The Dorset County Express and Agricultural Gazette.
Dorchester, Dorset, England, 1862-01-21 00:00:00

THE GODMANSTONE WILL CASE.

COURT OF PROBATE AND DIVORCE.

Before the Judge Ordinary,Sir Cassawsu, CaseawaLL.

ROOMS AND ANDEEWIES v. GOODENOUGH.
(Specially Ripsrtsd for this Paper.)
. .

This was an application to admit to probate the will
of the testator, Joseph Goodenough, of Godmanstone,
in Dorset, made in 1859, a former will made in 1858
having been intentionally revoked.
Mr. Montague Smith and Dr. Spinks appeared for the
executors, the plaintiffs in the case—Mr. Roger., of
Bishop's Hull, near Taunton, and G. J. Andrews, Esq.,
solicitor, Dorchester; Dr. Phillimers and Dr. Swabey
for defendant, Stephen Goodenough, Esq., eon and
heir of the deceased ; the Solicitor-General, Dr. Deane,
and Dr. Middleton for the defendants, Rogers and
others intervening.
Mr. Montague Smith said be appeared on behalf of
the executors of Mr. Joseph Goodenough, who died in
1860, having previously made a will, bearing date
30th June, 1858, and subsequently a will made early in
1859. Both wills were substantially the same. The
testator left a sum of £30,000, of whioh the interest
of £lO,OOO was bequeathed to his son, Stephen
Goodenough, during his lifetime, the smallness of
the bequest being accounted for in the will by
the statement that his son was a bachelor, and possessed
of property, and that he had also given his son money
during his lifetime; and further directing the remainder
to be divided between his godson and his sister. He,
Mr. Smith, was there to eontend that the will and
codicil were additions to the will of 1858. The goes-
Son, however, was whether such being the intention of
the testator, the will itself could be revived, or whether
the first will being destroyed intentionally, any subse-
quent testamentary act could take effect. He, the
learned counsel, had to supp,rt the will of 1958. The
eases which bore on the present point were soffiriently
numerouuto establish the position for which he con-
tended. The learned counsel cited the oases Stokelow
and Holes; Robinson, 318; Allen and ldaddoo bearing
upon the phrase "last will and testament."
Sir C. Cresswell : I believe that the Privy Council
have already decided that too much stress should not
be laid on the expression "last" will and testament.
Mr. Smith: That is so, my lord. But the question
here is whether a man can net up a will which has been
destroyed.
Sir Cresswell Cresswell : Precisely, that is the ques-
tion.

Mr. Montague Smith : Just so, my lord, and a ques-
tion upon which, if your lordship should decide in the
affirmative, • great deal will depend.
Mr. Montague Smith: In the well known ease of
Newton,. Newton, as reported in the Law limes, the
question was also raised as to the admissability of evi-
dence in support of a will which had been destroyed,
the learned judge (Dr. Keating) said that where there
was a mistake as to the date, there being no unison
remandi, ho left the question open, at the same time
he held that there was the desire to revoke, and such
instrument could be admitted to probate. He expressed
no opinion as to a will destroyed by accident, unless
where evidence was given as to the contents, and
generally showing the intention of the testator,
Dr. Spinks said he followed on the same side, and he
contended that the revocation of will by • codicil
was simply the revocation of a revocation.
In the present case there was nothing which could
Invalidate the original will, inasmuch as the both wills
were substantially the same. In the case cf • will non-
existent, it would doubtless be for the Court to decide
as to the question of the adreisibility of evidence. In
the Forwent case the will was non-existent, but the cited
cases showed sufficiently clear how the Court should be
guided. The principle involved might be difficult, but
all the authorities were in favour of the view which had
been submitted by his learned friend (Mr. Montague
Smith). The intention to revive a will was very well,
If you could get at the intention of the testater, but it
was only following the practice constantly pursued in
the case of lost wills, and extending the principle appli
cable to such cases, for you to carry out the intention
of the testator in every instance rather than defend it.
He contended that the case before the Court was one in
which the principle laid down by all the authorities
would be recognised. The intentions of the testator in -
thedispositions set forth in a testamentagy instrument
were of the first importance, and there, was nothing
whatever to show that any departune from them had
taken place. The question involved), however diffignitv
was one of very great importance. .The learned *Ansel
proceeded to cite several cases to show that sat of re-
vocation should be established by clear and upmistake-
able evidence of the intention of the testator at the
time when any new instrument, purporting to be a re-
vocation of • prior testamentary act, was a:anted.
The Soliaitor-General (Mr. Roundell Palmer) said lie
appeared for the intervening parties. It had been laid
down in all the authorities, that where • will was made,
• prior testamentary instrument having been destroyed,
in so far as the later document was 'imply in addition
to the former, and was not inconsistent with it, it should
be taken that the later document was little else than a
republication of the first The cue which haLbeen
alludcd to, namely, the Irish "ease, it was held by
the learned Judge that evidence was admissible
to show the intention of the testator. There were
three classes of cases analogous to the one under
consideration. The first of these was the well known
case of Walpole v. Chalmondley, reported in 3rd Veiny,
page 405, • case in which • prior will had been revoked.
Eh% Lushington had, in the case of Tucker ILIA Hales,
expressed an opinion which favoured the view of the
case of Lord St. Heliers and Lady Exeter (3 Phillimore,
461), in which the question was very fully argued, and
in which the point submitted was as to a mistake oc-
curring in the date, or even, as the learned Judge
observed, as to the existence or non-exidenee of
• previous will. It was decided that evidence'
might be taken to show what were the inten-
tions of the testator. The Pth, 204, nd- ;2nd
sections of the Act of Victoria had /set forth ,the
circumstances under which a will might be inade and
revoked, but there was nothing in the present case
which the provisions of the Act would folly meet. The
case took somewhat of the form of a f der:duster:trig.
In the sane of "Onions and Tyler," re in the2th
Term Repents, p.p. 148, 149, in whidk Lord Nation
gave judgment, the question was as to; the ambiguity
arising of out of the testamentary dispositions, in which
it was held that the intentions of the testator "Alerts
they were clear and confirmed by subseeinnt act, should
be'paremount. Mr. Jarman, the learned? althor an work
upon wills, had also laid down the Mime, Immortal by
many distinguished authorities. Pe learned consul
cited numerous extracts in support of his arrfiniebt.)
He Want farther, and contended that even where the
oodicil did not affect the prior testamentary disposi-
tions' did not subtract from them, but only added that
even if it could be utablished that there was recovation
of the list wflVbf 1845, the *ill of 1559 would LOt be
disturbed. (Jarman, chap. in). There were several
legacies left to servants and others, amongst them to
several farm servants of £5 each, who should be in the
service of the testator at the time of his decease.
Them were legacies of £.50 to the daughters of G. J.
Andrews, Esq., and subsequently (in the codicil) to the
sons of the same person. In the will of 1868 he gave a
legacy of £lO to Joseph Keats, but he having quitted
Mr. Goodenough's employ, was left out in the will
executed in 1859, which circumstance constituted the
great difference in the two wills. There was nothing
in the subsequent testamentary act which invalidated
or could be properly said to revoke the former
one, but upon the question of date could throw
the light upon the question, it was clear that
Intention, expressed in the will of 1859 were the real
intention of the testator. That being so, the question
of the admiuibility of evidence, he was in a position to
say that he was prepared with evidence, if the court
should deem it necessary, after the arguments should
have been heard. The authorities were somewhat
ambiguous in respect to the circumstances under which
• revocation can exist, where such has to be implied
In consequence of the destruction of • document by
accident. In this ease there was no such difficulty, for
the aline* emceed': was manifest. He submitted
the ease with some confidence that the coat would
decide the case in accordance with the authorities and the '
view of thp case which be had had the honour to submit
Dr. Dean followed on the tame side. He contended
that Inasmuch as the prior instrument had been
destroyed amino revocandi, the codicil must have refer-
ence to the second instrument, namely, the will of
1869. He was of opinion that nothing could disturb
the dirpesitions set forth in the latter document, bat
some document of which, which evidence could be brought
to hear, showing some change in the mind of the testator.
There was, however, nothing of this kitid The unison
revocnedi was here plain, and the reasons for the reve.
cation wore abundantly and clearly sit forth. There
was no allegation whatever as to • change of testa-
mentary disposition for the will of 1859, but rather
an addition to that of 1858, as explained by his learned
friosd.

>repent We
meet. 7"

Doctor Phillimore said he appeared for the defendant
in this case. lie supported the cue as one of inteetacy.
The question was whether there was power to revoke
an instrument under the circumstances exhibited. Ile
adulated that the cases cited by the Solicitor-General
were against him. The question was one of great dab-
anity, bet on the whole, the case, as submitted, was,
as it appeared to him, one the importance of which
could scarcely by estimated upon a cursory view of the
whole of the circumstances. The learned counsel pro-
ceeded te comment upon the clues cited by the learned
Sobleitor-General.

' Sir Cromwell Crewmen : The argument indiinted.
by the learned doctor'llwas one which he had heard
very frequently advanced in former days, but he, the
learned Judge, could never regard it as being pa/te'.
larly satiafactory.
Dr. Phi Hinters admitted that the case was one of
great difficulty. It would only be wasting the time
of the Court to proceed seriatim. He was, however,
In his lordship's hands. He had little more to say on
the subject than to submit that consideration must be
bad to the general principles of law laid down by the
authorities. The case was different from cases which
ordinarily came before the Court, where • will wes
merely non-ezistant in consequence of accident, Of
when the intentions of testator had become obsolete, in
consequence of changes respecting the dispositions of
the will, over which the testator had no control, R.
confidently left the case in his lordship's hands.
Dr. Stvabey followed on the side. He urged that a
distinction was to be drawn between the act of revoca-
tion and revival, and of incorporation. He submitted
that in the case under consideration, the revocation in-
volved a question of the power of the testator to revoke
a testamentary instrument. -
At this stage of the proceedings the learned Judge
inquired whether it was the desire of the learned
counsel to reply.
Mr. Montague Smith raid that as it was just four
o'clock, and if it should meet his Lordship's reeve-
nience, he would prefer to usaks his reply on the
morrow.
The Court accordingly adjourned at fora o'clock.

THURSDAY, gam 111%.
The hearing of this ease was resumed at 11 o'olock
this morning.
Mr. Montague Smith was heard in reply. He eon.
tended that a will revoked may be spin set up.
mere act of destruction was not a revocation. Theft
was not the slightest implication that such a document
could not he revived.
Sir Cromwell Cromwell: The case here is—a will not
existing. There is no implication of revocation, bet it
is the case of a will not existing in point of law, ami
a writing or legal instrument non-existent in point of
tact

Mr. Montague Smith Etactly, my lord, the will is
non.existant, but, as stated by Dr. Spinks in this era,
it was revocation of a revocation. The will, although
destroyed, is within the terms of the statute. There
was nothing to prevent the Court from entertaining the
will of 1858 as a will, because the revival is established,
or rather the intention.
Sir Cresswell Cresswell: Yes; that is what you have
to otabliaili.
Mr. Montague Snrith : I am to establish the revival
of a will by evidence, such as is contained in subvention
tosta,mentary acts. It was said that I had no moo.
Well, I have no cases except those which have been
already sited. But there was nothing in those MOW
which bad the effect of nullifying the original will. It
was a case of a duplicate will, and union we could
suppose a double killing, we could net gut rid sf the
original will.
Sir Cresswell Croswell: It is the habit in some Corti
to!lay.the 'dein, but not here.

11 Mr. Montague S,uith ; There was no incorporative,
I The revival of a will was exactly what revival mem.
There was nothing to prevent a will being set up if evi-
-1 deuce existed u to the intentions of the testator. There
was nothing in the present instance to show that the
intentions of the testator, as exhibited in the first will,
were changed.
Sir Oreescrell Cresswell Did not you say, Mr. Solicitor
General, that it was your intention to put'in evidence in
support of the will of 1831)?
The Solicitor-General: Yea, my lord, if Mr. Georg
James Andrews is in Court, I will examine him.
George James Andrews examined: lam a soleitor
residing at Dorchester: I knew the testator. I sated
as his solicitor. I knew that he made • will in ISSO,
That will was destroyed. It was destroyed in my aloe,
by burning in his presence, and by his authority, about
the !Alpert of January, 1860. I was at the tests-
ton. 'poke to me about his wishing to makes
oodicll his will, and asked Me what was requisite.
I asked him to allow me to make it, but he refused,
he should make it himself, as there were some friends
which he should wish to remember. He said he should
wish Mr. Rogers to have the pony and carringe, and to
do something further for the serventa. There was
nothing said about either wills. It was • mere con-
versation. The testator said be intended to make a
codicil to his will, and asked um what was requisite.
I advieed him to allow me to draw it up for bins, bid
he would not. _

The Solioitor.flatieral : That is the evidence, my lorcL
Sir Cresswell Cresswel? lie only at for farther evi-
dence beeam4e there may possibly be an appeaL In that
case I shouid like to have the whole case before me.
The Solicitor-General: Just so my lord. I have
only offered the evidenoe to the Court in support of the
statement made in my argument.
Sir Crewmen Cromwell: Is there any further evi-
dence? Does Dr. Phalimore desire to leader any
Ividenoe ?
Dr. Phillimore : No, my lord, I have no eridesea to
offer.