Braughing
An Interesting Will Case
The hearing of the Probate action in the matter of the estate of Ezekiel Walter Martin, late of North View, Braughing, Near Ware, retired farmer, who died on February 17, 1927, came on for hearing before Mr Justice Hill in the Probate Court on Tuesday, the 7th inst., and it related to the question as to whether the last will of the deceased, date September 23, 1924, was duly executed.
The will referred to, of Ezekiel Walter Martin, was made by him on a printed will form.
Mr W.O. Willis, K.C., and Mr Noel Middleton (instructed by Messrs. Hare and Son, of Much Hadham) were the council for the plaintiffs, the children of the late Ezekiel Walter Martin, who claimed that the Court should pronounce against the will and that the deceased died intestate; and Mr Cotes-Preedy, K.C., and Mr T. Bucknill (instructed by Messrs. S.J. and S.T. Miller, of Cambridge) were the counsel for the defendants, three of the grandchildren of the deceased, Walter, Arthur and Neva (children of Mr Harry Martin), who benefited [sic] under the will of the deceased.
The gross value of the estate of the deceased was stated to be £12,426 7s. 3.d
Mr Justice Hill said: This is a case very near the line, and of some difficulty. The document which was executed as a will bears date September 23, 1924. On the face of it, it is unimpeachable, and, indeed, if both witnesses were dead it would be impossible to impeach it. It is on a printed form. The writing throughout is that of the testator, with a number of paragraphs. There is no signature at the end of the last paragraph, but a little further down appears, in print, the formal attestation clause, with a bracket against it and against that bracket, on the first two lines, appear the signature and description of the testator, on the next two lines the first witness, and below that the second witness. It looks like a properly executed will. The presumption in law therefore arises, and is strong, that this was the duly executed will of the testator.
But, on the other hand, the two witnesses are alive, and they have both been called. To the recollection of the first witness, Miss Ashdown, I do not attach much importance, because she was evidently an elderly lady; she was extremely nervous in giving her evidence, and it is not so clear as it otherwise would be; and her recollection is, I think, not entirely to be relied upon.
So far as it goes, she said this: That the will was folded, leaving only the lower half of the second page upwards as the will lay on the table, and nearly all the space above the printed attestation clause was covered over with a bit of paper; and she says that when she put her name to that bit of paper, as she did, the name of the testator was not upon it. I have pointed out that in those circumstances it is odd that she should have begun to write her signature as a witness, not on the first line abreast the bracket of the attestation clause, but on the third line; and as it now appears the first line is occupied by "Ezekiel Walter Martin, retired farmer," and the second line by the village where he lived. Still, that is her definitive statement, that there was no signature.
Mr Simpson, the other witness, is much younger, and he is quite positive upon it that there was no other writing when he signed: "There was no other writing that I saw." He again says that the bit of paper was put across the will, bringing it down to about the fold of the document as it then stood, that is to say, an inch or two above the attestation clause, and that when he signed there was no writing upon what was opened to him, except what Miss Ashdown had written.
He said his memory was quite clear. He is giving evidence now at the beginning of 1928 with reference to something that happened in September, 1924, but he had in an affidavit sworn in April, 1927, said the same thing; so that his recollection is the same throughout - it is not so very long ago.
In face of that evidence I feel bound to say that the presumption is rebutted, and it has been proved that this signature of Mr Martin's was not on the document at the time when the two witnesses signed, but has been put upon it at some later time. In coming to this conclusion, I am not ignoring the fact that Mr Martin had made wills before and that on a later occasion when he witnessed a will it was all done in proper order; but I cannot - I wish I could but I cannot; my sympathies are the other way - do other than find that this will was not properly executed.
I think it is the greatest possible misfortune, because it seems that so far as most of the members of this family are concerned, the thing has been driven to this legal decision. The costs will come out of the estate.
Mr Willis: Your Lordship, for the moment will pronounce against the testamentary papers of September 23, 1924?
Mr Justice Hill: Yes.
Mr Bucknill. I do not know whether your Lordship would say in this case that the costs should come out of the estate as between solicitor and client?
Mr Justice Hill: Certainly.
Mr Bucknill: It is a case where the matter has had to come to the Court.
Mr Jusitce Hill: I think so. I think that is fair.
Mr Willis: If your Lordship pleases.