Purdon and Others v The Earl of Longford and Others

• Jurisdiction: Ireland
• Judgment Date: 11 June 1877
• Date: 11 June 1877
• Court: Common Pleas Division (Ireland)

Com. Pleas.

PURDON AND OTHERS

and

THE EARL OF LONGFORD AND OTHERS.

Ryder v. WombwellELR L. R. 4 Ex. 32.

Giblin v. M'MullenELR L. R. 2 P. C. 335.

Bridges v. North London Railway CompanyELR L. R. 7 H. L. 214.

Robson v. North Eastern Railway CompanyELR 2 Q. B. D. 85.

Rose v. North Eastern Railway CompanyELR 2 Ex. D. 248.

Jackson v. Metropolitan Railway CompanyELR 2 C. P. D. 125, 138.

Boyse v. RossboroughENR 6 H. L. C. 2.

Parfitt v. LawlessELR L. R. 2 P. & D. 462.

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

Ejectment by heir against devisee — Impeachment of will — Undue influence — Evidence proper to be submitted to a jury — Admission of heirship — Right to begin.

VOL. XI.] COMMON LAW SERIES. upon that count which could not be withdrawn from the jury. Although, however, liberty has been reserved to us to change the verdict, and although damages on each count have been separately assessed, we think it will be more satisfactory that we should direct a new trial. 267 Exchequer. 1877. QUINN v. SHIELDS.- FITZGERALD, DEASY, and DOWSE, BB., concurred. 'Order absolute for a new Attorney for the Plaintiffs: T. C. Dickie. Attorney for the Defendants : James _Riordan.' PIIRDON AND OTHERS v. THE EARL OF LONGFORD AND Corn. Please OTHERS. 1877. Ejectment by heir against devisee-Impeachment of will-Undue influence-Evidence proper to be submitted to a jury-Admission of heirship-.Right to begin. 1. In ejectment on the title by heir against devisee-the main issue being whether the will was obtained by undue influence-the Judge submitted two questions to the jury : (1). Whether the testator was, at the time of the execuÂtion of the instrument, of sound disposing mind, memory and understanding? (2). Whether he was induced to make the will by the undue influence of W. L. ? The jury having answered the first question in the affirmative and disagreed as to the second, the Judge, being of opinion that there was no evidence of undue influence against the Defendant in possession, directed a verdict for him :-Held, that, there being evidence from which, though not directly bearing on the instrument in question, the jury might reasonably infer that the will had been obtained by undue influence, the verdict so directed could not be upheld. The rule as to determining what is evidence proper to be submitted to a jury, examined, and the cases from Ryder v. Wombwell (L. R. 4 Ex. 32) to Jackson v. The Metropolitan Railway Company (2 C. P. D. 125) reviewed. 2. At the trial of an ejectment on the title by the heir and a devisee under a prior will as Co-plaintiffs against the devisee under a later will, the DefendÂant admitted the heirship, but, nevertheless, the Plaintiffs were held entitled to begin, because of the joinder of the devisee as a Co-plaintiff. EJECTMENT on the title, by the heir and devisee under a prior VOL. XI. THE IRISH REPORTS. [I. R. will of Adolphus Cooke, against the Earl of Longford, claiming under a later will of the same testator, to recover possession of the lands of Cookesborough, in the County of Westmeath, tried before Dowse, B., at the Westmeath Summer Assizes, 1876. The due execution of the instrument not being questioned at the trial, the main question was, whether the will had been obÂtained by undue influence ; and the learned Judge submitted to the jury a paper containing a list of fourteen wills and codicils, beginning with a will of the 5th of January, 1869, and ending with a codicil of the 26th of February, 1876, executed shortly before the testator's death ; to which two questions were appended, viz. (1). Was Adolphus Cooke, at the time of the execution of the above wills and codicils, or any of them, of sound disposing mind, memory and understanding? (2). Was Adolphus Cooke induced to make the above wills and codicils, except 1, 2, and 3, or any of them, by the undue influence of the Rev. William Lyster ? The jury answered the first question in the affirmative, but were unable to agree as to the second ; and the learned: Judge, being of opinion that there was no evidence of undue influence against the Earl of Longford, withdrew the second question from the jury, and directed a verdict on the first finding for the DeÂfendants. A conditional order having been obtained to set aside the verdict, upon the ground of misdirection :- Armstrong, Serft., James Murphy, Q. C., Dames, Q. C., and T. P. Law, for the Defendant the Earl of Longford, showed cause. Byrne, Q. C., and C. Ferguson, for the Defendants the Rev. William Lyster and J. F. Goodman. The Solicitor-General, Macdonogh, Q. C., .5. Walker, Q. C., and Bewley, for the Plaintiffs, contra. The course of the trial, material facts, arguments and cases cited are so fully stated and observed upon in the judgment of LAWSON, J., that it is unnecessary to set them out here. VOL. XL] COMMON LAW SERIES. 269 LAWSON, J. :- Com. Pleas. This was an ejectment brought for the recovery of an estate in 1877. the County of Westmeath, of which Adolphus Cooke died seised PURDON at the time of his death. It was tried before Mr. Baron Dowse EARL or and a special jury of that county at the Summer Assizes, 1876. LONGFORD. Adolphus Cooke died on the 29th of March, 1876, and upon his June 11. 'death Lord Longford, on behalf of his minor son, entered into possession of the estate, claiming to be entitled to it under the will of Adolphus Cooke. One of the Plaintiffs, Wellington Purdon, is the heir-at-law of Adolphus Cooke, and brought this ejectment to try the validity of the will or wills under which Lord Longford claimed. In such a case, according to the law of England, as I have always understood it, the plaintiff upon proving his heirship is 'entitled to recover, unless the defendant succeeds in preying to the satisfaction of a jury that there is a valid will disposing of the lands. There is no instance in the books, so far as I am aware, and we have not been referred to any, in which the heir-at-law has been disinherited in a court of law save by the verdict of a jury estaÂblishing the will of his ancestor against him. In order to entitle the defendant to that verdict, he must establish to the satisfacÂtion of a jury that it is the last will and testament ; which finding necessarily involves the proof that it was executed with the requiÂsite formalities by a free and capable testator, and that he knew and understood the nature of the instrument and its dispositions. If the jury are not satisfied upon all these points they cannot find in favour of the will. The same rule applies to an issue devisavit vel non; and, upon the trial of such issue, or of an ejectment by or against the heirÂat-law, it is, of course, the duty of a Judge to instruct the jury upon the various questions which may be evolved in the course of the trial ; if a question of undue influence is raised, he will explain to them what in law constitutes undue influence or fraud to impeach a duly executed testamentary instrument, and tell them that if they are satisfied that the will was executed by a competent testator they should find for it, unless the case of undue influence is made out to their satisfaction. The course of this trial-is somewhat peculiar. U2 THE IRISH REPORTS. EI. R.. Usually in an ejectment or issue, if the devisee admits the-heirship he is entitled to begin. The Defendant in this case adÂmitted the heirship of Wellington Purdon, but it was held that the Plaintiff was entitled to begin because he had joined with him as Co-plaintiffs the devisees under two earlier wills of the 5th of January and 26th of April, 1869 ; these wills disposed of the-estate in favour of Charles Purdon, Frederick Purdon and Henry Purdon, and they were joined in the ejectment. Richard Cooke was named as a Defendant, he being a devisee in certain wills in tervening between the wills of 1869 and the will on which Lord Longford relied ; he took no defence. The Rev. William Lyster and John Fox Goodman were named as Defendants, they being devisees in trust for Lord Longford's son in a will of 6th January, 1874, and they took a separate defence to the ejectment. Thus the record was rather peculiarly constituted, but still there was no legal objection to it ; the heir-at-law was entitled to. join with him the devisees under the wills of 1869, and by so doing he secured the advantage of having the first and last word with the jury. The Plaintiff proved his heirship ; he produced, but did not prove per testes, the wills of 1869 ; he gave evidence tending to, • show that at the time of the execution of the later wills the tesÂtator's capacity was much impaired; and he went into a very full case, with a view to show that the two wills in favour of Lord Longford's son were obtained by the fraud and undue influence of the Rev. William Lyster. The Defendant then went into a full case, proved the instrucÂtions for and the execution of the several testamentary instruments, gave evidence tending to show the unbroken capacity of the-testator down to the time of his death, and gave a great body of parol and documentary evidence to negative the charges of fraud and undue influence, and which it was contended ought to satisfy the jury that the wills executed in favour of Lord Longford were-the spontaneous emanations of the testator's mind, and were not obtained by any fraud or undue influence. The case lasted for several days. At the close of the evidence, the learned Baron was asked for a direction by both parties, which he, in my opinion, properly ' Vol,. XI.] COMMON LAW SERIES. 271 refused. Counsel spoke to the case on both sides, and the learned Com. Pleas. Baron charged the jury. That charge is not before us, but no 1877. objection whatever was taken to it. I have no doubt that he PITRDON -correctly explained to the jury the legal principlesapplicable to EA T, op the case, and fully instructed them as to their duty. .LONGFORD. The learned Baron then handed to the jury two questions written upon a sheet of paper...