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deliver, or cause to be delivered, to such parson, &c. a notice in writing, dated on
[92] the day on which the same shall be so delivered, of their true Christian names
and surnames, and of the house or houses of their respective abodes within such parish
or chapelry, as aforesaid, and of the time during which they have dwelt, inhabited, or
lodged in such house or houses respectively."

Fifth. That notwithstanding the premises you, the said Rev. Thomas Wynn, have
been for several years last past in the frequent practice of publishing in your said
parish church of St. Nicholas the banns of marriage between persons described in
such banns as of or belonging to your said parish, although at the times of such banns
being published neither of such persons were resident in or of, or belonging to, your
said parish ; and afterwards of marrying certain of the persons whose banns were so
published in virtue of such undue publication, as hereinafter particularly set forth.
Sixth. That by reason of the premises, the marriages had in your said parish have,

32 WYNN V. DA VIES 1 CURT. 93.

for several years last past, been much more numerous than they would have been
had the same been solemnized between persons only of your said parish ; in part
supply of proof, that by the last returns of population made pursuant to the act of
11 Geo. 4, c. 30, the population to whose use your said parish church is appropriated
for marriages is 1134, and no more, and that the total number of marriages in
your said church, within the period of six years, on the 31st of December, 1833,
was 266.

Seventh. That the following, among other marriages, were had and solemnized by
you, the said Rev. Thomas Wynn, in your said parish church in virtue of banns
published between the parties, in [93] which banns both the said parties were described
as of your said parish of St. Nicholas, to wit, on 31st of December, 1828, Thomas
Powell Chamberlain to Sarah Colcomb; in 1832, 5th of February, William Prosser to
Ann Coburn ; 2nd of April, Richard Preece to Ann Gwillam ; that neither of the said
parties were resident in or parishioners of your said parish, but were at such times
severally and respectively resident as follows : Thomas Powell Chamberlain and
Sarah Calcomb, both in the parish of Much Mansel, in the county of Hereford ;
William Prosser and Ann Coburn, both in the parish of All Saints, in the city of
Hereford ; Richard Preece and Ann Gwillam, both in the parish of Stoke Edith, in the
county of Hereford, &c.

Eighth. That in the year 1833 the following, among other marriages, &c. &c.,
setting forth twelve instances in the same form as in the preceding article.

Ninth and tenth were struck out.

Eleventh. Also, that within the current year, 1834, the following, &c., 2nd of
February, Richard Ackland to Mary Lewis ; 10th of February, Thomas Jones to
Elizabeth Pritchard ; 16th of February, John Lloyd to Mary Lloyd; that at such
times not resident in, &c. as in the former articles.

Twelfth and thirteenth were struck out.

Fourteenth, That in the commencement of this current year, 1834, you, the said
Thomas Wynn, were duly remonstrated with respecting your irregular conduct in
marrying persons who did not dwell or reside in your said parish of St. Nicholas, by
your ordinary, the Dean of Hereford, and warned to be more careful for the future in
relation thereto ; but we further article and object that, notwithstand-[94]-ing such
remonstrance and warning, you, the said Rev. Thomas Wynn, continued to publish
the banns of matrimony between persons who did not dwell or reside in your said
parish ; and thereupon your ordinary, the Rev. John Merewether, Doctor in Divinity,
the Dean of Hereford, wrote and sent you, on or after the 14th of March, this year,
a written admonition in words following (that is to say) :

"Rev. Sir, I had hoped that my visit to you would have had the desired effect,
and it was my earnest wish by that course, which I adopted as most likely to prevent
anything disagreeable to your feelings, to induce you to guard against such gross
irregularities for which you are responsible (not the clerk), and thus to prevent the
painful necessity of further interference on my part. I regret to find, by official com-
munications made to me since my return, that the evil still continues, and that several
most flagrant cases have occurred.

" It now becomes an imperative duty on me, as ordinary, to require that in all
cases of the publication of banns, you will insist in having seven days' notice according
to the Act of Parliament, and will personally satisfy yourself that the parties are actually
and bona fide inhabitants of your parish, or at least one of them, and that you will not
marry any couple, one of whom belongs to another parish, without the certificate of
the publication of banns in his or her parish. I must also require, in case you have
any parties under publication of banns at this time, that [95] you will satisfy yourself
that they are resident in your parish, or that you will suspend the future publication
of them until you are so satisfied. I am, Rev. Sir, your faithful servant,


And we further article and object to you, &c. that your said ordinary, the said
Dean of Hereford, did on or about the 17th of April in the current year write and
send to you a letter in the words following (that is to say) :

" Dear Sir, I am informed that a couple whose banns have been published in
your church the second time last Sunday, by name William Watkins and Ann Dovey,
are not parishioners, nor residents in your parish ; the man took a lodging, and slept
one night in that lodging, where some of his things remain, but that you are aware is


not sufficient. I should have been sorry had this come to my knowledge after the
persons had been married, but it proves the necessity which exists for my pressing on
you the duty of personally ascertaining the fact of residence, and the strict observ-
ance of the provisions of the Act of Parliament. I remain, dear sir, your faithful

Deanery, 17th April, 1834.

Fifteenth. Also, &c., that notwithstanding as well the personal remonstrances and
warning, as the [96] written admonitions and injunctions of your said ordinary, &c.,
as pleaded, you, the said Rev. Thomas Wynn, continued to go on in your unlawful
and irregular practice of publishing the banns of matrimony in your said parish church
between persons, <fec., and that since such remonstrance you have, in the course of this
current year, 1834, published the banns of matrimony between the following persons
respectively, all described of your said parish, to wit, William Watkins and Ann
Dovey ; James Jones and Elizabeth Cotterell ; Henry Woodhouse and Susan Pulling ;
John Baker and Jane Hinton ; John Smith and Mary Cooper ; further (as before), that
neither of the said parties are of your parish, &c. &c.

Sixteenth and seventeenth were struck out.

Eighteenth. That you, the said Rev. Thomas Wynn, are of the parish of St.
Nicholas, in the deanery of Hereford, and therefore, and by reason of the premises,
and of the inhibition issued by the lord bishop of the diocese of Hereford, at or on
account of his triennial visitation, and of your appearance herein given, were and are
subject to the jurisdiction of this Court ; and we further article and object that notice
of such inhibition was duly given to the parties inhibited pursuant to the tenor thereof,
and that the same came into operation on the 10th of July, 1834, .and continued in
operation for the space of three months, and in part supply of proof of the premises
a copy of the original inhibition was exhibited.

Nineteenth and twentieth. The usual concluding articles.

rogative Court, Dec. 8th, 1835. A paper not dispositive upon the face of it,
nor shewn to be by extrinsic evidence, not entitled to probate.

Judgment Sir Herbert Jenner. The question in this case arises as to the validity
of a paper propounded as a codicil to the will of Daniel Agace, Esq., who died in the
month of April, 1828, having made and duly executed a will and two other codicils;
respectively dated the will, 12th of April, 1820, the first codicil, 13th of February,
1826, the second codicil, 20th of April, 1828.

The paper in question, which is all in his own handwriting and is addressed to his
executors, being dated on the 20th of April, 1820, is signed by the deceased, but not
in the presence of witnesses.

Shortly after the deceased's death these papers were all found together, in the same
envelope. Upon applying for probate, a doubt was suggested by the registrars of the
Court whether the paper of the 20th of April, 1820, was testamentary, and it was
stated in argument that, on this doubt being raised, the opinion of counsel was taken,
when the parties were advised that the paper was not testamentary ; and accordingly
probate was taken of the will and the regularly executed codicils ; it [98] being as
alleged at that time considered to be immaterial whether the paper now propounded
was included in the probate or not. Circumstances, however, have since occurred
which have rendered it necessary to take the opinion of this Court as to the character
of this paper.

The probate was accordingly called in, and the paper has been propounded by two
of the executors named in the will, and also by other parties claiming an interest under
it, who have intervened in the cause, and have brought in an allegation supplemental to
that which was offered on behalf of the executors ; and on the admissibility of these
allegations the Court is now called upon to determine.

Before considering the facts pleaded in the allegation, it may be proper to look at
the instrument itself, and what it purports to be, for the terms in which it is expressed
may be so clearly dispositive as not to require any extrinsic aid to entitle it to probate ;
or, on the other hand, it may bear so little the character of a testamentary disposition,
as to be scarcely capable of having that character impressed upon it, by any circum-
stances whatever ; it is in these words : " I hereby inform the executors named in my
last will and testament, dated 12th of April, 1820, that the sum of twenty thousand

E. & A. in. 2


pounds, three per cent, consolidated annuities, part of the stock standing in my name
in the books of the Governor and Company of the Bank of England, is stock in trust
conformably to the will of my late uncle, Zachariah Agace, late of Stamford Hill, in
the parish of Hackney, in the county of Middlesex, dated the 3rd of November, 1775,
and which said sum, after my decease, [99] is by his said will directed to be divided
among sundry persons, his relations. I therefore hereby request my said executors to
transfer and divide the said sum of twenty thousand pounds, three per cent, consoli-
dated annuities, in conformity with the directions given in the will of my said uncle."
It is dated Ascot Place, 20th of April, 1820, is signed by the deceased, and is addressed
to his executors : the main purport, therefore, of the paper is to inform his executors
that the sum of 20,0001. consols, part of the stock standing in the deceased's name,
was not his property, but was held in trust conformably to the will of his late uncle,
and that after his (the writer's) decease it was directed to be divided between sundry
relations of his uncle ; and he therefore requests the executors to transfer and divide
that sum in conformity with the instructions given in his uncle's will.

On the face of the instrument, then, it does not purport to dispose of any property
belonging to the deceased, it is mere information to his executors that the stock
mentioned in it does not belong to him, but to the persons entitled under his uncle's
will, to whom they are to transfer it ; it is, therefore, merely explanatory, giving his
executors necessary information for their guidance, as prima facie, the stock standing
in his name would appear to be his property : and such seems to have been the under-
standing of all parties who conceived, as will presently appear, that the property
passed under the will of Zachariah Agace, and not under that of Daniel Agace ; such
also seems to have been the understanding of the deceased himself, who does not
appear to have had any idea that he [100] had anything more than a life interest in the
property mentioned in it. Notwithstanding, however, this impression of the parties,
it is certainly open to them, even at this time, to contend that the paper is a part of
the testamentary disposition of Mr. Daniel Agace ; and that as such, whatever be its
form, it is entitled to the probate of this Court. It is undoubtedly true that the Court
is not precluded from granting probate of a paper on account of the form in which
it is drawn up. Papers having less testamentary appearance than the present (which
is addressed to the executors) have been admitted to probate, such, for instance, as
deeds of gifts, notes of hand, drafts upon bankers, and others ; the Court only requiring
to be satisfied that it was the intention of the deceased that they should be carried
into effect after his death, although the purport of the instruments might not be
strictly testamentary.

It is then necessary to consider the circumstances which are pleaded in these
allegations from which the Court is to collect that this paper was written by the
deceased, animo testandi, for that I apprehend is necessary to be proved, where
the paper, upon the face of it, does not purport to be of a testamentary nature ; for
there seems to be this distinction in the consideration of papers which are in their
terms dispositive, and those which are of an equivocal character, that the first will be
entitled to probate, unless, as in the case of Nicholls v. Nicholls (2 Phill. 180), cited
in the argument, they are proved not to have been written animo testandi ; whilst, in
the latter, the animus must be proved by the party [101] claiming under it, and this
I take to be the sum and substance of the principles which have been established by
the cases which have been adverted to in argument, which it would be useless to notice
farther, for it would be to set about proving first principles, if the Court were to cite
cases, for the purpose of shewing that the object of all inquiry in a Court of Probate
is to ascertain the intentions of the alleged testator, even in the case of an executed
dispositive instrument ; for, as the Court observed in the same case of Nicholls v. Nicholls,
a witness attests a will for the purpose of giving authenticity to the factum of the
instrument, the animus testandi is the very point into which the Court of Probate is
to inquire, the mere act of witnessing or signing does not exclude, of necessity, the
absence of the animus testandi, any more than the mere act of cancellation excludes
of necessity the absence of the animus revocandi. It may have been signed under
duress, or under other circumstances, when there was no intention to make a testa-
mentary disposition.

Now that the paper propounded in this case is of an equivocal character at least,
cannot, I think, be doubted ; no person reading it can pronounce that, of itself, and
abstracted from all extrinsic circumstances, it purports to dispose of any part of the

1 CURT. 102. GRIFFIN t'. FERARD 35

writer's property, or of that over which he had a disposing power ; and in fact, as has
already been stated, it has not hitherto been treated as such, or as having a testamen-
tary character either here or elsewhere ; and the parties who propound it have
accordingly thought it incumbent on them to set forth the special circumstances from
which its character is to be defined.

[102] The first article of the allegation on behalf of the executors pleads the
death of the uncle of the deceased in this cause in 1778, and that by his will, dated
in 1775, he gave his brother, Jacob Agace, during his life 3001. per annum ; to his
nephew, Zachariah Agace, 1501. per annum ; to his nephew, Daniel Agace (the
deceased in this cause), 1501. per annum ; and in case either of his nephews should die,
the other to inherit the whole 3001. ; and in case of the death of his brother Jacob,
without issue, then the two nephews, Zachariah and Daniel, were to inherit from his
brother Jacob ; so that the survivor was to take the whole 6001. per annum for his
life. Mr. Zachariah Agace went on to assign his reason for giving his brother and
nephews the interest of the money only, which was that in the event of their dying
without issue the money might be divided amongst his relations ; namely, his cousins,
James Legrew, Mrs. Susan Goddard, and Mrs. Esther Privo, in three equal shares,
it being clearly understood, the testator adds, " what I leave is to them and their
heirs ; " and it goes on to plead that the deceased's three cousins survived him.

The allegation then went on to plead that no particular fund having been specified
by the deceased out of which these annuities to his brother and nephews were to
issue, the executors, of whom Mr. Daniel Agace was one, and ultimately the survivor,
set apart the sum of 20,0001. three per cent, consols to answer them, and that at the
time of the death of Mr. Daniel Agace this sum, being part of a larger sum in the
same stock, was standing in bis name.

The third article pleaded the death of Mr. Daniel Agace in April, 1828, and
the factum of the will [103] and two codicils, by which, after giving several
legacies to different persons, he bequeathed the rest and residue of his estate and
property of what nature and kind soever to Ann Ferard, who is the other party in
this cause.

The allegation then pleaded the writing of the paper propounded as directions to
his executors, on the 20th of April, 1820, and that it was found in the same envelope
with his will, and two executed codicils ; the doubt that arose as to its character ; the
exclusion of it from the probate ; and that it had been necessary to obtain the judg-
ment of the Court as to its title to probate, in consequence of certain proceedings
relative to this sum of 20,0001. consols in the Court of Chancery ; and concluded with
pleading the paper to be in the handwriting of the deceased.

The nature of the proceedings in the Court of Chancery was not stated in the
allegation of the executors ; but in the supplemental allegation given in by the proctor
of the parties intervening, those proceedings are set forth, and very properly.

It appears that in Easter Term, 1829, a bill was filed by them as the representatives
of the three cousins named in the will of Mr. Zachariah Agace against the executors of
Mr. Daniel Agace, praying that it might be declared that they (the plaintiffs), having
survived Mr. Zachariah Agace, were entitled to equal shares of the 20,0001. consols,
and to the dividends which had accrued since the death of Mr. Daniel Agace, and that
the same might be transferred to them ; claiming, therefore, under the will of Mr.
Zachariah, and not under that of Mr. Daniel Agace, which does not seem to have been
even alluded to. The cause came on to be heard [104] before the Master of the Rolls,
who, on the 25th of February, 1831, dismissed the bill, but without costs, and this
decree was confirmed by the Lord Chancellor on the 1 5th of November in the same
year, on the ground as alleged, that the bequest over being too remote in construction
of law, it was consequently void ; and the allegation pleads that by reason thereof,
Daniel Agace was possessed of a legal and equitable interest in, and had a testamentary
power over, the said sum or part of it, as well at the time he wrote the codicil pro-
pounded, as at the time of his death, and that he wrote the paper in question with
the intention of carrying into effect the will of Zachariah Agace, and more especially
of bequeathing the sum of 20,0001., over which he had a disposing power, and in which
he had a legal and equitable interest.

It then pleaded that the residuary legatee under Mr. Daniel Agace's will filed a
bill in Chancery, on the 5th of June, 1835, against the executor of his will, praying
that it might be declared that, according to the true construction of Mr. Zachariah


Agace's will, she had become entitled to the said sum of 20,0001., three per cent,
consols, and the dividends accrued thereon since Mr. Daniel Agace's death.

Such is the substance of the two allegations, and it may be observed that
the original character of the paper cannot be altered by any thing which has
subsequently occurred if it was testamentary when written, it still retains that
character, if merely explanatory, it remains so and the circumstances pleaded are of
no other use than as affording the means of enabling the Court to judge quo animo it
was written.

[105] I have already said that the paper does not appear to me to be " per se "
dispositive, neither do I think that the circumstance of its being found with the will
and two codicils infers that the deceased considered it to have, or intended to give it,
a testamentary character ; the information which it conveys was necessary for his
executors, and no fitter place for deposit could be selected than that in which the
will and codicils were placed, where it would meet the attention of the executors, at
the same time, with those instruments which they were to carry into execution ; that
circumstance, therefore, may be laid out of consideration, as may also for the same
reason, that of its being addressed to his executors, and who, as Mr. Daniel Agace was
the surviving executor of his uncle, became the representatives of the latter, and, as
such, the persons to carry the unexecuted trusts of his will into effect.

The next consideration is, Did the deceased know that this property belonged to
him 1 certainly not at the time when the paper was written, for the object of the
paper is to tell his executors that that part of the property was not his, and there is
but little probability that he obtained any further information on that point before
his death, it nowhere being suggested that any doubt had arisen as to the legality of
the disposition contained in Mr. Zachariah Agace's will till after Mr. Daniel Agace's
death, when it became necessary to ascertain the right of the several claimants to it ;
if then Mr. Daniel Agace was ignorant that the legal or equitable interest in this
property vested in him whatever the law may presume as to a man's knowledge of
his own rights he could not have had an inten-[106]-tion of disposing of it. True
it is that a person may dispose of property by will without knowing that he had the
jus disponendi, as in the case of a residuary legatee, who would be entitled to what-
ever personal property might accrue to the deceased between the date of the will and
the time of his death, when it is to have effect, nay, would become entitled to property
which the deceased never did know he possessed, either by succession to a person of
whose death he was ignorant, or under some testamentary disposition of which he had
no knowledge. But this proceeds entirely upon the principle that it must be presumed
to be the testator's intention to give to the person named residuary legatee what-
ever was not specifically bequeathed. If, therefore, this paper were clearly testa-
mentary, the Court would have no right to inquire whether the deceased knew his
right or not, but would be bound to grant probate of it, and leave its effect to be
afterwards determined. But the case is very different where the question is, with
what intention a paper, not clearly entitled to a testamentary character, was written ;
in such a case, a knowledge of the jus disponendi seems to be essential to the animus
testandi, the latter could hardly exist without the former ; and as I think it to be
perfectly clear in this case that the deceased was ignorant that he possessed the jus
disponendi of this stock, he cannot be considered to have written this paper with the
intention of bequeathing it.

It has been said that Mr. Daniel Agace might, as an honest man, have thought
it incumbent upon him to carry his uncle's intentions into effect, and not to take
advantage of the legal objection to the disposition contained in his will ; but this
argu-[107]-ment again supposes that he knew that he possessed the right; if he did
not, there was no room for the operation of those honourable feelings upon his mind.

Online LibraryGreat Britain. Parliament. House of LordsThe English reports (Volume 163) → online text (page 7 of 282)