Cooke v Henry
| Jurisdiction | Ireland |
| Judgment Date | 04 March 1932 |
| Date | 04 March 1932 |
| Court | High Court (Irish Free State) |
Will - Execution - Attestation clause erroneously stating will signed in presence of witnesses - Subsequent acknowledgment by testator of his signature - Sufficiency of evidence of acknowledgment - Whether witnesses aware that they were attesting the acknowledgment and not the signature - Wills Act, 1837 (1 Vict. c. 26), sect. 9.
H., who was 70 years of age, was very ill, and was being spiritually attended to by a young priest, who was a relative. He asked the priest to draw up a will for him and the priest drafted a will accordingly. On leaving, the priest took the document away with him. Some nights later H. asked a friend, who was sitting up with him, to go and get the priest and the friend did so. The priest came, and after he had administered the Sacraments to H., H. asked him had he "the paper" with him, and the priest said he had, but stated that he thought a solicitor ought to be obtained. H. demurred, and the priest agreed to finish the will, which he did, inserting some additional matter and adding an attestation clause. This attestation clause stated that the will was signed in the presence of two witnesses. There was some question as to who would be the witnesses, and H. suggested the friend who had been sitting up with him and the driver of the motor car in which the priest had come to H.'s house. These two men were then standing outside the door of H.'s room. H. then signed the will, the priest thinking that these two men were in the room. When the priest found that the men were not in the room he went to them and informed them that they were wanted in the room to witness H.'s will. When the men came in the priest said, holding the document in his hand"This is the will, and you are to sign," or some similar words. The priest then folded the document so as to conceal the contents, but leaving H.'s signature visible, and the two men signed their names at the place where the priest pointed out. This was done within a few feet of H., who was still sitting propped up in bed, and he could have seen the two men signing their names. H. made no intelligible statement or remark to the witnesses when they came in, nor did he make any sign to them.
Held that H. had acknowledged his signature in the presence of the two witnesses, and that the witnesses knew that they were attesting H.'s acknowledgment of his signature, and not his actual signing of the will as erroneously stated in the attestation clause, and accordingly that the will be admitted to probate.
Inglesant v. Inglesant, L. R. 3 P. and D. 172; and Faulds v. Jackson,6 N. of C., Supp., 1, applied.
Action.
The plaintiff, Thomas Cooke, the executor of the will of Patrick Henry, late of Cloondrihare, Lavagh, in the County of Sligo, farmer, who died on the 7th October, 1931, sought to have the said will, which was dated the 17th September, 1931, established in solemn form of law. The defendant, Catherine Henry, who was a sister of the deceased, pleaded in her defence that the will was not duly executed according to the statute, 1 Vict. c. 26, and that the deceased did not know and approve of the contents. Subsequently the defendant served notice that she merely insisted upon the will being proved in solemn form, and only intended to cross-examine the witnesses produced in support of the will.
The deceased was a bachelor and resided with his sister, the defendant. He had a farm of about 40 acres in County Sligo, and he also had a sum of about £1,250 on deposit receipt in the Hibernian Bank.
The material evidence given at the trial of the action before Hanna J. without a jury is set out in the judgment.
Cur. adv. vult.
| Hanna J. :— |
In this case the difficulty is more of fact than of law. The usual three questions were left with reference to the will of Patrick Henry, dated the 17th September, 1930. As regards the testamentary capacity and knowledge and approval of the will, I...
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