This was a suit propounding on the last will of the late Mr. Jacob Ricardo, on an unpublished paper left by that gentleman, and by which it was alleged he intended to distribute his great wealth. The deceased, who, it will be remembered, had for many years been one of the leading capitalists of the City, died at Paris in February last. In the year 1824 the deceased executed a will, and in 1826 a codicil. By the former he gave to his widow out of his property, which, at the time of his death exceeded 200,000l. in personal, and 7,000l. in real estate, an annuity of 1,500l. and to each of his children 7,000l., the eldest son having the freehold property, and the residue was directed to be sold and divided equally among the children. The codicil increased the legacy to the widow to 2,500l. In the month of September, 1832, the deceased contemplated making a new will, his property having greatly increased, and he drew up this paper now before the Court, which was marked “heads of a will” and by this an absolute sum of 2,000l., besides the annuity, was given to the wife, also more materially benefiting his eldest son, who had become of age before his death. The deceased, before proceeding to Paris, obtained the sanction of Mr. Lousada to become the executor to the new will, and at the solicitation of his brother, he intimated to Mr. Pierce, his solicitor, that he should forward instructions for a new will. The deceased proceeded to Paris, and was there taken ill, and died on the 17th of February. On his death-bed, and while waiting the arrival of his eldest son and wife, the deceased was asked by Mr. Bonfil, a friend, if he had made his will. The deceased answered in the affirmative, and pointing to a bureau, said he had a copy with him. On his death the paper now propounded by the eldest son was found. The paper was amicably opposed on behalf of the eldest son, and the importance of the question at issue will be seen when it is stated that should the paper be pronounced for, he would receive an additional benefit of about 70,000l. to that originally contemplated by the deceased.
Dr. LUSHINGTON (with whom was Dr. DODSON) said the question now before the Court was whether this paper now propounded was entitled to probate, or that the paper of 1832 was to supersede the others. The Court would remark that the paper in question had the initials marked on it by the deceased in several places, and was signed at the end. He (Dr. Lushington) considered that the deceased meant to adhere to this paper, and that death only had prevented him from executing it. This paper was an important one, and it went to make an additional provision for the wife to increase the legacy to her from 1,500l. to 2,500l. per annum besides the 2,000l. in money. The next alteration was to make a more liberal provision for his eldest son, who had just come of age. It was clear also that the deceased had resolved to make Mr. David Lousada his executor. It was important for the Court to recollect that since the year 1826 the wealth of the deceased had increased considerably, and it was on this ground that the deceased’s brother had advised him to increase the provision for his wife. When the deceased went to Paris on important business there could be no doubt that he intended to make a new will—and when his friend, Mr. Bonfil, who was constantly with him, asked him on his death-bed, if he (the deceased) had made his will, he replied that he had, and that he had a copy of it with him. The necessary deduction the Court must draw from this was, that the deceased intended the paper on which was written “heads for a will,” and which the deceased said he had with him, should operate. The Learned Civilian submitted that, under all the facts of the case, the Court must pronounce for the paper now propounded.
Dr. DODSON considered that as the paper of 1832 named Mr. Lousada as executor, and also contained a distribution of the deceased’s property more in accordance with his increased wealth, the Court must pronounce for it. The property of the deceased in 1826, when the codicil was executed, was about 142,000l., but in 1832 it had increased to between 195,000l. and 200,000l.
The KING’S ADVOCATE (with whom was Dr. NICHOLL) felt convinced that, consistently with the rules of the Court, the paper now propounded could not be propounded for, and after what had fallen from the Court when the allegation in the cause was admitted, he did not think he should be justified in further delaying the time of the Court.
Sir JOHN NICHOLL said, when the case came before the Court on the admission of the allegation propounding the paper, he had expressed an opinion upon it ; at the same time he had thought, considering the magnitude of the property, that he should be justified in having all the facts before him, in order to arrive at more deliberate opinion, and looking to the result of the evidence, the Court was satisfied that it had taken that course. Indeed the evidence has rendered the case more unfavourable to the validity of the paper. The question before the Court arose out of the testamentary paper of the late Jacob Ricardo, who died on the 17th of February last in Paris, leaving a widow and eight children, three of whom were of age, and the rest were yet minors, and the Court was glad that as this was the case that it had all the evidence before it. The property of the deceased was of very great magnitude, the personalty being 200,000l., and the real property about 7,000l. The deceased made a will in 1824, and a codicil in 1826, all in his own handwriting, they were fairly written and attested, but with one witness ; this was not, however, material, as the real property was left to the eldest son. By the will, 1500l. per annum was left to the widow, but this was increased to 2,500l. by the codicil. This will and codicil were valid, and must take effect unless revoked by some valid paper. The presumption of law was always against unfinished papers, and in order to set the will and codicil aside, it must be shown that he had a fixed determination to alter the will and codicil, and that he alone was prevented from doing so by the act of God. The paper propounded showed that the deceased had not made up his mind—it was not fairly written out—had many alterations as to the the distribution of his property among his children (which the Learned Judge enumerated), and the Court could only consider this paper as merely deliberative, and would not do to set aside an executed will. The whole parole evidence clearly showed the deceased had not made up his mind. He was in Paris for six weeks without completing the paper ; and it was not until he was in articulo mortis that he was asked by his friend, Mr. Bonfil, if he had made his will, the deceased merely answering “Yes, and I have a copy by me.” At a period when he had the least scintilla of capacity it was that he said he had by him a copy of the will. The onus probandi lay with those setting up the paper to prove that the deceased intended this paper to operate, and the Court, without departing entirely from the principles laid down, was bound to consider that the paper was an unfinished instrument, that there was a failure of proof to establish it, and that the will of 1824, with the codicil, must have probate granted to it. He should direct the expenses of the suit to be paid out of the estate.
Morning Post - Thursday 29 May 1834
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