The Express.
London, England, 1851-01-31 00:00:00

JUDICIAL COMMITTEE OF THE PRIVY

COUNCIL.—YznannAr.

HIPARI LORD LANODALI, MIL BADON PAaaa. THD RIONT HON. SIR
BTAPHIN LVANINOTON, AND IDE LORD MN. SIR ETAN.
The Judicial Committee of the Pliny CouLd assembled
this afternoon, according to special appointment, and pro-
ceeded to deliver the subjoined judgment. It will be in the
recolliction of our readers that the arguments occupied the
attention of the council five days during the late sitting*.
BRATNI AND EDWARD/ 0. BATH'S —JUDGMENT.
. . . .

Dr. Lushington deliveredthe judgment in this case,
was an appeal from the Prerogative Court, and arose out of
the last will and testament of Mr. William Brayne, of
Shrewsbury fn the county of Salop, deceased, bearing date
the 26th of Doe ,1844, and was promoted by the executors
named in that will against Emma Bather, one of the resi-
duary legatee named in • prior will made by the decease d bear-
ing date 23rd Sept. 1844. He died possessed of considerable
property amounting in valise to the sum of 30,0001. It ap-
peared that the testator's nearest relatives, and next of kin,
were • nephew and two niecm, the children of • deceased
sister, but he had also another relation, though in a more
remote degree, namely, the Rev. Edward. Bather, the
Archdeacon of Salop, and he had other relations further
remote, namely, the nine children of Mr. John Bather,
who was formerly the Recorder of Shrewsbury. The testa-
mentary papers before the Prerogative Court were, a will
Wiring date the 23rd of September, 1844, and another
paper purporting to be also • will bearing date the 26th of
December, in the same year, about four days therefore before
the tutator'e decease. The due execution of the former
paper was not denied, but, on the contrary-, was fully ad-
mitted; it was in reference to the latter paper that the
question before the court took its origin. The appellants. it
appeared, had married two nieces of the testator, and were
theexecutore named lathe will ixeeuted on the 26th Dec.,
while Mies Bather was one et the residuary legatees named
in the will of the 23rd of September. The executors of the
last mentioned will were the Rev. Edwd. Bather and Mr.
John Bather! By the will of the 23rd ot.Septemter the
great bulk of the property of the testator was given to the
members of the Bather family—namely, the nine children
of the late Recorder of Shreasbury, in various proportions,
by specific devises and bequests, and a comparatively small
portion was given to the more immediate relations of the
deceased. By the latter paper (the will of the 26th of De-
cember) the greater part of the property was given to the
testator's two nieces, Mts. Brayne arid Mrs. Edwards, end
the interest of the Bather family under the will was reduced
to the sum of 5,0001., of which 1,0001. was given to Mr. John
Bather, the second son of the late Recorder, and 4,0001.,
6001. each, amongst the other sons and the four daughters, of
which the family consisted. The will of September was
prepared by Mr. How, a solicitor of the town of Shrews-
bury, where the deceased resided, and that will was attested
by that gentleman and by one of his clerks, Mr. Atkin. The
.111 of December was prepared, it was stated, by Mr. Ed-
mund Harper, a clerk to a stationer end sccountant, and
attested by him and Mr. E award Edwards, • bookbinder,
who also keeps • public-bona,' called ,the Bull, in
the town of Shrewsbury. The original will of the
23rd of September was, it was alleged, der Toyed by
the direction of the testator after the execution of the second

inetrumeet. Toe draft of that will, however, partly in the
testator's own handwriting, together with some alterations
made in it by Mr. How, was proved by that gentleman to be
an exact .opt or in 'abettor. the sera. as the will executed
by the deceased on the 23rd 01 September. The testator was
seized at the beginning of the month of September wish that
illness which terminated fatally. He was afflicted with a
disease in the leg, wnich led to erysipelas, terminating in
mortification, ma he was afterwarde,at the and of the month,

removed up 'stairs, and it then was that his niece, Mrs:
Katherine Edwards, was called to attend him. According
to the representations made the testator, at some time before
the lo.li of December, dictated to Mr. Edwards instructions
for the preparation of a sew will, and these instructions were
aiterwards communicated to Mr. Edmund Harper, with
direction to pr. pare • will from them. The particular
grounds suggested for this alteration of purpose on the part
of the deceased were, first, the outcry raised in the town of
Shrewsbury at the disposition which it was well known he
bad made of his property in favour of the Sather family.
It was surged that the testator was induced to alter
his intentions in regard to the disposition of his
property principally by reason of the exhortations and re-
monstrances made to him by a clergyman named Itoge non,
whose ministry he occasionally attended. Other circum-
stances were said to have occurred, and that the gossip of the
town of Shrewsbury had been communicated to the testator.
He was stated to have been • man extremely sensitive, and
therefore it was supposed that an outcry raised in the town
might have had the effect of inducing Jim to alter his will;
and it was stated that he was heard to say, " The Bathers
are q' Ming about the disposition of the property."
Another ground was suggested as a reason for the alteration
uf the will, namely, that the Bathers looked coldly upon Mrs.
Edwards, and that they did not pay that attention to her
which the testator thought she ought to receive from them.
It wet alleged that the testator said to Mrs. Edwards, " Do
the Bathers speak to you, and take notice of you ?" and upon
Mrs. Edwards replying " No, uncle," he said, " It shell be
none the better for them." Looking at the character
which the twitter sustained through life, the learned
judge in the court below was of opinion that
these circumstances were not likely, even if they
did occur, to have made any permanent impression
on his mind. Mr. Edmund Harper gave the following
account of the execution of the last will, which took place on
the 26th of December. Edward Edwards came into the
room. I forget which it was, but I know that either Mrs.
Brayne or Mrs. Edwards had told me lust before that he had
been sant for and was expected every minute. Immediately
on entering, he went to the bedside end asked the deceased
how he was, and 1 heard deceased say, so he shook hands
with him," Oh, Mr. Edwards you are come," sod he then
said, " I have got my will, and I want to execute it. I
wish you," speaking to us jointly, "to witness it." Mrs.
Edwards, thereupon, reached • paper out of • box which
stood on • chair near the bed ; the paper was placed by him
on the bed in front of the deceased, and I then recognised it
as the very document which I had so prepared and written
out. Mrs. Edwards and Mrs. Brayne then raised the testator
up, and he was supported in • half sitting half lying posture,
by the sofa pillows pieced behind him. Edward Edwards then
made some remark to the deceased as to the reading of the
paper. I cannot be quite positive whether he said, " Has it
been read ?" or whether he said, " shall it be read ," but it
was one of the two, and the deceased immediately said," It
does not matter ; Kitty has read it to me, and it is all right.
1 have signed many wills as witneu without having heard
them read." Edward Edwards thin said, " But with your
permission, air, I would rather read it." Ido not think any
further observation was then nude ; but Edward Edwards
then took up the will and read it clearly arid distinctly from
beginning to end. We were close to the bedside and I held
the candle for him. The deceased appeared to be attending
to it, and mast have heard ft all, but he did not make any
remark whatever at the time. It appeared to me as if his
sight was not very good. I also observed that he did not
appear to have the free use of the Segue of his right hand.
The third finger and the little finger seemed to be doubled
under. The deceased then, quite of his own accord and
unassisted, made his mark (a cross), and said, without any
dictation or suggestion by anybody, "This is my last
will and desire, and I wish it to be carried out."
Edward Edwards then took up the will and handed
it to me and requested me to write the deceased's name
against the mark, and the deceased at the same in-
stant said " Mr. Edwards, sign first, he is always first in
• good cause." This I understood as meaning (which I
am sure it did) that Mr. Edwards should sign his name se
witness before I signed mine. The will was then placed
upon • small table, just at the foot of the bed, rather at
one corner, es Out the deceased could and did see all that
passed. I added his name to the mark or cross. What I
wrote was, " The mark of William Brays's," and then
Edward Edwards signed his name as • witness, and then I
signed mine, each In the presence of the other and of the
deceased. Edward Edwards then banded the will back to
the deceased. The gemmed then, addressing Mrs. Ed-
wards, raid, " Here, Kitty, take care of this • it is
but justice to my sister's children." Mrs. Edwards
then took it, but I do not know what she did
with It. The deceased then said, " Where is the old will ?
let that be destroyed." Mrs. Brayne thidetuhpourogdhucneodtaoppeeLeiri
porh.LdfueurtdeEr'swionhmstpeceeho'tnede:hyytfinmteet,apTiailpebeert.liliehrOe:ntoonhlaytespitkellfrothmewg
general appearance. Ido not know what became of it, or
whether it was or was not destroyed. The deceased requested
see to be seated, and then sold! " My motive for sending for
you, Mr. Edwards, is that 1 wish you to be witness to my
will. I have made one will, but it is unjust to my sister's
children. I have been doing a great deal far the Bathers.
I have been serving them all my lifetime, and have done
little or nothing for them (meaning, es I understood, his
sister's children). If you were to see the Bathers'
letters and my hook, which I have given to
Kitty, you would find it so." The learned judge
in the wart below said the only queen= to be decided
was whether the evidence given by Mc Edward Edward.,
and Mr. Edmund Harper, the two attesting 1114011114111 to
the will, was saffistient to outweigh ell the probabilities of
the sue, and all the declared Intentions of the testator with
reference to the will of the 23rd of September ; he was of
opinion that it was not; and he, accordingly, pronounced
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