EASTER TERM, 29 VICT. year 1838 Elizabeth married George Hewitt Lander. Previous to her marriage she executed a settlement by which she conveyed (with other real estate) her undivided. moiety of Shelmore Farm to a trustee for such uses (amongst others) as she "should, by any deed or deeds, instrument or instruments in writing, with or without power of revocation, to be by her legally executed, or by her last will and testament in writing, or any codicil thereto, to be by her signed and published in the presence of and attested by three or more credible witnesses, shall, from time to time direct, limit or appoint, give or devise the same; and in default of such direction, limitation or appointment, gift or devise, and so far as no such direction, limitation or appointment, gift or devise shall extend, to the use of the said Elizabeth Johnson, her heirs and assigns, for ever." On the 20th March, 1852, Elizabeth Lander, in pursuance of the power, made her will, by which she gave all her real estate to her husband, George Hewitt Lander, and his heirs absolutely. This will was attested by two witnesses only, in the form prescribed by the Wills Act, 7 Wm. 4 & 1 Vict. c. 26, s. 9. The defendant's counsel objected that this was not a valid execution of the power, and the learned Judge reserved the point. Elizabeth Lander died on the 1st April, 1852, and on the 11th July, 1856, her husband, George Hewitt Lander, died intestate as to the estate in question. There was no issue of the marriage. The plaintiff claimed as heir at law of George Hewitt Lander, and traced his descent from Charles Lander, the common ancestor of the plaintiff and George Hewitt Lander. Charles Lander had (besides other children) a son, John Lander, and a daughter, Elizabeth Lander. John Lander had an only son, George Lander, who was the father of George Hewitt Lander. Elizabeth Lander mar 1866. HUBBARD v. LEES. 1866. HUBBARD V. LEES. ried James Moore, and they had (besides other children) a son, John Moore, and a daughter, Fanny, who married one Wells. John Moore had a daughter, Elizabeth Moore, who married John Hubbard, and the plaintiff was their eldest son. The defendant was the tenant of one Thomas Purden, who, upon the death of George Hewitt Lander, obtained possession of the estate in question under a claim as heir at law of George Hewitt Lander. Thomas Purden, who was allowed by a Judge to defend the action, traced his descent from a sister of Charles Lander. In order to prove the births and deaths of the other children of Charles Lander, the plaintiff gave in evidence various certificates of births, baptisms, marriages and deaths, and also adduced some parol evidence (a). The plaintiff also tendered in evidence a copy of the New Testament, containing entries of the births and deaths of the children of Elizabeth Moore, the mother of John Moore, the plaintiff's grandfather. This Testament was produced by Maria Moore, a daughter of James Moore, the son of Elizabeth Moore's husband by a former wife. Maria Moore stated that the Testament was formerly her grandfather's; that she had seen it in the custody of Fanny Wells (the daughter of Elizabeth Moore), who had kept it until a few years before her death, when she gave it to James Moore, the father of Maria Moore. The defendant's counsel objected to the reception of the Testament in evidence, on the ground that there was no proof of the handwriting of the entries. The learned Judge admitted the Testament in evidence, and reserved the point. The plaintiff also tendered in evidence certain letters forming part of a correspondence between Fanny Wells, the daughter of Elizabeth Moore, and Ann Lander, the (a) See post, p. 421, note, EASTER TERM, 29 VICT. wife of John Lander, the grandfather of George Hewitt Lander, in which they respectively addressed one another as aunt and niece, and in which Fanny Wells mentioned the death of several of her relations. These letters were formerly in the custody of Fanny Wells. The defendant's counsel objected to their reception in evidence, on the ground that there was no proof of the handwriting. The learned Judge reserved the point and admitted the letters. The plaintiff also gave in evidence a letter of Thomas Purden, in which he set out the pedigree, by which the plaintiff's title was traced to John Moore. No question was left to the jury, but the learned Judge, with the consent of counsel, directed a verdict for the plaintiff, reserving leave to the defendant to move to enter a nonsuit, or a verdict for the defendant on the objections taken. Powell, in the present Term, obtained a rule nisi accordingly, or for a new trial, on the ground of the improper reception in evidence of the New Testament and the letters, and also that there was no valid execution of the power of appointment (a); against which Gray and Dowdeswell shewed cause (April 17).-First, the New Testament was properly admitted in evidence. Entries in a family Bible, stating the fact and date of the birth, marriage or death of a child or other relation, are admissible in evidence without proof that they have been made by a relative; for as a Bible is the ordinary register (a) Powell also moved on the ground that there was no sufficient evidence of the identity of the parties named in some of the certificates of births, baptisms VOL. IV.-H. & C. and deaths; but the Court said F F EXCH. 1866. HUBBARD v. LEES. 1866. HUBBARD v. LEES. of the pedigree of families, and usually accessible to all its members, the presumption is that they have acknowledged and treated the entries as correct. The same rule prevails with respect to entries in the New Testament. It is only necessary to prove that the Bible or Testament has come from the proper custody, and to account for the possession of the person who produces it. Here it was proved that the Testament was at one time in the possession of the sister of the plaintiff's grandfather.-Secondly, the letters were also admissible in evidence, for they were part of a correspondence between members of the same family, addressing each other as relatives, and making statements with reference to the death of other members of the family. Thirdly, there was a valid execution of the power of appointment. The 10th section of the 7 Wm. 4 & 1 Vict. c. 26 enacts" that no appointment made by will in exercise of any power, shall be valid unless the same be executed in manner hereinbefore required; and every will executed in manner hereinbefore required shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such a power should be executed with some additional or other form of execution or solemnity." That section applies as well to powers created after as before the passing of the Act. It was so laid down by Lord Westbury, C., in Taylor v. Meads (a), which affirmed the decision in West v. Ray (b), that a power of appointment to be exercised by a writing under the hand and seal of the donee cannot be exercised by a will executed with only the formalities required by the 7 Wm. 4 & 1 Vict. c. 26. Here there is an express power to appoint by will. (a) 34 L. J. C. 203. (b) Kay, 385. Powell and H. Matthews, in support of the rule.-First, the entries in the New Testament were not evidence without proof of the handwriting, or that they were made by some member of the family. [Martin, B.-Such entries are quasi records.] The rule that entries in a Bible are admissible without proof that they were made by a relative, does not apply to any other book, however religious its character may be; but proof must be given, either that the entry was made by some member of the family, or that it has been acknowledged or treated by a relative as a correct family memorial, or, at least, if ancient, that it was made at the time when it purports to have been written: Taylor on Evidence, vol. 1, p. 565, 4th ed. [Martin, B.-What difference can it make that the entries are in the New Testament, not in the Bible ?]-Secondly, the letters were not admissible without proof of the handwriting. It should have been proved aliunde, not by the letters themselves, that they were written by a relative, and then they would be admissible as the written declarations of a deceased member of the family. [Martin, B.—Are they not authenticated by the conduct of a member of the family in preserving them. It seems to me the same as if Fanny Wells had said, "I have an aunt named Ann Lander."] A person, by preserving a document, cannot be taken to admit the truth of every statement contained in it.-Thirdly, there has been no valid execution of the power of appointment. The 9th section of the 7 Wm. 4 & 1 Vict. c. 26, declares that no will shall be valid unless in writing, and attested by two witnesses in a certain prescribed form. Then the 10th section provides that every will executed in the manner required shall be a valid execution of a power of appointment by will, notwithstanding some other form "shall have been expressly required." That does not apply to powers created after the Act came into operation. The 1866. HUBBARD v. LEES. |