Slike strani
PDF
ePub

which the deceased destroyed, but bankers. He also gave him some the weight of the evidence inclined land at Fonthill for the erection of the Court to think it was on a a manufactory of woollens. There separate paper. This instrument were many letters addressed by the was clearly proved to have been de- deceased to Mr. and Mrs. Mortistroyed by the deceased, who then mer, written in an unreserved became intestate as to his real manner, and confidential. On the estate. The Mortimers were ex

death of the deceased taking place, cluded, and the new executors were his friend and his confidential soliall revoked. The subsequent acts citor, Messrs. Colvin and Drake, of the deceased, in regard to his were sent for: they came and sealed property and relations, and his de- up the repositories, and next day clarations, required to be rather ac- searched them carefully in the precurately examined. Towards the sence of Mr. Fraser ; but no will end of 1822 he purchased the Font- was found. The deceased's keys bill estate for 300,0001., which re- were in the place, where he usually mained in his possession till 1825. placed them. He was accustomed In 18.23 and 1824 he purchased to tie up the two most important other estates, mortgages, and assign- keys in two separate corners of a ments of mortgage. The purchase handkerchief, which he placed of the Fonthill estate was intrusted under his pillow ; and they were to the agency of Mr. Phillips, found there at the time of his who, to secure the performance death. The only paper found, of the agreement concluded with which was in any degree of a testMr. Farquhar, procured from the amentary kind, was an envelope latter an instrument in the form which had contained a will or of a memorandum, to this effect: copy of a will. Four witnesses

I do hereby direct spoke to the finding of this paper, this agreement to be carried into but the circumstances they deposed effect, and performed by my ex- to differed. It seemed to have ecutors, in any will already been found in a drawer, not in named or to be named, as effectu- the iron chest, of which the deally as if I lived, and that this beceased was so particularly careconsidered a codicil to my last will, ful. This paper, accidentally, was already made or to be made.” This not preserved, nor did it appear was not addressed to any executor to be of much consequence how it by name, and it did not bear mate- was endorsed : for whether it was rially on the case. The deceased the cover of the will from India, became displeased with Mr. Phil- or had enclosed the will when delips, and removed him from the livered to Mr. Bland, or accomagency of the estate in 1824 ; panied the will in the iron chest, suits arose between them in law or any other paper, was not of and equity, which were unsettled very great moment. These leading at his death. The management facts admitted of no controversy ; of the Fonthill concern then de. the duplicate will was not scen volved upon Mr. George Mortimer, after the year 1929 ;

it

was then in whom the deceased reposed in the iron chest, of which the degreat confidence, and to whom, it ceased had the key; it was not appeared from the exhibits in the found there, or elsewhere, after his cause, he gave large credit with his death. On these facts, the Court

“ 1823.

had to consider what was the prima burthen of proof lay on the other facie presumption of law, as to who party, to show that the deceased had destroyed this instrument. did destroy it. But this doctrine The first presumption was, that was new, and the Court could find the deceased had destroyed it him- no authority for it: the 'authority self; and if that presumption was quoted (Swinburne) expressly nenot repelled by the evidence, the gatived it. The learned Judge legal consequence was clear that here observed, that he was unthe duplicate in India was revoked. willing, for obvicus reasons, to This presumption and legal conse- refer to any dictum in this Court, in quence might be rebutted by cases decided within the last evidence, but the burthen of proof twenty-nine years, though as far rested on the party setting up the as he had examined them, he had will. The force of the presump- seen no reason to depart from the tion and burthen of proof, in these doctrine there laid down. The cases, differed according to circum- learned Judge then quoted some stances; but if it were contended cases decided by his predecessor, that the destruction was not by the Sir W. Wynn, in which the prindeceased, the Court must be con- ciples he mentioned were recogvinced by satisfactory proof. It nized that, where a will was not might be established by circum- found, the prima facie presumption stances, that the deceased did not was, that it had been destroyed by do the act, or by direct evidence the deceased. If, then, the prein a different way-as that he de- sumption of the evidence estabstroyed it when of unsound mind, lished the fact, that the instrument or in error, or through force and was destroyed by the deceased, the fear, sine animo revocandi, or that legal consequence followed, that the it had been fraudulently abstract- duplicate was also revoked. This ed in his life-time. But under was a point which had been settled this last supposition, the proof must in a variety of cases; and there be still clearer; because here a were the opinions of lord Mansfield, fresh presumption arose in favour lörd Erskine, lord Ellenborough, of the party charged, who could be and sir James Mansfield, to that convicted only by facts leading to effect. The reason of the rule was a certain conclusion of his guilt. obvious: for why should a person All these presumptions were re- destroy a part in hisown possession, if solvable into the axioms drawn he meant the other part to operate? from the common practice of man- The executor might rebut the prekind. People were in the habit of sumption that the deceased dekeeping their testamentary papers stroyed the paper, not by direct carefully; and if an instrument evidence merely, but by circumwas not found, common sense sug- stances producing a strong moral gested the primâ facie conclusion, conviction that he had not done so. that the testator destroyed it with The' executor seemed to have taken the intention to revoke it: and this view of the case ; for he not if he destroyed the instrument only set forth circumstances to in his possession, common sense show that the deceased did not dictated that he intended to cancel destroy the paper, but alleged that which was not in his

posses- facts, showing a fraudulent spoliasion. It had been argued that the tion of the will by another person;

and though no direct and specific stating that Mrs. Hurst could act was alleged which could be re- give some important information butted, it was insinuated too respecting Mr. Farquhar's will, plainly to be misunderstood, that and thus it came out. The meMrs. Mortimer was the person mory of the witness was, however, who committed the act. This was not very accurate. She denied a serious offence charged against facts which her own letters proved. her, and should be supported by In short, no reliance could be pretty clear proof. If proved, placed on the evidence of this there was an end of the case. It witness; and it was but just to was alleged that the deceased, Mrs. Mortimer to state, that not during the latter period of his life, only was this charge not proved, left his keys and papers about, but that she was wholly acquitted and that Mr. and Mrs. Mortimer of the imputation of having dehad access to his house in town. stroyed this will. No proof existWhat did this amount to? A ing that the will was destroyed by possibility that an act of spoliation any other than the deceased: the might have been committed, but case' rested on general statements, it supplied no proof of its com- intended to show the improbamission, or the least circumstance bility of the deceased's doing it, whence it could be inferred. and to lead the Court to conclude The insinuation could only be that it was done by others. The supported on the testimony of Mrs. learned Judge then entered upon Hurst, an undertaker and up- a long consideration of the probaholsteress, at Storey’s-gate, who bilities of the deceased's adherence stated that Mrs. Mortimer had to the will, observing that the disdeclared that she had destroyed positions in favour of the Scottish the will. There was no means of Universities, modo et formâ, was contradicting this, as no other not likely to have been adhered to, person was alleged to have been after the exact inquiries made by present. The Court considered it the deceased on the spot. On the an act of justice to Mrs. Mortimer other hand, the deceased was not not to get rid of this evidence on destitute of regard for the ties of the ground of its inadmissibility. blood, as appeared from his acts and If Mrs. Mortimer had really been letters. Observing the conduct of guilty of this act of spoliation, it persons in general, and the examwas highly improbable that she ple set by ihe rest of the world,

hould not have thought itimproper, the deceased might conclude that or should bave made it known to this such undertakings as the one conwitness., The whole ground-work templated by his will were not to of the alleged conversation respect. be accomplished by an individual, ing the administration was falla- but by the contributions of the cious. The witness had applied many. Besides, the destruction repeatedly for a loan of money to of the codicil might set up the Mr. Mortimer, who had neglect- original will as far as the altered her applications, and it was ation went, but not the parts canhardly likely she would have sup- celled and erased. The learned pressed such a secret. Not getting judge then proceeded to show pecuniary assistance from Mr. the effects of the destruction of Mortimer, an anonymous letter the codicil on the interests of found its way to Mr. Colvin, the parties and the main question,

man.

It did not appear improbable to show that the declarations ascribed him, that when the deceased de- to the deceased, in regard to an stroyed the codicil, he threw the intestacy, were probable and acwill into the fire, with the in- cordant with facts. The proba- tention of revising the whole of bility was strongly increased by his testamentary concerns.

This the conduct of the deceased in rewas more probable than that he gard to his property. Although wished the Indian will to remain he was aware of the operation of in operation. From that period, the statute of mortmain, and that the existence of the will wholly after-bought real property would depended upon the credit due to the not pass by his Indian will, he alleged declarations of the de- continued to buy estates. Though ceased; but declarations, unsup- irritable and passionate, the deported by circumstances, were very ceased was an acute, intelligent unsafe and insufficient grounds to

The acquisition of money repel the presumption of law. The seemed to constitute his happiness; exact words might be misappre- and, having acquired it, he was hended or misrepresented. The reckless of wbat became of it after slightest alteration of an expres- his death. If this consideration sion, or even a letter, might vary was followed up by considering the whole import of the declaration; his conduct to his relations, the and the insincerity of declarations, probability of his destroying the especially in regard to wills, in will would be still further increased the danger of implicit reli- creased. Though Mr. Fraser had ance upon them. The learned offended the deceased, not by any judge here examined the declara- immoral act, but by an indepentions imputed to the deceased, dence of mind which was honourwhich he showed to be inconsis- able to him, though offensive to tent with the facts. He had been his uncle, the deceased became importuned by various persons to reconciled to him, and received his make a will, and he endeavoured visits. His conduct to the Messrs. to evade them; and not being able Mortimer it was impossible to reto make up his mind, determined concile with a belief that his Into let the law make a will for him. dian will was then in existence. It did not appear that the deceased On this foundation of the affechad that scrupulous regard to tion shown by the deceased to his veracity, which prevented him from family, declarations might come parrying the importunities of his in, and were entitled to regard ; friends by insincere answers. If and the declarations in this part of the case rested here, therefore, the case did not depend on precise there was not sufficient to repel terms, but were connected with the legal presumption ; but if the extended conversations, repeatedly Court looked at the facts and cir. expressed, and were also consistent cumstances on the other side, how with the res gestæ. On the whole would it then stand ? It was true, view of this important case, the the presumption of law did Court pronounced against the will not require to be supported by propounded, and that, as far as it evidence; but if it was, the pre- appeared to the Court, the deceased sumption became strengthened. had died intestate. With respect The learned judge proceeded to to the costs, the Court, on principle,

[ocr errors]

now

son

could not direct them to be paid were indicted for conspiring to out of the estate. Where an ex- effect a marriage without the due ecutor propounded a paper under publication of banns. these circumstances, he did it at Mr. Brougham opened the case. his own peril, at least at his own Miss Elizabeth Hickson, with risk. There were several facts whom the pretended marriage pleaded which had not been satis- had been celebrated, was the factorily proved, and charges which daughter of a lady, who, having had not been supported. Great married again, was called expense had been occasioned, as Wayte, and the grand-niece of a well as anxiety to the relations. gentleman of very large fortune, The learned judge did not see the Mr. Thomas Wilson, of the firms obligation of Mr. Colvin to bring of Wilson and Co. Warnfordthis will before the Court. If he court, London, as well as of his had made inquiry, he must have brother, Mr. John Wilson, of Stenbeen satisfied that the deceased had son, in Derbyshire. The latter destroyed the will himself; that had carried on the business of was his own impression ; and he farming to a very considerable could not be misled by the law, as extent, and partly by that, and to the duplicate not being revoked. partly by inheritance, had amassed Therefore, in the Court's judg- a large fortune; and being unmarment, there was no legal or moral ried, he had adopted Miss Hickobligation to bring it before the as his child. Miss Hickson Court. In respect to the parties was entitled, in her own right, to cited, they were under no obliga- a small fortune, about 2,0001. ; but tion to appear; and it would be had very large expectations from introducing a precedent, attended her uncle. Mr. William Webster, with bad consequences, if, when the contriver of the plot which had an executor was before the Court, been laid against the peace and propounding a will, unless there the future welfare of Miss Hickson, was some reason to suppose col- was a sheriff's officer at Derby ; lusion, legatees should interfere, and, at the time of this transaction, and take their costs out of the was involved in great pecuniary estate. The Court left the several difficulties. His brother, Erasmus parties to the consideration of the Webster, was at one time an attornext of kin; it was not at liberty ney at Manchester, but was comto indulge its liberality at the ex- pelled, by pecuniary difficulties, to pense of the next of kin, unless leave that place just before the public justice demanded it. The plans of his brother were carried Court, therefore, made no order as into effect. Benjamin Wilde, the to costs.

third defendant, had been in the army, in which he attained the

rank of captain ; but, for several LANCASTER, March 21. years past, had employed himself

in keeping a second-rate 'publicProsecution under the Marriage house, called the White Lion, in Act.

an obscure part of the town of Thomas Buxton, Mary Ann Manchester. Mary Ann Buxton Buxton, William Webster, Eras- was the youngest sister of the remus Webster, and Benjamin Wilde, maining defendant, Thomas Bux.

« PrejšnjaNaprej »