Isabella Flood and Henrietta Flood, Plaintiffs; William Houghton Russell, Defendant. Robert Grove Annesley and Louisa Thornhill, Intervenients. in the Goods of Warden Hatton Flood, Deceased. in the Goods of Warden Hatton Flood, Deceased

• Jurisdiction: Ireland
• Judgment Date: 09 July 1891
• Date: 09 July 1891
• Court: Court of Probate (Ireland)

Probate.

ISABELLA FLOOD AND HENRIETTA FLOOD,

PLAINTIFFS;

WILLIAM HOUGHTON RUSSELL,

DEFENDANT.

ROBERT GROVE ANNESLEY AND LOUISA THORNHILL, INTERVENIENTS. IN THE GOODS OF WARDEN HATTON FLOOD, DECEASED.

IN THE GOODS OF WARDEN HATTON FLOOD, DECEASED.

Sugden v. Lord St. LeonardsELR 1 P. D. 154.

Quick v. QuickENR 3 S. & T. 442.

Staines v. StewartENR 2 S. & T. 320.

In the Goods of Thompson 1 Notes of Cases, 211.

Crickett v. FieldUNK 23 L. T. 630.

Wright v. SandersonELR 9 P. D. 149.

Lloyd v. RobertsENR 12 Moo. P. C. 158.

Sly v. SlyELR 2 P. D. 91.

Brown v. BrownENR 8 E. & B. 876.

Tatum v. Gatomore 16 Q. B. 745.

Podmore v. CottonENR 3 S. & T. 450.

Goods of RipleyENR 1 S. & T. 68.

Wilson's CaseUNK 26 L. T. 405.

Silver v. SilverUNK 27 L. T. 766.

Sugden v. Lord St. LeonardsELR 1 P. D. 154.

Woodward v. GoulstoneELR 11 App. Cas. 469.

Sly v. SlyELR 2 P. D. 91.

Shallcross Palmer 16 Q. B. 747.

Knee v. KneeELR L. R. 3 P. & D. 105.

Whiteley v. KingENR 17 C. B. (N. S.) 756.

Clarke v. ClarkeUNK 5 L. R. Ir. 54.

Taylor v. Witham 3 Ch. Div. 605.

Lalor v. LalorUNK 4 L. R. Ir. 681.

Gardiner's CaseENR 1 S. & T. 109.

Patten v. Poulton Ibid. 55.

Ripley, Deceased> Ibid. 68.

Podmore v. WhattonENR 3 S. & T. 449.

Clarker's CaseUNK 5 L. R. Ir. 54.

Probate Lost will Presumption of due execution Evidence of contents Parol evidence Post-testamentary declarations of testator Declaration against interest Amendment of pleadings Practices.

Vol.. XXIX.) CHANCERY DIVISION. 91 ISABELLA FLOOD AND HENRIETTA FLOOD, PLAINTIFFS; Probate. . WILLIAM HOUGHTON RUSSELL, DEFENDANT. • 1891' July 2, 3, 9. ROBERT GROVE ANNESLEY AND LOUISA THORN HILL, INTER VENIENTS. IN THE GOODS OF WARDEN HATTON FLOOD, DECEASED. Probate-Lost will-Presumption of due execution-Evidence of contentsÂÂParol evidence-Post-testamentary declarations of testator-Declaration against interest-Amendment of pleadings-Practice. In a suit to obtain probate of the contents of a lost will and codicils, it was proved that the alleged testator had given two envelopes containing papers to T., stating that these documents were his will. After his death T. gave them to his widow, and she, previous to her death, declared them to be her husband's will. Evidence' was given by two solicitors who had seen and perused the documents constituting the alleged will and codicils that they purported to be duly executed. There was no direct evidence of the factam of the will and codicils, nor was there any copy forthcoming : Held, that the Court would, under the circumstances, presume due execution, and being satisfied that there was clear and certain evidence as to the substance and effect of the lost will and codicils would grant probate. Post-testamentary declaration of a testator that certain documents were his will admitted as secondary evidence of the fact that the papers purported to be his will signed by him. Declaration of F., deceased, that her husband made a will, and that he thereby gave her a life interest in his property, and legacies to others amounting to 8000 or 9000, admitted in evidence as being a declaration against pecuniary or proprietary interest made by a deceased person on the ground that F. would, if her husband had died intestate, have been entitled absolutely to a moiety of a certain sum mentioned in a marriage settlement. The declaration alleged a will dated 22nd July, 1876. At the trial the Court allowed an amendment alleging that the testator made a will and three codicils and stating that the contents of the will and codicils were in substance as set out in a subsequent paragraph of the declaration. THIS suit was commenced by the plaintiffs, as next-of-kin of Warden Hatton Flood, deceased, to obtain a grant of letters of administration to his estate and, effects. The defendant was 92 LAW REPORTS (IRELAND). [L. R.I. Probate. the executor of Mrs. Mary Grove Flood, widow of the deceased, 1891. who had entered a caveat in the matter. FLOOD By an order dated 12th January, 1.891, Robert Grove Annesley RUSSELL. and Louisa Thornhill were given liberty to intervene in the cause. The intervenients propounded an alleged will and three codicils of the said Warden Hatton Flood, deceased, alleging by their declaration, as amended at the hearing, by leave of the Court, that the deceased died on or about the 8th October, 1882, having made a will and three codicils, in substance and to the effect set forth in the declaration, and which is sufficiently referred to in the judgment. That by the said will and codicils he appointed -his wife Mary Grove Flood, since deceased, the Rev. Canon Thornhill, since deceased, and the intervenient Louisa Thornhill, executors; and therein named the intervenients Robert Grove Annesley and Louisa Thornhill pecuniary legatees,. and the said Robert Grove Annesley residuary legatee. The fifth paragraph of the declaration alleged that the said will and codicils had, since the death of the testator, been destroyed or made away with, and could not now be found. The plaintiffs pleaded : 1. A denial of due execution. 2. Revocation by destruction in the testator's lifetime, animo revocandi, and 3. A traverse of the alleged contents. The material facts and circumstances of the case, which was heard by the Court without a jury, are fully set out in the judgÂÂment of the President. The IllacDermot, Q. C., Walker Craig, Q. and Matheson, for the intervenients : As to the declarations of the testator, after execution, being admissible in evidence, see Sugden v. Lord St. Leonards (1), which overrules Quick v. Quick (2). There is here sufficient proof of the due execution of the will by Captain Flood and of its contents. Staines v. Stewart (3) was decided on the question of revocation. only. In the Goods of (1) 1 P. D. 154. (2) 3 S. & T. 442. (3) 2 S. & T. 320. VOL. XXIX.] CHANCERY DIVISION. Thompson (1), the witnesses, who were alive, failed to prove the due execution of the alleged will, and so there could be no 1891' oa FLo presumption of due execution. In Criekett v. Field (2), proof v. of the identity of the missing codicil, with the paper attested RUSSELL.. by the witnesses, failed, and on this ground the case is distinÂÂguishable from the present. In Wright v. Sanderson (3) neither of the witnesses who signed as attesting the codicil could depose to the signature of the testator, yet it was held that the reasonÂÂable conclusion was that the codicil was signed by the testator in presence of the witnesses. In Lloyd v. Roberts (4) proper execution was presumed from the appearance of the will, and the circumstances of the case, notwithstanding the direct conÂÂtradictory evidence of one of the witnesses. Sly v. Sly (5) shows that it is not necessary to have direct proof of the signing and attestation of a lost will. [Counsel also cited Brown v. Brown (6), Doe d. Tatum v. Catomore (7).] Carton, Q. C., Carson, Q.C., and Samuels, for the plaintiffs : Where the will is lost the first thing to be proved is the factum. In this case there is no sufficient proof. There is no direct eviÂÂdence of the alleged will and codicils having been signed or attested, and there can be no presumption here of due execution. As to the nature of the evidence necessary in the case of a lost will to prove execution, Sir J. P. Wilde says, in Podmore v. Cotton (8) : "In the absence of the will itself this portion of the case requires clear, strong, and irrefragable evidence, free from suspicion and doubt in its sources, exact and certain in its conclusion." In In the Goods of Ripley (9), it was held that the testator's own statement as to the execution of the alleged will was not enough to prove its execution. In this case there is nothing more than the testator's own stateÂÂment ; for Mrs. Flood's statement is only a repetition of the testator's. In Wilson's Case (10) the Court refused to grant probate of a (1) 1 Notes of Cases, 211. (6) 8 E. & B. 876. (2) 23 L. T. 630. (7) 36 Q. B. 745. (3) 9 P. D. 149. (8) 3 S. & T. 450. (4) 12 Moo. P. C. 158. (9) 1 S. & T. 68. (5) 2 P. D. 91. (10) 26 L. T. 405., 94 LAW REPORTS (IRELAND). [L. R. 1. Probate. lost codicil on the ground that there was no proof of its execution 1891. forthcoming, and in that case there was an affidavit by one who FLOOD had seen the missing codicil, to the effect that it was in the hand-Rummy. writing of the deceased, and signed by the testator and two other persons. • Silver v. Silver (1) decides that the evidence of the execution and of the contents of a lost will and its non-revocation must be stringent and conclusive. It is only in cases which are free from suspicion that the Court can grant probate of a lost will. The principle of Sugden v. Lord St. Leonards (2) ought not to be extended : Woodward v. Goulstone (3). In Sly v. Sly (4) there was much stronger evidence than in this case. There was a deed which recited the alleged will, and a copy of it was produced from among the papers of the legal adviser of one of the executors. In WoodÂÂward v. Goulstone (3) there was very satisfactory evidence of due execution. In that ease Lord Herschel says (p. 475) : " I think, therefore, that in order to support a will propounded, when it is proved by parol evidence only, that evidence ought to be of extreme cogency, and such as to satisfy one beyond all reasonable doubt that there is really before one substantially the testamentary inÂÂtentions of the testator." Applying that principle to this case, it is clear that there is no satisfactory or sufficient proof as to the contents of the alleged lost will and codicils. [The following cases were also referred to :-Shallcross Palmer (5), Keen -v. Keen (6), Whiteley v. King (7).] The. Right Hon. S. Walker, Q.C., D. Christie, and J. H. _Russell, appeared for the defendant. July 9. THE PRESIDENT : This is an interesting case concerning the character and conÂÂtents of documents not forthcoming. I have read all the correspondence and. depositions, and I (1)...