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

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 aeorge
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 acquaintance 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 the 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 was
alive. It was in the autumn of' 1844 we met Mr. and MIL
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 witness),
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 said I
thought the plaintiff was in a very difficult position, sad
that 1 ought to take further advice as to the best course to
take. I hail an impression it could only he done in the
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.

P

The letter of the 26th of June was here read. It directed
the London agent to get the necessary authority from the
Court of Chancery, " I presume, said the writer, " under
the ltith and 17th of Victoria, cap. 70."
The case accompanying the letter was also read. It
stated that the testator was quite "incapable of managing
his affairs,' but there were " occasional moments when lie
could recognize familiar persons and names," and that be
had been in that state for six months." It also stated
the widow, the plaintiff, and Mr. C. Swinfen, who had
that
come to the hall, and who morally represented the family,
had given instructions for these proceeilit. ;1.
The witness continued: The instructions were not given
to me except as I have already stated. No one said that
he was "incapable of managing his affairs." I nad not
spoken to the testator since I made his will in 1852. I
received this letter from my London agent on the 28th of
June, 1854. The letter stated that before a commission in
lunacy could issue " Two medical men of high standing
must make a statement in writing of Mr. Swinfen's state
of mind and body, anal they must give their reasons f
it
their conclusion that he is of that senile imbecility as to be
incapable of managing himself and his pecuniary affairs."
It also stated " That ii the medical men cannot make a
statement sufficiently strong, then of course Mr. Swinfen
will be considered of sound mind, and capable of managing
himself and his affairs, and in that event ho may by power
of attorney give complete authority to Mr. Charles
Swinfen or any one else to act for him in everything."
The remainder of this witness's evidence will be
sufficiently understood from the following, which we
have somewhat abbreviated. The notes, made in
pencil at the time by Mr. Simpson, of what occurred
when he attended the testator on the sth and Bth of
July to take instructions for the will which was exe-
cuted on the 7th of July, are as follows :
July 5, 1854.
Mr. Swinfen says he wishes to provide for Mrs. Taylor,
not more than 201.—not for Tooliss's—not for Randall.
Mrs. Swinfen.—Not the personalty.
Not Swinfen?-1 don't know.
Mrs. Taylor, '2Ol. a year.
Will you give Mrs. Martin anything?—No.
Was she honest:'—Nu.
When shall he come again?—When we come again will
you have the will made?—Yes,—very good.
Will you do it?—Yee. Mrs. S.
Is Mrs. Swinfen £ any in you. Will you give her
Swinfen, but how 7—Not—l mean ( yes).
Very good, you may ( ).
July 6.

Is Mrs. Swiufen below ?
Oh, hear me.
I am sorry to give you so much trouble.
I gave him his former will to read, and showed him his
signature. He put on his spectacles and said, " I know
that."

I wish to give all this property—
I wish Mrs. Swiofeu to have-
-1 wish Mrs. Taylor to have 20/. a year. I think it is not
out of the sort. I wish Mrs. Taylor—
Doyou want her?—Yes.
Shall I fetch her for you ?—Thankey.
Mrs. Taylor having come up he salt! to her, " Is not 201.
a year about the mark ?"
She brought some strawberries and went away. He took
off his spectacles and ate them.
This unfortunate (death ).—Yes.
Mrs. Swinfen in his place.
You had left all your property here to your son. Do
you wish her to stand in his place ?—I don't know.
Do you wish Mrs. Swinfen to have the furniture and
moveables?—[ think so.
He pointed, and said, " Read it."
I read the formal parts of a will, and then the bequests,
to Mrs. Taylor.
I said,—Do you understand that ?—Yes.
How much have you given to Mrs. Taylor ?-201.
201. a year?—Yes. This estate to Mrs. Swinfen.
Do you leave to Mrs. Swinfen this estate ?—Yes.
The Swinfen estate?—Yes.
He said, " Well, what have you put down ?" I told him
what I had put down. And that Mrs. Henry Swinfen is
to have it. at your death ?—" Yes."
The widow of your son ?—Certainly.
Mr. James's speech for the defendant, as well as
his witnesses called, were not very material, with the
exception of Dr. Evans. One of the most important
witnesses in the last trial, named Bacon, was not
called at .ill.
Dr. EVANS, examined by Mr. JAMES, said :
I am a Fellow of the College of Physician', and practise
at Birmingham, and have done so for upwards of twenty-
four years. Atter some conversation I very soon went up-
stairs, and Dr. Rowley went wish me. Mrs Taylor was in
the room. The testator was in bed. Dr. Rowley intro-
duced me to the testator as Dr. Evans. He took no
notice. I asked him if he remembered me, " Dr. Evans?"
He muttered something indistinctly, which I could not
understald. I asked him about his general health. I
3btained no distinct reply to the questions I put. I asked
bun to put out his tongue. He put it out very imper-
fectly, and it was very tremulous. His replies were India•
tinct mutterings. I asked him the time of day. He
tusde no reply. I asked him his age. I pressed the
question, and he said, " Sixty and something wore." He
added something to sixty. I then spoke to him about his
property. I asked him whether he had any money in the
funds, or in the bank? He made no reply. I asked him
to whom he meant to leave the estate? I beg to say I
pressed the question—l mean I repeated it twice. He
said, "To Henry." I informed him that Henry was dead.
I repeated the question about his wilt, about his property,
and he said, "To Henry," or "To my son." When I said,
" Your son Henry is dead," I got no reply to that. I asked