1859. February 23. In the Goods of ROBERT cordingly prepared the codicil in accordance with the instructions, and, as he usually did in preparing a codicil to a will, he intended to add the words, "and in all other respects I "confirm my said will," but that instead thereof he inadvertently and by mistake added, " and in all other respects I re"voke my said will;" and without having observed the mistake, he delivered the codicil to his clerk to take the same to the deceased; that the whole of the codicil was drawn in pursuance of the instructions of the said Robert Davy, save and except that he received no instructions to insert, and by mistake, and contrary to the expressed intentions of the said Robert Davy, he inserted the sentence, "And in all other re"spects I revoke my said will;" but he was not aware of the mistake, nor does he believe any one else was, until after the death of the said Robert Davy. Thomas Skiffins, one of the attesting witnesses, read over the codicil of the deceased previous to the execution of it, but neither he nor the deceased observed the clause of revocation. Dr. Spinks moved the Court to rectify the error in the codicil, and to decree probate of the will and codicil to the executors named in the will. The codicil was an absurdity as it stood, for the only bequests in it were alterations in the will. SIR C. CRESSWELL: The rule is, the last words of a will and the first words of a deed must prevail. The testator may have meant this:-"I alter the destination of the pro"perty devised by the codicil, but as to all the rest I die in"testate." I must reject the first part of the motion and leave it to another Court to decide what effect the codicil has upon the will. But the testator gives directions as to what his executors are to do, thereby implying that their office still exists, and I can therefore grant probate to them as the executors named in the codicil. By the codicil he revokes a legacy of £150 to his son Robert, and gives him £100, as the latter was indebted to him in the sum of £50, directing the executors not to require payment of the £50. This direction saves their appointment. In the Goods of FRANCIS KEENE (deceased), on Motion. Limited Administration.-Probate.-20 & 21 Vict. c. 77, s. 73.-Deeds.-Practice. It is not sufficient, in order to make out the title to a term of years, etc., with the view of obtaining administration, to refer to deeds, deducing such title in affidavits; the deeds themselves must be brought into the Registry. By indenture bearing date the 27th day of January, 1817, after reciting that Thomas Burge, or George Bennett in trust for him, then stood seised of a certain estate in fee-simple, the said George Bennett and Thomas Burge demised a certain parcel of land therein comprised to Francis Keene, his executors and administrators, to hold the same for the term of 1000 years, at a peppercorn rent, in trust, after the respective deceases of Thomas Burge and Sarah his then present wife, for such persons as William Burge, the son of Thomas Burge, should by any deed or deeds executed by him, or by his last will and testament appoint, and in default of such appointment, in trust for the executors or administrators of William Burge. By indenture dated the 9th day of September, 1819, made between Francis Keene, of the first part, Sarah Burge, the widow of Thomas Burge, then deceased, of the second part, William Burge, of the third part, and William Foord, of the fourth part, for the consideration of £100 paid by William Foord to Sarah Burge and William Burge, the said premises described in the former indenture were mortgaged to William Foord, subject to redemption on payment to the said William Foord of £100, and interest as therein mentioned; and William Burge, pursuant to the power reserved to him, appointed the said premises after the decease of Sarah Burge to remain in Francis Keene, his executors and administrators, during the remainder of the said term of 1000 years, upon trust for William Foord, until payment of the said sum of £100 and interest, and subject thereto upon trust for William Burge, his executors, administrators, and assigns, for the remainder of the said term. 1859. February 23. In the Goods of KEENE. 1859. The said mortgage security was afterwards assigned by WilFebruary 23. liam Foord to John Suy, to whom the principal and interest secured by such mortgage were paid off in December, 1825. In the Goods of William Burge died on the 29th of April, 1820, intestate, and letters of administration of his effects were granted by the Episcopal Court of Wells in October, 1820, to Elizabeth Burge, his widow. She afterwards married Robert Edney, and died leaving him her surviving. William Burge left two sons, George Burge and Sylvester Burge, his only children, who, together with his widow, were the only persons entitled in distribution to his personal estate and effects. In 1832, George Burge and Sylvester Burge, by two separate instruments, released all their right and interest in the said premises and other the personal estate and effects of the said William Burge, deceased, to Robert Edney and Elizabeth his wife, whereby, and by virtue of his marriage with the widow of William Burge, Robert Edney became the sole person entitled to the said premises for the remainder of the term of 1000 years. Robert Edney died on the 21st of November, 1858, having made his will, whereof he appointed George Burge and Robert Edney exccutors, who duly proved it in the District Court of Wells in December, 1858. Under the trusts of the will, the two executors had sold the said premises for the remainder of the term, but were unable to make a legal title thereto for want of a personal representative of Francis Keene in this country. Francis Keene died in the United States in April, 1852, leaving a will dated the 14th of August, 1849, whereof he appointed his son Francis Keene sole executor, who was then, and still is residing in the United States, and who was not likely to return to England. The said will of Francis Keene was not likely to be proved in England, and the parties interested were desirous of having letters of administration of the personal estate and effects of the said Francis Keene, limited to his interest in the said premises and the remainder of the said term, granted to George Burge, as one of the executors of Robert Edney deceased Affidavits of George Burge and Robert Edney were relied upon in proof of these facts. Dr. Wambey moved the Court to decree letters of administration of the goods of Francis Keene, deceased, to be granted to George Burge, as one of the executors of the will of the said Robert Edney, deceased, limited to the remainder of the said term of 1000 years in the premises above mentioned. The Court had power under the sect. 73 of 20 & 21 Vict. c. 77, to make such a grant. SIR C. CRESSWELL: The deeds referred to in the affidavits, for the purpose of showing the deduction of the title to the term, must first be brought into the Registry. I cannot act on affidavits that A assigned to B, C, D, etc. The executor of Francis Keene, the trustee who proved his will in the United States, must also be cited. 1859. February 23. In the Goods of KEENE. Motion to stand over. In the Goods of HARRIET COOKE. Administration.-Practice under 20 & 15 Vict. c. 77, s. 73. Administration will not be granted under sect. 73 of 20 & 21 Vict. c. 77, to a person not by law entitled to the grant, when the person who is entitled to it is resident abroad, and has not received notice of the application, unless the Court is satisfied that it is necessary and convenient that the grant should be made. A general statement upon affidavit that "it is necessary for the preservation of the personal "estate and effects of the deceased that administration should be "granted," will not satisfy the Court, in the absence of such notice. Harriet Cooke, a widow, died at Barrackpore, on the 5th of December, 1857, leaving a will bearing date the 4th of November, 1854, whereof she appointed her brother-in-law, John Francis Griffith Cooke, sole executor and residuary legatee in trust, and wherein she also named her children residuary legatees. She left four children her surviving, viz. Frances Harriet Harris (wife of Philip Harris), Bryan William Darwin Cooke, Mary Jane Durell Cooke, and Charles Edward Cooke. The executor duly renounced his right to the probate of the will and also to the letters of administration with the said will annexed. Two of the deceased's children, Mary Jane Durell February 23. In the Goods of HARRIET COOKE. 1859. February 23. HARRIET COOKE. Cooke and Charles Edward Cooke, who were in this country, being minors, had elected their maternal uncle W.T. Scott to be In the Goods of their guardian, for the purpose of taking administration (with the said will annexed) for their use and benefit. Frances Harriet Harris, one other of the deceased's children, having attained the age of twenty-one, would be entitled, as one of the residuary legatees named in the will, to have letters of administration (with the said will annexed) granted to her; but she was then resident at Canton in China, and was not likely soon to return to this country, in which she had no agent. The fourth child, Bryan William Darwin Cooke, was then also resident abroad, at Diamond Harbour, in New Zealand, and was still a minor. An affidavit of these facts was made by the uncle William Treuren Scott, which thus concluded:-" It is necessary, for "the preservation of the personal estate and effects of the said "testatrix, that letters of administration (with the said will "annexed) shall be granted." A proxy of renunciation by the executor, and proxies of election of William Treuren Scott as their guardian by the two minors resident in England, were also filed. Dr. Wambey now moved the Court, under the 73rd section of 20 & 21 Vict. c. 77, to grant administration (with the said will annexed) of the personal estate and effects of the said Harriet Cooke, widow, deceased, to William Treuren Scott. SIR C. CRESSWELL: The affidavits do not explain anything, or mention any circumstances to justify the grant. Application should have been made to Mrs. Harris for her consent to this motion, which might easily have been done. A case of pressing necessity should be made out, if I am to use the extraordinary powers given by the 73rd section. As Mr. Cooke is not willing to take probate, I might unquestionably have made the grant, if I had been satisfied that it was, according to the words of the section, "necessary or convenient." You ought to have shown that there is a necessity, in order to bar one of the deceased's children of her rights; and the very general words at the end of Mr. Scott's affidavit do not satisfy me of the necessity. Motion rejected. |