In the Goods of McLean

• Jurisdiction: Ireland
• Judgment Date: 31 March 1950
• Docket Number: (1949. No. 471 P.)
• Date: 31 March 1950
• Court: High Court

(1949. No. 471 P.)

In the Goods of McLean

In the Goods of LEWIS D. McLEAN

Deceased

Between JANE NOBLE LOCKHART, Plaintiff,and ELIZABETH McLEAN

Defendant.

Probate and administration - Will - Due execution - Evidence - Correct attestation clause - Recollection of witnesses - No recollection of execution of will - Circumstances of purported execution - Omnia pæsumuntur rite et solemniter esse acta - Maxim prevailing over parol evidence - Application to revoke grant refused.

Application to Revoke Grant of Probate.

The testator, Lewis D. McLean, died on the 28th November, 1947, and on the 10th June, 1948, probate of his last will, dated the 16th February, 1946, issued in common form to the defendant. On the 2nd February, 1950, the plaintiff, Jane Noble Lockhart, one of the next-of-kin, made an application to the Court to have the grant of probate revoked on the ground that the will had not been duly executed. The will was in typescript and bore a proper attestation clause with the signatures, as witnesses, of two members of the staff of a local shop close to the premises in Boyle, Co. Roscommon, in which the testator had been employed for several years as managing clerk in the office of a firm of solicitors. One of the attesting witnesses stated in evidence that he had witnessed documents at the request of the testator on various occasions, while the other witness stated that he had not done so; both witnesses gave evidence that they had not at any time jointly witnessed any document for the testator, and that they had never, to their knowledge, witnessed the testator's will. Each of the witnesses acknowledged his signature to the attestation clause, but stated that he had no recollection of having witnessed any document for the testator on the date of the purported execution; the said date had been a market day in Boyle and it was likely that both witnesses had been busily engaged in their work at the time when the purported execution would have taken place.

Testator, who was an experienced managing clerk in a firm of solicitors and well acquainted with the requirements of due execution, and who was careful and secretive, made his will, which was in typescript and contained a correct attestation clause bearing the signatures, as witnesses, of two members of the staff of a local shop situated near the testator's employers' office. On an application to revoke a grant of probate of the will evidence was given that one of the witnesses had witnessed documents for the testator on various occasions, while the other witness had not done so; but each of the witnesses swore that he had never executed a joint execution with the other, and had never, to his knowledge, witnessed the testator's will. Each of them, however, acknowledged the relevant signature to the document as his own.

Held that, in the circumstances, the doctrine, omnia præsumuntur rite et solemniter esse acta, took effect superior to the negative evidence of the two witnesses, which, though not otherwise impeached, was affected by forgetfulness.

The application to revoke the grant was, accordingly, refused.

Cur. adv. vult.

Davitt J.:—

This is an action to recall the grant of probate issued in common form on the 10th June, 1948, to the defendant, of the will, dated the 16th February, 1946, of one, Lewis D. McLean, who died on the 28th November, 1947.

The testator was for very many years employed as solicitor's clerk with the well-known firm of McDermott and Co., of Boyle, Co. Roscommon. For years before his death he held the position of managing clerk, and Mr. Francis Burke, who has been carrying on the business since 1935, described him as the best managing clerk he ever came in contact with. He was experienced in taking instructions from intending testators and in attending the due execution of wills, and the office at present contains over a hundred wills to which his name is appended as an attesting witness. He had appeared in Court to give evidence as to the due execution of a will to which he was a witness. According to Mr. Burke he was methodical and particular in everything he did and was extremely knowledgeable about his business.

Mr. McLean had lost his wife in March, 1945, and for some months thereafter lived alone by himself. In October, 1945, the defendant, Elizabeth McLean, who was the widow of his brother, Mr. A. W. McLean, went to keep house for him.

After McLean's death Mr. Burke went to his house and, with the defendant, made search among his private papers. He there found two wills. One of these, made in 1928, was in favour of his wife, and the other, which is in favour of the defendant, is the will in question. On the day of the funeral Mr. Burke read this will in the presence of such of the next-of-kin as were there. Probate of this will in common form was in due course extracted.

This will of the 16th February, 1946, is, with the exception of the signature and part of the date, in typescript and is signed by McLean. It is in the usual form and contains a perfect attestation clause. The attesting witnesses are Ruttledge Buchanan and Samuel Redmond. Mr. Redmond is manager of Messrs. Sloan & Company, General Merchants, Boyle, and Mr. Buchanan is an assistant at the hardware counter in Messrs. Sloans' shop. They occupied their respective positions at all material times.

Both these witnesses gave evidence. It is common case that they are witnesses of good character and credit whose testimony can be challenged, if at all, only on the grounds of defective recollection. Each of these witnesses is satisfied that the signature to the will purporting to be the testator's is, in truth and in fact, that of Mr. McLean. Each of them is satisfied that the signature to the will purporting to be his signature as witness is, in fact, his signature, and that, accordingly, he was a witness to Mr. McLean's signature. Neither of them has any recollection of signing the document or of seeing Mr. McLean sign it. Each is satisfied that on no occasion did Mr. Mclean ask him to witness his will, and both are satisfied that on no occasion did they evertogether witness any document for Mr. McLean.

Counsel for the defendant, who propounds the will, naturally rely upon the maxim, omnia præsumuntur rite et solemniter esse acta. Counsel for the plaintiff contend that where the attesting witnesses give evidence negativing due execution there is no room for the maxim, which can be called in aid only to fill a void occasioned by the absence of direct evidence as to execution. Counsel have referred me to the following cases:—Wright v. Rogers(1); Wright v.Sanderson(2); Woodhouse v. Balfour(3); Clery v. Barry(4);Dayman v. Dayman(5); Neal v. Denston(6); O'Meagher v.O'Meagher(7); Goodisson v. Goodisson(8); Dubourdieu v.Patterson(9); Oakes v. Uzzell(10); Rolleston v. Sinclair(11).I have considered these, and also Brown v. Skirrow(12);Harris v. Knight(13); Burgoyne v. Showler(14)...