Henry Spencer Cooper v. Daniel Smith Bockett...

COOPER v. BOCHETT [I 844-461 IV NWRE, 419

[419] ON APPEAL FROM THE FREROGA~IVE COURT OF ~ A ~ ~ E ~ ~ U ~ Y .

HENRY S F ~ ~ C E R C O O F E R , - ~ ~ ~ e ~ 7 f f ~ t ; DAXEL SMITH B O C ~ E ~ r , T ~ O M A S

COOP^^, and the Rev. J E R M ~ ~ A T T , - ~ ~ ~ ~ o n ~ ~ ~ t s [June 17, Dec. 17

and 18, 1844 *; Jan. 11, 1545; and February 7, 1846 t].

The factum of a Will, held under the circumstances of the case, to be sufficiently

proved, though one of the subscribing witnesses deposed that he did not see

all that the testator wrote, only the large initial of his Christian name ; and

the other witness stated that she did not see what he wrote, but that he ac-

knowledged the paper to be his Will, in their joint presence [4 Moo. P.C. 4421.

Evidence of illiterate witnesses as to acts not affecting their interests, when

opposed to the probable acts of an educated man, no fraud being in question,

i s tn be received with great caution [4 Xoo. P.C. 435, $391.

The Will contained alterations and erasures affecting the amount and objects

of the testator’s bounty, the existeince of which, at the time of the execution,

the attesting witnesses could not depose to:

Held by the Judicial ~ o ~ m i t t e e , in the absence of all direct evidence ELS to the

alterations and erasures, that the presuniption of law was, that such altera-

tions and erasures were made after the execution of the Will, and Probate

of the Will granted in its original form [4 Moo. P.C. 452, 4531.

This was an Appeal from the Prerogative Court of Canterbury, in a cause of

granting Letters of Administration of the goods, etc., of Robert Henry Spencer

Cooper, a retired Captain of the Royal Engineers, who! died on the 17th of April

1843. After his death a Will was found in his writing-desk, enclwed in a sealed

envelope, endorsed, or superscribed, “ The Will of Robert Henry Spencer Cooper,

9, Fall Mall East, 7th January 1843.” It occupied one page of a sheet of letter

paper, and mas wholly in the handwriting of the deceased, was subscribed by him,

and bore date E4201 the 7th January 1843, and purported to have been executed in

the presence of two subscribing witnesses : it had several obliterations and altera-

‘‘ This i s the last %Gll and T e s t a ~ e n t of me, Robert Henry Spencer Cooper, a

retired Captain of Royal Engineers. I will all my property, after my decease, and

funeral expenses paid, to be converted into those funds of the Bank of England

yielding now &3 per cent. per annum; and the annual proceeds, after deducting

the following life annuities, to go to my brother, Henry Spencer Cooper, barrister-

$ die without issue

at-lam, and, a t his death, to the lawful issue he may leave. If he leave none, I ail1 such

family Cuptuim Symoads, of Ly?%ingtom, ~ ~ ~ ~ s h i ~ ~ ,

to go to the persons of the Pratt family, of Norfolk, not to that one married to Lord

Rendlesham, nearest related to my mother’s family, whose father resided formerly

a t Bury St. Edrnund’s, Suffolk. Out of the said annual proceeds I will an annuity

of one hundred pounds sterling, clear of duty, to my aunt, Mrs. Charlotte Moyle, of

Groomhill, Greenwich, during the term of her natural life. Also, I will an annuity

of one hundred pounds sterling yearly to the sister of my late father, Mrs. Caroline

Randall, duty free, during the term of her natural life. Also, I will an annuity

of seventy pounds sterling, duty free, to Mary Jenkins, niece to the above M i x

Moyle, during the term of her natural life, duty free. Also, I zodF twenty porn&

s ter lkg , duty free, yearly, to [@1] Thomas Cooper, 80% of -, umzcle Thomas

Cooper, durirLg the t eTm of his natural life, and while h,e is in. distiess and unem-

tions, and ws s h ~ follows:-

* Present : Lord bangdale, Mr. Baron Parke, the Vice-Chancellor Knight Bruce,

-1 The Lord President (Lord Wharncliffc), Lord Brougham, the Vice-chancellor

$ The words in italics were written upon those underneath, but not so as to render

and the Riglzt B5n. Dr. Lushington.

Knight Bruce, and the Right Eon. Dr. Lushington.

the latter illegible.

365

zv BIOORE, 4532

~ ~ ~ ~ e ~ , ~ And, in the event of Mrs. S. Skyring, of Somerset House, dying, and

leaving her father and mother in distress, I will yearlp to, tlie said parents of Sky-

ring, J. and X. Stonoham, thirty pounds yearly for their natural life, and to the

survivor, free of duty. I name-ex~utors to this my Will, Daniel Smith Uockett,

of the Eaw Life Assurance Society, 60, Lincoln’s Inn, and to I will one hundred

poui~ds sterling, and my brother, Henry Spencer Cooper above named.

“ Codicil : To my man, Wm. Cobbett, I will fifty pounds, clear of tax.

COOPER V. ~ o C ~ ~ ~ ~ [1844-46]

zuhmn I

to

(L.s.)ade a t 9? Pall Mall East, this seventh Jan. 1843.”

Witnesses to GEORGE CRXTTEHDEX. R. H. X COOPER.

Servants at house.”

the atid will. I MARY C R I T ~ E ~ D ~ ~ . ~ 9, Pall &la11 East.

s i ~ i i a t ~ e . I

A caveat having been entered by the Appe~~ant, the natural and lawful brother

and only next of kin of the deceased, the Will was propounded in solemn form of

law. The ground on which the Appellant opposed Probate, mas, that the testator

had not signed the Will until after the witnesses, and, consequently, had not GOID-

plied with the requirement^ of t,he Statute, 1 Vict., c. 26, s. 9. An allegation having

been asserted and [&2] brought in on behalf of the Respondents, the two subscribing

witnesses, George Crittenden and Mary Crittenden, his wife, mere examined in

chief; and on ix~terro~atories. To the first article of the allegation, George Critten-

den deposed: ‘‘ 1 am porter a t the house, No. 9, Pall Mall East. I have been there

about ten or eleven month. It i s a house let out in private chambers ; m y wife is

porteress there. Captain Robert Spencer Cooper was living in the house when I

went there, and he continued there until his death. I and my wife attended him,

but he had a servant of his own, At first, a female servant, but latterly, and at

the time of his death, a man servant. I recollect witnessing his Will perfectly,

but the day or the month I could not say; as near as I can tell, it was about three

months before he died. I had been out for him with a letter to Xr. Cooper, his

brother, in the Temple, and on my return, about one o’clock, 1 went t o his room to

tell hinz that I had not found Mr. Cuoper a t home, and that I bad put the letter into

the letter-box. I found him writing a t a table, and when I had delivered my

message, he desired me to sit down, and v-heti I had been sitting so about fiye or ten

minutes (and he was writing during that time), he said to me, that he trished me t o

put my name to something ; his words were, ‘ I vant you to sign your name to this

paper ’ (that was the paper before him) ; ‘ will you? ’ I said, ‘ I don’t know what

I am going to sign, Sir.’ He said, ‘ Oh, you need not be afraid, for this is my Will.’

I theri rose up for to sign, and he then said, ‘ You had better fetch your wife up

stairs first,’ and I said, ‘ Shall I do so, S i r ? ’ and he said, ‘ Yes.’ Prom that I went,

and fetched her up, and when we went into his room, we found him standing at tho

table which he had been writing at, with a pencil in 14231 his hand, a;nd as he was

standing he wrote m y name and my wife’s name in pencil. My wife asked him if

he knew how to spell her name, and he said ‘Yes,’ and repeated it, ‘ Crittenden,’

and my wife said, that was right. Then he sat himself down, and called us to the

table, and he put the WiII towards me, and said, ‘ You sign your name there,’ point-

ing to my name, which he had written in pencil, and I took the pen, and wrote- nig

namo over the pencil-mark. Then he said to u-ry wife, ‘ NOW, you sign your name

on this pencil-mark,’ pointing to the one under niine ; ‘ you’ll write your name better

than he has done his; then my wife signed her name. Then Captain Cooper took

ihe pen from my wife, and wrote, axid when he had done so, he said, looking up a t

me, ‘This i s my name, in your presence,’ and I understood &en that he was wri t ing

his own name. I did not see all he wrote, but I saw him make the large ‘ R ’ of

* The sentence printed in italics was erased by +zag scratches of the pen, but

was not illegible.

t On 1 he left of the witnesses’ names was a bracket, from which a c i r e u ~ e x line

was drawn, intended, apparent~y, to enclose a space for their signatures, but the

epaoe not being suEcient. the line was passed by the Iast letter of the first witness%

name.

366

COOPER v. BOCKETT [1844-461 IV NOORE, 424

his name, and there was a black sea1 a t the left-hand corner quite, but there was

nothing said about that, and after he had wrote his name, he said, ‘ Eow you have

done some good for yourselves,’ and iiothing niore passed. He said, ‘ Mrs. Critten-

den, I don’t want you any more ; you can go ; ’ and my wife went down stairs. I

stopped a few minutes afterwards, when he told me that he did iiot want any thilig

more with me, and I went away, and when I left the room the paper was still lying

before Captain Cooper, and what became of it I cannot say, for I never saw it after-

wards. Captain Cooper was in his perfect senses at the time, and fully capable of

giving instructions for, and of making and executing his Will, and of doing any

act requiring thought, judgment, and reflection. He was only about forty-nine

years old, and he was perfectly sensible t o the last almost. He [424] mntc nothing

but his name, at least I believe it was his name, in our presence. As soon as he had

done, he put down the pen, and wrotp no more. Before he signed his name be

made a niark round ours. The Vvill whioh was produced to me by the Examiner,

is the Will which I and nip wife signed our names to, as I have deposed, and the

large ‘ R ’ in Captain Cooper’s signature is what I saw hini write after I had signed

niy name, and nzy wife had signed hers. The words. ‘ 9, Pall Mall East, Servants

a t house,’ were not written in my-presence, to the best of my belief. Captain

Cooper wrote nothing in my presence but his name. I have no doubt, that as the

Will is dated the 7th of January 1843, it was executed on that day; it was a Satur-

day, I remember.”

To the second article, he deposed : “ I do iiot recollect the day on which William

Cobbett came into Captain Cooper’s service; but if Captain Cooper had lived to

another Wednesday, Cobbett would have been in his service a month, I think. Cap-

tain Cooper never took the least notice of his Will, or of the execution of it after

it had taken place, at least in my presence. As to the alterations which I now see

on the Will, I cannot say whether they were or were not on the Will when I signed

it. I have something on my mind, that there was something of the kind too, but I

was confused and Aurried a t the time; for though I was but signing my name to a

Will, set I had never done so before, and I did not knQw but that trouble might

come of it, and the Captain was a very sharp and severe man, and I P;as not so

inuch a t my ease as to obserre exactly what occurred, or what. appearance the Will

had. I do firmly believe, however, that there was some black scratching on the Will

when I signed it.”

[425] To his examination on interrogatories, the same witness stated: “I have

not been given to understand in any way that it was wished to be made out by my

evidence that Captain Cooper signed or acknowledged his signature to his Will iu

my presence, my fellow-witness being also present ; I will swear that no mch direc-

tions or instructions have been given to me, and that I have not received any hints

to that effect. Captain Cooper did sign his Will in my presence; I believe that

he did : and he certainly acknowledged it in m y presence, for he said, li That is my

name.’ He signed it, as I have stated, after I and my wife had signed our names

to it. The very words he used were, ‘ This is my name in your presence ; ’ and he

looked up to me as I P;as standing on his right-hand side a t the time; nip wife was

present a t the time, standing behiad me; i t was after we had signed our names.

I do not believe that Captain Cooper’s signature was to the Will ahen I and my

wife signed it. There was a blank space where his signature now is when I signed

my name. I have never admitted or declared that such was the case until llow, nor

lias my wife, that I am aware of. When 1 have been questioned about the matter,

I have stated, and it is the fact, that Captain Cooper had a pencil in his hand, and

wrote my nanie and niy wife’s on the place where we afterwards signed our mlames.

I have said that he was writing with a pencil when we went into the room. I have

never said, and it is not the fact, that I first signed my name to the Will in question

at the request of Captain Cooper, and then called up my wife, who also signed. I

have never said, and it is not the fact, that Captain Cooper signed his nauLe to the

Will in question after my wife had signed her name to it, and left the room; I

have never told my [426] wife so: I will swear that 1 never have. We were all

three in the rooni together when me signed our names. I cannot say for a certainty

whether there were or were not any alterations in the Will in question when I siglled

367

I ~ - ~ O O R ~ , 427

it. I have a notion of some black scratching upon it, and that is all I can say

about it.”

Xary Critteiiden deposed: “ I am porteress to the house No. 9, Pull Mall

East, and lap husband is porter. It is a house let out in chambers to single gentle-

men. Captain Cooper, the deceased, was

living in chambers there when I went, to the house, and he remained there until his

death. FKe had a female servant of his ow1-1, and latterly a man servant, too ; but

I cooked for him during his illness, and helped in his rooms; and my husband went

errands for him. I recollect witneswing his Will perfectly well; it was on a Satur-

day, early in January last, soon after he was taken ill, and it, was about one o’cloclr

in the day; he dined a t two regularly, and I know that it was before his dinner.

The way I came to be a witness to Captain Cooper’s Will was this: my husband

had been out on an errand for him, and soon after he returned he came to me and

said, ‘ The Captain wants you to sign a paper Tith me; ’ and so I went with my

husband to the Captain’s room, and there the Captain was standing a t his table,

with a piece of paper before him, and he took a pencil, and said that he wanted US

to sign our names, and that he would pencil them first where we were to sign ; and

so I said I would take the liberty of asking hiui if he knew how to spell our name,

and he spelt it, and spelt i t right; and when he had written the names, he gave.

my husband the pen, and told him to write his name over the pencil-mark, and my

husband mote his name [427] as he was told; and when he had written it, the

Captain gave me the pen, and told me to write mine, and said, ‘ I dare say you will

write it bttter than he has,’ but T don’t think I did write it better : however, I wrote

my name as the Captain told me, over where he had pencilled it, and then the

Captain took the pen and made a kind of circle round our names, and then he

wrote something, but what it was I cannot say, for my husband was standing near

him, and in the way; but the Captain said, ‘ This i s my Will and my nanie in your

presence, and you have done some good €or yourselves;’ those were the words he

used, as well as I recollect, and he said nothing more, except to tell me to go down

stairs, as He did not want any more with me; and so I went, leaving my husband

with him: and that is all I know or recollect about it. I have no doubt that Cap-

tain Coopcr was, at the time this took place, of perfect sound mind, memory, and

understanding, and fully capable of making and executing his Will, and of doing

any act requiring thought, judgment, and reflection. The Will now produced to

me by the examiner is the Will which I and my husband signed as requested by

Captaiii Cooper, as I have deposed; but whether he wrote the words ‘ 9, Pall Mall

East, Servants at house,’ after we had signed our names, or what he wrote, I cannot

say, for 1 did not see; it was a blank space all to the right, as well as I recollect now,

when I signed my name, and I so well recollect the black seal a t the left corner, and

I should have known it was a Will even if the Captain had not said so, though I

had never seen one before, by that seal ; I remarked it so at the time.”

To the second article she deposed : l 1 William Cobbett came into Captain Cooper’s

service on the twenty-[4~$~-third of &%arch last, I believe; I never saw Captaiii

Cooper’s Will a€ter the time I signed it, and I did not notice whether there were

or were not any of the alterations which IC now see in it.”

The same witness on her examination upon interrogatories stated : “ IC cannot

say whether Captain Cooper signed his Will in my presence, or not; I did not see

what he wrote, but he said, ‘ This is my name in your presence,’ and so I suppose he

had written his name when he said so. I do not recollect the words he used better

than I have told them; my husband and I were both present at the time Captain

Cooper used those words, and it was after we had signed our names to the Will.

I cannot say that Captain Cooper’s name was signed to the Will when I signed i t ;

as well as I can now remember, it was all blank where I now see Captain Cooper‘s

signature. I have admitted such to be the fact, and so has my husband, I believe,

when asked about it. Ny husband had not signed Captain Cooper’s Will before I

was called into the room to sign it; I will swear that my husband signed it after-

wards in my presence. My husband has uever told nie that Captain Cooper signed

the Will after I had left the room; it was after I had signed my name, and not

before, that Captain Cooper made the mark round about our names.”

The Respondent also brought in the affdavit of Joseph Netherelift, a fac-similist

~ O O P E R 21. BOCKETT c1844-461

1: have been there nearly a twelvemonth.

368

COOPER ?I. BOCK^^^ [ 1844-461 Iv ~ O O ~ ~ , 4-29

and ith hog rap her, who deposed as to the erasures and the words previously written,

as printed in italics in the copy of Will above given.

The learned Judge of tlie Prerogative Court, by his sentence, on the 8tXr of August

1843 (reported 3 Curt.. 648), pronounced [429] for the force and validity of the

Will, and decreed Probate thereof, with the several alterations now appearing

therein, to Daniel Smith Bockett and Henry Spenoer Cooper, the executors thereof

appointed, or either of them.

From this sentence the present Appeal was brought by Henry Spcnceu Cooper,

who prayed tphat it might be reTrersed, and the cause retained; and tbat the Court

would pronounce against the validity of the Will, that the deceased was dead intes-

tate ; and decree Letters of A~mixristrat~on of the goods and chattels of the deceased

to be grmted to him.

The Appeal was argued (I?tlr June 3844") in the first instance, by Nr. ErIe,

Q.C., and Dr. Addan~s, for the Appellant: and &Ir. Turner, Q.C., and Dr. Jenner,

for the ~espondent, Bockett,

It was argwed on both sides as a question of fact, upon the evidence of the wit-

nesses, whether, haTTing reference to the p ~ o b a b ~ e circumstances under which tko

Will was produced and witness.ed, the deceased had signed the WifX before their

subscription. Blake v. Knight (3 Curt. 547), 119oore v. Xiag (3 Curt. 243>, Gove v.

Gawerb (3 Curt. lal) , Chambers v. The Queeri's Proctor (2 Curt. 415), were referred to.

At the conclusion of the argument, their Lordships said, that the question raised,

involved not only one of fact, but also one of law, and directed the Appeal [

be re-argued wi th reference to that opinion. The Appeal was according1

argued.

Mr. W i g r a ~ , Q.C., and Dr. Addams, f m the Appe~an t (14th Dec. 2344 t>.-

From the t ~ t ~ n ~ o n y f the witnesses t>o the et^^, i t i s clear that this Will was not

executed p u r s u ~ n t to the r e ~ ~ ~ i r e ~ e n t s of the Statute, 1 Tict., c. 26, s. 9. The

witnesses must have subscribed before t.he testator. This is not a good execution ;

the s i p i n g and ~ ~ t n e s s i n ~ being s i ~ u ~ t a ~ e o u s acts, n o t h ~ n ~ can satisfy the terms

of the 9th Section, but the testator signing first. %'he words are, that " it shall be

signed at the foot o r end thereof by the testator, or sonre other person in his pre-

sence and by his direction, and such sig11ature shall be made or a c k n ~ ~ ~ ~ ~ g e d

by the testator in the presence of two or mora wiiacsses present at the, same time,

and such ~ ~ ~ e s s e s shall attest and sub~cribe the Will in, the presence of the

testator." It has h n uniformly held by the Court, upon the ~onstruct~on of this

Section, t b t the signa%ure of the tmtator must precede the execution by the wit-

nesses, and Chat such fact must be strict,Jy proved. The OWAS ~ ~ o ~ ~ ~ ~ ~ i lies on the

other side. Iloott v. Genge (4 Moore's P.C. Cases, ZGS), ~~s~ v. Parker (Y Bob.

Ecc. Reps. 14), ~ ~ ~ ~ o ~ ? 2 ~ v. ~ ~ ~ o ~ ~ e r (I Rob. Ecc. Reps. a}. The Statute, of Frauds,

and tfie 9th Section of t#he New Will Act, differ in many ess~n~ials. The cases of

2 % ~ ~ r i ~ ~ ~ ~ ~ ~ ~ , i ~ ~ e ~ ~ ~ v. TFhifie (3 Moore and Payne, 689; 6 Bing-. 315), and Peate

v. ~ ~ g ~ e ~ ( C o ~ ~ ~ i i , XQG), and the other ea under the Statute, do not apply.

E4311 Sir Thomas Wilde, Mr. Turner, C., and Dr, Jenner, for the ~ ~ p ~ n d e n t .

-I& is not. ne~essary to give a ~ r m a t i ~ e evidence by the s u ~ s c r i b i ~ witnesses of

the fact of signing. The Court will judge from tlie whole of the case, aad pre

sume the execution by a testator upon the circumstances. Blake v. ~~~~g~~~ ( 3 Curt.

547). Suppm tho witnesses were dead, the Will on the face of i t would a p p ~ r

a good Will. Too much importance must not be giv0a bo the evidence of the attest-

ing. witnesses, who are illiterate persons; it would bo dangerous to the interests of

soorety, if ~ i t i ~ e s s e s of the class here subscribing vere enabled to out down a. Will

when called upon to depose t o the exact order of circumstances ~ t ~ t e n d i n ~ the

execution. It i s xzsitlrer safe nor r#~sonable to suppose that the ~ e g i s l a ~ u ~ e in-

tended that minute facts should be deposed to by the witnesses. No form of

atte~tation is ~ ~ ~ i i i r ~ , and yet it i s said iby the ~ppel lant . that7 the witnesses are

to depose to, or attest, those facts in a particular order. The ~ ~ ~ t ~ e s s e s do not in

* Present : Lord Brougl ia~~~, the ~ ~ c ~ C h ~ c e l ~ o r Xnight Bruce, the Right IrIcrrr

Dr. ~ u s h ~ n g t o n , and tfie Right Eon. T. ~ e ~ ~ b e ~ o ~ r Leigh.

4- Present : Lord Langdate, Lord C a m ~ b e ~ l , the ~ ice -ehan~e l lo r Knight Bruce,

and the Right Hon. Dr. Lushingbn.

-I- -- - ~ - ~ .-" ---- "" ~-

369

IY MOORE, 432 COOPER 9. BOCKETT [ 1844-463

fact say, that the testator wrote his name after they had signed. They say, speaking

only to the best of their knowledge and belief, that they saw him write something;

it i s clear from inspection of the Will, that if he wrote anything, it must have been

the words, ‘( 9, Pal1 Mall East, Servants a t house,” and this will account for their

mistake. The circumstance of there being a blank space after the nanies of the

witnesses, is satisfied by the space being blank where the words ‘I 9, Pall Mall,” were

afterwards written. [The Vice-Chancellor Knight Bruce : There seeins to be some

difference in the colour of the ink in which the words 14321 (‘ 9, Pall Mall East,”

e t a are written, and that in which tlie words ‘I R. H. S. Cooper ” are written.] The

pro~abili ty is, that some blotting-~~aper was used, and this would be ano~her reason

for thinking that those were the words written, after the signature of the wit-

nesses. EvZuch reliance cannot be placed upon the cridence of a witness, who admits,

that a t the time when the act which he is deposing to was done, he was flurried, and

not a t his ease. There can be no doubt, that upon the words of the 9th Section of I

Vict., c. 26, this Will has been acknowledged in tlie presence of two witnesses, present

a t the same time. This distinguishes the case from Iloti Y. Genye [4 Mm. P.C. 2651.

The only other requisitim of the section is that the witnesses who signed must be

the same witnesses to whom the testator acknowledged the Will. [Lord Campbell :

The witnesses do more than sign, they niust attest.] They must attesL the Will,

but that is t o prevent the substitution of a fictitious instrument. No form of

attestation is required by the 9th Section. The words are ‘( attest and subscribe; ”

that is, subscribe as witnesses. The meaning- of the word ‘( attest ” is not that the

tritnesses are to attest every circumstance, which would be sufficient to niake valid

the Wilt. It+ simply means that tliey attest a paper, that has been declared a Will.

[Baron Parke: It must mean that they attest a paper which lie declares to be his

Will. That i s to be complete so far as the testator can make it complete by his own

act.] The question is, are the witnesses to subscribe an instrument as perfect

as it possibly can be; or are they to subscribe an instrument, which is in its

ordinary sense a Will? What is meant by the word “ Will,” and in what sense is i t

used? The argument of the Appellant must be that the word 14333 ‘‘ Will,” changes

i t s meaning, in its different positions in the Act. The first. section says, no %Vi11

shall b valid unless it shall be executed; there it, is used in the ordinary sense: but

in a subsequent part of the section, the other side must contend that i t possesses

an additional quality, namely, that it must be signed by the testator. [The Vice.

Chancellor Knight Bruce : Did tlie Legislature intend by the 9th Section, the events

to take place in the order in which they are enumerated; that is, the signature

of the testator to precede the attestation ?] Signing and acknowledging bespeak

their own order, it does not appear that the vitnesses must neeasarily sign after

the signing by the testator. In the Court of Chancery, it is the practice never to

ask d i o signed first, in order to set up a fnJill. White v. The B ~ i t i s f ~ il.l‘use.um 13

Moo. and P. 689; 6 Bing. 3101, was expressly decided on the ground that the

testator had by his conduct acknowledged the signature.

Dr. Addams in reply.

Prwious to giving judgment (17th Jan. 1845 *), their Lordships called before

them a witness of the name of Donough, mho deposed to having h e n in the habit

of examining and comparing writings, and so employed by the Bank of England

€or eleven years and upwards; and being shown the original Will, and required

to state whether in his opinion the circumflex line surrounding the witnesses’

nanies was made previous to or after their signature, replied that in his opinion

the circumflex was made previous, and the name signed oyer it.

E4343 The Vice-Chancellor Knight Bruce: (Feb. 3, 1845).-Tlie question in this

case is, as to the ~estamentary validity of the instrument which was propou~~ded and,

after opposition, admitted to Probate in the Prerogative Court of Canterbury,

as the Will of Robert Henry Spencer Cooper, vho was, or had been, a Captain in

the Royal Erigineers. He died on the 17th of April 1843, and is admitted to have

* Present : Lord Langdale, Mr. Baron Parke, the Vice-ChanceIlor Knight Bruce,

and the Right Eon. Dr. Lushington.

370

COOPER v. BOCKETT [ 1844-461 IV MOORE, 435

been a bachelor, or, at least, not to have had a wife living a t the time of his death,

and to have left his brother, the Appellant, his only next of kin.

Captain Cooper’s testamentary capacity is undisputed, and it is clearly proved,

or admitted, that the instrument propounded was signed a t the foot, or end of it, by

himself; that he so signed it animo testandi; that this signature was made by him

on or before the 7th of January 1843 ; on which day, in the presence of two witnesses,

present at the same tinie, he acknowledged that signature as his, and the instrument

as testamentary; and that, on the same day, the same two witnesses, a t his request,

in his presence, and in the presence of each other, subscribed the instrument as

witnesses.

The Appellant, however, not disputing these facts, contends that they do

not satisfy the requisites of the 9th Section of the Act of 1837, “ for the amend-

ment of the law with respect to Wills,” inasmuch as the signature by the witnesses,

as he contends, preceded in time the signature of the alleged testator. The Re-

spondent denies this, but contends, further, that if the facts were so, i t is immaterial.

These two points, one of fact and the other of law, form the whole matter of the

contest between the parties. The Appellant hns [435] to maintain both points,

it being sufficient for the purpose of the Respondent if he is right upon either.

Their Lordships think it convenient first t o consider the question of fact, and,

in doing so, to assuiiie the point of law to be in the Appellant’s favour.

There is not any evidence applicable to the matter of fact in dispute, except the

docuiiient itself and the testimony of the two subscribing witnesses, the only persons

who, besides Captain Cooper himself, were present when they subscribed it. The

document, with the exception of the witnesses’ signatures, is admitted to be wholly

in Captain Cooper’s handwriting. It is admitted, on the face of it, to be such, that

had the two subscribing witnesses, by the accident of their death in Captain

Cooper’s lifetiinie, been rendered incapable of being examined, the other evidence

in the case, with proof of the handwriting of the three signatures, would have been

sufficient to establish it as a valid Will; a circumstance, howevea, which amounts

to no more, and is of no more weight, than that there is on the face of the instrument,

nothing t o create or lead to an opinion that the testator’s signature was preceded

in time by the signatures of the witnesses. The agreed facts then standing, as I

have said, and the law being assumed to stand as the Appellant contends that it

does, is the instrument shown by the testimony of both or either of the subscribing

witnesses, to be invalid as a Will? Now, first, as t o Mary Crittenden, their Lord-

ships are of opinion that her testimony taken alone cannot be considered as proving

that the signature of either of the witnesses preceded in time the signature of

Captain Cooper. It is consistent with her evidence, at least SO far as her evidence

is positive, to suppose that what she saw him write was--“ Witnesses to the said

[436] Will. Signature,” or “9 , Pall Mall East, Servants a t house,” and not hie

name. She says-“He wrote something, but what i t was I cannot say, for my

husband was standing near him, and in the way; ” and itt is not t o be necessarily

inferred from the words which she says were spoken by him, that it was his name

that he then wrote. The same may be stated of what she says of the blank space

t o the right: when she first mentions it, she says,---“ It was a blank space all to the

right, as well as I recollect when I signed my name.” And she answers the third

and fourth interrogatories thus :-‘‘ I cannot say whether Captain Cooper signed

his Will in my presence, or not; I did not see what he wrote, but he said, ‘ This is

my name, in your presence,’ and so I suppoae he had written his name when he

said so. My

husband and I were both present at the time Captain Cooper ufied those words,

and i t was after we had signed our names to the Will. I cannot say that Captain

Cooper’s name was signed to the Will when I signed it ; as well as I can now remember,

it was all blank where I now see Captain Cooper’s signature. I have admitted

such to be the fact, and so has nip husband, I believe, when asked about it.” She is

not certain what Captain Cooper wrote; she is not positive as to the blank space,

whether where (‘ 9, Pall Mall East, Servants a t house” is now written, niay have

been blank when she signed. Their Lordships are of opinion that, assuming the

law to be as the Appellant asserts it to be, assuming George Crittenden’s evidence

to be out of the case, and assuming the rest of the evidence t o be the only evidence,

371

I do not recollect the words he used better than I have told them.

1V MOORE, 437 COOPER v. BOCKETT [ 1844-461

i t would be a miscarriage not to conclude that Captain Cooper’s signature preceded

in [437] time the signature of each of the subscribing witnesses.

With regard, however, to the testimony of George Crittenden, he must be taken

certainly to depose that Captain Cooper’s signature was subsequent in time to each

of the other signatures. And, as both the witnesses ought and are to bel considered

as respectable persons, speaking honestly and sincerely, this does create difficulty.

In the first article, he deposes thus. [His Honour here read the whole deposition,

as above given, and also his answers to the third and fourth interrogatories.]

Now, perhaps, it may be thought that the main difficulty as to the matter of

fact, is substantially created by the statements of this witness, as to the letter

‘‘ R ” a t the commencement of Captain Cooper’s name. If these passages had been

out of the case, saying, as the witness does, that he did, not see all that Captain

Cooper wrote, and adding afterwards, as the witness does, “ H e wrote nothino.

but his name, a t least I believe it was his name, in our presence,’

it may be that the evidence of the husband would, in effect, have left

the matter much as it is left by the evidence of the wife. But, however

this might have been, the particularity a t least with which, he mentions the

letter “ R ” (certainly a conspicuous letter as written by Captain Cooper) does

give his evidence an importance plainly beyond hers. Still, what he says on the

subject, though to be received with the consideration, and attention, justly due to

the assertion of a respectable man, must also be received with the caution which tlie

interests of society require, t o be used with regard to the evidence of a witness, in

any rank or class, deposing to such a fact under such circumstances. The [438]

mere remark, that had it not been practicable to obtain the evidence of either of

the two subscribing witnesses, it is admitted; and that had i t been impracticable

t o obtain the testimony of George Crittenden, it is not improbable, that the instru-

ment in question must have been established as Captain Cooper’s Will, may of

itself be of little or no weight; still, whatever its value, i t belongs to the case. But

certainly it is not to be forgotten that fraud is out of the question; that Captain

Cooper certainly intended the instrument to be his Will; intended it t o be effectual as

his Will; that he knew, or believed, his own signature t o the paper to be essential,

or advisable, and desirable a t least; that he knew, or believed, the signature of two

subscribing witnesses to be also essential, or advisable, and desirable a t least; that

the purpose for which, and the object with which, he summoned these two servants

to his room, and caused them to sign their names, was merely to substantiate the

instrument as his Will; that i f they have not attested it effectually, their presence-

their signature-and the whole transaction, was idle and useless, and the intended

testator’s design and wishes, have been absolutely and irremediably frustrated.

It is the duty of a Court of Justice not to allow undue weight to these considerations.

It seems equally its duty not wholly t o lose sight of them.

Their Lordships have next had to consider whether, independently of them,

the supposed fact thus stated by the porter is, or is not, in its (nature improbable.

Their Lordships think it in its nature pery improbable: they think that it is not

according to the general notions or habits of men of the world, or well-educated or

well-informed persons, whether profes-[439]-sional or unprofessional, to have a

document, which requires a party’s signature, attested o r subscribed by a witness

before its signature by the party, and f o r the party to sign it afterwards. It

appears to their Lordships that such a course is neither business-like nor customary,

and that it does not need that a man should be a lawyer or a merchant, to be startled

by such a mode of proceeding. Their Lordships find themselves unable to think

it consistent with probability that Captain Cooper, on the occasion in question,

could have acted, or allowed the witnesses to act, or coald have been capable of

acting, o r allowed them t o act, in such a manner ; not that it is their opinion that

he was fully aware, or accuratsly informed, of the legal formalities or ceremonies

essential to the sufficient execution or attestation of a Will. Their impression,

especially when they consider the short, unattested Codicil, is rather that he was

not so.

The improbable, however, is not always the untrue, and their Lordships have

thought i t right next to inquire, whether it may reasonably be supposed as not

unlikely, that the exact particulars and course of the transaction may not haye

been accurately remembered by the witness ; they think that it may. They cannot

372

COOPER 0. BOCKPTT 111844-461 IV MOORE, 440

avoid observing his station in society, his probable habits of life, his probable degree

of education and knowledge; they csnnot but be aware how very difficult it i s for any

man, of whatever rank or class, (not gifted with unc~mmon facultis3 of mind,) to

remember with precision and clearness the exact particulars and order of a set of

circurnstances, not involving his own feelings or interests, a t a distance of some

month from their occurrence; where no memorandum has been made, and where

the circumstances are not of a kind or description, with which [440] his own studies

or habits of life have rendered him conversant or familiar. To these considerations

must be added those due to George Crittenden’s deposition. To the second article,

which is thus [His Honour read the answer as abovc set forth].

Their Lordships are satisfied that the evidence of this witness, however respect-

able, with regard to the minute particulars of the transaction to which he deposes,

and especially as t o the order of the signatures, ought to be received with caution

and great reserve, if it were open only to the observations that have been made.

There remains, however, another remark. It is inconsistent, their Lordships think,

with a right interpretation of the evidence of George Crittenden, and inconsistent

with that of his wife, to suppose that the long line drawn above the testator’s

signature and continued in a curve between the signatures of the witnesses on the

left, and the signature of Captain Cooper, was made with his pen after George

Critt>enderi had signed. Upon careful and repeated inspection, however, of the

original document, their Lordships saw reason for thinking it probable that the

last letter of his name is written upon (that is over) the line. If so, unless the

signature was retouched with ink after the line had been drawn, the unavoidable

inference is, that the signature was in time preceded by the line. But it is noic,

in their Lordships’ opinion, reasonable to suppose, u p m the! materials before them,

that the name was retouched with ink after the line had been drawn ; and if it was

not, and i f they a10 not deceived in the appearance of the document;, there is a

mistake in the evidence, of the witness or each of the witnesses, upon whose precise

and accurate recollection, of the particular nature and order of the minute facts

in question, the Appellant is obliged to rely.

[441] Their Lordships thinking this not an i ~ m a t e r i a l c o ~ ~ s i d e ~ a t ~ o n in a case

such as the present, and unwilling to trust entirely to their own impression as to

the aspect of hhe paper, have submitted it to the inspection and opiniosn of a witness

professionally conversant with the examination of writings and experienced in that

employment. The witness views it as their Lordships were and are disposed i o

view it.

Upon this evidence, and the appearance of the document, their Lordships think

he had signed his name; and that if some part of the circumstances of the trans-

that George Crittenden is in error when he states the line to have been made after

action is iinpressed on his recollection in an inaccurate manner, his memory cannot

be trusted as a safe guide w i t h respect t o the rest of the details.

It may possibly be, 5 ~ s has already been intimated, that if the testator signed Erst,

and the witnesses afterwards, the testator, after their signatures, when writing some-

thing on the paper, or looking down upon it, may have said, ‘‘ This is my name, in

your presence,” for the purpose of a mor0 clear recopition of his signature, or of

making a stronger impression upon the minds of the witnesses, m d that they may

have been misled by this as to the order and time of his signature. But, without

relying or Iaying stress upon any mere conjecture as to the cause or causes of

error, their Lordships, after weighing all the considerations properly belonging to

the case, and without giving, as they do not moan to give, any opinion upon the

disputed point of law, have, upon the point of fact, come t o the conelusion that

they ought not to rely upon George Crittenden’s recollection as to the order of the

signature, and that the sentence of the [442] Prerogative Court ought not to be

disturbed, and they must advise Her Majesty accordingly. But the Appeal seems

t o them sufficiently reasonable to wa-rrant them in recommending that the costs of

it, on botph sides, should be paid out of the estate.

They have heard no argument, and give no opinion, upon the question still

open, whether the erasures and alterations, on the face of the instrument, are to be

oonsidered as made ebectually, so that the Probate should recognize them.

In accordance with this Judgment, their Lordships reported their opinion to

373

IV IOORE, 443 COOPER V. BOCKETT [1844-46 J

Her Majesty, against the prayer of the Appellant, viz., ihat the deceased had died

intestate; and further, that they were of opinion, that the principal cause ought

to be retained, and that the Will of the testator ought to be pronounced to have

been executed ; but that the question of the validity of the interlineations, oblitera-

tions, and alterations, now appearing therein, ougM t o be reserved, and that a

Monition for the txansmission of the original Will ought to be issued.

The effect of the Judgment being to determine the preliminary question, by

establishing the validity of the Will; Thonias Cooper, a legatee, and the Rev.

Jermyn Pratt, one of the ultiinate contingent residuary legatees nained in the Will,

two of the parties cit,ed to see proceedings, appeared as interveners, and asserted

separate allegations. The intervener Cooper, in the tenor of his allegation, asserted

that the alterations and obliterations occurring in the Will, affecting his interest,

were made by the deceased prior to execution. The Rev. Jermyn Pratt also alleged

that the alterations and obliterations occurring in the said Will, affecting his

interest, [443] were made by the said deceased prior to the execution thereof. Me

examined two witnesses, Benry Adlard and Joshua Bacon, engravers by trade, and

experienced in eraniining, comparing, and decyphering writings of all kinds. TO

the third article exhibited to him, Adlard said, Aceording to my judgment, the

whole of the Will produced to me was written throughout at one time, without, any

of the alterations which now a.ppear in it, except the word ‘ whom,’ which appears

to have been written a t the same time. I say so, because the ink in which that word

is written blends with the ink written underneath, showing that it must have been

written before the other word was dry; and, according to my judgment, the

signature ‘ R. IT. S. Cooper ’ was written a t the. same lime as the rest of the Will ;

and I come to that conclusion, because I observe the upper part of the capital letter

‘ R,’ that the iBk blends, or runs, with the ink of the letters ‘ dred’ in the word

‘ hundred,’ showing that the signat>ure, or that portion of the signature, a t least,

was written before the letters ‘ dred ’ were dry. According to my judgmeut, the

words in the ninth and tenth lines (relating to the substitution of Captain Syrnonds

for the Pratt family), which I haTe specified, and by which the words originally

written are dcfaced, xere written at a different time, and after the %‘ill was coni-

pletely written-some tinie aftermards, according to my belief, because I can separate

the two inks; therefore the ink of the words defaced must have been completely dry

before the words written upon them were written : it must haxe been perfectly c1t.y

before the wwds written over them were written. The outline of the words super-

scribed is as sharp and marked upon the ink underneath, as upon [444] the paper

itself. The ink itself is a different ink, in my opinion, but there is nothing to

guide me in saying whether the signature o€ the witnesses vas made before or after

the alterations.” To the fourth article, he said: ‘‘ The Will which I have deposed

to has the appearance of having been a t one t h e enclosed in a different envelope

from that now produced to me by the examiner. Folding up to enclose it in that

envelope, I find that the wax not forming part of the impression, the other part of

which is on the envelope, has no corresponding mark or stain on the envelope, and

must haw been made by the use of wax when the Will was sealed in some other

envelope.”

The other witness, Bacon, confirmed and agreed in this opinion.

The intervener Pratt prayed that Probate of the WilI might be granted to the

executors, as originally written in the Qth, loth, and 11th lines, for the foIlowigg

reasons :-

Because the alterations in question were made after the execution of the Will;

because the presumption and policy of the law i s opposed to all unattested altera-

tions, and it cannot be held in this case that ‘‘ the words or effect of the Will before

such alterations ” is not “ apparent,” within sect. 2 1 of Stat. 1, Vict., e. 26.

The evidence entered into on behalf of the intervener Thomas Cooper, went,

only to prove that he was a cousin to the testator, and that the testaptor was ia the

habit of occasionally visiting him, and of giving him pecuniary assistance, 1x0

prayed their Lordships to pronounce against the obliteration of the legacy tu

him, and that it shouId stand as part of the last Will and testament, for the folloving

reason :-Because E4451 the presumption in law, as well as the result of the evidence

in the cause, is, that the obliteration of the words in question %-as made after the

execution of the Will. The Rcspondent prayed (in pain of parties cited) their

371.

COOPER 2’. BOCKETT fl844-461 N ~ O O ~ ~ , 446

Lordships to affirm the sentence of the Court below, which decreed Probate of the

Will, with the several alterations appearing therein.

The case now came on to be argued (Feb. 7, 1846 *), upon the question as to the

validity of the alterations.

Mr. Peacock and Dr. Bayford for the intervener Thomas Cooper.-The question

now before the Court is, in what form the Will is to be admitted to Probate, whether

with or without the alterations. The party who upholds the validity of alterations,

or obliterations, is bound to give some explanation as to their having been made,

a t the time of the execution of the Will. But the evidence he has given amounts to

nothing, for there could not have been the extensive obliterations on the Will a t

tile time of its execution, and the witnesses not have taken notice of them. [The

Vice-Cfiancellor Enight Bruce : The presumption should rather be, that the testator

did make the alterations before the attestation of the Will.] We admit, that prior

to the Statute, 1 Vict., o. 26, if an alteration was made in the handwriting of the

testator, the presunipt~on mas in favour of its having been made prior to the

attestation ; but khat presumption was only raised because i t was in the handwriting

of the testator; but how is it since the statute? The 2lst section says, that altera-

tions [446] niade prior to execution, are to be noticed by the testator and the

witnesses, a t the time of the execution; the presumption of law, therefore, is, that

the statute would have been complied with in this respect if the alterations had

been mnde before execution. The effect of the statute is to do away with the .

validity of handwriting. The consequence of holding that the old presumption

in favour of alterations, applied to a Will in circumstances like the present,

would be, that a Will duly attested according to the late Act might be altered by

an alteration not attested in accordance with that scatute. [Lord Brougham : The

same reason holds, why a second stamp is necessary in an altered Bill, a5 why a

second attestation is necessary in an altered Will: it is a new instrument.] So, i f

alterations o r oblite~ations appear in any material part of a Bill of Exchange, the

alteration in which might, by possibility, have been made after the Bill was com-

pleted, the Plaintiff would be nonsuited unless he gave some evidence to show that

the alterations and obliterations were made before the Bill was completed. Ilnight

v. Cleneents (8 Add. and Ell. 215; 3 Nev. and Y. 375). In Gilbert on Evidence1 (p.

92), it is said, Formerly, if there were any erasures, or interlineation, the Judges

determined, upon profert of the deed, and view of it, whether the deed was good

oi* not; for they were contrivances of solemn contract, such as deeds are, and their

preference to verbal contracts was founded on this, that the intent of the parties

is there manifestly settled in express words, and entirely authenticated, and there

such contracts are totally referred to the Court, if the truth of the solemnities, viz.,

of the seal and the delivery, be admittad, [44’73 and therefore must be destroyed by

a contraot of equal solemnity ; because, how they are destroyed and avoided must

appear to the same Judges that are, by the law, to determine them. From whence,

also, it came to pass, that if a deed was rased, or interlined, they adjudge it a

void deed, because i t did not certainly appear to the Court, that were the Judges

of these solemn contracts, ivhether the mind of the party was contained in such a

inangled contract or not.”

Mr. Wigram, Q.C., and Dr. Harding, for Pratt, the other intervening party.--

The 21st section of 1 Vict., c. 26, enacts, that “no obliteration, interlineation, or

other alteration made in any Will after the execution thereof, shall be Tralid, o r

have any effect, except so far as the words or effect of the Will before such altera-

tion shall not be apparent, unless such alteration shall be executed in like manner

as hereinbefore is required for the execution of the Will.” The inference here

is, that these alterations were made subsequently to the execution; and in the

absence of evidence t o the contrary, such must be the presumption of law. BUT-

goyne T. ShowEer (1 Rob. Ecc. Rep. 5). Every Act of Parliament should be constrtled

in reference to the law existing at the time of the passing of the Act, and wit11

reference to the evil it wag intended to remedy. Now before the 1st Vict., c. 26,

thc presumption was, that Wills in the handwriting of the testator were valid. The

Present : The Lord President (The Duke of Buccleuch), Lord Brougl~arn, the

ViceChancellor Enight Bruce, and the Right Hon. Dr. Lushing-ton.

375

IV MOORE, 448 COOPER v. BOCKETT [1844-461

21st section declares such alterations in handwriting of no effect. The only other

question is, what is the meaning of the word apparent, likewise [448] occurring in

the 21st section of the statute ? It does not mean “ apparent to the Court.” The

Court will not take upon itself to say whether the wordsl obliterated can be made

out; but will act on evidence. It is only in cases of complete obliteration that

passages in a Will can be held to be revoked. Townley v. Watson (3 Curt. 761).

The evidence shows that the words intended to be obliterated are apparent. Probate

should be granted with the original words inserted.

Mr. Turner, Q.C., and Dr. Jenner, f o r the Respondent.-In the absence! of

evidence, interlineations in a deed will be presumed to have beien made a t the time

it is executed, and not afterwards (12 Vin. Ab. p. 58; 2 Starke on Evidence, 271).

[Lord Brougham : A distinction exists between alterations and interlineations, and

between erasures and interlineations. The evidence

produced is not sufficient to overrule the presumption that the alterations were

made at the time of the execution of the Will. They cited Trowel v. Castle (1 Keble,

21, 22), Fitzgerald v. Lord Fauconberge (Fitxgibbon, 207-220), Comyn’s Dig. tit.

Fait, F. 1.

Mr. Peacock, in reply.-No ground of argument has been brought forward to

sustain the Respondent’s case, that a different rule as to alterations in a Will must

be applied than as in Bills of Exchange. In Gilbert, Evidence, p. 89, erasures and

interlineations are treated as standing on the same grounds.

[Mg] Lord Brougham (August 1, 1846).-His Lordship having stated the facts

of the case, said :-In these circumstances two questions arise, one of fact and one

of law. First, a t what time were the alterations madei, by cancelling, superscription,

and interlineations : were they made before or after the execution and attestation?

Secondly, if that point cannot be ascertained, is the instrument to be read as it

originally stood, or a re the alterations to be admitted as parcel of it, upon the

ground that the proof was on those who would impeach them; and that, until

proved to have been made after the execution, they must be taken to have been

made before?

Upon the question of fact, i t is clear, and all their Lordships are of that opinion,

that there is no proof sufficient to show a t what time the altelrations were made.

Of the two subscribing witnesses, one (George Crittenden) says, that he cannot say

whether they were upon the Will, or not, when he signed it : he adds, ‘‘ I have some-

thing on my mind that there was something of the kind, too ; but I was confused of

mind a t the time; for though I was but signing my name to a Will, yet I had never

done so before, and I did not know but that trouble might mme of it; and the

Captain was a very sharp and severe man, and I was not so much a t my ease as to

observe exactly what occurred, and what appearance the Will had. I do firmly

believe, however,” he concludes, “ that there was some black scratching on the

Will when I signed it.” He repeats the same thing in his examination on interroga-

tories. I did not notice whether [&I)]

there were or were not any of the alterations which I now see in it.”

It is, however, not immaterial to observe, that there is evidence of the testator

having taken the Will out of the cover in which he had inclosed it when he executed

it, for two witnesses swear to the clear opinion that the cover had been changed, as

there is a wax mark on the Will which has nothing corresponding to it in the seals

of the cover in which it was found.

There is, then, no proof whatever of the time a t which the alteration was made,

nor have we any means of ascertaining whether they were made before the execution.

The belief of one witness, George Crittenden, that there was some Mack scratching

on the Will when he signed it, amounts to nothing; for grant it to be so, we have

no means whatever of knowing whether i t was one of the smaller or of the larger

erasures and superscriptions; and if it was, as is most likely, the larger, we cannot

tell whether it was the alteration of the residuary legatees’ names, or the erasure

of the annuity to Thomas Cooper; therefore, we are to take it as wholly unknown

whether the alterations were made before execution or after. This brings us to

the question of law, and here it is obvious to remark that the alterations are most

material; they amount, indeed, to reversing the whole Will, for the entire Will is a

gift of the legacies, subject to certain annuities; and the first alteration is a n entire

376

Saunders on Evidence, p. 18.1

The other witness, Mary Crittenden, says,

COOPER 21. BOCKETT [1844-46] XV BOOBE, 46%

change of the residuary legatee, and the last i s an erasure of one of the annuities.

Can anything be more clear than that we ought to know whether the testator

executed, and the witnesses subscribed, this [451] Will as it noF exists, or a former

Will? for that i s precisely the question before us.

If it be said, that whoever impeaches an instrument must prove his grounds of

objection, it is obvious to any one, that whoever propounds an instrument which, on

the very face of it, exhibits grounds of great doubt, must remove tiose grounds, and

clear up the doubts. If a Will, or a note, be tendered in evidence, by a Defendant,

as a receipt in proof of payment, and there appears an alteration of tho sum, or if

the party's name be changed, then there must be proof given, of the *Iteration

hasing been made, before the signature, else the instrument eannot be regarded as

genuine.

In the case of a deed, it was formerly the rule, that, when the Court saw, upon

inspection, that there was a material erasure or interline~tion, the i n s t r u ~ ~ e n t

was on that plea refused, and held null, as being a kind of demurrer. But it is said

in the books, that afterwards, when deeds became so long, that clerical errors crept,

often almost unavoidably, inta thcni, the matter was made a question of evidence,

and SO left to the jury. We find itt however, laid down by all the authorities, that,

even in the case of a deed, the effect of an erasure is important ; for, says Buller, J.,

(N. P. 255 a,) " If there be any blemish i n the deed by razure or interlineation, the

deed ought t o be proved though it were above thirty years old, by the witnesses if

living, and if they be dead by proving the hand of the witnesses, or a t least one of

them, arid also the hand of the par$y, to encounter Ihe p r e s u ~ p ~ i o n arising from the

blemish of the deed, and this oaglzt more especially to be done, if the deed ~ ~ p ~ ~ t e

a fraud; and to the same purport i s the passage in Gilbert's Treatise on Evidence,

[4523 That a a alteration, if made, though by the testator himself, after ekecution,

and without republ~catioii, would be fatal to the Kill, is clear, and no autl~ority is

required to support suck a proposition. The Court of Common Pleas so held ex-

pressly in a case sent from the Court of Chancery for their opinion. ( I h k i n s v,

Lark%%, 3 B. and P. 16.)

If, indeed, we for a moment consider the consequences of holding a contrary

doctrine, we must a t once be convinced how fatal this would be to the authority

of documents, how entirely subversive of the rights of parties, and how completely

abrogatory of the Statute. A party mighb change the sums of all the legacies left

in a Will; he might change the parties' legatees; he might change the parties, the

parcels, and the devises, in a Will of lands, and all this might be effected .without

the least ~ n o w ~ e d g e on the part of the teqtator, who, haring given one gift to one

person, might be made to give another to the same, 01- the same to another person.

Even if a testator made the alteration after the execution and attestation, i t would

be a bequest or devise not witnessed; and it is obvious to remark, that Ire might be

of sound and disposing mind at the one period, when the ~~c~~~~ took place, and

wholly incompetent when he made the alteration. The whole protection throvi-n

round parties by the Statute, would thus be taken away.

One of their Lordships, the ViceChancellor Knight Bruce, differs in this con-

clusion o€ law: but the rest of their Lordships consider that this sentence must

be reversed, and probate granted i o the Will as it appears, and is proved, to have

been originaIIy made, before the alterations. It is satisfactory to us, that we find

that the attention of the Court below [453] had not been directed particularly tot the

question uow disposed of; for the whole report of the case in Curteis goes on the

question of the fczctum, and not on the alterations. VVhether that last point

was argued at all, does not appear. The report says, that, after decidiug o i l the

f ~ c ~ ~ ~ ~ , the Court directed evidence of the nature of the alterations, and thereon

decided for probate of the Fill so altered.

[ltliews' Dig. tit. ~ ~ I ~ ~ ~ ~ E ; 11. F ~ E ~ u ~ P T ~ o ~ ~ 5. d. j tit. WILL; 11. ~ s T A ~ ~ ~ T ~ Y

~ ~ ~ ~ ~ ~ ~ ~ ~ T ~ , n. ; IV. EXECUTION, b. AttestntioB; IX. ~ o ~ s ~ u c T ~ o ~ , c. Errcwwes.

S.C. 10 Jur. 931, and, below, 3 Curt. 6.13. On point (i.) as to suEciency of

a c k ~ o w l e d ~ ~ ~ e n t (4 Moo. P.C. 443), followed in In Ehc Goods of Nuekvffile, 1867,

1 P. and D. 378 ; and see f n scoe v. Smart, 1901, 17 T.L.R. 595 : (ii.) as to p r e

p. 89.

377

V MOORE, 229 ARBUTHNOT ‘u. NORTON [1846]

arises betuwxi Messrs. Arbuthnot and eo., who are merchants and bankers carrying

on business a t Madras, and Mr. John Bruce Norton, who is the son and executor of

the late Sir J o b David Korton, who was one of the Puisne Judges of the Supreme

Court of Madras; and i t relates to a sum of 22500, which is payable by virtue o f

the Statute 6th of Geo. IV., cap. S5, and which is granted in the following manner

(so far as relates to this question): ‘‘ that when and so often as it shall thereafter

happen, that any Puisne Judge of the Supreme Court of Judicature at Madras shall

depart lhis life, while in possession of the said office, and after the expiration of

six calendar months from the time of his arrival in India, for the purpose of taking

upon him the office of Puisne Judge. thexi, and in all and every of such cases, the

Court of Directors shall, and they are thereby required to pay o r direct, and cause

to be paid out of the territorial revenues, from which the salary of such Puisne Judge,

so dying, should be payable, to the legal personal representatives of such Puisne

Judge, so dying, as aforesaid, over and above what may have been due to such Puisne

Judge at the time of his death, a sum equal to the amount of six calendar months’

salary of the office of Puisne Judge.”

?%e sum on the present occasion, that is equal to the amount of six months’

salary, is 22500, and the claim of the Appellants is limited to that sum ; and the

question is, whether, under the circumstances, they are entitled to it, within the

provisions of this Act.

Now, it appears that some time anterior to the [229] death of the late Sir John

Norton, he, for a good and valuable consideration, purported to make an equitable

assignment of all his right and interest in this 22500, to Messrs. Arbuthnot, in

consideration of monies received from them; and the first question is, whether Sir

John Norton had the power of making such an assignment, or whether, by virtue

of this Act of Parliament [6 Geo. IT., c. 851, this fund was destined to go to some

other persons, or in some other direction.

With regard to this sum of 22500, their Lordships are all of opinion, that the

intention of the legislature mas to p r o ~ i d e against a contingency, which had arisen

in two o r three antecedent instances, and which contingemy, in cases to oome, is

specifically provided for by this Acta of Parliament, viz. that a person taking upon

himself the office of a Judge in India, and dying in the possession of the office,

having been put to great expenses at the time of making his outfit from this country

to India, might have some certain means, whereby his estate would be enabled to

be reimbursed that loss, in case of his death whilst in office.

Their Lordships think, that any construction of this Statute, which would appro-

priate this fund in any other way, would be against the whole intention of the legis-

lature. Without saying what might be the meaning of the words which I have read,

especially the words “ legal personal representatives,” in any other case, and vithout

reference to any other context or construction, the only question here is, what is the

meaning of those words in this Act of Parliament; and we are all of opinion that

they mean the executor 02- a d m i ~ i i ~ t r a t o ~ of bhe Judge [230] deceased, and that the

money is to be talren as part of his general assets, and to be a d ~ i n i s ~ ~ . e d as such,

That being so, the second question is, whether it was in the power of Sir John

that if it was in his power, the letzer, which

cient to constitute an equitable assignment.

Now we consider the S%OO t o have been part of his estate, precisely in the same

light, and precisely of the same description, as if i t had been a policy of assurance

upon his life; that is t o say, a certain sum of money to which he would be entitled,

upon the contingency of a certain event; over which he had complete power of dis-

position by assignment in his lifetime, o r by testamentary disposition, if he thought

fit to exercise the power in that way.

With regard to the last question, which is a question certainly which their Lord-

sliips h a w thought deserving of greater attention and consideration than eit,&r of

the preceding points that mere discussed a t the bar ; viz. whether this assignment is

against public policy o r not,-we have come to the conclusion that it is not against

public policy.

In giving this opinion, me do not in the slightest degree controvert any of the

doctrines, whereupon the decisions have been founded, against the assignment of

salaries by persons filling public offices : on the contrary, we acknowledge the sound-

478

COWIE o. REYFRY [1846] v MOORE, 231.

ness of the principles which govern those cases, but we tliink that this case does not

fall within any of these principles; and we think so because this is not a sum of

nioney which, at any time, during the lifetinie of [2311 Sir John Norton, could pos-

sibly have been appropriated to his use, or for his benefit, for the purpose of sus-

taining with decorum and propriety the high rank in life, in which he was placed in

India. We do not see any of the evils, which are generally supposed would result

from the assignment of salary, could in the slightest degree have resulted from the

assignment of this sum, inasmuch as during his lifetime his personal means wollld,

in no respect whatever, have been diminished, but remain exactly in the same state

as they were. It is for these reasons, that their Lordships are of opinion, that the

Judgmeiit, o f the Court below was erroneous, axid that we are under the Iieceasity

of reversing that Judgment; but being all of opinion that this was a case in R-hich

i t was necessary for an executor to have the Judgment of a Court upon, we think

under the special circumstances, that the costs on both sides, both here and in India,

should bc paid out of the fund.

[Xews’ Dig. tit. COLOEP, I. G E N E ~ A ~ PRINCIPLES, 4. ~ 7 ~ ~ ~ ~ e s atid Courts; tit.

CONTRACT, C. 5. 1Zlegal Co?ztracts, e. Contpary to Statute ii.: tit. PUBLIC

OFFICER, A . JumcraL CAPACITP, 1. Jzdgev, C. Salary. S.C. 10 Jur. 145; 3

Moo. Ind. App. 435. O n point (i.) as to alienation of official salaries, cf. the

provisions of s. 53 of the Bankruptcy Act, 1883 (46 and 47 Vict. c. 52); E’rr

p r t e Huggins, 1882, 21 Ch.D. 91; and Ex parte Sawnders (1895), 2 Q.B.

424 ; and see also Liverpool Corporation v. Wright, 1859, Johns. 359, and notes

to Ryan v. Routles, 1747-50 (1 Ves. Sen. 34S), in I Wh, and T. L. C., 7th ed., at p.

141 ; (ii.) as to allowance of costs out of fund, see ~~~~0~~ Row v. Bajee Row,

1831, 2 Knapp, at p. 65; and of. Croker v. ~~~~~~~r~ (Bnquis of), 1844, 4

Xoo. P.C. at p. 368; Bremer T. Fretmaw, 1857, 10 Moo. P.C. E t p. 374 ; Dimes

v. Dimes, 1856, 10 Moo. P.C. a t p. 440 ; Scoulcr v. P l o w i g l t t , 1856, 10 Moo. P.C.

a t p. 458 ; and Bozigh8on v. KnigJit, 1873,3 P. and D. 77-80. For general powers

of Judicial Committee as to costs, see 0. in C. of 13th June, 1853, s. I (Stat. E.

and 0. Rev. it.. 306.1

[232] ON APPEAL FROM THE SUPREME COTlRT O F JUDICATURE

AT CALCC‘TTA.

JOHN COWIE and Others,-Appe& ; %‘ILLIAM ~ ~ M F R Y and Others,---

~ e ~ ~ ~ o ~ ~ ~ ~ e ~ ~ ~ s ~ [‘Feb. 10 and 11, 18461.

C . and Co. and E. and Co. n-ere merchants at Calcutta. E. axid Co. sold to

C. and Co. a large quantity of indigo, through the medium of a brokes, who

drew up a sold note addressed to H. and Co., and submitted it to E(. for his

approval, vhen H. having objected to a particular word remaining, the

brokcr took the sold note ta C., and informed him of N.’s objection. C.

struck his pen through the word objected to by E., placing his initials over

that erasure, and retnrned it to the broker, who thereupon delivered it, so

altered, t o R. and Co. The broker delivered to c. and Co., on the following

day, a bought note, which differed in certain material ternis from the sold

note. In an action brought by W. and Co. against C. and Go. for non-per-

forinance of the contract contained in the sold note, the Suprema Court at

Calcutta was of opinion, that the sold note alone formed the contract, and

found for the Plaintiffs. Upon appeal, held by the Judicial Coni~~ittee, r \-ers-

ing such finding, that the tramaction was one of bought and sold notes, and

that the cix+cumstances attending C.’s %Iteration of tlie sold note and affixing

* Present-&Iemhrs of the Judicial Committee : The Lord President (the Dulre

of BuecleucL), Lord Brougham, the Vice-C1*aneellor Knight Bruce, the Right Ron.

Dr. L u s ~ ~ ~ n ~ ~ o n , and the Right Bon. T. Pemherton Leigh. Privy Councillors,--

Assessors-Sir E. B. East, Bart., and Sir E. Ryan.

479