 20. " The cook, 20. " My wardrobe to Lady Cox and Miss Trussell. " Mr. Thomas Wilson, 200. "To the poor of St. Mary's, 25. " The clergyman, 25. "Such is the wish of Sarah Crompton." Of this paper the last clause only, "Such is the wish of Sarah Crompton," was in the testatrix's own handwriting. The words in the will printed within brackets, "and Thomas Wilson their," were directed by the testatrix to be struck out, and a line was accordingly drawn through them in the original; and they formed no part of the will, as proved. The death of C. xx.-26 802 WOOD V. COX 2 MY. & CK. 686. the testatrix took place three days after the execution of her will; and probate of the will and testamentary paper was thereupon granted to the executors. Daniel Wood, the person to whose name, in the testamentary paper, the sum of 100 appeared annexed, was the testatrix's uncle, and sole next of kin ; and in the latter character he filed the hill against the executors, [686] claiming the residuary personal estate, aa being undisposed of. The Defendant, Sir George Cox, by his answer, stated his belief that the testatrix intended the testamentary paper solely for his private information and guidance, in the disposal of the property she had bequeathed to him, and not by way of codicil, or instructions for a codicil. His answer further stated that the testamentary paper was drawn up, in consequence of the testatrix having previously expressed her wishes to him verbally, and of his having requested that the particulars thereof might, for greater certainty, be reduced to writing: that in the evening of the 25th of April, after the testatrix had dictated and signed the testamentary paper, she stated to him that she had forgotten to include Mr. Thorn in the list; and she then verbally directed the Defendant to give 500 to Samuel Thorn of Chelmsford, after her death, and the sum of 100 to Dr. Sayer, her medical attendant, and the like sum of 100 to John Varley. The Defendant then, by his answer, after saying that he was ready and willing to pay these three several sums, according to the testatrix's direction, if he could do so with safety, went on to state that, after the testatrix had made her will, she spoke to tho Defendant respecting the probable amount of the proceeds of the sale of the house in which she then resided, which she estimated, upon that occasion, at 11,000, adding that, after payment of her debts, legacies, and expenses, there would be something handsome left for the Defendant-at least 3000. And the Defendant, by his answer, insisted that the residuary personal estate of the testatrix belonged to him, for his own absolute use and benefit, as her residuary legatee, and that there was no resulting trust in favour of her next of kin. [687] The facts stated in the answer, relative to the three sums of 500, 100, and 100, were subsequently found, upon a reference, and an order was made for payment of them to the persons entitled to them respectively. The eause afterwards came on at the Rolls, for further directions ; and the sole question then made was, whether the Plaintiff, as the testatrix's next of kin, was beneficially entitled to the residuary personal estate, after paying the debts, funeral expenses; and legacies, and the three sums mentioned in the Defendant's answer; or whether the residue, subject to those charges, belonged to the Defendant Sir George Cox, for his own use absolutely. the master of the rolls decided that Sir George Cox was a trustee of the residue for the Plaintiff; and an appeal was now brought from his Lordship's decision. {1 Keen, 317, where the argument and judgment in the Court below are fully reported.) Mr. Knight, Mr. James Russell, and Mr. Williamson, for the appeal. Mr. Wigram, Mr. Richards, and Mr. Bigg, in support of the decree. The arguments on both sides were substantially the same as those relied upon in the Court below. In the course of the discussion, the...
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