Clery v Barry

JurisdictionIreland
Judgment Date27 June 1887
Date27 June 1887
CourtUnspecified Court

Appeal.

CLERY
and
BARRY

Wright v. Sanderson 9 Pro. D. 149.

Wright v. RogersELR L. R. 1 P. & D.678.

Gwillim v. GwillimENR 3 Sw. & Tr. 200.

Reeves v. Lindesay Ir. R. 3 Eq. 512.

Burgoyne v. Showler 1 Robertson Eccl. 5.

Kelly v. Keatinge Ir. R. 5 Eq. 174.

Cooper v. Bockett 4 Moore P. C. C. 419.

Vinnicombe v. ButlerENR 3 Sw. & Tr. 580.

In the goods of Mullen Ir. R. 5 Eq. 309.

Blake v. KnightENR 3 Curt. 547.

Beckett v. HoweELR L. R. 2 P. & D. 1.

Blake v. Blake 7 Pro. D. 102.

Hudson v. Parker 1 Robertson Eccl. 14.

Shaw v. Neville 1 Jur. (N. S.) 408.

Ilott v. GergeENR 3 Curt. 160.

Doe d. Jackson v. Jackson Ibid. 181.

Daintree v. Fasulo 13 Pro. D. 67. Decided 11th January, and affirmed on appeal, 11th April, 1888.-REP.

Will mdash; Presumption of due execution mdash; Evidence of attesting witness mdash; Duty of Solicitors in the preparation of wills.

152 LAW REPORTS (IRELAND). [L. R. I. V.- C. the testator to provide for all his relatives will thus be given 1888. effect to. WALSH BLA.YNEY. Solicitors for the plaintiffs : Messrs. Larkin 8r Co. Solicitor for Patrick Blayney : Mr. J. A. French. Solicitors for Mrs. M'Mullan's children : Messrs. R. H. Orr. Solicitor for Edward Blayney : Mr. M. L. Horan. Solicitors for Mrs. O'Hagan : Messrs. Buckley sy Murray. Solicitor for assignees of Catherine Blayney : Mr. W. J. Brett. Solicitor for the Attorney-General : Mr. Roche. Solicitor for the Roman Catholic Archbishop of Dublin : Mr. O'Hagan. CLERY v. BARRY (1). Will-Presumption of due execution-Evidence of attesting witness-Duty of solicitors in the preparation of wills. The cases which have been decided in reference to the presumption of due execution of wills apply as well where the alleged testator's signature has been affixed by his direction as where he has himself actually written his name. In 1883 H., who was a man ninety-two years of age, of admitted testaÂÂmentary capacity, but practically blind, and unable to sign his name without assistance, gave directions for the preparation of a new will to B., which B. (who was a non-professional gentleman of respectability) took down in writing, by introducing pencil alterations into a will made some years before by H., and instructed the solicitor who had acted for H. in the preparation of the former will to engross. B. then brought the engrossed document back to H., who had directed two almost illiterate persons, C. and K., to attend, for 'the purpose of attesting his signature to it. The will, as altered, disposed of H.'s real estate and of about 50,000, including a legacy to B., who was named a trustee and executor in it, and was to receive 3 per cent. commission on the income of the property administered by the executors. On the occasion of the alleged execuÂÂtion of the will there were present, besides the attesting witnesses (C. and K.), two servants of H., one of whom, as well as K., died before the trial. H.'s signature appeared upon the will duly attested ; but C. and the surviving serÂÂvant M. (the former of whom had fluctuated in his account of the transaction) (1) Before PALLES, C.B., and FITZ GIBBON and BARRY, L.JJ. Vox.. XXI.] CHANCERY DIVISION. 153 gave evidence at the trial that H.'s name was not written upon the will till after Appeal. the attesting witnesses had signed and left the room. Proceedings having 1887. been instituted by the next-of-kin, by citation, to revoke probate which had CLERY been granted, and the plaintiff having only pleaded that the will was not duly v. executed :- BARRY. Held, by the Court of Appeal, upon the law and facts together (reversing the decision of the Court below), that due execution was to be presumed. It is a failure of duty on the part of a solicitor to prepare a will under any circumstances without seeing the testator, and it is utterly inexcusable to do so for an aged testator on the instructions of a person who is named an execuÂÂtor, and is to receive such a benefit as a legacy of 3000, with a percentage on the income of the property to be administered by him. The solicitor, in such a case, might prepare a draft, or even an engrossment, but he ought never to part with it until he had seen the testator. APPEAL by the defendants Stephen Barry and Richard CalÂÂlaghan from the judgment dated the 1st June, 1887, of the President of the Probate and Matrimonial Division, declaring that the paper writing of the 14th January, 1883, mentioned in the defendants' declaration, was not the last will of William Hayes, - - - the deceased, and giving the parties their costs of the cause out of the assets (1). (1) The following judgment was delivered (June 1) in the Court below by THE PRESIDENT : I regret that the defendants have not thrown more light on this obscure case. However, I now must deal with it as it stands, premising that it will be satisfactory to me if the final responsibility of disposing of the 50,000 or 60,000 (Mr. Hayes' assets) shall be imposed on a superior tribunal. The question is one of due execution-whether the testator's name was subscribed to the paper before the attesting witnesses signed their names. I have to conÂÂsider and weigh the facts admitted and the facts proved, the legal presumption which follows from those facts, and any evidence which may fortify or militate against that presumption. In the first instance, I refer for an exposition of the principles on which this Court proceeds to 0' Meagher v. 0' Meagher (11 L. R. Ir. 117) and Wright v. Sanderson (9 P. D. 149)-the latest Irish and English cases on the subÂÂject-cases in which almost all the previous decisions of importance were conÂÂsidered, and in which wills were admitted to probate upon the doctrine of presumption. The paper propounded is dated the 14th January, 1883. It has been marked "No. 1," to distinguish it from another paper, apparently a duplicate. It is admitted that the signatures of Hayes (the testator) and of Creedon and 154 LAW REPORTS (IRELAND). [L. R. I. Appeal. The only plea filed was one denying that the will was 1887. executed in accordance with the provisions of the Wills' Aet, CLERY 1 Viet. 0. 26. v. BARRY. The alleged will appeared to have been signed by William Hayes (who died 31st October, 1886), and contained a regular atÂÂtestation clause with the names of two witnesses, Andrew Creedon, Keane (the witnesses) are not forgeries. Forgery is not pleaded, and it must be assumed that Hayes either wrote his name or authorized someone to subÂÂscribe it. Creedon and Keane signed their names. It is also admitted that Hayes had testamentary capacity, and knew and approved of the contents of the paper. Fraud or improper influence are not alleged. The only plea is that the will was not executed pursuant to the statute. Some other facts have been established by satisfactory evidence. Hayes had made wills in 1870 and 1877, said to have been revoked, with proper attestation clauses. He had been a solicitor. He sent instructions for the present will to a solicitor, Mr. O'Keeffe, through the intervention of his friend, Mr. Barry, the defendant in this cause, a legatee for 3000, and an executor named in the will. Mr. O'Keeffe prepared duplicates, of which No. 1, the document propounded, is one. Barry took these two parts to Mr. Hayes on Friday, the 12th January. On Saturday, the 13th January Barry again visited Hayes. Mr. Barry states :-[His Lordship read. the report of the evidence on this point.] I shall return to this evidence again, and for the present I pass by the events of Sunday. On. Monday, the 15th January, Barry returned to Hayes. He says ;-[His Lordship again read from the evidence.] Mr. Barry did not say which of the duplicates he retained-one, I presume, he returned to Hayes. Now, remembering that Hayes was " partially blind," " unable to write withÂÂout assistance," " had not written for years of his own accord," is it not singular that when Barry saw the signatures, which he believed to be Hayes' handwriting, he should not have asked Hayes how he made those signatures ? And the more strange "that, as far as I can make out, no person ever held Hayes' hand, or imitated his signature, except Mr. Barry himself "(Evidence, Nos. 29, 30). Barry held his hand when the will of 1877 was signed. I do not forget the evidence of Maryanne Maguire. Mr. O'Keeffe says he does not think the signature "is the writing of Maryanne Maguire" (Evidence, No. 223). Well, the alleged will has' an attestation clause in these words :-[His Lordship read the attesÂÂtation clause.] The positions of the signatures of Hayes, Creedon, and Keane are proper ; Hayes' above, in juxtaposition with the seal. It did not appear by whom, or for what purpose, the seal was affixed. The names of the witÂÂnesses are subscribed below that of Hayes. Upon these facts, admitted or proved, the presumption omnia rite esse acta arises. A presumption sufficient to establish a will when the attesting witnesses are dead, or are quite oblivious of the facts of execution, or are discredited by the Court when they give testi VOL. XXI.] CHANCERY DIVISION. 155 junr., and William Keane, who, it was not substantially disputed, Appeal. had signed their names in the presence of Hayes and of each other 1887. CLERIC Keane died in February, 1883, and Andrew Creedon, sen., father v. of the surviving attesting witness, and who had also been pre- BARRY. sent on the occasion of the alleged execution of the will, had. likewise died before the trial. The only other person present on mony that the will was not duly executed. In the present case one of the attesting witnesses (Keane) is dead ; the other (Creedon) professes to recollect the transaction, and has given evidence which, if true, is fatal to the validity of the will. In dealing with cases in which the presumption is opposed to testimony, it is the duty of the Court, as was observed in Cooper v. Bockett (4 Moore P. C. 439), not to allow undue weight to the circumstances on which the presumption is...

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2 cases
  • Rolleston v Sinclair
    • Ireland
    • Court of Appeal (Irish Free State)
    • 23 May 1924
    ...... Per O'Connor M.R.: The judgment of Palles C.B. in Clery v. Barry ,21 L.R.Ir. 152, is an authority for the proposition that it is only when witnesses (or other persons who, though not official witnesses to ......
  • Goodisson v Goodisson and Another
    • Ireland
    • Chancery Division (Ireland)
    • 3 December 1912
    ......Gibson ( 1 ), the Court believed that the evidence against the will was false. So, too, in Clery v. Barry ( 2 ), Palles, C.B., says, at p. 170, “In my opinion, we are bound to form, as best we can, our own opinion upon the credit to be ......

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