Wright v Sanderson
| Jurisdiction | England & Wales |
| Date | 1883 |
| Year | 1883 |
| Court | Court of Appeal |
Will - Evidence of due Execution - Evidence of attesting Witnesses.
In 1878 the testator, who was a good man of business but not a lawyer, wrote a holograph codicil upon the same paper as a will which he had made in 1868, and wrote at the end of it an attestation clause adapting that at the end of the will to the case of a codicil. He called the nurse into the schoolroom, and asked her and the nursery-governess to “sign this paper.” There was evidence that he took his own pen into the room. Both witnesses signed. At the trial, which took place between four and five years afterwards, the codicil was produced bearing the testator's signature, and both the attesting witnesses were examined. The governess deposed that she had designedly abstained from looking at any of the writing on the paper, and the nurse it appeared had been very nervous. Neither of them could say anything as to what writing was on the paper, nor as to whether the testator's signature was there when they signed, and both said that they did not see him sign. The President pronounced for the validity of the codicil:—
Held, by Earl of Selborne, L.C., that the reasonable conclusion was, that the codicil was signed by the testator in the presence of the witnesses:
Held, by Cotton, L.J., that on the evidence he should have come to the contrary conclusion, but that the finding of the President, who had seen and heard the witnesses, ought not to be reversed:
Held, by Fry, L.J., that as the codicil ex facie appeared to be properly executed, and the presumption omnia rité esse acta was strengthened by the conduct of the testator, which shewed an anxious and intelligent desire to do everything regularly, that presumption was not rebutted by the evidence of the witnesses, who appeared to have been nervous and confused on the occasion of the attestation, and whose recollection of what took place was evidently imperfect.
THIS was an appeal by Samuel Wright, the plaintiff in the action, against so much of a decree of the Probate Division as pronounced for the validity of a codicil of Alfred Sanderson, dated the 25th of July, 1878.
The action was by one of the executors named in a will, dated the 12th of September, 1868, to have that will proved in solemn form. The defendants admitted the validity of the will, but by their statement of defence claimed to have the above-mentioned codicil also admitted to probate. The question in dispute was, whether the codicil had been executed in conformity with the requisitions of the Wills Act. The circumstances of the case and the evidence of the attesting witnesses, who were orally examined before the President, fully appear in the judgment of the Lord Chancellor. The case was tried by the President between four and five years after the date of the codicil.
Feb. 3. Inderwick, Q.C., and Bayford, for the plaintiff. The evidence is clear that the testator did not sign in the presence of the witnesses. Nor is there any sufficient attestation of the signature. Witnesses cannot attest a signature to which their attention is not called: Blake v. BlakeF1; Croft v. Croft.F2 Both witnesses say that they saw no signature.
[FRY, L.J. Their evidence hardly comes up to that.]
The presumption that all due formalities were observed is weakened by the facts that the testator's will had been made ten years before, and was attested by a solicitor and his clerk, so that there was nothing to impress the formalities on the testator's mind. He draws an attestation clause framed on that of the will, and containing the word “declared,” which implies the use of words shewing that the instrument was testamentary; but it is clear on the evidence that he used no words of the kind. This weakens the presumption that he would take care that everything mentioned in the attestation clause was done.
Searle, for the defendants. The cases cited do not touch the present, for in each of them there was positive evidence by the attesting witnesses that the requisitions of the Act had not been complied with, and there was nothing to rebut that evidence. The present case is one of forgetfulness and want of observation on the part of the witnesses.
[COTTON, L.J. My impression is, that the evidence is inconsistent with the testator's signing the document after he came into the room and with the witnesses having seen the signature or had it acknowledged to them.]
If the signature was there and the witnesses had an opportunity of seeing it that is enough, whether they saw it or not.
[COTTON, L.J. But if they say they did not see it, how can we conclude that it was there.]
They do not go so far as to say they did not see it; they only cannot say they did. Their minds are a blank.
[EARL OF SELBORNE, L.C. I presume that if the attesting witnesses had been dead proof of their signatures would have been enough?]
Clearly so. There could not have been any contest. The presumption arising from a regular clause of attestation, that the document has been attested properly, is here strengthened by the facts that the testator himself wrote out the attestation clause, and not mechanically, for he adapted it to a codicil, and that he then got the two witnesses together and got them to sign in his presence. These circumstances shew that he quite understood what the requisites to proper execution were; and there hardly can be a case in which the maxim “Omnia præsumuntur rité esse acta” applies more strongly. Suppose the testator had signed before he came into the room, there was a good acknowledgment, for it is not necessary that the witnesses should know that the instrument is testamentary: Keigwin v. Keigwin.F3 The just inference from the evidence and the circumstances of the case is, that the testator either signed the instrument in the room, or brought it in signed, and produced it, so that the witnesses might have seen the signature, had it not been for the fact that one purposely abstained from looking, and the other was too nervous to observe anything. Lloyd v. RobertsF4 is a strong case of giving effect to the presumption in favour of the execution, though there was rather strong evidence in the opposite direction by the surviving attesting witness, evidence much more unfavourable to the instrument than that in the present case.
Inderwick, Q.C., in reply. In Blake v. BlakeF5 it is laid down what is a sufficient acknowledgment. It is essential that the witnesses should be able be see the signature. Here, no doubt, they could have seen if it was there, but there is nothing in the shape of evidence that it was there.
Cur. adv. vult.
Feb. 27. EARL OF SELBORNE, L.C. This is an appeal from an order of the President of the Probate, Divorce, and Admiralty Division, pronouncing for the validity of a codicil, dated the 25th of July, 1878 (to the will dated the 12th of September, 1868), of Alfred Sanderson, who died on the 18th of December, 1881. The ground alleged for the appeal is that the signature, or acknowledgment of the signature, of the deceased, in the presence of the attesting witnesses, is either disproved or not sufficiently established.
The case, though necessarily depending upon its own circumstances, is of much general importance.
The testator was a paint and colour manufacturer at Hull. His will of 1868 had been made for him by a solicitor named Middlemiss, and was duly attested by that gentleman and one of his clerks, both at the end, (after an attestation clause in the ordinary form, “signed and declared by the said Alfred Sanderson, the testator, as and for his last will and testament, in the presence of us,” &c.), and also at the foot of each of the preceding sheets, which were all signed, in the right corner, by the testator, and in the left corner by the witnesses; the word “witness” preceding the signatures of the witnesses.
During the interval of nearly ten years between the dates of the two instruments, the testator had increased his fortune by about 70,000l.; and, although there was a residuary disposition in the will of 1868 (subject, perhaps, to some questions in the event of his wife marrying again), he thought it right to make a distinct and special provision as to this large accretion to his estate, and to give it to his wife and children, for interests in some respects different from those which they would take under the will. For this purpose he prepared and wrote a holograph codicil, commencing on the lower half of the same sheet of paper on which was the signature and attestation to the will, and carried over to and ending upon the fly or blank sheet which followed it. He copied the attestation clause of the will on the left side of the...
To continue reading
Request your trial
-
Martyn James v Lorraine Anne Scudamore
...for the Court to affirm that the will was duly executed.” 108 An example of the strength of the presumption is Wright v Sanderson (1884) 9 PD 149. In that case, the testator had prepared a holograph codicil to his will which included an attestation clause. He asked two witnesses to ‘sign th......
- English v Emery Reimbold & Strick Ltd
-
Sherrington and Others v Sherrington
...witness is immaterial if the will is in proper form. He appeared to derive that from the decision of this court in Wright v Sanderson (1884) 9 PD 149. However, what that case demonstrates is the strength of the presumption of due execution when there is an attestation clause and the testato......
-
Jeremiah v Tomlinson and another
...Lord Justice Langton referred to the decision of Wyatt v. Berry [supra] and quoted Justice Gorrell Barnes at page 9 speaking of cases Wright v. Sanderson (1884) 50 LT Rep 769, 9 Prob. Div. 149 and Lloyd v. Roberts (1858) 12 Moo P.C 158 - "The bearing of these two cases appear to me to be qu......
-
ESTATE OF RANDLE: NELSON & ANOR. V. AKOFIRANMI
...decide on the fact of due execution, by considering the evidence with reference to the probable circumstances In Wright v. Sanderson, (1884), 9 P.D. 149 where the codicil to a will bears the testator's signature, although the attesting witnesses swore to it that they did not 15 see him sign......