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

THE P

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Mr. C.A. Kennedy (specially retained), 11r-.: Gray,
Mr. Cripps, and Mr. Macnamora appeared for the
plaintiff ; and Mr. Edwin James, Q.C. 'specially re-
tained), Mr. Huddleston, Q.C., and Mr. H. Junes
fur the defendant.
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The plaintiff, Patience Swinfen, was the widow of
Henry John Swinfen, the only son of Samuel Swin•
fen, , late of Swinfeu•hall, in the county of
Stafford. The son died on the 15th of June, 1854,
at Swinfen-hall, and the father died at the same
place on the 20th of July following, at the advanced
age of eighty-one. On the 7th of July, only nine
teen days before his death, he had executed a will
devising the Swinfen estate, valued at between
00,0001. and 70,0001., to the plaintiff, his son's widow,
but leaving personal estates to a large amount un•
disposed of. The defendant, Frederick Hay Swin-
fen, was the son of Francis Swinfen, who was the
testator's eldest half-brother, and .he claimed the
estate as heir-at-law of the testator. The question
now to be tried was whether the will made by the
late Samuel Swinfen, Esq., on the 7th of July, 1854,
was a good and valid will. It will be in the recol-
lection of our readers that this question came down
for trial at the assizes held at Stafford on the 15th
of March, 1850, when, at the commencement of the
second day's proceedings, an arrangement was made
between the counsel, Sir F. Thesiger, who was for
the plaintiff, and Sir A. E. Cockburn, who was for
the defendant, whereby it was agreed that the de-
fendant, the heir•at-law, should have the estate, but
that the plaintiff, the devisee, should have an annuity
for life out of the estate, which, with her jointure of
:WO/. a year, ghoul(' amount to 1,0001. a year. Mrs.
Swinfen, however, refused to carry out this agree-
ment, alleging that it was entered into by her counsel
without her consent, and in defiance of her express
instructions. The Court of Common Pleas was ap•
plied to, but that court, without expressing any
opinion as to the validity of the agreement in law or
in equity, refused to enforae it by attaching the
plaintiff; and the Court of Chancery, when subse-
quently applied to, refused to enforee it in equity.
The result has been that the Court of Chancery has
directed the issue to come down for a second trial.
The court sat at ten o'clock on the first morning,
when only nine special jurymen answered to their

names.
Mr. KENNEDY, for the plaintiff, prayed a tales.
Mr. MACNAMARA, the junior counsel for the plain-
tiff, stated the substance of the issue, which w 54 as
•,, i••
follows : • ,•. .•i•11 -

Whereas Samuel Swinfen, late of Sw4nfen•hall, in the
county of Stant* Esq., was, on the 7th day of July,
1854, and from thence until the time of his death,
seised in fee of a certain estate at Swinton and thereto
adjoining, mentioned in the writing hereinefter referred
to, and therein expressed to be devised to Patience
Swinfen ;
And the said Samuel Swinfen died on the 26th day
of July aforesaid, leaving John Swinfen, his brother of
the whole blood, his heir-at-law, who died in the month
of April following, whereupon Frederick Hay Swinfen,
the eldest eon of Francis Swinfen, who was the eldest
brother of the half blood of the said Samuel Swinfen, be-
came and is their heir-at-law;
And Patience Swinfen affirms, and the said Frederick
Hay Swinfen denies, that the said Samuel Swinfen did
by a certain writing bearing date the 7th day of July,
1854, purporting to be the last will of the said Samuel
Swinfen, devise the said estate at Swinfen, eke., thereto
adjoining, to the said Patience Swinfen;
And the Master of the Rolls is desirous of ascertaining
the truth by the verdict of a jury, and both parties pray
that the same may be inquired of by the country ;
Now, let a jury, dec.
The will referred to in the issue ran as follows
Samuel Swinfen, Esq., of Seinfen•hail, Staffordshire,
make this my last will and testament. I give to Mrs.
Taylor, who lives with me, 20f. a year for her life. I give
to Mrs Swinfen my estate at Swinfen or thereto adjoining,
also all furniture and other moveable goods unto her, her
heirs, executors, administrators, and assigns And I ap-
point her executrix.
Witness my hand this 7th day of July, 1854.
SAMUEL SWINFES.
Witnessed by us all present at the same time by Mr.
Soinfen'a request.
THOMAS ROWLEY. M.D. Lichfield.
CHARLES Sivimrsx, Leamington.
CHARLES Simrscom, Lichfield.
As this case has been reported at great length in
the daily papers, we shall merely submit to our
readers the evidence of the principal witnesses.
The Rev. ROBERT COVIPLVW, examined by Mr.
MACNAMARA, said :
I have been for many years curate for Weeford, which
includes the hamlet of Swinfen. I was well acquainted
with the testator for twenty years before his death. When
I first knew him he was living in a smell part of the hall.
I frequently called upon him during the life of his wife,
and more frequently after her death, and when the son
and daughter came. I never saw Captain Swinfen, the
defendant, there. I once met him in the neighbourhood
—at Mr. Manley's, whose eons I was educating. I recom-
mended the defendant, as he was in the neighbourhood,
to call on the testator. He refused, and did not call ; he
did not care about it. I have heard the testator speait of
Mrs. Francis Swinfen, the defendant's mother. If was in

739

anything bat friendly terms. I remember once, when a
letter came fro:n her, the testator said he thought it was
a sitter to know whether she should build a lieuse at
Lapley. It was during the lifetime of the testator's sow.
I never saw any of the second family at Swinfen till after
the sou's death, when 1 saw Mr. end Mrs. Charles
Swinfen and Lady Clifton there. Lady Clifton came with
the plaint iffabout putting memorial windows in the church,
whicu were put there. I was at Swinfen.haU stout two or
three months before the testator's death. He was then in
his bedroom. Soon atter that time I left for Worcestet-
shire, and was away some time. I returned to the funeral.
In my opinion the testator was an intelligent ease &WO
active in mill.teTS of businesi, particularly us MODlT.Matters.
He was rather jocular, and calm and sellpisesessel. He
was less talkative after he took to his bedroom, bnt his
thoughts were venally clear. Ho became slower in hie
speech. During this time I visited hint, not ouly as s
friend, but as a clergyman. He took an interest in my
religious ministrations. In June, 1e53, I called upon
him with my two daughters. He took me Into another
room for the purpose of showing my two children the
miniature of his mother. He joked one of my daughters,
and said to me, " Covrpland, your children are growing nti,
and you will soon be looking out for huseands for thee."
I never saw any act showing incapacity to make a will.
His son and daughter-in-law treated him with extreme
kindness and affection. His affection for his dangialeviar
law became very great indeed. When lettme , he
wanted to know the contents of them.
Cross-examined by Mr. JAMES : I did ffttE ass 'ills
testator after Easter, 1854. It was not on a Sande/et' I
was never there on a Sunday. He was sitting NAM
chair the last time I saw hen. He did net lose flesh." I
can't tell whether his body was getting weaker. He had
become more infirm. We were left alone when I went for
religions purposes. My daughters were about fourteen
and sixteen, and had just left school. I read prayers to
him the last time. He had not been in the habit of
attending church when he was well. I always paid him
pastoral visits when I was in that part of the parish, abort
once a month, but not always or ce a month. I cannot say
whether I saw hen three times from November, 1853,
when he was confined to his room, till Easter, 18.54. I
don't remember saying to Mrs. Johnstone, one of my
parishioners, it was useless to go up to the hall to
see Mr. Sweden. Ido not recollect anything of the
kind. 1 do not recollect meeting her in the road and
saying so. I was not in Weroestershire all the three
months before his death. I do not know my reason for
not going to ree hint during the last three months of his
life. I might have hail sonic conversation with Mrs. John.
stone about Mr. Swinfen, for he was a very odd man. lie
would put his name down for a subscription and would not
par it. (Laughter.)
Re-examined by Mr. KEwwsnY: Weeford church is ts•
miles from Swinfen hall. The reason he alleged for not
going to church was that he had no cerriage till 1451.
Mr. Justice bytes : I am afraid he did not go when the
carriage came. e -
Dr. THOMAS ROWLEY, examined by Mr. Kganstov,

said :
I reside at Freefehl, near Lichfield. I Ave been twenty-
five yeats in practice as a physician. lam a magistrate of
the county and of Lichfield, and 1 have been three times
mayor. 1 also practised twenty years as a surgeon. I
became acquainted sith the testator in 1828 or IRI9,
when he first came to Staffordshire. I knew no man
better acquainted with human nature than Mr. Swinfen.
Be was very fond of jokes. They were always in place. '
Mr. Justice Bytes : That is more than can be said df
some of them here. (Laughter.)
The witness continued: HP
argue. He was rheumatic,
plaints, led to a weakness in L
affection in his arm, which inc
WWI owing to muscular debility.
ferently. During the last four
had hydrocele. That gave hi;
nience. I never saw his mind
tion from first to last—not tilt
I remember when. his wife t
testator wrote to his son. 1
he wrote. The son and his
about two days after the wife's t
speak of them with great affection. very
that they should cotne. When they arrived the old geatity.
man always showed them greet respect and great affection.
They stayed eight or nine months. The another diet in
January, 184 M, and they remained till August, 1848. The
son requested me to call. 1 did call—sometimes as a friend
and sometimes as a medical attendant. When his wife died
he said he did not know what would become of him ; bet
his health impraved, which I attributed to his son and
daughter. He had hit meals nioreiregularly, and everything
was done for his comfort. At the son's request I frequently
visited the testator from that time till 1851. At that time
he had a shuffling walk, owing Ito rheumatism and his
hydrocele. He once came to my house, a mile and a
quarter distant. His mind at this time was still active.
The testator received his son and 'daughter with greet
affection. The Martins were immediately dismiesed,
and the testator expressed his joy at it. Notice was
also given to Stmidley sad Gibson. Standley retired
from farming. The son from that time managed his
father's affairs, but I do not think be ever entered into
any birainees without consulting his father. Sometimes the
father opposed his* n'splans,bet the son always gave way.
I remember the death of his son, on the lfith ofdaue, ROL
I saw the testator each day after the death of his son mill
his funeral. In shoat three days alter the son's death be
spoke to me about making . his will. He frequently
lamented the death of his son, and said, " Poor Henr9J
went regularly to see him of my own Racer .He wee
clear and composed when ha spoke of rnakiug his will. He
' said he Wished to make his will in favour of Mrs. Swinish.
He said that frequently. He said, " I wish to provide for

J

;raw.
He was a man who would net
ic, and that, with other cam•
n bis limbs. He bad a nervous
increased with his years. That
bility. He always wrote in&
four or tire years of his life he
e bini great pain and inilooye—
mind at all in a state of idler's-
till the last two days of his life.
3 died in 1848. I believe the
1 wished to write, but I believe
his wife (the plaintiff) arrived
fife's death. I always heard him
affection. He was very anxious

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