Thomas v. Thomas

114 Eng.Rep. 330 (1842)

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Nature of the Case

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Facts

John Thomas, the deceased husband of P at the time of his death in 1837 was possessed of a row of seven dwelling houses in one of which John has used as a residence. By will John appointed his brother Samuel, since deceased, and the Defendant executors to take possession of all the houses subject to certain payments in the will mentioned among which were certain charges in money for the benefit of P. On the evening prior to his death John orally expressed a desire to make further provisions for his wife. The next morning, he declared orally in the presence of two witnesses that his wife should have either the house in which he lived and all that it contained or an additional sum of 100 pounds instead thereof. This declaration was brought to the attention of Samuel, D and the executors and residuary legatees and they consented to carry out the intentions of the testator. After the lapse of a few days, the parties executed the agreement under dispute. The agreement recited that the parties wished to carry out the desires of John and that P and her assigns shall and will after taking possession of the house pay over the sum of 1 pound yearly for the ground rent and that she will keep the house and premises in good and tenable repair. P was left in possession of the house for some time, but D after the death of his co-executor, refused to execute a conveyance tendered to him for execution pursuant to the agreement, and shortly before the trial brought an ejectment action under which he turned P out of possession. D objected over the fact that a part of the consideration proved being omitted in the declaration, there was a fatal variance. The trial judge overruled the objection, reserving leave to move to enter a nonsuit. Ultimately verdict was given to P on all the issues.