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(i.) C. A.-Construction—"Relatives."—(See Vol. 15, p. 67, vi.)Held,
reversing the decision of Ch. D., that "relatives named included relatives by affinity as well as consanguinity, and illegitimate as well as legitimate relatives ; and also persons described as children of legatees named in the will, although not themselves specially named.—Jodrell v. Seale, L.R. 44 Ch. D. 590; 59 L.J. Ch. 538; 63 L.T. 15; 38 W.R. 721.
(ii.) Ch. D.-Conversion.- Devise and bequest of real and personal estate
on trust for sale and conversion. Direction to pay to G. & sufficient sum for his maintenance, the capital to be divided amongst G.'s children at bis death. G. died and left an only son, R. An order was made for the administration of the testator's estate, and after G.'s death an inquiry was directed whether it would be for the benefit of R. (an infant) that any and what part of the estate should be kept unsold. R. died an infant before a certificate had been made in answer to the inquiry. Held, that real property part of the testator's estate passed as personalty to R.'s legal personal representatives.-Wragg v.
Small, 63 L.T. 219. (iii.) Ch. D.-Direction to Repair within Certain Time. -A testatrix left
jewels on trust for sale, and out of the proceeds to apply not exceeding £600 in repairing a certain church, such repairs to be commenced within twelve months from her death, and she directed that so much of the £600 as was not so expended should fall into the residue. The repairs were not commenced within twelve months. Held, that the words as to commencing within twelve months were only directory, and that the gift took effect.—Raikes v. Raikes, 63 L.T. 23.
(iv.) Ch. D.-Locke King's Acts-Contrary Intention.Where a testator,
having trade debts not secured by mortgage, and private debts secured by mortgages of property, part of which was used in his business, gavo the property used in the business to R., charged in exoneration of the rest of his estate with his trade debts, and gave the residue of his real and personal estate on trust for sale, and directed his debts, other than those thereinbefore provided for, to be paid out of the proceeds, held, that he had manifested a “contrary intention," so as to exclude the operation of Locke King's Acts, and that the trade property was not liable to bear any part of the private debts which were secured by mortgages of such property.-Robinson v. Nevill, 59 L.J. Ch. 511 ; 62 L.T. 864.
(v.) P. D.-Probate-Alterations-Clerical Error.--A testator having the
draft of his will read to him caused the word "including” to be altered to “excluding " in the name and arms clause. He executed the engrossment under the belief that the alteration made in the draft had been duly copied. It was found, however, that by a clerical error the word had been altered in a different part of the will. Held, that the clerical error could be rectified, but that the alteration made in the name and arms clause in the draft will, could not be made in the pro. bate.-In the goods of Huddlestone, 63 L.T. 255.
(vi.) P. D.-Probate-Mutilation. The testatrix having duly executed her
will added something in writing at the foot. She afterwards appeared to have cut off the addition, and in doing so cat through the name of one of the attesting witnesses. Sufficient, however, remained for the name to be still legible. The signature of the testatrix and all the other material parts of the will remained intact. Held, that the will ought to be admitted to probate.-In the goods of Taylor, 63 L.T. 230.
(i.) P. D.-Probate - Revocation – Revival. — The testator executed
a will in 1873, whereby he appointed his wife during her wido hood guardian of his infant children. In 1878 he executed a will revoking the will of 1873, and making no provisions for the guardianship of his children. In 1882 he executed a document which purported to be a codicil to his " last will," whereby he confirmed “My said will in all respects, and particularly the appointment therein of my wife as guardian of my infant children.” Held, that the will of 1873 was revived, and probate of that will and of the codicil of 1882 was
granted.-In the goods of Van Cutsem, 63 L.T. 252. (ii.) P. D.- Probate — Revocation - Partial. — A testatrix, having duly
executed her will, afterwards cut out with a pair of scissors the name of one P., who was named as an executor therein, wherever the name appeared in the document. She stated to one or more persons that she had “cut P. out of her will” for reasons alleged. Held, that the will was only partially revoked, and that it was entitled to probate in the state in which it was found upon the death of the testatrix.-In the
goods of Leach, 63 L.T. 111. (iii.) P.D.-Probate-Deed-poll-Intention-Extrinsic Evidence. — Probate
granted of a deed.poll duly executed and attested by two witnesses, but containing no reference to the death of the testatrix, extrinsic evidence being admitted to shew that she intended it to operate as a
will.-In the goods of Slinn, L.R. 15 P.D. 156; 63 L.T. 229. (iv.) P. D.- Probate—Plea of Fraud—Not Established-Costs.- The plaintiff
claimed a decree of intestacy, and the defendant set up a will in her favour. The only issue was one of fraud pleaded by the plaintiff, the alleged fraud being that the defendant had led the deceased to believe that she was capable of contracting, and that she had contracted, a valid marriage with him, whereas her real husband was then and still alive. The plaintiff opened the case, and in the result the Court found that the plea of fraud failed, and pronounced in favoar of the will, but
left each party to pay their own costs.—Tate v. Tate, 63 L.T. 112. (v.) P. D.-Probate-Married Woman-Will of Realty.—The testatrix, a
married woman, made a will disposing of realty only, and appointing executors. She had a power of appointment over the realty, which in default of appointment was to vest in her for her sole and separate use. She did not exercise the power, and her husband took out letters of administration, on the ground that she was intestate except as to realty. Held, that she must be regarded as in the position of a feme sole with regard to the real estate, and that the will might be proved, but not till the letters of administration had been revoked. In the goods of Hornbuckle, L.R. 15 P.D. 149.
(vi.) P. D. — Probate — Testamentary Document -- New Zealand. - C., a
Scotchman, went to reside in New Zealand, abandoning his Scotch domicile. While on a visit home he executed a testamentary appointment. On his return to New Zealand he made a will reciting and confirming the appointment. Such will was proved in New Zealand, and an exemplification of the probate sent to be sealed in England. The Court refused to allow the probate to pass on the ground that it contained no mention of the testamentary appointment, and declined to grant to the appointee administration with the appointment annexed, and stated that the executors ought to obtain the revocation of the New Zealand probate, and then obtain a new grant of probate containing the testamentary appointment.--In the goods of Crawford, 63 L.T. 232.
(i.) P. D.--Probate-Two Wills. The testator, a domiciled Englishman,
died in Switzerland, leaving property in England, Switzerland, and Italy. He made a will according to Swiss law dealing solely with the Swiss and Italian property, and appointing no executors, as the law of Switzerland does not recognise executors. He also executed an English will dealing solely with the English property, appointing executors, and declaring that it was intended to take effect concurrently with the Swiss will. Held, that probate of the English will might be granted without incorporating the Swiss will, as the executors would be put in conflict with the Swiss courts if they were compelled to prove the Swiss will.In the goods of Granet de la Rue, 63 L.T. 253. See Husband and Wife, p. 12, iii.
ALL REPORTED CASES,
Law Reports, Law Journal Reports, Law Times
Reports, and Weekly Reporter, FOR NOVEMBER, DECEMBER, 1890, AND JANUARY, 1891. By C. H. Lomax, M.A., of the Inner Temple,
Administration :(i.) Ch. D.-Charitable Bequest --Dissolution of Charity-Lapse --Cy-près.
A legacy to an endowed charity, which is dissolved after the death of the testator, bat before the assets are fully administered, will remain valid, and become part of the funds constituting the endowment of the charity. A legacy to charity maintained at the expense of a private person and having no endowment, which comes to an end after the death of the testator, but before the assets are fully administered, will fail, unless there is a general charitable intention. A testator gave a number of legacies, prefacing them with the words, “I give the pecuniary legacies following.” He then gave a number of legacies to charities, prefacing them with the words, “I give the following charitable legacies.” Held, that such words did not imply any general charitable intention, so as to allow of a cy-près application of one of the charitable legacies which failed for want of an object.--Slevin v.
Hepburn, 63 L.T. 632. (ii.) Ch. D.-Creditors' Action-Receiver.— The Court will not appoint a
receiver at the instance of the plaintiff in a creditors' administration action, merely because the executor will probably exercise his right of retainer to the prejudice of the general body of creditors, nor unless it is shown that the assets are being wasted.-Molony v. Brooke,
L.R. 45 Ch. D. 569; 59 L.J. Ch. 810; 63 L.T. 521 ; 39 W.R. 139. (iii.) Ch. D.-Fund Carried to Separate Account-Stop-Order-Incum.
brancer-Claim in Action.-In an administration action, by an order made in the presence of the plaintiff, a fund was carried to the separate account of an annuitant and her issue, the dividends to be paid to her for life. She charged her interest in favour of persons who obtained stop-orders. She was afterwards found indebted to the estate, and the plaintiff claimed that the dividends should be applied in