The Dorset County Express and Agricultural Gazette.
Dorchester, Dorset, England, 1862-06-24 00:00:00

LYME REGIS. —lirrias.roN r. TUCHIR, DTHE,

AND OTHERS.

Specially Reported for this Journal.

COURT ON PRoBATI, LONDON, Wednesday, June 18:
(Before Sir Cromwell Creased], and a Bpte:al Jury.)

This was a cause of proving in solemn form the will
of the late Thome Line Fellit, of Leine Mee,. in the
county of Dorset. The plaintiff. who is a solicitor at
Lyme, propounded the will. The defendants pleaded
thet it was not the will, that the will was not dnly
executed according to the provisions of the statate,
and that the den-seed was not of sound mind and
I memory, and 4 therwinc inromp t nt to execute any
testamentary instremint. They were two intereenent,
I ten J. Leader chiimilig an next of kin, anti the Q.,enn's
Procter on behalf of the Crowe, there being. sts allega-
tion 0 at there were no vest of kin. Mr. Collier,
Q.C.. Tr. Doane, Q.C., end- Me As, lend, appeared for
the Pied i'ifs. Mr Bandit Q C., and Dr. Semite, for
, the tleieudauts; and Dr. Travers 'fwilis appeared for the
I Crown, but rook no &live pert.
' Mr. Coiliia in optlllin.4 the case, said: MY Lord and
gentlemen of the jury.—! appear before you In su,.pert
I of the will propounded by the pliintiff. Mr George
liingestoti, a highly reepectehle solicitor. iir ictimirg at
Lyme Regie The circumehineen committed with the
: exeeddion of this will ore somewhat extraordinary. hut
though the difficulties created are of a character to
justify this inquir., the explanation that will be given
ea ...... t tail to he in every respect notiahnoury. The
testetor, Mr. T muss Line gollet, was a gentleman of
considerable preperty, malty years resident at Lyme
Regis.. It would appear that for several years pree
%ion-ly to hie death he wall RI t very infirm state of
• health. Ile as one of these persons who matiifeet
great reluctance to making a will, whether from a fancy
that the preforinence of such an act wentl bring them
! nearer to death. or from • meaner feeling of avarice,
which would prevent them parting with their money,
' it is not sow necessary to inquire. It sop. area, how.
ever, that, under the &deices:A Mr. Hinmatint, an elder
brother of the pLiiatiff. also • solmitort and who Pre-
ceded him in the practice at Lime, the testator. bed
tussle a will as long hack &silt, year 1839. het that will
had become inoperative, in consequence of deals of the
testator's wife in 1842, Mad the death's subequently of
all the other parties n uted in it, That wilt left the
bulk of the deemateil's property to the former Mr. Ilin-
geston, who was appointed joint-executor under it. in
treat for the wife of the testator, and was dated from
Lincoins Inn, front which it wmocl appear that testator
had or might have been timer If tallied to bar. Whether
' this was so or not. in that year the present plaintiff had
sumeeded to Lii brother'. practise, which he continued
to carry on, and in that capacity had been called on te
act as the professional adviser of the testator down to
his death. The tilaintiff therefore had maple oppor-
tunity of making liimailf acquainted with the inten-
tions of the deceased as to the ultimate digitisation if
Isle property. Now there were two ittirvant.wouten, for
I whom the deceased hed very often expremed a wish to
meke a provision. One of there women bed attended
npon him for a period of upwerds of twentyilice years
, and the other lied elso waited upon hint, and ministered
to his comfort for weey Fing period.. the lets Mr.
Toilet had often spoken on this subject to the plaintiff,
and the plaintiff on these occasions itupremed npnn the
te.tutor the necessity, if he was really desirous of
making this prnvision for his servants, of making his
wiil without delay. It would &epeer that the teetator
was a perein without any nosy relatieee, or COnnszions
He had had a }tether. who died in Indi • intim yearn InVn.
and he wee freqnently heard to rrnrnt that his brother
stionld not have eurvived him, so that he would have
etitneluely to whom he might bequeath his property.
have already stated that the blur of health of the late
Mr. Toilet was 'cry precariime for • long time lwfore
his death, which was accelpretal hi, an accident of
which I have not tie pirticritire, but which oceans,'
$ ime week or ten days iirevionsly to his dissolution,
which took piece on the 18th of March, lain. It ay. ,
peered that on the 11th of that mouth the teetator had
a severe fall which moped a serione injury to the Reins.
and be never afterwards anew from I is bed. Two
medical gentlemen. one the brother of the I.Ltintiff, a
Mr. Williem Hingeoton, were called in to attend aeon
the nofortnuate man. but he never railed, and death
ensued on the 18th of March, as I have befure stated.
Now the condition of the testator had become so serious
that MN hrotilitfai Maus. Hingfisten, knowing the

S. N
fixed intentions of the deemed towards his Servants]
became maturely des:rims, from motives alike of twee-
voleine and justice, that these poor women shotad not '
huff. r loss through mny neglect on their part. TV
citor, citing under the representations'of his brother
the doctor as to his patient's state,
ape-trod a will.
naming the two servants le.tatees, and young mau,
who used to collect rents for the deceased, leaving blank
spaces for the ailionota to he inserted when the will was
executed. Evithuce wool I be adduced as to these
amounts, the testator havinz severiil times said that he
wished to have Sarah Bootlick. the ant who was
longest with him, £2OO, and Margaret Mary Baelctt,
£lOO, and John Langford, the young man alluded to,
the sum of I:20. The plsintiff hastened to the bedside
of the testator, and there the will Was executed under
circumstances which would be detailed in evident". It
was necessary here to remark that Ow plaintiff took no
beneficial interest under this will. He did not conie
before the jury as one seeking to grasp at property
which did not belong to hint, his sole purpose being to
serve these two faithful and diligent servants, and pro-
cure for theM 'that reweld to whielt the testator baa'
so often declared that they were entitled. A difficulty
arises in this cone from the ensure if the revocation
chose by the pl iintiff. It appeared that the medical
man bad recommended this erasure to avoid any future
litigaiiion. Ni doubt the plaintiff ought not to have
done this, it was the very thing that should have told
him as a lawyer that would invite liti !Akin. Still thus
ndmitti dof explanation. and if exiliined to the Patis-
faction of the jury, the will would stand. lam informed
that an attempt is made to Irons that this gentleman
WA/I not of sound mind. It wis alleged forsooth Vnat lie
had vecidiar views upon religion. Well, even if that
were no, the jury wonlil hardly be disposed to say that
becau-e a man eimse to have strange notions about
religion, that therefore be was of misound mind. This
plea genll nev.ir be admitted, fur if it were, there must
be as many Probate Courts as denotnitiations, having
jurisdictions as peculiar the forms of creeds, and as
inconsisteot as the idiosyncracias of fanaticism or
eimerstition. I will therefore tint take up more of your
lordship's, or the time of the jury, but call the wit-
nei.ses in support of the n ill.
1 Mr. George Hingeston, examined by Dr. Deane, Q.C. :
I sin a eolicitor practising at Lyme. I aucceeoed so
Imy brother's business in 1839. I knew the late Mr.
Follet very well. I acted as his professional adviser in
obtaining ailministratiou to the estate of los brother,
, Captain Pellet, who died in India. I have spoken to
hint seversl shoes on the subject of his will. I beard
him speak of his desire to provide for his 'arrant& We
conver-ed 11.4 to the amounts, £2OO was considered is
sufficient provision for Marsh Braddick, and £lOO for
Margaret Mary Battiest. "I also heard him express a
wish to leave Mr. L ngford £2O. I heard of the ad'
dent that befell ililll. I only heard of it by calling on
him to consult Min respecting an investinent lie in.
tended to make. I prepared the will !imbued. I sew
it executed. I brought the will to Mr. Follet'a honse
after I had prepared it. I went up to his bedroom ; he
wan lying in a horizontal position. He was very feeble.
I read the will over to him, with tile awns. He nodded
assent: He took the pen in his hand, but he VMS unable
to sign his name. I took hold of his hand and goided
it, lint he ass unable to sign his name. He merely
made a mark. .

Sir Cresswell Cresswell : When you saw him lying
s 4 you ssy in a horaontal position, WU ho lying on
his hack or on his nine!
Wit.... : I think be was on his back.
Sir Cresi.ell Cresswell : Whea he nodded assent
was he able to steak.

Witness : Yes.
Sir Cresbwell Creswell : Dit be spesk.
Witnes+ : Yes. but very toftly.

Sir Cmsswell Crem.ell

WII:i did he say?.

Witness : He was asked whether he desired to leave
Sarah Braddick £2OO, and he said "Yes." Ho wee
eh° asked whetter he wished to leave Margaret Story
Bartlett £lOO. and he said "Yen." He we+ Raked
whether he withed to leave Langford £2O, and he also
said "Yes." .

Dr. Deane: Will you be good enough to tell the
jury about the erasure of the revoc .tin cl.uae.
Witness : lii preparing the will I inserted the usual
revocation clause. When the wilt woe executed I had
some conversation with my brother respecting it. He
said he tli,,utht it ought h.l be envied, ex it might
lead to litigation, and cause a great deal of trouble. I
replied that it epode no difference whether it was there
or not. as it did not affeut tho former will, in con.e-
quence of the death of those to whom the instrument
related. He still adhered to his opinion that it might
lead to trouble. I was itelueed to crane the revocation
clause in consequence of thee., representations._
_ . . .

Sir Creased' ere+swell : In the inserti )))) of the no
to be left to Langford there spinet.% to bare been an
ensure. It looks as if it had formerly been £10; can
you explaM that ? Did you make those insertions at
your office or after you reached the house ?
Wltoe,a : I think at my office. I might have made
this after I reached the house.

Sir erran Cressael : You may have, or may not.
Did you, or did you not? Yea are a professional man,
and you ought to be more d-finite in your state-
ments.

Witness: At my office, to the best of my recollection.
Cross-exsinined by Mr Kerslnke : I am not swore
that inv eircumetsnces are very bau. I hope not. I
was a binkntpt in 11445. 1 aet aside a sum for the
laymeut of my creditors. They have As yet only re-
ceived 4s. 61. in the pound. They may have received
only 4s. I cannot recollect exactly. I was Hot three
years in getting administration to Vs brother'w estate.
A conside.able time was taken np in communicating
with the administrat,r-general in India. It wes but a
short time. a con •le of months' before deeeesed's death,
that this Itusineos was completed. I never said to any-
one that I should be appointed executor, and that I
allould be a gentleman again. I never said anything so
absurd. The deceased's personalty was about nine or
ten thousand posople. Flis real estste wait also very
considerable. I may have heard that the Crown had
successfully established the illegitimacy of the elder
brother, Captain Follett. I don't think I ever
litard that de ceased had been in &lunatic &C) lust in his
youth.

The witness was again admonished by the learned
Judge for the vannenesoi of Is answers.
Examination continued : I believe the deceased was
sensible as to what he was doing. He was not in a
comatose atate. Ido not know that be 14,1 been kept
up by stimulmts. I believe he was competent to wake
his will.

Mr. William Kingston, examined by Mr. Asplse4 : I
am a eurgeto at Lyme. I was celled in to attend the
decetesed after he met with tb• fall. I attended hint
up to his 'teeth. He was suffering front injury to the
spine, aml from chronic bronchitis. Decea.ed was
about 77 veers of sae. ant aqui very week in body.
He never rallied after the till. I reinemher the execu-
tion of the will (Tbe witness here detailed the cir-
cumstances of the execution of the instrument es above
given.) The t'e cievi wen very low, and I was obliged
to administer stimulant.. He seemed sensible. He
lived for a week after the will was executed, and I
convereed with him frequently as regarded his
evmptotos. He seemed semiitie et these converrations.
Sometimes the phlegin would to choke him that be
could with tittlivulty spetek. _
_

Sir Cre,awell Cresawell: Tell me. When you pet
the pm in lii a hand you auy it fe I; was that before
or after lie made the mark.

Witness : A 3 Iyut. the i.en in his hand it fell:

A Juryman : I wh to aak the witness whether in
the conversations which he hiid with the deceased soh-
sequent'y to the execution (Atha will, the deceased ever
envied to the will in •ny way.
Witnels • No he never alluded to the will.

,
Mr. H.nry Tucker examined : I attended the de-
ceased for many yenta, both before an I after the avci-
dent. I claim to he heir-at-law to the deeeaaed. I be-
lieve the deceaaed woe wholly incapable of making •
will. He w sometimes In a perfectly com.tose elate.
He never wax able at any thue to make a will after lie
met with the seri 'emit.

At tide stage of the proceedings the learned Judge in-
terfered. He considered the evidence just given,
coupled with that which had been tendered by the
plaintiff, set the ease at rest. fie could not help re-
inßrking upon the gross ignoriuuse exhibited by the
solicitor in ensing the revocation clause.
The jury were then directed to and for the defen-
dants on al, the issues.

Mr. ICArel.ke applied for the costs, which were
grrtol.

Dr. Travers Tviu ein.lied for 00.t4 on behalf of the
Crown.

_
Sir Cromwell Cromwell : I thought the Crown never
reeeiveel owes In these ewes.

Dr. Twin : I am informed to the contrary by the
Qicen's proctcr,_my lor,l. -

Sr Cres ,Awell Cre.swell : I must reserve the question
as to costs to the Crows.