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Colonial Cases

Casement v. Fulton, 1845

[succession]

Casement v. Fulton

Judicial Committee of the Privy Council
17 June 1845
Source: The Times, 18 June, 1845


JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.
Tuesday, June 17.
ANNE LADY CASEMENT, WIDOW, APPELLANT; FULTON AND ANOTHER, RESPONDENTS.
  This was an appeal from the decree or sentence of the Supreme Court of Judicature at Fort William, in Bengal, rejecting an allegation propounding an instrument, dated the 14th of April, 1844, as the will of Sir William Casement, K.C.B., deceased, late Major-General in the service of the Hon. East India Company, on their Bengal establishment, and a member of the Supreme Council of India, who died at Cossipore, in the suburbs of Calcutta, on the 16th of April, 1844. The respondents were the next of kin of the deceased. The appellant was the widow of the deceased, and entitled under a will, the validity of which was now disputed.
  A caveat against granting probate of this will was entered on the 4th of May, 1844, on the part of the respondents.  The deceased was seized with cholera in April, 1844, he immediately gave instructions for his will, which was prepared and brought to him as he was in bed; he attentively read and perused the same, and well understood and approved it; he signed it in the presence of Simon Nicholson, who [was] in an adjoining apartment, but in the presence of the testator, signed the attestation as a witness. It was thought necessary that there should be two witnesses, and accordingly, in about two hours Mr. Alexander Garden, a surgeon in the service of the East India Company, was called in, and the will was produced to the deceased, who was informed that two witnesses were requisite, and he was asked whether such instrument  was his will, and whether he acknowledged the signature thereon to be his signature; and the deceased having looked at the instrument in the presence of Nicholson and Garden, distinctly acknowledged the signature to be his signature, and the will to be hid will, he being of sound mind, memory, and understanding at that time. Mr. Nicholson also acknowledged the signature to the will as an attending witness to be his signature, and Alexander Garden then subscribed his name at the foot of the memorandum of attestation. An allegation to the above effect was filed on the 6th of June, 1844, by the appellant; and on the 21st of June, 1844, the respondents filed their exceptive allegation to the admission of the allegation of the appellant. On the 1st of July, 1844, the matter was argued before the Supreme Court of Bengal, and on the 8th of July, 1844, the Supreme Court delivered judgment, admitting the exceptive allegation, and rejecting the allegation propounding the pretended will, and decreeing the costs to be paid out of the estate.
  On the 8th of August, 1844, notice of appeal was given, and on the 30th of August the appeal was filed, and he petition for leave to appeal (filed on the 12th of December, 1844) was formally allowed by order of Court on the 23d of December, 1844. The respondents upon this contended, that by the general principles of law, and practice of all ecclesiastical courts, at the time when the appellant filed her petition for leave to appeal (12th of December, 1844) her right of appeal was altogether abandoned, lost, or perempt, and that leave ought not legally to have been granted her by the Supreme Court, and they, therefore, prayed their Lordships to recommend Her Majesty to reverse the order, and to pronounce against the appeal; but should their Lordships decide that point in favour of the appellant, then the respondents prayed their Lordships to report to Her Majesty against the appeal, on the ground that the will in question was not duly executed as required by the provisions and enactments of the act No,. 25, of A.D. 1838, of the law or acts of the Governor-General in Council, the words of which were verbatim the same as the 9th section of the English Will Act, 1st of Victoria, c, 26, with the omission of the words "shall attend and" before the word "subscribe."  The words of the Will Act in force at Calcutta were:- "And it is hereby enacted, that no will shall be valid unless it shall be in  writing, and executed in manner hereinafter mentioned - that is to say, it shall be signed at the foot or end thereof by the testator, or  by some other person in his presence, and by his direction, and such signature shall  be made or acknowledged by the testator in the presence of  two or more witnesses present at the same time, and such witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary."
  Sir Thomas Wilde, Dr. Addams, and Mr. Kirwan, were counsel for the appellant; Messrs. Oliverson, Darby, and Lavis, solicitors; and the Solicitor-General, Dr. Harding, and Mr. Mallins, were coujnsel for the respondents; Mr. William Whyte, solicitor.
  The counsel for the respondents were first heard on the first point, that the appeal was perempt.
  Their Lordships said they should call upon the appellants tomorrow morning, at 11 o'clock, to go into the merits of the case.
The Times, 26 July, 1845
Friday, July 25.
(Present, Lords Brougham and Wharncliffe, the Right Hon. S. Lushington, Vice-Chancellor Knight Bruce, Sir Hyde East, and Sir E. Ryan.)

CASEMENT v. FULTON.


  This was an appeal from the sentence of the Supreme Court of Judicature in Bengal, rejecting an allegation propounding an instrument as the will of the late Lieutenant-General Sir William Casement, K.C.B. The appellant is the widow and the sole beneficiary interested under the will, which had been pronounced against for defective execution by the Court below, against which sentence she appealed.
  The respondents are the next of kin.
  The case was heard on the 16th, 17th, 18th, and 19th June, when Sir T. Wilde, Mr. Fitzroy Kelly, Dr. Addams, and Mr. Kirwan, appeared for the appellants; and Sir F. Thesiger, Mr. G. Turner, Dr. Harding, and Mr. Mallins, for the respondents.
  Lord Brougham, on behalf of their Lordships, now gave judgment, and after recapitulating the facts, affirmed the sentence of the Court in Bengal, and directed that the costs if both sides should be paid out of the estate.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School