Cuddio Rhestr Erthyglau

13 erthygl ar y dudalen hon




COURT OF EXCHEQUER.-MAY 22. [Sittings in Banco, before the Lord Chief Baron, Mr. Baron MARTIN, Mr. Baron BRAMWELI., and Mr. Baron WATSON.] PRICE V. PRICE. J'here were no motions brought before the court. The peremptory paper having been called on, the first case taken was Price v. Price, which had been-previously argued, and the court had ordered that it should be again argued by one counsel on each side. Mr. Mellish, for the plaintiff, now showed cause against the rule. The action was one of ejectment, tried some time ago before Mr. Justice Crowder, at Brecon the plaintiff being heir-at-law of a person who died possessed of the property (an estate in Breconsbire), of which the defendant was in possession as the devisee under a will. The question to be tried was, whether that will had not been revoked by the testator, and the facts were these -In a conversation with the testator, his son bad remonstrated with him re- specting his dispo3al of the property, the result of uhi< h was that he said he would alter his will, and he went and fetched his will, and in the presence of his son and other parties tore off the seal. He was asked why he did not entirely destroy it, and replied that what he had done was sufficient to revoke it, and that he wanted the docu- ment for the purpose of making a new one. A fortnight afterwards he died without having made a new will. The jury found that the testator intended to revoke the will, and the question reserved for the court was whether the act done was a sufficient revocation. Mr. Mellish contended that the words of the statute of wills which required that there should be a U burning, cancelling, tearing or obliterating," by the testator him- self, had been complied with in this case,, and that his intention being proved, he had done all that was neces- sary. If it was relied upon by the other side that there should be a material obliteration of the document, then there was a material word partly torn off at the back of the seal, but he held that that was not necessary when the animo cancellandi was clear. Mr. Grove supported the rule. The arguments on both sides occupied the court the whole day.—Judgment was deferred. At the sitting of the Court on Monday, the Lord Chief Baron delivered judgment. He said This was an action of ejectment brought by the heir-at- law against the devisee, under a will. The case 1 was heard before Mr. Justice Crowder, at the last j summer assizes for Brecon, when the verdict was found for the plaintiff, but a rule was subsequently obtained to enter a verdict for the defendant, on, the ground that the act done by the testator to revoke his will was not suffi- cient within the act. The question turned on the 20th ( section of the 1st Victoria, cap. 2$, which was now to receive for the first. time for this purpose a judicial con- struction. At the trial it was found that it was the in- tention of the testator to revoke his will, which was written on one sheet of paper containing four pages. On three of the pages the testator set his hand, and on the fourth he set his hand and seal. The attestation stated that the instrument had been "-signed, sealed, and delivered." The testator, intending to revoke it, tore off the seal, tearing off with it a similar portion of the second leaf, containing the letters "ral," the last syllable of the word funeral." The question for the Court was, did this amount to revocation within the meaning of the section ? The words of the section were, by tearing or otherwise destroying." It had been contended that the tearing off of the seal was not such an act as showed the inten- tion of the testator to revoke the will, as the seal was not an essential part of the will. Prior to the passing of the new statute, a will found with the seal torn off was can- celled. At that time any time any tearing done with the intention of revoking a will was held to be sufficient for the purpose, but the Court was now asked to put a construction upon the words in the section of the new statute, tearing or otherwise destroying." It W £ » admitted that actual destruction was not necessary y it was therefore a question of degree, and it would not be discreet in the Court to lay down any general rule aPP l" cable to cases not subjected to argument. They would therefore confine themselves to the case before them as argued at the bar and in their opinion, as this was pub- lished as a sealed instrument, it ceased when the seal was torn off to be the instrument which the testator professed to publish, and, to use the words of Mr. Justice Coleridge, it was destroyed in its entirety." The Court was of opinion that the act of tearing in this case was sufficient, and the tearing thereby revoked the will, therefore the rule to enter the rule for the defendant must be discharged.—Judgment accordingly.




, ... hist Wednesday at Tyr




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