The Express.
London, England, 1861-02-23 00:00:00

COURT OF PROBATE AND DIVORCE.

--_ _
Pm. 22.
(Before the Judge Ordinary.)
TALBOT AND OTHERS V. TRAITIRNE AND OTHERS.

This morning Sir H. Cairns rammed and concluded his
speech in reply.
Sir C. Cressy/ell then proceeded to sum op. He observed
that at the end of such an inquiry as this, if he felt it
necessary for the purposes of justice to read in detail any
considerable portion of the evidence he should decline to
enter at that hour of the evening (half-peat 4) upon the task.
He bad, however, had ample proof of the vigilant atten-
tion of the jury ; because whenever any controversy arose
as to what any witness had said, heobserved that they were
singularly accurate in their recollection of the very words
that had been used. He could therefore place implicit confi-
dence in the attention which they had paid to the case ; and
the principal part of his duty would be merely to explain
the law bearing upon the question. By the law of England •
man had a right to dispose of his property as he pleased;
but if in his lifetime he gave evidence of a failing mind, •
commission of lunacy might be held upon him, and he
might be deprived of the control of his affairs. So after
his death he bad an absolute right to dispose of his estate
as be pleased ; but in order to do that it was necessary that
at the time of making his will he should be of sound mind,
and el sufficient mental capacity to deal with his property.
If the jury only understood what the law meant by a sound
end s &posing mind, they would have no difficulty in
dishes with this case. To be of testamentary capacity,
the kw declared that it was not only necessary that • man
abash have memory enough to answer yea or nay,
bet be must have a disposing memory, so as to be
able to dispose of his property with understanding
and reason. The same doctrine had been laid down by the
Privy Council, in these terms :—ln order to constitute a
sound and disposing mind, • testator must not only un-
derstand that be was giving away the whole of bas pro-
perty, but he must also have capacity enough to appre-
hood the nature of his property, and the natural claims
which these whom his will would exclude from benefiting
by it, bad upon him. Any person who had capacity enough
for that had, if he was not insane, sufficient testamentary
capacity. The definition of insanity was given bed by Sir
John Nicholl :—" The true criterion of insanity was that
whenever there was • delusion in the mind there was in-
sanity—that was to say, whenever persons believed that
things existed which existed only, at least in that degree,. in
their own imagination ; but of the non-existence of which
co argument or proof could convince them." An ex-
ample of this kind of delusion was given in the case of
arise v. Waring," where an old lady was convinced
that Lord Melbourne and Lord John Russell were going
about in dieguise hawking fish in the neighbourhoodof Wey-
bridge. (Laughter.) Another example of insane delusion
was where a person of high rank, who had recently lost his
wife, went to an eminent physician to consult him under
very peculiar circumstances. He said that his maidservants
put a powder in his boil for the purpose of exciting his
iluires And making him marry one of them. He even took
some of the powder to the physician, who found that it was
hair powder (which the old gentleman wore) ; lost nothing
could convince him that suet was the simple fact. As to
the existence of delusions in this testator's mind there was
little or no evidence. Some things had been detailed by
the witnesses with • view to support that theory, but he
really would not detain the jury by commenting on them.
They amounted to nothing at all, except to show that the
testator was a man of irritable temper, and was often very
angry. As to the medics,/ witnemes, Dr. Sutton, who did
not attend the deceased at the time in question, had felt DO
hesitation whatever in saying that the deceased could not
have been of testamentary capacity ; but Mr. Chator, who
did attend him, expressed himself in terms of great doubt;
so tine it was that some people would rush in when other
people feared to tread. (A laugh.) The case resolved
itself really, therefore, into a question of the general rapa-
city of the deceased. There was no doubt that he
had latterly shown • considerable leas of me-
mory, but he (the learned judge) bad hardly
ever seen more full and complete instructions
given for a will. It bail indeed been asked, where was Mrs.
Trabenie all the time ; but it was proved that she was
not present while her hushuid was supped with Mr.
Wooilroffe, his solicitor. Those instructions were pretty
strong evidence of his powers of memory. It was said that
the deceased showed au insane antipathy to those who bad
previously been objects of affection. But the term could
Willy be applied to the feeling of annoyance which the
testator manifested when he thought that his nephew had
circulated reports of his insanity. It had been said that a
man never loved his heir at law, or liked his successor ; sod
certainly if there was one thing more likely than another to
offend a testator it would be to learn that because he bad
taken the liberty to use some of his own money, the person
whom be bad made his will to benefit was going shoat
stating that he was mad, and not fit to be entangled with his
a affairs. Bmidsstheplatotiorspecity,therewessaothergromid

on which the will bad been impeached. Mrs. Traherne had
been accused of having been guilty of a gross, abominable,
and disgraceful fraud—in other words, it was said that she
had inserted the name of the residuary legatee in the will
without her husband's knowledge. If that were true, it
was about am gross a fraud as could well be conceived, and
Mrs. Traherne had added to it the guilt of perjury. But
was there any ground for such an imputation? n the first
place, did Mrs. Traherne gain anything by it! On the con.
teary, she lost a great deal ; for if no residuary legatee had
been inserted in the will her husband would have died in.
testate as to his personalty, and she would have taken half.
Was it reasonable, then, to suppose that Mrs. Traherne
would have committed the grave offence with which
she MY charged, and that to benefit not any friend
of her own, but a relative of the decemed's! If,
however, the jury were of opinion that the name
of the residuary legatee had been inserted without
the knowledge of the testator. the will would be valid as
regarded the rest of its provisions, and invalid as to the
residuary estate.
The jury after deliberating for a minute or two found all
the imam for the plaintiff.
Sir C. Cromwell then decreed probate of the will, and
condemned the defendants in tbe costs.

COURT OF BANKRUPTCY.—FER. 22.
(Before Mr. Commiesiouer Face.)

•
THE BRITISH AND FOREIGN *MUTING COMPANY (LnIrTED).
i
An order for the winding up of this company was e
some time ago. Since then a call has been made on the
contributories in due form, and the whole debts of the com-
pany (about 1,300/4 have been paid in full.
The matter now came before the court on what is called
the order for final distribution. About 2501. remaining in
hand after cleariug oft the liabilities and charges, an order
was now made that it should be returned to the contribu-
forks who had paid their calls in fulL

INSOLVENT DEBTORS COURT.—Fas. 22.
(Before Mr. Commissioner Nichols.)
Tlf R F3ANCI HIGGINSON.

The insolvent, • commander in the Royal Navy, applied
under the Protection Act. . _

Mr. Ssrgood appeared for soma! Greenwich creditors ;
and Mr. Sturgeon supported.
The insolvent proposed to set aside 1001. a year, by quar-
terly payments, for his creditors, and received a renewed
protection to May 14.

IS THE MATTER OF AN ATTORNEY.

Mr. Appleyurd, an attorney, addressed the learned com-
missioner, saying that be had been prevented from prac-
tising in the court on the 17th; also that it had gone forth
that he had been " struck off the roll." Now, as be was
never on the roll, he could not be struck off. He was still
an attorney of the superior courts. He wished it to be
corrected.
, The Commissioner said the order was that he cease from
practising in this court. He could apply to have the matter
reheard.