Note Relating to the Contesting of the Will of James Stamford Caldwell (1787-1858)
From: Reports of Cases Decided in the Court of Probate

February 15. 1860   (page 528)

Marsh and Others v Marsh and Others 

Will. - Codicils. - Presumption as to what Papers form part of a duly executed Will. - General revocatory Clause of all former Wills. - Effect of Annexation of Codicil to former Wills revoked.- 1 Vict.c.26,s.22. - Costs. - Omission from Probate of opprobrious Terms.

When several sheets of paper, constituting a connected but not in all points a consistent disposal of the property, are found together, the last sheet being duly executed, the presumption, in the absence of direct proof, is, that they all formed the will of the deceased at the time of execution. A general revocatory clause "all former wills" leads to the inference that the deceased at that time intended to leave a subsisting will.

The physical annexation (by a piece of tape, e.g.) of a duly executed codicil of later date to testamentary papers, duly executed but revoked, is no ground for inferring the "intention to revive," required by 1 Vict.c.26,s.22.

Semble: Such intention can only be shown by the contents of the codicil itself.

In this case the testator, James Stamford Caldwell, died a bachelor on the 17th November, 1858. He had had three sisters, married respectively to W.S. Roscoe, Esq., A.C. Marsh Esq., and Sir Henry Holland. Mrs. Roscoe and Lady Holland died before the testator; Mrs. Marsh, who had several daughters but no son, survived him, and as coheir was one of the defendants.

Twenty-seven executed wills and codicils were found after Mr. Caldwell's death, besides a large number of incomplete testamentary papers; Eliza Louisa Marsh, Georgina Amelia Marsh, and Rosamond Jane Marsh, as executrixes, propounded a will bearing date the 19th of May, 1856; a codicil of the 18th June, 1856; and a codicil of the 29th of April, 1858.

The will of 1856 consisted of seventeen pages, and was written on paper of three different sizes, loosely tied together. The first three pages and the last of the two concluding sheets were in the testator's handwriting; ten of the intermediate pages were parts of a will  prepared in duplicate by the testator's solicitor in 1854; and the three remaining sheets were part of a draft will prepared by another solicitor, under the testator's instructions, in 1856. Of this document the two last sheets were executed and attested, being dated respectively the 22nd of March and the 19th of May, 1856. The last sheet contained a general revocation of all former wills. The codicil of 1856 is sufficiently noticed in the judgment. The codicil of the 29th of April, 1858, was wholly in the testator's handwriting; it was found, as more particularly described in the judgment, annexed by a tape to a will of 1851 and a codicil of 1852; and the only important point in respect thereof raised and determined was the effect of the annexation, in reviving the testamentary papers to which it was found annexed.

Dr. Deane, Q.C. and Mr. Dowdenell, for the plaintiffs.

Mr. Serjt. Pigott and Dr. Wambey; Dr. Spinks, Mr. Hannen, and Mr. Osler; Dr. Phillimore, Q.C. Mr A. Hobhouse, and Mr J.D. Coleridge, for defendants and parties cited.

Sir C. Cresswell: After stating the nature of the suit, said several parties pleased separately, and in the result the following issues were raised: Whether the writings propounded were and contained the last will and codicils of the deceased; whether they were duly executed; whether the sheets other than the last sheet of the will, dated the 19th of May, 1856, were annexed to or formed, together with that sheet, the last will of deceased at the time of the execution of such last sheet. Similar questions as to the codicils. Whether the last sheet was duly executed, and intended by itself to be a will, or codicil, or testamentary paper revocatory; whether the word "her" was written "his" at the time of the execution of the second codicil; whether the interlineations "situated in the counties of Stafford and Chester," in the same codicil, was written before execution; whether a paper writing, bearing date the 1st of March, 1851, was executed as a last will of the deceased, and a paper writing of the 31st of January, 1852, was executed as a codicil thereto; whether deceased by the codicil of the 29th of April, 1858, intended to revive the will of the 1st of March, 1851, and the codicil of the 31st of January, 1852. First, the plaintiffs proved that in 1856 the testator executed a paper as a will - it was indeed twice executed, on 22nd of  March, and again on the 19th of May; the forms required by the statute were complied with on each occasion; the very paper signed and attested was therefore a will. The next question to be considered is, secondly, what did that will so signed consist of? Take the case as it would have stood on the first execution. Where a will is found written on several sheets, and the last only is signed and attested, although the witnesses did not observe the others, the prima facie presumption is, that they were in the room, and formed part of the will at the time of the execution: (Gregory v. Queen's Proctor, 4 N.C. 620.) Is there anything to confirm or rebut that presumption? The last page of the will as originally executed on the 22nd of March, 1856, which was written on the second page of the half sheet of paper, began with these words "aforesaid trust, or in relation "thereto," which were manifestly the conclusion of the sentence which had been commenced on the preceding page, it then proceeded: "And lastly, I do hereby nominate and appoint my nieces Eliza Louisa Marsh, Georgina Amelia Marsh, and Rosamond Jan Marsh, executrixes of this my last will and testament, and I do hereby revoke all former and other wills and codicils by me at any time heretofore made, and declare this to be my last will and testament: in witness," etc. The last page therefore of the will, as executed on the first occasion, began with a few words which completed a sentence commenced on the proceeding page, and which must have been there at the time, being on the same sheet; but that and the eight preceding pages were part of a will prepared for the testator by his solicitor, Mr. Keary, in 1854, and no one page could be separated from the others without leaving the sense imperfect; it is therefore reasonable to infer that the whole were there, so as to make sense. The last page of the will as re-executed began with the same words as before, completing a sentence, and was a copy of the last page as it stood when executed for the first time, except the omission of one of the executrixes; there can be no reasonable doubt, therefore, that the last page of the will as before executed was there; if so, the preceding page must have been there; and if the nine preceding pages were there when it was executed the first time what reason is there for  supposing that any of  them were afterwards disannexed? Continuing the examination of the contents of the will backwards, it is found that these clauses prepared by Mr. Keary are preceded by some clauses relating to personal property contained in three pages, which had been prepared at the request of the deceased by a solicitor, Mr. Ward. Mr Ward sent them to him on the 21st of March, 1856; the will was executed for the first time on the 22nd; the first presumption is therefore fortified by the probability that Mr. Caldwell, desiring to make a new will, waited until he received those clauses, and when he had received them added them to the will before it was executed on the 22nd of March. If those clauses were annexed to those prepared by Mr. Keary before the execution on the 22nd of March, there is nothing to raise a presumption that they were afterwards disannexed. The remainder of the will consisted of three sheets, all in the handwriting of the testator, containing the disposition of his real estates, and those three sheets have manifestly been prepared at one and the same time. The will then consists of three portions: first, the formal commencement and disposition of real property; secondly, the special clauses as to personal property; thirdly, several provisions and trusts relating to the real and personal estate. It is true that some provisions in the third part are inconsistent with the first, but any one or two of the parts without the rest would be so manifestly imperfect, and the reasons for supposing that the whole were there are so much stronger than any contrary presumption arising out of the inconsistency of some parts, that I have arrived at the conclusion of fact, that all the sheets now forming part of the will of the 19th of May, 1856, did so at that time. Dr. Spinks likened it to the case of alterations; but that differs from the present, for there the Court has evidence before it that the will was originally in a different form from that produced. The argument that the last sheet on which the execution on the 19th of May was written was intended to be a perfect instrument  by itself, simply revoking all wills, is, I think, disposed of not only by the reasons already given, but by the appointment of executors, which would have been useless had he intended simply to revoke all wills; and by the expression, "revoke all former wills and all codicils thereto," which imports that the instrument then about to be executed was to have operation as a testamentary disposition of his property, and not merely as causing him to die intestate. Thus far, I think, two points are established; that on the 19th of May a will was executed by deceased consisting of the several sheets of paper found attached together after his decease, and that all former wills were by that instrument revoked. After that a codicil was executed on the 18th June, which was only assailed by the argument that the codicil of the 29th of April, 1858, revived a will of the 1st of March, 1851, and had the effect of revoking all other testamentary papers. It seems to recognize that will of 1856 by referring to the revocatory clause. The deceased had made a will in 1854, and a codicil in 1855, by which he devised a cottage at Wood-lane to Mary Beardmore for life; that was revoked by the will of May, 1856; the codicil in June excepts "from the revocation of my former will or "codicil thereto, all mention of a cottage and garden to my housekeeper, Mary Beardmore, which is to have full force and effect;" this codicil again appointed his three nieces, Eliza Louisa, Georgina Amelia, and Rosamond Jane Marsh, his executrixes, one of whom had been omitted when the will of 1856 was re-executed on the 19th of May. The next instrument propounded by the executrixes is a codicil bearing date April 29th, 1858, which was found attached by a piece of tape to a will made in 1851. The execution of the codicil, as required by the statute 1 Vict.c.27, was proved, and there was not any evidence to rebut the prima facie presumption that the whole of  - (page 533) - of it was there at the time; on the contrary, the evidence of the attesting witnesses, although not very clear and precise, supported and confirmed that of presumption. The important question remains, as to the effect and operation of this codicil, under the following circumstances. After the testator's death, at his residence, Linley Wood, a search was made for his will, and in a cupboard in his dressing-room was found a leather case, not locked, but tied round with tape. It contained a great many testamentary papers, and, amongst others, the will of 1856, the codicil of 1856, the codicil of 1852, and the will of 1851, with the last codicil of the 29th April, 1858, attached to it by a piece of tape at the upper corner on the left hand; other testamentary papers were found in the cupboard. It was argued that the testator, by attaching the codicil to the will of 1851, revived it; this depends on the construction of the statute, 1 Vict.c.26,s.22: "And be it further enacted that no will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by a re-execution thereof, or by a codicil executed in manner hereinafter required, and showing an intention to revive the same." The codicil, therefore, must show the intention to revive. It may be assumed that a codicil to a will shows an intention that some will should be operative, and, prime facie, the last existing will, especially if that revoked all others, must be taken to be the will intended. If the testator had made only one, and had torn it animo cancellandi, a codicil "to his will" might revive it, but still it would be the contents of the new will which would show the intention. But can any act dehors the instrument be resorted to for the purpose of establishing the intention? I apprehend not; it would be such act, and not the codicil, then that showed it. It appears to have been the object of the legislature to put an end equally to implied revocations and implied revivals. The words of the section are plain, and I must act upon them. Again, if the annexation is to have any effect, when did it take place? There is no ground for presuming that it was before the codicil was executed; there was no natural connection between them, independently of the contents, to raise the presumption. If an act dehors the codicil may affect the question, must it not be done before or at the time? If it may be done after, why should he not be allowed to shift it from one to another, and to make the codicil revive, first one will and then another, according to the fancy of the moment? That cannot be the meaning of the section. But counsel, feeling the great difficulty of contending that the act of annexation would affect the question, endeavoured to maintain that the contents of the codicil showed an intention to revive the will of 1851. In order to ascertain the value of that argument, let us see what were the provisions of the several wills to which it applies. By the will of 1856 all landed and real property was at the commencement given to trustees, to pay all rents, etc., to the use of Ann Marsh for life, and remainder to her daughters, etc. And it contained a direction that Ann Marsh, and every person under the will becoming entitled to Linley Wood and other real property by the will devised, shall assume the name of Caldwell. The property in and near Derby was afterwards given to his nephew, W.C. Roscoe, for life, etc. By the codicil of 1858 the person possessed of Linley Wood was to have the interest of his personal property, after the investment of ?8,000 in land, which was "to be settled expressly to follow the same directions and provisions as to my landed and real property devised by my last will." What will does he mean? Any will theretofore made, or any will thereafter to be made, or any disposition by that codicil made? The codicil contained the following disposition of the real property:- "I will and direct that Linley Wood , with its appurtenances, and all real estate and property, mines, lands, houses [situated in the counties of Stafford and Chester respectively shall go to such nieces as shall be unmarried at the time of my death, so long as such nieces shall continue unmarried (I mean the daughters of my sister Ann Marsh), and in case of the marriage of any such niece, then to the survivors or survivor who may remain unmarried." This disposition by the codicil would, if read without the interlineations, give all realty to Ann Marsh for life, remainder as to land in Stafford and Chester to his nieces. The land in Derby is not mentioned. On the death of Mrs. Marsh, therefore, the property would be divided; if the codicil is read with the interlineation it would be divided immediately. By the will of 1851 all real property in Stafford, Derby, or elsewhere is given to Ann Marsh for life, remainder all to nieces in succession, etc. By this will all would be left together. But it was argued that the codicil directing ?8,000 be invested in land, to be settled in the same manner as any landed real property devised by his will, could only be applicable to a will directing all his land to go in one channel; but the codicil in the disposition of the real estate is quite inconsistent with the will of 1851; is the will of 1851 to supersede the codicil as to real estate for the purpose of avoiding the difficulty as to the investment of the ?8,000? Again, in the will of 1856 is a direction to invest ?6,000 in land to be conveyed to the same uses as the real estates thereby devised. Now part of the estates, viz. the land in and near Derby, was thereby devised to Roscoe for life. The same difficulty existed in that will as to the investment of the ?6,000, as in that will and the last codicil taken together as to the investment of ?8,000; and I cannot from the alleged inconsistency, or rather from the difficulty, of saying how the land to be purchased must be settled, infer that he could not intend the codicil to apply to that will. It looks to me like a recognition of the direction in that will to invest money in land, and only increasing the sum from ?6,000 to ?8,000, and I cannot find in the codicil any intention to revive the will of 1851. Upon the whole, then, I am of opinion that the will of the 19th of May, 1856 and codicils of June, 1856, and April , 1858, were duly executed; that they contained the last will and codicils of the deceased, and that the devise to Mary Beardmore in a codicil of the 3rd of July, 1855, revoked by the will of 1856, was revived by the codicil of 1856; that all the sheets forming the will as propounded formed, together with the last sheet, the will of the deceased at the time when it was executed; that the last sheet of the will of 1856 was not intended to be a testamentary paper by itself revoking all wills; that the word appearing "her" in the ninth line of the twelfth page of the codicil of 1858 was written "his" at the time when that codicil was executed; that the interlineations "situate in the counties of Stafford and Chester" was not made before the codicil was executed; that the paper writing bearing date the 1st March, 1851, was executed as the last will of the deceased, and that the paper writing of the 31st of May, 1852, was executed as a codicil thereto; that the deceased did not by the codicil of the 29th April, 1858, intend to revive the will of the 1st of  March, 1851, and the codicil of the 31st of May, 1852. Cost of all parties out of the estate.

Mr. Serjt. Pigott prayed the Court to except from the probate certain expressions in the last codicil derogatory to the Roscoe family.

The Court expressed a doubt whether the words were of such a character as to warrant the application, and suggested that it might lead to inconvenience as to precedent; but, on consent of counsel for the plaintiffs, made the order as prayed.

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