The Press. — London, England, 1858-07-31 00:00:00

THE PRESS, JULY 31, 1858. Mrs. Swinfen." On one occasion 1 asked him what he meant to give her. He said, " i mean to give her Swinton." I said, " For life, I suppose ?" He answered, " I shall give her Swinton." I was with him alone at that time. About the 28th of June Mr. Simpson told me he bad bad a letter from London which he wished me to see, and that a second certificate was required respecting Mr. Swifen's imbecility. i told him I could not give him such a certificate; I could not certify his imbecility. Mr. Simpson then said, "Then another medical man must be called in." I told him I did not think it ne3essary. The next day, the 29th of June, the testator told me to send for Mr. Simpson to make his will. I told Mr. Simpson the same dav, and he said he would see him. Mr. Simpson suggested that a medical man should be sent for, and I suggested Dr. Evans. I have always called in Dr. Evans as • consulting physician. It was mentioned to Mr. Charles Swinfen, and he assented. I requested Dr. Evans to come on the 2nd of July ; I think it was by telegram. I did not communicate the object. 1/r. Evans attended the son in his last illness, thirty six hours before his death. On the 2nd of July 1 met Dr. Evans at the railway station at Lichfield, and took him direct to Swinfen-hall and into the room. Mrs. Taylor was there. It was about four o'clock. He was in bell. Dr. Evans spoke first, and said, " I undentand you wish to make your will, sir." I don't think he replied at all. His face was turned in the oppo site direction. Dr. Evans repeated the question, and spoke very loud. There was no answer. I arid, " You wish to provide for Mrs. Swinfen?" and he made no reply. Dr. Evans then turned to me anti said, " No, you must not put the question like that." After that I returned to the window. If anything more took place between Dr. Evans and the testator I did nut hear it. Dr. Evans then walked to me and said, " I can make nothing of the old gentleman to-day ;he must be seen again. It is not an imbecile case." I left the room, and went straight home. 1 feel pretty coo fident I had no conversation with the family that day. The interview did not last more than five minutes. I com municated the result to Mr. Simpson on the following morning. I told him Dr. Evans agreed with me it was not an imbecile case, and that he (the testator) must be seen again. I telegraphed to Dr. Evans on the 4th of July, early in the morning ; and he came about eleven o'clock. I met hint at the station, and took him to Mr. Simpson's office. I remember that in the car he brought fortb a book from his pocket, and read a portion. It was an octavo volume, with directions fur making a will. He read it to me on the way. I left him with Mr. Simpson for some minutes, anti then went will, him in the fly to Swinton, and saw the testator. Only Mrs. Taylor was in the room. Dr. Evans spoke to him several times about the matter of his will. I went to the window. I had been rebuffed before. Dr. Evans was time about ten minutes, and L>r. Evans said, " The making of the will must be postponed." I then took the lead into the drawing-room, and introduced Dr. Evans to the family. He talked with them five or ten minutes. I remained after Dr. Evans left, and Mr. Simpson walked home with me. On the sth of July I received a note from Mrs. Charles Swinfen to bring up Mr. Simpson, as Mr. Swinfen wished to make his will. I went to Mr. Simpson and told him to go. I also went to Swinfen, and saw Mrs. Taylor and Mr. Simpson in the testator's room. It was eleven or twelve o'clock. Mr. Simpson told me he did not find Mr. Swinfen in a humour to communicate with me. That was after 1 left the room. Mr. Simpson requested me to go with him on the 7th. I walked with him, and arrived between eleven and twelve o'clock in the room. Mr. Simpson went in first and I joined him. No one else was there. The will was then read by Mr. Simpson to Mr. Swinfen, and Mr. Simpson asked, " Is this what you mean, sir ?" and lie said dis tinctly, " Yec." Mr. Simpson read it very distinctly. I joked him, and said, " Have von left me anything, sir? " and he said, " No." I said, " Not a ring ?" and he said, " No." I soon after, at Mr. Simpson's request, fetched up Mr. Charles Swinfen. The testator inquired how he was, and he ( Mr. Charles Swinfen) eat by his side. Mt. Simpson said, " This is your will, sir ; this is the will that has been made at your request ?" and he said, Yes." We proceeded to sign and attest the will. There was great difficulty. He took one pen and then threw it aside. Mr. Simpson then gave him a at •el pen, and he signed it. I can't tell which of the words " Swinfen " he signed first. The testator was asked to sign a duplicate, but Mt. Simpson said, " I will sign it for you." Mr. Simpson then signed it. and we attested it We then went away. The testator's health on the 7th was very good. He made no complaint. His manner was very composed and very quiet. Dr. Evans never told me that the testator did not know that his son was dead, and I did not tell Mr. Simpson so. Cross examined by Mr. Hunni.csroir : I kept • licensed house fur lunatics. I gave L. up ten or twelve or fourteen years ago. My licence was not taken away. I had forty five patients at the time I gave it up. Mr. Swinten's ill ness had not interfered with his m. ntal capacity till two days before his death. He was exceedingly stupid and heavy then; his mind was gone. Mr. Simpson told me the letter which he spoke of came from his agent in Lon don. 1 would not give a certificate. I suggested that the second gentleman should be Dr. Evans. That was to test whether the testator was capable of making a will. I never beard till the 28th of June that there was to be a coin mission. On the 2nd of July I told Dr. Evans he was going to see Mr. Swinfen. I can't say whether or not I told him it was to see whether he was able to make a will. The first thing Dr. Evans said to him was, " I understand you want . to make your will." On the 4th o f J u ly I wen t home with Mr. Simpson. I did not tell him Dr. Evans and I could not certify that Mr. Swinfen was of unsound mind, and incapable of managing his affairs. I walked home with Mr. Simpson on the sth. I did not in that walk understand f M f rom in r. Simpson that he did no t con sider the testator a fit state of mind to give iost ruc ti ons for a will. (The witness was then shown a deposition which he had made in the Prerogative Court.) He (Simp son) said the testator was not in a quiet, calm state of mind. He said he was not in a fit "humour." He (Situp- son) meant " humour," bnt I can't tell the words. He said," fit state." (The witness was here cross-examined at some length as to whether Simpson said " state " or " humour.' ) The foreman of the jury at length interposed, and said they were unanimously of opinion that it did not signify whether he said " state" or " humour," as the meaning was the same. Mr. Justice BYLES thought there might be a difference; but the learned counsel abandoned the point, and The witness continued : I have no recollection of saying that the duplicate will was signed by the deceased. (Tho witness's deposition was then shown to him in which he had so stated in the first instance, but afterwards, on being shown the duplicate, he acknowledged that Mr. Simpson had signed it for him.) It is not true that I gut impatient and threatened to go if he would not sign the duplicate. I know a man named Holmes. 1 did not tell him that Dr. Evans had seen Mr. Swinfen, and had given his opinion that he was competent to make a will. I know a man named Travis. I did not t"ll hint " the old gentleman does not know what he is doing half his time." The testator's habits were very dirty from disease. His clothes were changed twice a•day. He could not control the functions of his body fm the last six months. His bedclothes were changed every morning. I don't remember a sore nn his back. It was not mentioned to me. I saw no mortifica tion. Reexamined by Mr. KENNEDY: The want of power to control the natural functions does not impair the mind. He had the power. It was not idleness, but pain. It gare him pain to sit. - - The plaintiff, PATIENCE SWINFEN, examined by Mr. KENNEDY, said : I was married to Henry Swinfen in 1831. After our marriage I went abroad and travelled in various countries. After several years' residence on the Continent I returned to England, and resided in different parts of England, Scotland, and Wales. After being some time in England, there was a correspondence between my husband and his parents. We received an invitation to go to Swinfen, but did not go because there were no apartments furnished. I recollect meeting Mr. and Mrs. Swinfen at Birmingham, at the Hen and Chickens Inn. There was a reconcilia tion. The invitation to go to Swinfen was renewed. In 184t1 I was called upon at Weymouth by Mrs. Rowley. In 1848 ; went to Swinfen, and was received most kindly by the old man. He said, " I wish your mourning to be very handsome." He deferred all the arrangements for the funeral until our arrival. There was not any room at Swinfen which I could occupy. We resided at the aeor g e Hotel, at Lichfield, and went to Swinfen in the morning. He said he would increase my husband's income to 5001. a year. He ordered • bedroom to be furnished. Mr. Swinfen paid for the furniture. He made me trifling pre sents, and afterwards a handsome diamond brooch and his miniature. Soon after he showed me this letter from Captain Hackett, a gentleman whom I had met abroad. He said be valued it like gold, and gave it to me to read. I.The letter was read in the opening, and spoke of the plaintiff in the highest terms, and attributed her husband's reformation to her good influence, and was evidently writ• ten with • view to procure a reconciliation.] During my stay Mr. Swinfen's health improved considerably. He had a nervous affection iu the arm, which prevented his carving. I carved, but he was always at the head of the table. Finding him better we left, and went to Wales, France, and Germany. The witness then went into a variety of details cor• roborative of Dr. R )wley's statement concerning her husband's mauagetnent of the property : On the death of my husband I was left alone with my fatherin-law. Mrs. Rowley came, and I asked her to write to the family, and to invite Mr. and Mrs. Charles Swinton. Before they came I consulted Mr. Sitapsoh, and told him I wanted to know my position, how las I could give orders in the house. I was afraid of doing anything which might be disapproved by the family. He looked at my husband's will. He said toy position was altered. For several days I did not go into my father-in-law's room. I dreaded the shock. I went the day before the funeral. Ho took me in his arms and said, " Mrs. Swinfen, don't cry, don't cry ; take care of you." He (John) died in May, 1835. I went to his funeral. Charles Swinfeu and Captain William Swinfen also came, but no others. The deientlant (Captain Swinfen) then became the heir-at-law. (The witness produced the testator's bank-books.) There were rumours that Palmer and Green's bank was not quite safe, and an account was opened in the National and Pro vincial in 18.52. That was done with the consent of the testator. My husband drew the cheques and the test itor signed them. About October, 1833, my husband began to sign the cheques. The testator raid he could not sign them, and he said to my husband, " Henry, you must sign them for me." The difficulty of signing arose from the affection in his arm. tie was generally careful of money, but he was kind to many, particularly to old people. He lent Lady Clifton, his sister, a sum of 1,0001, which she repaid. That was before I went to Swinfen. I have heard from him that be used to return 201. to his tenants. He was a sociable man, but if be did not like a person he would scarcely speak to them. When I first went he had a habit of sw.mring, but, on my remonstrance, he refrained. He was fond of punctuality and impatient of delay, and would say to the servants, " Beat the quick trot." He celled Mrs. Taylor " My little woman, my good woman." When I first went to Swinfen it was a wilderness, but he had it planted, and laid out the gronnda. The testator was pleased with the improvements. He knew the names of the cows, and when he was at the window of his bed room he would notice them, and tell their names. When he saw or heard me, he would call me into his room. He , almost always at night said, " Good night, God bless you." We always went into his room the last thing. Cross-examined by Mr. Jattss : I was married to !pi husband in 1831. He had formed u ' my acquaintanc e at m Sayer's, in Hunter - street, Brunswick-square. It was a lodg ing.house. He was staying there. He was 27 yesrs of ai . I was a servant in the establishment. He was of nu o" • fession. The marriage was unknown to family, rir:2; they knew of it shortly alter. I was married th e Bth ofliarch 1881, at St. George's, Bloomsbury. We remained absent till 1838. I never saw his family till 1844. I en, his mother in 1844. I never was at the Hall while she w as alive. It was in the autumn of' 1844 we met Mr. and M IL Swinfen at the Han and Chickens, at their request. I believe the last cheque be drew was in October, 1851 have no letter in his handwriting since 1849, but he wrote to my husband. After November, 1853, when he took to his room, he was visited by Mr. Cowpland, Mr. Hinckley ' occasionally, and Dr. Rowley. My husband died on the 15th of June, 1854. I saw Mr. Simpson four or five days after. 1 showed him my husband's will. 1 believe 1 did not show him any other document. Mr. Morohell made that will in 1640. (.The substance of the document was read giving tle whole of his property to his wife ( the w i tness), and appointing her executrix.] Mr. Simpson then told me that that will had become inoperative by toy husband's death. I had sent fur him, and he came on the 21st ( Wednesday ). Nothing was said about the old man making his will. A commission of lunacy was not mentioned until after the funeral of my husband. Mr. Simpson did not say anything about an application to the Lord Chancellor in lunacy. He did not at that time name Dr. Evans and Dr. Rowley as the Om medical men to whom he should apply for certificates as to his unsound ness of mind. I know there was something of the kind said ; but I forget the words. Something was said about Dr. Evans and 1)r. Rowley, and that it would be necessary to get some one to manage the property. I said at the last trial that Dr. Evans came over to see the testator as to the state of his mind. He came over with 1)r. Rowley, and it may be for that. I read the shorthand writer's notes of the last trial within a week. I asked Mr. Simpson to let me see them. Mr. Kennedy examined me from those notes. Those notes are correct. I gave to Mr. Charles Swinfen the shares valued 2,000 i., and since the money was invested in consols 1 received the dividends. Re-examined by Mr. KENNEDY: I had nothing to do with the investment. Mr. Frere called and spoke of 6,0001. I said there was upwards of 7,0001. That was shortly be. fore the suit commenced in 1855. Mrs. Lishman came on the 16th, and went back the same day. I think she came back on the 20th. On the 16th, the day after my husband's death, I asked her to write a letter. An answer come, and the letter of the 20th was an answer to that letter. I did no more than request her to write a letter. I had nothing to do with advising a commission, and took no part in it. I bad not seen Mr. Simpson but once before he came on the 21st of June, 18.51. That was when the testator's will of 1852 was made. It was after the funeral Mr. Simpson mentioned to me the project of a commis sion. I did nothing. I had very little interest in it. Mr. Hinckley is in a very infirm state of health, otherwise he would have been a witness in this cause. He (the Rev. John Hinckley) is a connection of my husband. I hoe seen letters from the testator to his son, written after 1849, but they are destroyed. I have only found those which have been produced. CHARLES SIMPSON, examined by Mr. GRAY, said : I have been a solicitor at Lichfield since 1824. I was tient for and went to Swinfen-hall son Trlowlay, the 10th of June, 1854. Ido not know who sent for me. I was there also onWednesday, the 21st. On the 19th Mrs. Swinfen (the plaintiff) wished to know her position. Dr. Rowley was in the room, and the plaintiff gave me her husband's will snd a copy of the resettlement of the estate. I had very little conversation with her. I think there was also the will of the testator of 19,52. I looked at the copy, or draft, of the resettlement. I hail very little conversation with the plaintiff. I think she left the room. I said I would call again, and I went on the 21st, and stayed a good while. She spoke to me of her position, but I don't remember the conversation. I told her the will of her husband would not pass that estate, and that the will of her father-indsw was inoperative. He was only tenant for life. Nothing was said at these interviews about the management of the testator's affairs. I met Mr. Charles Swinton on the day of the funeral. f had not seen him for many years. On the 2fith of June, I received this letter from fir. Charles Swinfen, to go over to Swinfen•hall. I went over at eleven o'clock and saw Mr. and Mrs. C. Swinfen and the plaintiff. The substance of the conversation war, the impression on my mind was, that the testator was utterly incapable of managing his affairs. I don't remember any communication being made to mo on that subject, but by one person. The conversation was with Mrs. Charles. i cannot say whether the plaintiff or Mr. Charles remained the whole time. I stayed a long tune, and read some old deeds, the settlement of the grandfather, John. I sa id I thought the plaintiff was in a very difficult position , sad that 1 ought to take further advice as to the best cour se to take. I hail an impression it could only he done in th e Collet of Chancery. I made no inquiry of them as to the state of Mr. Swinfen. I male thus memorandum in pencil in my book at the time in the room. I only found the book this morning. This hook refreshes my memory. 1 insole inquiry as to the names of Mr. Charles Swinfens family. Neither Mr. Charles Swinfen, nor Mrs. Charles Swinfen, nor the plaintiff mentioned anything about the testator's state of mind. I think I heard the intention of the commission before I went to Swinfen. It occurred to me it would be necessary to have the names of the neat of kin ; and that is why I asked the question. I rbs'le 6 communication to my London agent in writing. This is what I sent up to London with this letter. It is a kind of Case. Mr. KENNEDY said he had engsgid with the Master of the Rolls that these papers should be put in evidence. The witness continued : By return of post I had a letter from Mr. Cole (the London agent), and wrote another in answer.