The Dorset County Express and Agricultural Gazette.
Dorchester, Dorset, England, 1861-07-30 00:00:00

CHARGING THZ WRONG PILIIIIOII.

Butt. AND A x(rrisee, Assignees of William Bound,
• Corn Merchant at Poole, r. BENNETT AND ANOTHER.
.An action to recover the sum of Llffi 13.. 811., balance
of account, of which I:5 13e. Ad. had been paid into
court.—Mr. Kerslake, Q.C., with whom was Mr. Cooke,
was for the plaintiffs; and Mr. Collier, with whom was
Mr. Cole, was far the defendants—lt appeared that
Messrs. Thomas and Charles Bennett carried on business
together as farmers Tollard Royal and Shaftesbury,
for several years, up to September. ISO, when there
was& dissolution of partnership, afkl that the 30 quarters
of btrley, the price of which was sued for, was pur-
chased by Charles Bennett.—Mr. Collier, in addressing
I the jury,said Thomas Bennett had been charged for the
amount, because Charles could not pay.—Verdict for
the defendant.

Before Mr. Balton CeawireLL and • Special Jury.
DISKITID WILL CANS.
•
HILLTAI AND CULLS v. seal jury ease.
Mr. Collier, Q.C., with whom was Mr. ingdon, was for
the plaintiffs, and Sergeant Kine,lake, with whom was
Mr. Cole, was for the defendants.
Mr. Kingdon opened the pleadings. He said the
plaintiffs were Messrs. James Hellyer and William
Father Coles, and the defendant, William Frederick
Bragg Tibbs, and the case was sent down by the Court
of Probate to try three issues—let, Whether • pertain
will was the last will and testament of the toaster ;
2ndl7, Whether ha- was of sufficiently wound mind,
memory, and will, when he executed it; and 3rdly,
Whether he was at the time under undue influence.
Mr. Collier then stated the case. lie said they bed to
try the validity of the will of Mr. Bragg, formerly •
tailor and draper at Cerne Abbai. He retired from
businesa in 1854, and died in December, 1860. The date
of the will in question was March 26th, 1859. Mr.
Bragg had two brothers and fivisisters, all of whom he
survived. His two brothers died about 20years ago, and
three of l,ia sisterealsodied unmarried. Oneoftheothers,
Mrs. Tibbs, was the mother of the present defendant,
who succeeded him in his business, and lived in the
same house. At the time of making the will, Mr.
Bragg had one sister, Mary Ann, still living with him,
and besides her, the only near relatives were William
Frederick Tibbs, end • daughter, named Sarah Elisabeth
Antell. For, although he was never married, he had a
daughter, whom he sent to school, and of whom he was
very fond, and this fondness seemed to increase, which
was very natural as he got older, as she paid great
attention to him. The learned gentleman then explained
the nature of the will, and the disposition of the pro-
perty—principally to his daughter—but the defendant
had also certain interests. With these interests, how-
ever, he was not satisfied, and bed disputed the will on
the grounds alleged. The testator had previously made
a will in which he remembered his daughter, but in con-
sequence of being annoyed by his nephew who bad
brought home • wife with whom he did not agree, he
altered the direction in which he left the property. He
argued that be should very satisfactorily prove that the
testator was in the perfect possession of his faculties at
the time, and that lie should also show that there was
no foundation for stating that he was under the influence
of any one.
George James Andrews examined—l am A solicitor
practising in this tows. I am clerk to the *Woo in
the Cerne division of the county. I knew the late Mr.
James Brea for at least 30 years. He was a tailor and
draper. About the latter part of 1848, or beginning of
1849, I first had matters of business with him. On a
Saturday in May 1850, he came to my office in Dor-
chester, relative to the making oft will. Ile wished to
leave his property to his two sisters, Mary and Jane, his
two nephews, James and Frederick. and a daughter.
He gave me instructions, which I took down in writing.
I thought it was necessary I should make the will at
once in consequence of the very peculiar position of
his daughter, who in the event of his dying istestate
would be left without • farthing. 1 consequently
embodied his instructions in • will, and it was signed
and attested then and there. In this will he left
certain property to his nephews; a house at Weymouth
and £l.OOO to his daughter, to whom lie professed at the
time to have great regard, end whom he said he was
educating, and he also made a provision for her mother.
Between 1850 and 1853 his nephew James died, and the
deceased gave me fresh instructions for • will. It is
dated 3rd July, 1853, in which he devised certain pro
party to F. W. B. Tibbs, the present defendant, and to
his daughter. The property which he de•ised to his
daughter in 1853 was nearly double in value to that
which he provided for her by the first will When he
gave we instructions, he possessed as perfect possession
of his faculties as lam in possession of at the pre-
sent time. Between the making of the two wills his
sister Huy had died. In 1855 the deceased gave me
instructions to makes third will. It was engrossed on
the 15th Deoewber and executed on the 22nd December.
At this time, the plaintiff in this fiction had succeeded
to the business of the legatee. By this will, • new
trustee, Mr. Colo, was appointed in the room of Mr.
Crane. By this will, the legatee gave his daughter, in
addition to former gifts, the lease of five houses in
Slierborne. The same provision was made for her
mother, and it also made provision for his sister Ann
during her life. He still spoke of his daughter in the
carne affectionate terms as before. In 1858 the present
defendant married, and they lived in the same house as
Mr. Bragg. In March, 1880, Mr. Bragg told me he had
been to my riffles to give instructions for • new will.
On the 26th March, I saw him in my clerk's office,
speaking to my clerk. I asked him into my room and
we discussed the subject of the new will. It had been
engrossed from the instructions he had given previously,
by icy clerk. He said it was quite in accordance with
his instructions, with regard to the distribution, but
complained that it did not specify every item of his
property. I told him the will would be quite as effec-
tive without this enumeration, which would, if inserted,
run up • much longer bill. He then said he was
perfectly satisfied with it, and rang the bell for my
clerk to witness the execution of the will. By this
will his daughter was left in still better circumstances,
provision during life to his sister Ann, and to the pre-
sent defendant was given a reversion of seven houses
at Come Abbas and 1200. The only parties in my
office at the (line was the testator, my clerk, and my
myself. •He took away the will; but on the 13th
April he came to my office again, and brought back
his will, to ask me if his executors would under-
stead from the will what his property was?
My clerk then, by my instructious, drew up s list
of all his property se stated by him, and which he after-
wards signed. e said he wanted it to plea* with his
• that his executors might know what his property
was. He then took the list and will away with him.
He gave himself the list of property and the amounts of
his several mortgages. I should not have known what
the amounts were otherwise, as some portion of one
of the mortgages, he said, had been paid off. His sister
Ann died in 1859. lu an old family Bible produced, it
was stated, she died on the 29th November, in that
year. On the 17th December, nearly two months after
her death. I received • letter from the testator to the
effect that he wished to see me respecting a new will.
I called on the 23rd December at his house. An inven-
tory of his effects was produced by him, which had been
made by Mr. Foot, an appraiser aud auctioneer in this
town. He said he wished his daughter to have the
property there mentioned, and asked 'lie how the legacy
duty was to be avoided. I told him, the only way to
avoid this, was to make a present of the timings to his
daughter stones. I don'treeollect whether the daughter
was present when I went in; it not, she came in shortly
afterwards. He thee gave her • teaspoon in the name
of the whole, and signed a memorandum of the transac-
tion as iestructed by me. He then spoke to um about
making mealier will, cud naked time how his daughter
would be affected by his sister's death. I told him she
would be in exactly the same position as though his
sister sureived him, lie then said, but lam going to
sell some houses: As these formed • portion of those
furinirly willed to the nephew, the selling of them
would have no effect on hmi.s daughter. In course of con•
venation I tuld him all the effect the new will would
have, would be to put £5 in my pooket,and he said "Oh!
well then, I won't have it." He complained of his
nephew's couduct towrrds him. I told him he must
Dot blame his nephew altogether, as I heard it was uiore
owing to his wife, and she should bear with him a
little. The testater then said" What • fool he must be
to let her' weer the breeches."' (Laughter.) He then
gave ins instructions to prepare the conditions for the
sale of three of the houses originally willed to the deism-
datiL He was • business man, illiterate, and very
obstinate. On the Ilth January, 1860, I went with Mr.
Foot, the auctioneer, who was to sell the property. The
sale was to take place at the Elephant and Castle. I
went to name the reserve price. Previous to the sale I
went to the testator to saeartain whether the property
should be put up in one or in three lots. He then gave
me • slip of taper, which he said he had drawn out for
my guidance. I believe it is in his daughter's hand.
writing. The property was first put up in one lot, but
£6OB not being lid for them, Lot 1 was put up and
realised £4lO. For Lot 2, £lBB was bid, being £4O
under the reserve price, and Lot 3 was sold to the pur-
chaser of Lot 1 for £75. I went to the testator after-
wards, and told him £l6O had been bid for Lot 2, and
showed him that tide sum would make more, on the
whole, than £BOO. But he refused to sell it under
s3OO. During the whole of the time I have spoken of
him, lie was perfectly competent to manage Ins own
business. I several times saw the meant defendant,
and told hiui not to go on in the way he did, to offend
his uncle, or he might depend on it his uncle would not
leave him a single shilling. On the sth July, 1860,
about the time of his daughter's marriage. I received a
letter from the testator, informing me that he wished to
wee me respecting the giving some property to John
Gundry, who was about to marry his daughter. I saw
him on the 12th July, and spoke to him about the unde-
sirability of giving him the property before marriage,
as there was many a "slip between the cup and the
lip." I, however,took instructions to make the property
over to him as soon as the event took place, and the
document was signed and sealed. upon this °maiden
he said, " Do you kqpw that rascal Tibbs talks about
disputing my will." T said I should not think he has.
He still persisted he had, and I said "I don't think he
would be oath a blockhead to do it.* Hs got very warts
upon it, and said "What, csasot I do what I Isis with

my own? I pointed to him that he had set the young
man up in business, and told him he had been
• good father, let him also be • good uncle.
I told him before I went out of Carol I would try and
ascertain the fact, and lie must tell me from whom he
he had heard this tale, and he said his maid had brought
the news home, and that his nephew had spoken it at
Mr. Rolls's, shop. I afterwards went to Tibbe' house
and saw Mrs. Tibbs Blue said her husband was not at
home. I bad some conversation with her, and after-
wards saw the testator again and told him not to
believe all the tales he heard about his nephew, and
tried to reconcile matters between them. Generally,
when I met Lulus he complained that his nephew's con-
duct did not please him. The bundle of cheques pro-
duced are all signed by him. They are all drawn by
his daughter, and signed by him down to the 26th
November, 1860. The last cheque was filled up by his
medical attendant, and signed by him on November
30th. It was for 1.25 for his daughter's mother. This
was six days before his death. The pass book produced
was written in pencil by the testetor, and written over
in ink by the bankers. He was agent to Mr. Williams,
banker up to 1858. A bill produced is by the
defendant on the testator for the funeral expenses
of testator's sister. The date of the settlement is May
19, 1860. There is another bill, settled by the
defendant, for Mr. Bennett, 2nd August, 1960, and •b•
cheque given in payment was drawn by the daughter
and signed by the testator. The instructions given me
for the will of 1869 were. I believe, partly in testator's
daugli.u;s iie wrt . pe• it.. i• , ten
111
pencil and mime in ink. l ii not aware tom
Aiitell lima an iiiterriCas Mitii my rierk on any occasion
resroting the will. The inatructions were placed in
nay hand by icy nleilt the day before Mr. Bragg antic,
which was on the 26th March. Mira Autell was not
with him. I had frequently aeon Mr. Bram several
times respecting the melting of a new will. When the
inventory was produced I warn at the testator's house—
Elisabeth Austell was present. On that occasion, she
quitted the room to fetch the will I think when the
testator sold the houses he said he wanted the money to
set Gundry up in business. I handed the produce of
wile to the testator; I do not know whether it was
afterwards given by him to Gundry. The instructions
respecting the sale, was given me by the testator him-
self. I sin sure they were not given by Elisabeth
Anton. I do not know whether or not he gave
her a key when he told her to get it. I have
already stated I knew Mr. Bragg many years, but I did
not notice any difference in his mind till within the
lest two or three months of his life, when he did not
seem quite so vigorous as formerly. I saw no decay of
his mental faculties, except such as one might entiei•
pate would be brought about by old age. The only
eccentricity I ever noticed was, that be was • very
obstinate man. I have never known bit, forgot him-
self, or to contradict at one time what he had said at
another. I beard on one occasion that he gave his
pony chaise to Tibbs, and that he afterwards took it
from him and gave it to Miss Antell. I believe I once
told Mr: Bennett that it would be much better for his
son in-law to leave Miss Bragg and Miss Ante!l alone or
it would very likely to be the worse for him, as Bragg is
such • queer man. " Tibbs is all right, and if he
(Bragg) goes to another lawyer I do not tell what will
be the consequence." I have no recollection that Mr.
Bennett replied "the poor old MILD is mad." I cer-
tainly did not say in answer to that, "You know what
is the matter with him xi well as I do."
George Olive, clerk to Messrs. Andrewsand Cookers's,
was next examined with regard to the preparation
and execution of the will, and his interviews with the

testator.
Frederick Foot, auctioacer, was also called with
respect to the inventory he hi:d taken at the testator's
request, and the sale of the houses at Came.
James Thomas Hillier said be was a native of Genie
Abbas, and lived there till May 1858, when he went to
live at Cutts) Carey. He was well acquainted with
Mr. Bragg, seeing him generally once or twice a week.
About six or raven years ago, he told witness that he
had given his business to his nephew and money to
carry it on. Witness was father to one of the
trustees under the will. In November. 1859, he went
to Genie to visit his son, and called on Mr. Bragg, who
told him he intended to give certain property at
Piddlethrenthide to John Oundry, who was about to
marry his daughter. He was then as well able to manage
his affairs as he ever was in his life. He was a man
of strong and determined will, and not likely to be in-
fluenced by any one. John Guadry was a nephew of
witness. Sarah Antell was employed by Mr. Bragg as
Wore= when he first knew her. Ho was not con-
. . .

wilted at all respecting his nephew's marriage.
Elizabeth Sarah laundry said—l was married in July,
1860. I had some years before that been at a boarding
school. I first went when about 12 years of age, and re-
turned home when about 17. I then lived with my mother.
We ant went to live in the adjoining house to Mr.
Bragg, in July, 1857. I was 24 years of mg* when I
was married, which took place in July, 1860. There
was • communication between the two houses, and Mr.
Bragg came in frequently, .sometimes two or three
times • day. He lolled me Elisabeth, and spoke of me
as his daughter. He frequently told me he wouli leave
his Weymouth property to me. He said be would wish
to settle somethL-g handtome puma 111 chose a husband
according to his liking. In the early part of 1859, he
said be was going to mike • new will and he should
give me the Piddletrenthide houses, the Weymouth and
Sherborne houses, and some money besides. He said
he had given his nephew his business, stock in trade,
and money to go on with, and he should leave him the
houses that be had intended for his sister, had ahe out-
lived him daring her life time, and which were after-
vrards to revert to him, My father said he wanted me
to write out • copy of a will he wanted to take to Mr.
Andrews. I wrote according to his instructions, lie
piston his glasses when I had douse and read it, and
made alterations, and I made • fair copy of such altera-
tions—writing the whole over again. This occurred
three or four times. I believe I mad* the last copy
the day before he took it to Mr. Andrew,. He then
said I was to add to what was already written, that I
was to state his watch and wearing apparel was to
COMO to me. At the end, I filled in the date, by his
direction. All the copies I first wrote were in pencil.
I began this in pencil, and Mr. Bragg suggested that I
should finish it in ink. I care to Dorchester with Kr.
Bragg when he took the c'ocument to Mr. Andrews's
office. While he went there, I went a shopping. Mr.
Bragg said, as we were going home, Mr. Andrews was
not at home, but he saw Mr. Olive, his clerk, who
does not approve of our making wills. The next day
I did not accompany him to Dorchester. When he re-
turned in the evening, he took out his will, and read it
aloud, and afterwards gave it to me to lock away, as
if he were to die in the night, &edit wunot in hishouse.
he did not suppose • will would be found. Never asked
him to leave nie any of his property. He always told
me he would do so. I er.deavoured to exercise
any influence over him with regard to the disposition
of his property. I
He was perfectly capable of managing his own affairs.
During the laid year of his life I frequently made
entries for him in his rent book. I did not visit at his
house while his sister was alive, but after she died I
was frequently in there. I often went to Sherbome to
collect the rents. He often took me with him to Dor-
chester and Weymouth, and he has taken me to London
with him. Per the last three or four years I frequently
heard him express dissatisfaction with his nephew's
conduct. One thing was his being out late at night,
which he strongly objected to; another reason was his
being about with married women. Crooessinined—l
suppose Mr. Bragg's sister did not like we—• reason
why I did not often go to his house. I never saw bat
one will before the will of 1859. He gave the former
will to me very shortly after.
The lamed Judge here cited several decisions as to
undue influence, to the effect that it hscrbeen ruled
that merely the persuasion of a relation would not be
considered undue influence, nor the influence of . affec-
tion; hut the mind of the testator must have been so
far influenced as to cause the will of another to take
the place of the testator's will.
Witness continued—Neither herself or daughter
cased any influence over the testator, nor suggested the
way to which be should dispose of his property—Cross'
examined—After her apprentiembip was expired she
worked for Mr. Bragg as • journeywoman, and lived
with her mother in a house belonging to Mr. Brow.
She did not remember when she was first
intimate with Hr. Bragg; it might have been
a twelvemonth before the birth of the child.
She never put her fist in his face to induce him to do
what sLe wished him. She never found him childish
at timea. His memory was very good, and she did not
remembee that he made mistakes. In the last few
years of his life he was not altered in his manner. She
had never said the old man did not kuow what he wee
talking about. Did not know anything of • horse and
carriage being taken from Tibbs' at their interference,
so that he was obliged to walk; if her daughter wanted
the carriage she had B.—Re-examined—Testator IVIUI
not the sort of person, if ono put his fist in his face,
to altar will in consequence. (laughter.)
Severs' witnesses, including George Andrews, solicitor,
of Weymouth, E. 0. Hallett, builder, of the same
place, Charles Chapin, draper, ditto, who occupied
under the testator, William Coombs, • stonemason,
employed by him at Piddletrenthide, John Francis
Heath, • dyer, who collected rents for testator at Skier-
borne, George Young, thatcher, of Cerne Abbas, were
examined as to the manner in which the testator did
Imams about the time the will was executed and idler.
wards, and the affectionate manner in which he appeared
to treat his daughter.
Mr. Sergeant Kinglake then proceeded to address the
jury for the defence, repudiating the idea that he in.
tended to set up that the testator was of unsound mind
in the proper or full sense of the word, and commenting
on the character of the seldom* that had been brought
to support the case for the plaintiffs, especially the
adducing of witnesses to speak to business transactions,
though in nearly every case it appeared be VII accom-
panied by his daughter, while they had not ventured to
call Elisabeth Napier, who had waited upon the old
man, and would, doubtless, throw a different light oa
the matter, He did not say that Hr. Bragg was not
competent to sign his name, or give an order, but that
he was an enfeebled, childish old man, subject to the
influence of any person who chose to exercise that in-
fluence over him; in support of which he should call
medical testimony that had already been reduced to
writing, and was in the bands of the plaintiff's
attorney. He smarted that the Antal@ had been hunt-
ing the poor old man until he had no will of his own.
He WU a 1111111 advanced in life, sad if his mind was in
an enfeebled, impaired condition, the question was
whether such influence as be had alluded to bad been
exercised over him on this occasion. It was not
necessary to show that he was amenable of 'lining his
name or giving an order, bat that there was an in.
capacity for the act in qIIOBLOII. The learned Sergeant
then in • forcible speech addressed himself to the
different aspects of the case.