Kevil v Lynch

• Jurisdiction: Ireland
• Judgment Date: 22 June 1874
• Court: Court of Probate (Ireland)
• Date: 22 June 1874

Probate.

KEVIL

and

LYNCH.

IN THE GOODS OS KEVIL, DECEASED.

Thornewell and Wife v. WigerELR L. R. 6 Ex. 87.

Slater and Slater v. Alvey L. R. 2 Pr. & D. 154.

In the Goods of John Summers 2 Roberts. 295.

In the Goods of Martha Davies 2 Roberts, 337.

Practice — Quarter Sessions — Appeal from — Form of Case stated by Chairman — Costs — 20 & 21 Vict. c. 79, ss.61 and 62.

VOL. VII.; EQUITY SERIES. 329 KEVIL v. LYNCH. IN THE GOODS OF KEVIL, DECEASED. Practice-Quarter Sessions-.Appeal from-Form of Case stated by Chairman Costs-20 (S. 21 Vict. c. 79, ss. 61 and 62. 1. A Case stated by way of appeal from a Chairman of Quarter Sessions, under 20 & 21 Viet. c. 79, s. 62, ought to be in the form of a Judge's report, and set out fully the evidence upon which the question of law arose. 2. The question of jurisdiction-as to the amount of the assets-is for the decision of the Chairman himself under 20 & 21 Viet. c. 79, s. 61. MonoN.-This cause had been sent for trial before the ChairÂÂman of the Quarter Sessions of the county of Mayo ; and he had heard it and directed administration with the will annexed to be issued to John Kevil, the Plaintiff, who had propounded the will. Thomas Lynch, the Defendant, had applied to the Chairman to state a Case by way of appeal to this Court, under s. 62 of the 20 & 21 Vict. c. 79 ; and accordingly a Case, prepared by the Defendant's solicitor, and concurred in by the Plaintiff's solicitor, had been signed by the Chairman. The Case stated the grounds of the appeal as follows :- " Whereas the deceased, being of sound and disposing mind and free from all undue influence, gave directions for the preparation of his will, which direcÂÂtions have been carried into effect by Mr. Alfred B. Kelly, solicitor ; that such intended will so prepared was brought to the deceased ; and that, the deceased being then weak in body, the Rev. Edward Gibbons wrote the name of the deÂÂceased at foot thereof, and made a cross or mark at the foot thereof intended to represent the mark of the deceased ; that the Rev. Edward Gibbons then held the point of the pen to the mark, while the deceased put his hand to the pen in the presence of the two subscribing witnesses to said document then both toÂÂgether ; that the deceased intended by the act aforesaid to testify that he thereby made and published the said document as his last will and testament, but the deceased did not himself actually sign or put the cross or mark to said docuÂÂment ; that immediately afterwards the witnesses subscribed their names to said intended will in the presence of the testator and of each other ; that the sole question for the consideration of ithe Court above is, whether, the intending tesÂÂtator not having made the mark at the foot of the said intended will himself as VOL. VII. THE IRISH REPORTS. aforesaid, but the same having been previously made by the said Rev. Edward Gibbons, the acts aforesaid constitute a valid execution in law of the said intended will. For the Defendant it was contended that the mark should have been made by the deceased himself, or that at all events the hand of the deceased should have been on the pen while it was being made." The Case contained no further statement of the evidence given at the Quarter Sessions ; and an application was now made on behalf of the Defendant to have the Case remitted to the Chairman for re-consideration and corrections, or the cause tried before the Court itself-it being now alleged that the assets of the deceased were so large as to oust the jurisdiction of the Chairman. Mr. ilemphill, Q. C., and Mr. J. F. Moore, for the Defendant, in support of the application. The point of practice involved is a novel one ; up to this there has been no appeal to the Court from a determination of a ChairÂÂman of Quarter Sessions ; but there has been in England an analoÂÂgous case of an appeal from a Judge of a County Court to the Court of Exchequer, Thornewell and Wife v. Wigner (1), where, the Defendant in an action for malicious prosecution having appealed, the Judge stated a Case in which he gave what he said was the result of the evidence, but did not set out the evidence in detail, and it was decided that the Judge should amend the case by setting out the evidence material to the question raised ; and Kelly, C. B., said, " the learned Judge has only set out the ' result' of the evidence and such as he deemed material; but we have to consider whether his judgment was correct, and we cannot determine this without knowing, not only what on his construction of the evidence he deemed material, but the whole evidence on which he formed his opinion." [THE JUDGE. This is not an appeal, but an application by the Defendant to amend a statement which he himself had prepared. I cannot dispose of the matter on the present motion. I do not find any evidence of the will having been signed by the direction of the deceased. I would infer that he had given no such direction.] The application is in the alternative, that the statement be remitted, or that the cause be tried before the Court (1) L. R. 6 Ex. 87. Veit. VII.] EQUITY SERIES. itself. There is satisfactory evidence of the assets being over £200. [THE JUDGE. The latter I have perhaps no power under the Act to grant, nor am I sure that such a power is desirable. Nothing would be easier than to either overvalue or undervalue the amount of assets ; and parties who had failed before a ChairÂÂman might easily produce evidence to show that the assets were over £200.] In Slater and Slater v. A/ay (1) fresh affidavits had been made to prove that the real estate exceeded in value the sum of £300, and the Court acted on them. [THE JUDGE. That was where the proceedings had been commenced • in the Court of Probate itself, and before the issues joined had been tried in the County Court. The question of jurisdiction is for inquiry before the Chairman himself at a preliminary stage of the proceedings under the provisions of s. 61 of the 20 & 21 Vict. c. 79, and of s. 3 of the 21 & 22 Vict. c. 88. The Chairman then being of opinion that he had jurisdiction, is an appeal to be brought solely on the ground of his not having had jurisdiction ?] Dr. Elrington, Q. C., and Mr. James Wilson, for the Plaintiff, resisted the application, contending that there was enough on the Case as stated to show that the will had been properly executed ; and cited In the Goods of John Summers (2) and In the Goods of Martha Davies (3). [THE JUDGE. The question of the material facts is for the other side. The case in Curteis (of which you are aware) decides that an acknowledgment of the sigÂÂnature made to the attesting witnesses is prima facie sufficient (4). The costs would be paid to you on condition of your consenting to the Case being sent back.] By the 1st Regulation as to Appeals it would appear that there is no appeal except on a point of law. THE JUDGE :- Yes, but a point of law arises upon facts. I treat this as an application to amend ; if the matter come before me again it will be on appeal. The rule laid down in Thornewell and Wife v. aligÂÂner as to the form of a Case stated by a Judge of a County (1) L. R. 2 Pr. & D. 154. (3) 2 Roberts. 337. (2) 2 Roberts. 295. (4) Gaze v. Gaze, 3 Curt. 451. 332 THE IRISH REPORTS. u. R. Probate. Court will regulate the practice of this Court as to the form of 1873. a Case stated by a Chairman of Quarter Sessions, which ought, REVIL I think...