The Sun.
London, England, 1841-04-07 00:00:00

PRIVY COUNCIL.-(THIS DAY.)

WOOD AND OTHERS V. GOODLAICE AND HITCHINGS.

The Court opened at a few minutes past ten.
The ATTORNEY-GENERAL resumed his argument on behalf
of the appellant. The Learned Counsel proceeded to read
and comment upon portions of the judgment of Sir Herbert
Jenner. That Learned Judge had laid down the doctrine that
the
°instructions were superseded by the will. He (the At-
torney-General) contended that the instructions were to be
considered as a will until they had been revoked. There
could not be the least doubt that it was the intention of the
testator to leave his property to the four individuals named in
paper A. It was contended that it was revoked by B. So far
as B was inconsistent with A, that doctrine would hold good,
but no further. By A a joint tenancy was created, by B a
tenancy in common ; so far the latter was a revocation of the
former. He submitted, however, that the Learned
Judge was entirely mistaken in the character which he
had given to A. Although it was headed instructions,
its character must be determined by its contents. There were
numerous cases to show that a will remains unreveked until
another will was executed. The Learned Counsel was pro-
ceeding to refer to several cases in support of this view, when
be was interrupted by an intimation from the Bench that they
were satisfied upon the doctrine. It was said that B had no
operation ; that it was a nullity on account of the uncertainty
as to who should take the beneficial interest. If B were a
nullity then A stood unrevoked. The doctrine for which he
contended had been actedupon, not only in the Courts of Com-
mon Law and Equity, but also in the Ecclesiastical Courts.
The Learned Counsel then proceeded to refer to the case of
Eagshawe and Phillimoi e, p. 48, in which, there being five
scripts propounded, Sir ohn Nicholl pronounced for three of
them, as containing together a will. In this case the Learned
Judge ought to have pronounced for B and A, as containing
together the will of the deceased. The Learned Counsel then
referred to the case of Forsyth and Jones, 3d Phillimore, 485,
which had been cited against his clients; contending that it was
clearly distinguishable from the present case. In that case Sir
John Nicholl said he considered the instructions in some de-.
gree ambiguous. Here there could be no doubt as to the in-
tention of the testator. The Learned Counsel then referred
to several other cases on the same point, from which he con-
tended that probate should have been granted of B, and of so
much of A as related to the executions, in order to constitute
a perfect will. The Learned Gentleman then cited the cases of
Molyneux and Molyneux Smith v. Blilburn, Scholes v. De
Fleur, Hodges and Horsfall, and several ohers, in order to
show that a will, signed according to the Statute of Frauds,
and recognising another paper, although the latter was net
signed, still the Courts would adopt it as part of the first,
it being imported into it by the recognition. That was
the case in the cause before their Lordships. There was
the testamentary paper appointing the executors; but who
were to he the devisees ? that was clearly pointed out by
another paper referred to in the instrument signed by the
hand of the testator. They were to be the executors who were
appointed by that paper. In the very voluminous papers ex-
hibited in the cause no other will had been propounded. The
Learned Judge in the Court below, had in his judgment cited
no cases in support of the law he laid down. He had quoted
no authorities whatever in support of his position. But their
Lordships were not bound by anything done by him. They
would exercise an independent jurisdiction. They would look
at the law of the case as laid down in the books—at the deci-
sions come to by those who had adorned the bench, and in
doing to be had no doubt they would come to the
conclusion that the Learned Judge of the Prerogative
Court had erroneously refused probate to his clients.
Now Sir Herbert Jenner had not referred to one
single authority, or rule, or practice, in support of the decision
which he had pronounced. Although his clients had not proved
all that they had alleged, yet he contended that they had
proved enough to entitle them to probate. The suit went to a
hearing exactly as if none of the allegations had been made,
which were now complained of. But what were their Lord-
ships to do in the present case? If they came to a similar
decision, it would be tantamount to saying that Mr. Wood had
died intestate. It appeared to him that their Lordships could not
avoid coming to the same decision as Sir H. Jenner with regard
to the codicil dated July, 1835, and if that were so he
apprehended that the codicil could not be set up in any other
shape by the parties taking interest under it. There was no
instance of such a proceeding in the records of the Ecclesias-
, tical Court, and he did not think that such a course could be
sustained on any principle of ecclesiastical or common law. He
should now proceed to consider the various charges that had
been brought against the executors, and he thought he could
show, either that they were wholly unfounded or that they did
not bear at all upon the question their Lordships had to decide,
and could not influence their judgment. One of the charges
was, that there was an attempt on the part of the executors to
evade the payment of the duty, and with regard to that and
many other of these charges of misconduct, he would observe
that they invariably arose from the admissions of the executors
themselves, and it should be recollected that these admissions
could not be taken without the accompanying explanations, to
.which he should again refer. The next charge was one
of a very foul nature, and almost amounted to a charge of
murder. It was' alleged that Mr. Wood, the testator, wi-s
extremely ill—that they would not call in a medical
man to see him, and that consequently he died. Now he need
not remind their Lordships that it had been given in evidence
that Alderman Wood arrived nn the Tuesday—that he earnestly
entreated to be allowed to call in a medical man, and that he
subsequently went for Mr. Corder, one of the most eminent
medical men in Gloucester, who attended him to his death.
The next charge referred to the destruction of a document
which had been executed by the testator in I'B3l, and that
charge was founded upon the statements of the executors them-
selves. It had been done at the suggestion of Philpots, who
said that, as it was of no use it might be put in the fire. The
evidence of the executor Osborne as to the document was,
that it contained no demise or bequest of any property
to any party. Another document of the same nature
was destroyed a few days subsequently, and they solemnly
denied that any other papers or documents had been destroyed
or made away with. 1 hat was the history of the transac-
tion, and it amounted to nothing, because if there had been
any fraud intended Mr. Philpots never would have .dis-
clesed the transaction ' • and it was only from his statement
that the other party had any knowledge of it.
Lord LYNDHURST inquired how that act was charged ?
The ATTORNET-GENERAL said it was charged in a general
way, without assigning any particular object which the par-
ties had in view. He then read over the evidence given in the
Court below as to the assembling of the executors on the
morning of the day on which Mr. Wood died, and contended
that it was inconsistent in all its facts. He would ask their
Lordships whether, if the executors had been about
the business which was charged against them, would
they have allowed the servants free access to the
room in which they were ? A fac-simile of the document
was made, which seemed to have greatly offended Sir H.
Jenner. Now he (the Attorney-General) remembered being
in a case of forgery at the Central Criminal Court, where Mr.
Baron Parke dire;:ted fac-similes of the alleged forged docu-
ment to be furnished to both sides. He was sorry it had been
made without the special leave of the Judge, but surely there
is as no occasion for so much ire.
Lord LYNDHURST—He probably disliked the exhibition of
the fac-similie, as creating a prejudice in the minds of the
witnesses, which would operate on them when they saw the

The ATTORNEY-GENERAL said, it was not exhibited to
the witnesses. Now, he would ask their Lordships, on con-
sidering the whole of the case, what ground there was for even
a suspicion that theye had been a former will. He would then
come to the question of the codicil.
The SOLICITOR-GENERAL said he must interpose here. His
client was with the Attorney-General as appellant against one
portion of the judgment of the Court below ; but, with respect
to the codicil, he was an appellant on his own account. He
claimed the right therefore to open his own case. Having
saved to himself the right to open his own case, and to have a
reply upon that part of the case, he would be happy to hear ail
that his Learned Friend had to say with respect to the eodicll.
(The case was proceeding when we went to Press. )

SHIPWRECK AND LOSS OF LIFE

In t he course of yesterday information was received in the
City c f the loss of the following vessels, which we regret to
state w cs attended with loss of life : On Saturday last the coast
througl tout the kingdom was visited with a severe hurricane,
which uccasioned considerable damage amongst the shipping,
indepei idently of the loss of the undermentioned vessels. The
Britain aia schooner, from St. Ives, Captain Hayes, was lost
on Saturday, on the rocks under Trevethick cliff, near
Padstow, Cornwall. At the time she was wrecked she was
endeavouring to get into the harbour under full sail, when
the force of the gale drove her on the above-named rocks.
The coast guard and inhabitants of Padstow, observing the
dangerous position of the vessel, and being convinced that
she must become a complete wreck, at the same finding that
it was totally impossible to put off in their boats without
running the hazard of a fate similar to that of Lieut. Smith
and his crew a short time since, on the same coast, from the
immense surge, resorted to the apparatus of Captain Manby,
firing rockets to the Britannia. So perfect was the aim that
the first rocket which was fired reached the deck, when a haw-
ser was attached to the rocket line, and hauled ashore ; the dis-
tance from the beach to the vessel was upwards of a quarter
of a mile. A communication being thus made, a cradle was
fixed to the line, by which means the whole of the crew, con-
sisting of seven persons, were safely landed. Shortly after
the preservation of the crew, the bottom of the vessel broke
up, when the cargo, consisting of coals, was washed out, and
subsequently the vessel became a total wreck. On the 18th
of last month the ship Globe,_ belonging to Bath, on her
voyage from that place to New York, was lost off the Bahamas.
She had on board 1.260 bales of cotton, and was insured to
the amount of 600/. ; her value is, however, considerably
above that sum. The whole of the crew and passenger'
were saved. On the 27th of last month, the vessel called
the Heureuse Julienne, belonging to Vannes, for Rouen, was
totally lost on the coast of Loch, near Quimper. Three of the
crew were lost. On Thursday, the Ist. inst., during the gale
the smack Wellington, of Skerries, Grimsley, master, in making
for the harbour of Drogheda struck upon the bar and became
a total wreck. The crew consisted of seven persons, all of
whom got into the boat, but in the attempt to reach the
shore the boat, from the heavy surf, got swamped, when five
of the poor fellows met a watery grave. The ill-fated smack
was bound for Dublin, and had a freight of potatoes on board.
On the night of the 18th of last March the brig Rinaldo,
Captain Parsons, from Gloucester to New York, was lost off
the Bahama Islands, but the crew were saved. The vessel is
insured for 1,500/. On the 22d of March the schooner Mary
Ann Belton, Faulkner master, was lost at St. Michael's as
was also the Mary Ann, Captain Carter, off the same place a
few days afterwards. Both of the vessels were laden with
oranges and lemons. The crews were happily saved. In the
course of last week accounts were received of the loss of four
other vessels in the Atlantic during the prevalence of the hurri-
cane. They were all outward-bound from London to New
York. Amongst them were the brig Leo, Captain Haley,
laden with a general cargo; and the brig Samaritan, for New
York ; and Havannah, from Greenock. The crews of both
these vessels were saved. The loss sustained by the shipping
interest during the last month on the English coast is estimated
at several hundred thousand pounds.

MR. ADAMS'S ORRERY.—Mr. Adams has
commenced his popular lectures on Astronomy, and will
tinue them during the present week and Easter week, at the
Adelphi Theatre. These lectures were, we believe, originally
delivered at the Italian Opera-house, and attracted a good
deal of attention from those who are desirous to become ac-
quainted with astronomical science by the easiest means, and
who have not time to make a long study of it. The lectures
are, as usual, illustrated with very good apparatus, and with
a transparent orrery, by means of which information is im_
parted in an easy and agreeable manner, and an impression is
made upon the memory, through the eyes, which it will be
almost impossible to forget. To those who have some know-
ledge from reading of the science, this orrery and apparatus
will supply what mere reading can with difficulty convey, and
to young persons of both sexes who have not the advantages
of a scientific education, and to whom mathematical learning
is unknown, they will be found exceedingly useful. The doc-
trine of the tides, of the eclipses, and of the orbit of the stars
and heavenly bodies, are clearly explained by the lecturer, and
there is this good feature attending the explanations, that whilst
they are sufficiently clear to suit all capacities, they are not
made pantomimic by the introduction of unnecessary scenery
and grotesque representations. They are very fit to instruct
young persons who are at home for the Easter vacation.
The daughter of the Count and Countess Fla-
tbank, who had been ill for several weeks, died on Friday, in
Paris.