DISPUTED WILL CASE.

Evening Star, Issue 7188, 16 April 1887, Page 2 (Supplement)

DISPUTED WILL CASE.

In Isaac v. Mills and others, an action heard in January last for the rectification of the will of the late John Jones, Mr Justice Williams on Thursday delivered the following judgment

In this case the plaintiffs are two of the persons interested under the residuary devise of the will of the late John Jones, and Mr Isaac, the husband of one of them. Mrs Isaac, one of the plaintiffs, is entitled to a life-interest for her separate use in a moiety of the icsidue; Miss Nelson, another, is entitled, if she attain the age of twenty one or marry, to an absolute interest in the other moiety. Both of these plaintiff's appear by Mr Isaac, their guardian ad litem, and Mr Isaac is also joined as a plaintiff. TVfiaa Nolbol was not in the first instance a party, the suit having been instituted in the first instance by Mr and Mrs Isaac alone. An order, however, was subsequently obtained by the defendants that all persons interested in the residue should bo made parties; and in accordance with this order, Miss Nelson, by Mr Isaac, her guardian, was added as a co-plaintiff, and the children of Mrs Isaac, who were also intero-ted in the residue, were added as defendants. The object of the suit was originally to amend Mr Jones’s will by including in a devise to Mrs Isaac land which had been devised to her sister’s grandchild, Elizabeth Sarah Jones, on the ground that the testator had by nvstake devised it to the latter while intending to devise it to the former. As, however, the impossibility of obtaining such relief was obvious, the object of the suit now is to obtain a declaration that the land in question was not devised to the grandchild, and to amend the probate accordingly, in order that the land may fall into the residue and pass to the residuary devisees. Mr and Mrs Isaac not being able to get the whole, now seek the half, which their interest in a moiety of the residue would thus give them, and join the persons who are chiefly interested in the other moiety to enable their claim to be prosecuted. It should be noted that Mrs Eccles, who had a life-interest in the other moiety of the residue, and who is now dead, never appears to have raised any claim to the land, and that it was owing to the refusal of Miss Nelson’s relations in England to allow her to be served personally, and their unwillingness to take part in the proceedings, that Mr Isaac could not join her as a defendant, and obtained leave to join her as a plaintiff. This latter circumstance appears from Mr Isaac’s affidavit of 20th of October last, and the summons and order founded upon it. For all practical purposes, therefore, Mr and Mrs Isaac are the actors in the suit. Now, the testator’s will was . made on the 20th of December, 1868. The testator died in March, and the will was proved in April, 1809. At the time the will was proved Mr Isaac knew of the alleged mistake; but nevertheless he, as one of the executors, applied for and obtained probate, and as one of the trustees assisted to administer the estate. Having done this, he lies by till the 24th of March, 1886—seventeen years—and then commences these proceedings. Mrs Isaac also, who may fairly be presumed to have known all her husband knew, has also been contented to wait this long period and sec the income which she now claims to belong to her appropriated to another. Now, what is sought to be done in the present case is to impeach by parole evidence eighteen years old—a written instrument of the most solemn kind, the execution of which is hedged round by law with rigid formalities, which have been duly observed. Under any circumstances it would only be on the clearest evidence and upon the gravest consideration that such an instrument could be impeached. Where it is sought to do so, it is the plain duty of the person moving to come promptly, while the memory of the facts attending the execution is fresh in the minds of all parties, and not to wait until a time when everyone concerned may bo reasonably expected to have forgotten all about them. It seems to me that such a delay places the parties who defend the will in an exceedingly unfair position, in weakening and rendering imperfect evidence which, if it had been taken earlier, might for al] we know have been conclusive in their favor, Mr Isaac has certainly been guijty of unreasonable delay. Mrs Isaac is a married woman, and cannot sue without what : s called here a “guardian ad litem,” in England a “next friend.” She, howov. r, is suing in respect of her separate estate, and so is in equity a femme sole. The suit is substantially hers, and she selects her guardian (Paniels, C.P., 5 Ed., p. 104.) I think, therefore, Mrs Isaac is in no better position than her husband. The other plaintiff, Miss Nejson, is an infant, and Mr Isaac Las made her a party and rendered himself liable to pay costs for her simply for the purpo.-o of prosecuting the claim of his own family. That disposes of all the plaintiffs. The children of Mrs Isaac, who take their mother’s share of the residue on her death, are not plaintiffs hut defendants. Under all these circumstances it seems to me that the delay on the part of the plaintiffs is in itself an answer to the action. I do not, however, wish to decide the case on this ground, as I am satisfied for other reasons that tho plaintiffs must fail. It may be well, perhaps, before proceeding further, to allude to a point I mentioned at the hearing. I do so not because my decision is based upon it, but because, in the event of my judgment being reviewed, the Court above may have the point before it. The present case is in effect as follows: —A testator intending to leave a property to “ A ” leaves it by mistake to “ B.” “ O,” the residuary devisee, comes to the Court and asks for the will to be rectified by striking out tho devise to “B” although the effect of doing so will not be to give it to “A’’but to himself, “C,” as part of the residue. This appears to me to bo rectifying one blunder by another. Perhaps the answer is supplied by Jesscl M.R. in Sugden v. Lord St. Leonards (1, P.D., 232. 233): “That the testator may bo said to have had two intentions—a primary intention that the legatee shall take, and a secondary intention that if for any reason whatever the legacy cannot take effect, that it is to go to the residuary legatee, and that if tho Court cannot give effect to the primary intention, it should to the secondary. Lord Herschell, however, in Woodward v. Goulstone (H. Appeal Cases, 477), rather doubts the soundness of this notion of secondary intention. That the law may by a sort of fiotion impute such an intention I admit, but whether such an intention really exists may be questionable. Leaving, therefore, this point and assuming tho laches of the plaintiffs not of itself to defeat their claim, I now proceed to consider the other aspects of the case. Although no blame may be attributable to anyone on account of the delay, yet the mere fact of so long a period having elapsed between the t ; me of the execution and coming into operation of so solemn an instrument and the time it is impeached strengthens every presumption in its favor, and necessitates the most cogent and complete evidence if it be sought to shake it. Even where a will is impeached shortly after its execution on the grounds of mistake, the Court does not interfere unless the fact that there has been a mistake, and the exact nature of tho mistake is practically admitted by all concerned. Every day that passes lessens the value of possible parole evidence, and so strengthens the evidence that tho writing expresses tho intentions of the testator. If parole evidence, after so long a period as the present, is admissible at all for such a purpose, it should at any rate make out a case so clear and precise in every detail— so com lete, so uncontradicted, and so overwhelming—that not a scintilla of any doubt or question can remain. The word “certitude” has been used, probably wrongly, to mean something more than certainty. If such a sense of it were possible, then we ought to have “ certitude ” in the present ca°e. Now, it it was laid down by Sir J. Wilde, in Guardhouse v. Blackburne (L.R., I.P. and D. 110). that, apart from fraud, the fact that a will has been duly read ever to a capable testator on the occasion of its execution, or that its contents have been brought to his_ notice in any other way, and when coupled with the execution thereof, beheld conclusive evidence that he approved as well as knew of its contents. No doubt there may be special circumstance?, not perhaps actually amounting to fraud, hut bordering on it, as in Fulton v. Andrew (L.R. 7. H.L. 4481, which might take the case out of this rule; but in cases where the aroma of fraud is entire'y abs?nt, the rule appears to me a sound one. Now, where a will has been executed and acted upon for nearly eighteen years, and it appears on the face of the will that it has’ been duly executed and attested, and that one of the witnesses was a solicitor, I think if it is sought to impeach any part of such a will the first step should be to show by the most conclusive evidence that the part in question had not been brought to the testator s notice. In the absence of the clearest evidence to the contrary, it should be presumed that everything was done at the time of execution which ought to have been done. Now, when the will was being gone over prior to its execution. Mr Isaac, Mr Cook (his clerk), Mr Mi'ls, and Mr Sutherland (Mr Jones's personal attendant) were present, Mr Creagh has left the Colony, but the other four persons have now given evidence. Mr Isaac on thi * occasion, and generally, appears to have a precise recollection of all that took place. The others, not blessed with so good a memory, have forgotten a great deal. We have this, however, that Mr Jo os was a good man of business, that he had the particulars of bis properties at his finger-en Is, and that on this occasion he was perfectly clear-headed and able to transact business. The explanation of tho will took some two hours, Mr Cook not apparently reading every word of It, but going through the will and explaining •how the various properties had been left. Mr Isaac says .that Mr Jones complained that there were no plans on the will, and that he oauld not follow; that he was reluctant to sign the will, # nd opty signed it on .Cook’s representations

to him that he hail carefully carried out his instructions. Sutherland remembers something being said about the want of plans, but remembers little else; and Mr Mills remembers nothing. Mr Cook says that his impression is that there was no hesitation on Mr Jones’s part to sign; that something may have been said about plans; and that he, so far as he remembers, went through the will, explaining as he went on the different gifts to the different members of the family, specifying the different properties — ii Mo&Jowba.nk to so and so,” and so on. Mr Cook also told Mr Jones that he believed ho had carefully carried out his instructions. The will was duly signed and attested. Mr Cook offered to leave the will with Mr Jones, but Mr Jones told him to take it with him. Now it was urged strongly by the Attorney-General that going through the will in this way would have misled the testator, and that when Mr Cook told him that Cherry Farm was left to Alfred’s child he would have understood only the land south of the Waikouaiti River; whereas the will includes under the description Cherry Farm the land in dispute, which lies north of the river. The question then is, What was known ae Cherry Farm at the time of the execution of the will ? As to that, there was some evidence at the trial; but it appears to me that the plaintiffs are concluded by the record on this question. Paragraphs 10, 11, 12, and 13 of tho statement of claim, which are practically admitted by the statement of defence, show that the Cherry Farm estate was situated partly in the Waikouaiti and partly in the Hawksbury district, and was, in fact, identical with the Cherry Farm estate as described in the will. The boundary between the Cherry Farm and the Hawksbury estates is stated in the statement of claim to be the road-line which divides the property admitted to be devised to Mrs Isaac from that devised to E. S. Jones. The whole case of the plaintiffs, as appears in their statement of claim, was that they were to have part of the Cherry Farm in exchange for Mrs Isaac’s shares. Now the statements contained in the declaration or plea are binding on the party making them for all purposes in the cause (“Taylor on Evidence,” Ed, 6, p. 729, par. 745), and in a bill in equity, to which the present claim corresponds, “ the facts alleged, where they are alleged positively, are admissions in favor of the defendant of the facts so alleged. They therefore need not be proved by other evidence, for, whether they are true or not, the plaintiff, by introducing them into his bill and making them part of the record, precludes himself from afterwards disputing their truth.” (Daniels 0.P., Ed. 5, p. 735.) From the plaintiff’s own statement, therefore, to tell the testator that Cherry Farm was left to Alfred’s child would bo to indicate to him that the land in dispute had been so left. That being so, as the testator then and there executed the will, the presumption in favor of his intention to leave the Cherry Farm Estate as described in the will to Alfred’s child should be conclusive. If, however, we go beyond this the evidence is unsatisfactory. No doubt a letter of some kind was sent to Mr Cook by Mr Jones. It is, however, at least questionable whether it came to Mr Cook’s hands before the will was signed. The suggestion that Mr Cook must have had this letter before him when he drew the seventh devise of 1,000 acres to Mrs Isaac is at once disposed of by comparing tiie sheet of the original instructions referring to Mrs Isaac with the plans on the old will. That sheet says that 260 acres, plan 2, by old will devised to J. R. Jones; 250 acres, plan 17, devised to Frederick Jones; 250 acres, plan 19, devised to James Jones; and 250 acres, plan 48, devised to Janet Jones, were inter alia to go by the new will to Mrs Isaac. These four pieces put together make up this thousand acres or thereabouts, and the seventh devise in the new will to Mrs Isaac is simply the sum of these pieces. The sheet also shows that Crown grant 3,343, block 6, Hawksbury, 109 acres, and Crown grant 3,346, block 6, Hawksbury, 87a lr 25p, were to devised to Mrs Isaac. These pieces of land are, in fact, included in the above 1,000 acres; but the draftsman seeing them mentioned separately in the instructions, probably not having a map of the entire property before him, and there being nothing in the old will to show they were part of the aggregate of the four 250-acre blocks, has treated them as distinct, and they appear in the new will as first and second devises to Mrs Isaac. The instructions, however, as they appear on the draft sheet have been faithfully carried out. If the letter did come to Mr Cook’s hatuls before the will was signed, then there is the question as to what it contained. Mr Cook’s memory so far back as 1877 was vague on the subject. It contained, according to his then remembrance, something about the boundary of the Hawksbury property, and the word “river,” which he misread “road.” Now if this letter was word for word as set out in the statement of claim, it would not, especially if Mr Cook had misread “road” for “river,’’have led him to believe that Mr Jones was altering the instructions for his will so as to take away from Alfred’s child anything he hod already given. Mr Cook knew from tho instructions he had received that Alfred’s child was to have 200 bank shares and also the whole of the land in question. Mr Jones, in his own handwriting, had written the number of th'o shares, and on the plan upon the old will of each piece of land he had pencilled the words “Alfred’s child.” These written instructions are enormously strong evidence that on the Bth, when he gave them to Mr Cook, the testator intended that Alfred’s child was to have the land and the shares as well, Mr Cook certainly would properly believe from them that such was Mr Jones’s intention. Now, Mr Cook had no knowledge of any shares ever having been intended to be loft to Mrs Isaac. There was nothing in the letter from which Mr Cook could infer that the shares left to Alfred’s child had anything to do with any shares left to Mrs Isaac. Alfred’s child’s name is not mentioned in the letter at all. Even if Mr Cook had read the letter correctly, lie could hardly have understood that Alfred’s child was to be deprived of anything already given. Mr Cook, however, misread “road” for “river.” Now, Mr Cook is a careful man ; and Mr Jones, judging from the specimens of his caligraphy in evidence, was a bad writer, and I should certainly say that if Mr Cook misread the letter it was through the fault of Mr Jones. Mr Cook knew that Mr Jones was an accurate man of business. If, after receiving the most precise and definite instructions, Mr Cook received from Mr Jones a short note, slovenly in form and vague in expresion. not mentioning Alfred’s child, Mr Cook would hardly suppose that Mr Jones intended by it to take away from Alfred’s child a large and valuable property, or indeed meant it as anything more than an explanation of some kind of the instructions already given. If there was a mistake in the will, it arose not from Mr Cook not following his instructions, but from the testator giving imperfect instructions. If a testator gives bis solicitor imperfect instructions for his will, which his solicitor honestly carries out, and the will js executed, I do no see how the will can afterwards be impeached on the ground that the testator did not give the solicitor the instructions he intended. I am, however, by no means satisfied that there is proof upon which the Court should at this distance of time act; that the letter did contain exactly what it is alleged to have contained. Mr Cook cannot remember its contents, and his memory is the one on which the plaintiffs ought chiefly to rely. Then a suggestion arises from part of the evidence that the letter was written with a view to a codicil being prepared. Mr Cook Says Mr Isaac told him that Mr Jones had in-' tended to make a codicil. There is also the evidence of Mr Sutherlond that after the will was signed, and when Mr Jones had come to Matanaka, he spoke of giving Mrs Isaac tho land in question, as of something not which he had already done by the will, hj t which he intended to do. Furthermore, if the letter said that Mrs Isaac was to have all the land on the north i-ide of the Waikouaiti River, how is it that Mr Isaac all along has claimed only a part of the land north of the river ? Mr Isaac as trustee of the will of course knew what passed by it, and that the property thirdly devised toE. S. Jones, 204 acres, sections 1, 2, and 3. in the Hawksbury district, and repre-sent-d by plan No. 25 on the old will, was on the north of the river as well as the properties thirdly and fourthly devised and represented by plans 24 and 26, yet Mr Isaac never made a claim to these properties. We have Mr Cook’s evidence that Mr Isaac told him he made no claim to it. Mr Cook’s evidence is confirmed by the plan Mr Isaac produced to Mr Cook (defendant’s exhibit 9), Mr Isaac’s statutory declaration of the 10th February, 1887, with plan annexed (exhibit 7), tho statement of claim in this action, the notice given to the trustees! exhibit 12), and the lit pendens registered (exhibit 13), all of which refer only to the third and fourth devises ; and after all this there is a letter of the plaintiffs’solicitor, written a few days before the trial, that the land secondly devised was omitted from the statement of claim by mistake. If a man after nursing Ws case for eighteen years is incapable even of stating his grievance with accuracy, how can his accuracy be depended upon when he comes to support his complaint in the witness box ? In a case like the present, freedom from the smallest suspicion of inaccuracy is all essential. On the whole, lam satisfied that the evidence is not of such a char-cter as to entitle the plaintiffs to succeed. Judgment for the defendants, with costs.

Mr Chapman said that the property in volved amounted to L 12,000 or L 16.000.

The Attorney-General, on behalf of the plaintiffs, submitted that in a case o! this sort costs of all parties should be paid out of the estate. The judgment seemed to show that a mistake had been made by the testator, and that that mistake had led to the parties coming to the Gonrt. It seepied

to come within the cases in which costs were so allowed.

Mr Chapman opposed the application, and submitted that the ordinary rule should be followed.

His Honor said: In any case Ido not see upon what principle I could charge Miss •lones with the costs of an unsuccessful attempt to attack her property. If the action had been brought at an earlier period, and the Court had then all the facts before it, although the Court might not have given relief to the plaintiffs, the Court might have been able to say that the litigation was justifiable, and was caused by some default of the testator. If that had appeared clearly, then it might be that the costs would have been ordered to be paid outof the testator’s general estate. At this date, however, the Court has not, and cannot, from the very nature of things, have all che facts before it; and there are numerous witnesses who came before the Court who have very naturally forgotten the greater part of the circumstances which attended the execution of this will. Although you may say that there is sufficient justification now for bringing this action, I for my part do not see for a moment why the ordinary consequences should not follow—that if you attack another person’s property unsuccessfully you should repay to that person the costs to which you have put him or her by reason of your action. I feel satisfied that the plaintiff ought to pay the costs. Judgment for the defendants, costs as per scale on LIO,OOO, disbursements, and witnesses’ expenses. By consent of defendants payment of costs was stayed for a month, so that the plaintiffs may have time to consider whether they should appeal.