Hegarty and Another v King

• Jurisdiction: Ireland
• Judgment Date: 24 November 1880
• Date: 24 November 1880
• Court: Chancery Division (Ireland)

CHANCERY DIVISION.

HEGARTY AND ANOTHER

and

KING.

Panton v. Williams 2 N. C. Supp. xxi.

Fulton v. AndrewsELR L. R. 7 H. L. 448.

Gardiner v. Palmer Not reported.

Cooper v. Penrose Not reported.

Will — Knowledge and approval of contents — Legacy to a person who has prepared the will and taken an'active part in its execution — Probate refused of portion of will containing such legacy, and granted as to remainder.

VOL. V.) CHANCERY DIVISION. Will-Knowledge and approval of contents-Legacy to a person who has preÂpared the will and taken an' active part in its execution-Probate refused of portion of will containing such legacy, and granted as to remainder. A person propounding a will prepared by himself without the assistance of any third person, and under which he takes a benefit, is bound to give clear, satisfactory and convincing evidence that the testator knew and approved of the clause under which he takes the benefit. In the absence of such evidence proÂbate of that portion of the will may be refused, and granted of the remainder. ANDREW KING, farmer, of Hiskinstown near Castletowndelvin, county Westmeath, died on the 25th of November, 1879, possessed of three farms containing about eighty acres, and of the value of about £1000, and also farm stock, bank shares, and other assets to the amount of a little over £2000. The deceased was unmarried, but at the time of the execution of his will, which bore date the 4th of October, 1872, there were living his two brothers John and James ; his two sisters Mary and Margaret, and the children of a deceased sister ; he had also an illegitimate son. The deceased by his will left to his sister Mary £800 (to be reduced to £500 if she married), and to be supported in the house by the person to whom the lands were left ; he also bequeathed to his sister Margaret £300 ; to his brother John £300 ; to his illegitimate son £50 ; and the farms and residue of the money to his brother James King. Maurice Hegarty and James King (the testator's brother) were named as executors ; and they propounded the will, which was disputed by John. King and William Farrell (brother and nephew of the testaÂtor). The case was heard before the Court itself without a jury. It appeared that the alleged will was duly executed ; and the quesÂtion substantially raised at the hearing was upon the issue wheÂther the alleged testator knew and approved of its contents. The material facts and the authorities cited are stated in the judgment. Mr. S. Walker, Q. C., Mr. Carton, Q. C., and Mr. John N. Gerrard, for the Plaintiffs. VOL. V. 250 LAW REPORTS (IRELAND). [L. R.I. Prob. Arr. Dames, Q. C., and Hr. David Sherlock, for the Defendant. 1880. WARREN, J. :- In the case of Panton v. Williams (1), Lord Brougham says The course of administration directed by the law is to prevail against him who cannot satisfy the Court that he has established a will. There is no duty cast upon the Court to strain after probate. The burden of proof eminently lies upon him who sets up a will." I have to deal in this case with a will signed in due form by a competent testator, who lived for seven years after its execution. By this will he gave £800 to one of his sisters, £300 to another sister, £300 to his brother John, £50 to an illegitimate son, and the residue of his property, including his lands-which, upon the evidence before me, I take to be worth at least £1000-he gave to his brother James, the Plaintiff. The testator appears to have had no wish to make any will, but James pressed it upon him to make a will, and at James's house, upon James's invitation, this will was prepared by James himself, no other person being preÂsent. Some memoranda of instructions were made and destroyed. Two witnesses were brought in, both of whom were friends of James, but entire strangers to the testator : one, if not both, had never seen the testator before' that night, and it appears that they did not even know that the document was a will, nor was a word said about a will in their presence. There is no evidence that the testator knew anything about the contents of the document, except the statement of the Plaintiff himself, who says that he took down what the testator told him, read it for him, and afterwards gave it to him to read. The testator directed the document to be shown to Mr. Hinds, a solicitor of eminence and character, who is the solicitor for the Plaintiff in this case. This direction was not comÂplied with ; instead of that the witness says he went to show it to another solicitor who was not named by the testator, not referred to by him, but selected by the Plaintiff himself ; and when the Plaintiff did not find that solicitor at his house he made himself easy about the matter, locked up the will in his desk, and it reÂmained in his custody without any communication whatever on (1) 2 N. C. 5-app. xxi. VOL. V.] CHANCERY DIVISION. the subject between him and the deceased, or any member of the deceased's family, until shortly before the testator's death. Some time subsequent to the execution of the will one of the legatees died, which threw £800 into the residue. The Plaintiff says he was apprehensive the effect might be to destroy the will altogether ; and accordingly, on the very day of the death of the testator, he got his consent-so he says (for there is no other evidence of it)-to make a new will, cutting down the legacy to John, but making no disposition of the £800 which had been given to Mary, except to let it fall into the residue which was given to the Plaintiff. This document was drawn by the Plaintiff himself, without the interÂvention of any other person ; it was marked by the testator and witnessed by a ploughman, and by the mark of some other uneducated person. That document was after the testator's death produced by the Plaintiff to his solicitor as a valid will, but he was advised not to propound it ; and it is the same person who wrote out that will, and got it executed in the manner I have described and who was dissuaded by the solicitor from incurring the hazard of propounding it in a Court of Justice, who asks the Court to rely implicitly upon his evidence to sustain the former will, which depends, as I have said, altogether upon his testimony. The only circumstance of corroboration to show that the deceased knew he was making a will at all is the evidence of Mr. Hegarty, who says that on one occasion when the deceased and he were smoking together, the deceased told. him he had made a will, that he (Hegarty) was appointed executor, and that he had left him nothing. That is, no doubt, corroboration of the fact which requires no corroboration that the deceased made a will, and appointed Mr. Hegarty executor, but it is no corroboration of the Plaintiff's eviÂdence that the deceased read the will, or understood and appreciated the gift of the lands and. residue to the Plaintiff. Now what is the law on this subject ? Fulton v. Andrews (1) shows that under such circumstances it lies upon the party who drew the will in his own favour to satisfy the Court of the...