The Sun.
London, England, 1841-04-08 00:00:00

PRIVY COUNCIL-(THIS DAY.)

WOOD AND OTHERS V. GOODLAKE AND HITCHINGS.

Mr. PEMBERTON resumed his arguments to-day, following
the Attorney-General on behalf of the appellants, When the
Court rose yesterday he was proceeding to cite some of the
1 cases with respect to the course usually pursued where refer-
ence was made by one paper to another. In the ease of Wood
v. Wood the testator gave instructions for his will ; he died
before the will was made, and after his death it ap-
peared that a trifling addition had been made to the
instructions ; those instructions were propounded as a will, re-
ference was made to the addition, and it was declared that the
two papers formed the will of the testator, and probate was
granted. The class of cases cited by the Attorney-General
had the strongest bearing upon this point ; in those cases re-
ference was made to the Statute of Frauds, and what degree of
reference was necessary to papers signed to make them con-
stitute a will. In the cases of Sanderson and Jackson, Shortland
and Cheek, and Johnson and Dodson, the reference necessary was
laid down. In Hodges and Horsfall, where there was a re-
ference to an agreement, it was held sufficient to refer to it " as
per that agreement." Now, in what cases had it been held
that the reference was insufficient, and there ,re inadmisaible ?
• Why, in these cases, first where there was no instrument at
all; secondly, where the instruments differed ia some
particulars; and, thirdly, where there was more than
one instrument which endorsed the reference doubtful.
In Boydell v. Drummond, which was the case with respect to
the subscriptions to the Illbstrations to Shakspeare, there w, re
two prospectuses which differed, and there the reference was
held to be bad. In Smart v. Pragen, which was the case of a
will, the papers did not answer the description referred to in
the will, and there the reference was also held to be bad..
In Dillon v. Harris, in " Bligh's Reports," the same prin-
ciple was acted upon. There the son of the tes-
tator had formed a connection with a female, which the
testator was desirous of breaking off, and he made him sign a
declaration in writing that he would break it off. The testator
then made his will, in which he made provision for his son on
condition that he strictly adhered to the solemn engagement he
had entered into, and which engagement the testatorsaid had been
placed by him in the hands of his trustees and executors : the
engagement was violated, and the question was whether that
engagement had been properly referred to by the will ; and it
was held that it was not, because it had never been placed in
the hands of his trustees and executors ; and in King v. Bailey,
in Milne and Keene, a similar decision had been come to. He (Al r.
Pemberton) was not aware of any other authorities turning
upon a different principle ; he had not found any case
where a plain reference had been made to an existing agree-
ment, where the instrument produced answered the descrip-
tion, and where no other instrument was produced that the evi-
dence had not been received. For a collection of all the cases
on these points, he would refer their Lordships to Mr. Wig-
ram's book on Extrinsic Evidence, where all the cases on the
subject would be found. Now, applying the principle
laid down in those cases to the case at present be-
fore their Lordships, their Lordships must see whether B
did refer to any paper at all, and if so, did the paper A answer
that description ? and idly, had there been any other paper pro-
duced that answered that descript ion, Now, first, did Bract. to any
paper at all? In the first clause in the will, the positive
clause, Mr. Wood said, " I declare my wish to he,
that my executors should have all my property that
I have not disposed of. I wish all my estates, real and per-
sonal, to go to them and their heirs," Was it possible, there-
fore, to deny that there was a reference to a previous
vaster? There was a reference to persons of a certain
description, of a description that could not be created except
by writing ; he giving to those persons filling that character
' the whole of his personal estate, and also the whole of his
real estate. But supposing it was said that this referred to
executors intended to be appointed, what were the next words ?
Why, " I give them all my estates, real and personal." Now,
could such a gift as that take effect to persons to be named
afterwards?
Lord I.lsNntinasT—How would it be if it was executed in
the presence of three witnesses ?
Mr. PEMBERTON-It might then perhaps amount to a gift ;
but when a gift was made, vas it not probable that the parties
in whose favour that gift was to operate, had already been se-
lected. Unless the parties had been selected, who was to be
benefited by it? and if the testator had not appointed his ex-
, ecutors, Tor what earthly purpose could he make the gifts. In
the present case the testator had determined that there should
be executors ; he had determined that these should
be more than two, and what he said wag that
he gave 'all ' his property, real and personal, among
his executors. The will could . answer -no purpose
whatever if it was to have reference to parties that had
not been named. Nothing was more common than a gift to
executors in their character of executors; but he (Mr. Pem-
berton) had nevermet with a case in which a testator had made
a devise to executors, and then stated who those executors
were in another instrument. He would beg of their Lordships
to look to the other parts of the evidence, and wl.en they
did so, he would leave it to them to say whether
there was not a distinct reference to the executors ?
When one document referred to the other in this manner, what
other instrument were they to produce ? For what purpose
could reference be made to the instructions in this will, except
for the purpose of giving effect in some manner to those in-
structions ? Did any man ever commence his will by saying
" This will is begun in accordance with my instructions ?" Why
then did the testator refer to these instructions? Because the
will with reference to these instructions was a perfectly good
w.ll in every particular, because it supplied the only thing
wanted in the will, and that which was wanting, anti the ab-
sence of which made it inoperative But then how was the
will itself imperfect? Not because it did not contain a dispo-
sition of the testator's real estate, but because the testator had
not expressed his whole intention. It showed an expression of
intention, but an imperfect expression, and consequently by the
rules of the Ecclesiastical Courts they must inquire whether
there was any instrument by which the imperfection of the
will might be supplied. lie (Mr. Pemberton) showed the
paper by which this defect was cured. Such a paper
should be entitled " Instructions." It should contain the
appointment of executors it should be called Instructions, be-
cause the will referred to " Instructions." It should
contain the appointment of executors, because that
was wanting to complete the will. Now, what did they find
la paper A ? It agree", in each and every particular, with
the instrument to which reference was made. It was entitled
" Instructions," and it contained the appointment of Execu-
tors. And, further, it contained a prospective reference
to B. It contained an allusion to the disposit6n
of . his real estate by a subsequent instrument.
Nor was there anything inconsistent in this? It was said there
was this inconsistency, that there was a gift of the personal
estate by A, and also by B. Was there anything inconsis-
. tent or improbable that the testator, when completing the in-
strument in a most formal manner, should repeat the disposi-
tion of his personal property? But it was not a repetition
except in this sense, that it gave authenticity to the
same persons. If, then, these papers were in all res-
pects consistent, did not the evidence before their Lordships
prove that these gentlemen must have been his executors?
All the evidence as to the appointment of executors was
equally evidence as to the bestowal of the bounty. Whenever
testator declared that he appointed executors, it was in
evidence that he intended his executors should take
the bounty, the declaration of the one being always
accompanied by a declaration of the other. 'The At-
torney-General had gone so fully through the evidence
that he (Mr. Pemberton) would not trouble their Lord-hips
at any length by commenting upon it. But he would men-
tion that with respect to that of Mary Wilkins, which had not
been referred to, she deposed to an important conversa-
tion with respect to the executors and the bounty, and that on
the very night the conversation took place she mentioned
it to a person name.l Jones. The accuracy of her
statement was brought to the test by cross-examination,
but no other attempt was made to dispute it. There were no
less than eight witnesses, each of whom confirmed the evi-
dence as to the appointment of executors and the disposal of
the bounty. Mr. Sutton deposed that testator told him that
he had made provision for the payment of his debts. The
Lea n:d Judge said this did not prove anything with respect to
the bounty, but it proved the appoiwment of executors,
fo it could only be by their appointmens he could make
ir, vision for payment of his debts. Mr. Stephens, who had
an important interest in the settlement of his affairs, also de-
posed that testator said to him, " Tell your father that I have
made my will, and left my property to four individuals ; they
are my executors, and will pay you and your father and every
body else. Two of them are Alderman Wood and Jeoub."
Now how did this affect the argument? They wanted
to know whether testator had appointed four execu-
tors, and whether these were the persons. He told
another person that he had made This provision, be-
tween the Ist and the 4th December. Was this witness to be
discredited? He had given the strongest proof of the accuracy
of hi ;statement, for he had instructions to withitraw his father's
deposit of 2,000/., in testator's bank, if testator's expl motion
was not satisfactory, but he considered it to be so, and left the
money. The Learned Judge said this declaration
stood alone, and was the only one mace to
any witness in which reference was made to four
persons as sharing his property, and that when he
referred to Alderman Wood and Jacob, he thought
1 testator could hardly have referred to his will made in Decem-
ber, 1834, but to some other document which he might have
issued in the intermediate time, The Learned Judge said,
moreover, that be thought it was only a declaration of the
appointment of executors, and did not go beyond that..
He - (Mr. Pemberton) did not wish anything further. He
1 did not wish to get evidence of testator's intention respecting
the family. The proof of that intention was unimpeached,
and the question then was, whether the testator recognized the
appointment of executors who ilmtdd wind up his affairs ?
'1 he evidence on this point was confirmed by the evidence of
Stanley and Webb. His repeated declarations to this effect
were the subject of general conversation in the city of Glou-•
cester, which appeared to have been greatly occupied with his
affairs. It never appeared that he had named to any
person that he had appointed any other executors. Not one
witness proved that testator ever hinted at any others. Why
then were these witnesses to be disbelieved, since they were all
of them persons as much eutitled to belief as any in the highest
station? He (Me. Pemberton). did net care whether II res
fern ed to A or not; what he wanted to know was, whether testa.
tor by any paper appointed executors. since the evidence was
beyond all doubt in favour of these parties, and proved that they
were entitled to probate of the will. With respect to the evidence
of !gm Goodlake, the Learned Judge disregarded her deela.
rations, because he could net believe she was opposed to the
will, but this he (Mr. Pemberton) thought was the very
reagent for believing them. The Learned Judge fell into an
inaccuracy that pervaded his whole argument. He thought they
propounded pap hr A ns ip*uutigus, and as if Mr. Wood had
signed it ili illitructions, but they did nq such thing, On the
contrary, they were prepared tq show that it was not his in-
structions, but prepared In Ponsevence of his instructions,
It was entitled "Instructions," but they had never propounded
it, considered it, or imagined it as instructions In a legal sense,
If they had, the Learned Judge would have been correct.
The case was ?weeding when we went to press.

CRIMINAL COURT. .(THIS DAY.)

OLD COUPT. •
(Berore Mr. Baron GoarrzY.)
POST.-OFFICE ROBBERY.— William Hammond, aged 17,
and Richard Hammond, aged 15, were indicted. the former
for stewing a post letter containing a bank note value bi , and
two sovereigns, of Charles Na,h, and the latter with having
feloniously received the note, knowing it to have been stolen,
Mr. Shepherd (with whom was Mr. Adolphus) having
stated the case for the prosecution, called the following
witnesses

Chad s Nash was in London on the 27th of February last,
and on that day inclosed a W. note and two sovereigns in a
letter to a friend at Devonport. The note was nnrobered
99,691 L. B. He gave the letter to Mr. Davis to post it.
Mr. Isaac Davies, a solicitor, had received the letter from
the last witness, and took it tc the Post-office receiving-house
in Jermyn.street, between the hours of eleven and two, on
27th February, He gave it to the prisoner, William Ham-
mond, to whom he paid 2d, for the postage of the letter.
Mr. J. Lamb is a clerk in the Post-office. A letter put
into the receiving-house in Jermyn-street ought to have been
received at the office in St. Martin's-le-Grand at half-past two
o'clock. Witness counted over the letters on that day, but did
not find any letter addressed to Devonport.
Henry Finch is a licensed victualler, living in Middle-row,
Holborn. He changed the M. note in question fur a lad
named Webb, in the employ of Mr. Llo3d, of Staple Inn, soli-
citor. He wrote Mr. Lloyd's name on the note when he re-
ceived it.
After a number of other witnesses had been examined,
Mr, CutaxsoN, for the defence, contended that the evi-