The Sun.
London, England, 1864-04-30 00:00:00

TDB SUN, LONDON, SATURDAY EVENING, APRIL 30, 1864.

LAW INTELLIGENCE-April 28,

COURT OF PROBATE.
(Before the Judge Ordinary.)

KNOX V. SMEB.

' The hearing of this case, which was adjourned on Satur-
day last, when the evidence for the plaintiff was concluded,
was resumed to-day.
It will be remembered that the suit was instituted by the
plaintiff, a minister in the Catholic Church, and a member
of the Oratory at Brompton, to establish the validity of the
will of the late Rev. Mr. Hutchinson, a convert to the
Catholic Church, and also a member of ..he Oratory, which
was disputed by Dr. Alfred Smee, his brother in-law, on
the ground of incapacity, undue influence, and control.
Dr. Deane opened the defendant's case. He said he had
no objection to the general history given by caunsel on the
other side of the life and career of the deceased, but there
were vine circumstances which had not been developed.
In the that place it appeared that the deceased had been in
the office of a convey ancer. He then went to Cambridge,
and removed from Magdalen Hall to Trinity College,
which showed at least a vacillation in his mind. The
learned counsel then read a letter addressed to the sister
or the deceased's sister, Mrs. Smee, from Birmingham,
in Dec., 1845, in which he said he met Dr. Since, whom
he felt compelled to " cut " in consequence of his
persistently following him, and endeavouring to prevent his
entering the Catholic Church, and he said it was useless for
him to "dog" his footsteps. He also stated that he wit-
nessed the deathbeds of two Catholics, and in the one case
extreme unction was administered, which tended to confirm
his sentiments in favour of the Catholic Church. He
alluded also to the Sisters of Mercy, and the reverential de-
portment of the Catholic children in schools to their clergy.
men, and described the ceremanies of the Catholics as
beautiful and affecting. The letter referred to the defendant
in terms of dislike for having "bored him with burr-like obsti-
nacy," The learned doctor then proceeded to deal with the
pleas, and laid,with regard to the plea of non-cxecution,,it was
merely a formal one, but on the present occasion there was
sufficient to justify that plea in the case before the court.
There was beyond all doubt an erasure, and the codicil
was nciiher iu the hand of the deceased or a lawyer, and so
there was a fair question opened as to how the codicil was
drawn, But, under all the circumstances of the case, he
could not contend that the will and codicil had not been
duly executed. On the plea of incapacity, there appeared un-
mistakable evidence that it was thought reasonable to have
medical testimony of the state of mind of testator ready at
hand. Now that evidence was curious and contradictory,
as medical evidence always was. Dr. Tegart, who saw the
testator on his complaining of illness, said he complained of
pressure near the top of the spine, but not affecting the
brain. The most important point of that gentleman's evi-
dence was that he was of opinion that there was extensive
derangement of the nervous system. The late Dr. Todd
also saw him in company with Dr. Barkley, and he was of
opinion that he was then suffering from paralysis, in
consequence of a tumour at the base of the brain,
which affected the whole spinal system. The evi-
dence given by the plaintiff with regard to the
property of the deceased showed that there was great
confusion in his 'lliad, and all his writing from that period
showed that he had become a religious enthusiast; but in-
deed from 1846 it was evident that he had determined
to give up everything to obedience, as that appeared to be
his governing sense, and affected all his actions. That the
testator's mental capacity Ras most disordered. and that he
was labouring under considerable confusion of thought,was
evident, because on the defendant seeing him the testator
told him that he had received extreme unction, when it
had been deposed to in evidence that such religious rite had
never been administered. He could only say that Dr. Smee
was animated but by one desire, and that was to ascertain
whether his relative was in the possession of those faculties
with which, in the disposal of his property, the law
required.
The learned counsel then called
Mr. Alfred Smee, who said—l am a member of the Royal
College of Surgeons, and have extensive practice in medical
examinations. My brother-in-law, the testator, while he
was a student of Lincoln's-inn, lived with me on the most
affectionate terms. In 1845 my wife received a letter from
Mr. Hutchinson, from Cambridge, and I went down and
talked to him relative as to his expressed intention of
changing his religion. I spoke to him about it, but he
refused to alter his determination. I next saw him
at the bishop's house at Birmingham. 1 tried to dissuade
him from his change of faith, but it was useless. At this
time he said obedience was a paramount duty, and above
all things. Truth he considered second to obedience. He
resided, in July, 1846, at my house before he openly
entered the Catholic Church, but after that his visits became
less frequent. In 1857 I met him in Dolland's shop in St.
Paul's Church-yard. He appeared very unwell. I asked
him how he was, when he said he was going to Syria in a
short time. I asked him if he was going without seeing
his sister, but shortly after he called at ray house, and
then I observed that he- had great difficulty in
swallowing. In March, 1857, I became convinced there
was organic disease of the brain. While in Syria he wrote
frequently to us describing the interesting places with great
minuteness. I saw him in 1860 at the Oratory. He showed
me all over the building, and then I noticed another very
peculiar circumstance. 1 noticed that he rolled on one side,
which was a visible proof that he was then suffering in a
fatal form from paralysis. Between February end Septem-
ber in 1860 ho ceased all visits to us, and Mrs. Smee re-
fused to take a continental tour until she knew
the state of her brother. I went to Sydenham,
but after some difficulty I learnt that ha was about to
go out for a ride in a carriage. I waited about, as I was
refused admission. I wished to see how he sat in the car-
riage. He sat, as 1 may say, all in a bunch. I watched
him get out, and as ho walked up the gravel walk, he
appeared in a very enfeebled state. I went up to him
and asked him how he was, but he said ho could not then
be troubled, as he had received extreme unction. I asked
him to see his sister, and he said he could not, as the hely
father was there. He appeared altogether in a stupid state.
The Judge Ordinary—Did he leave you to conclude that
his mind was affected.

Witness—Yes.
The Judge Ordinary—So fer as he spoke, he spoke sen-
sibly.
Witness—Yes.
Examination continued—There was no trouble in seeing
him after October, 1861. He appeared to have undergone
a thorough change. He appeared delighted at everything
we did, and took pleasure in all things, but the disease
seemed to have taken possession of the voluntary muscles
of the body. In 1862 I saw him. He was then very ill,
and he told me he must die, and that he had extreme unc-
tion. 1 never spoke to him about his will or his money in my
life. He once wished to send my son to Eton, but I refused,
and told him he ought to marry and become the head of a
family. On the Sunday the testator died I went to the
Oratory, and when I found my relative dead I said, as re-
presentative of the next of kin, I would undertake the
arrangements of the funeral without there was a will. After
some troublesome inquir:es on my part, I was informed
there was a will, and that the Rev. Mr. Knox was the exe •
tutor.
Cross-examined by Mr. K arslake—l saw the testator in
1857 at Hastings. In 1858 he was again there, but although
he took his meals with us he slept at an hotel, I formed
my opinion that he was labouring under a fatal form of
paralysis in March, 1857, but in September, 1860, I did not
think he was much worse, but the symptoms under which
he was suffering seemed to confirm my former opinion.
I attended Mr. Hutchinson's funeral, and afterwards I
publishes a correspondence in which there was a sentence
that my relative's name had been altered so that his friends
would not know him. I never sent a letter to the Duke of
Norfolk, but I wrote a public appeal to the Duchess of
Norfolk, which I published in the columns of the Morning
Adver diner.
Miss Sinee—l am the daughter of the last witness. I saw
the testator when he returned from Syria. It was at St.
Leonards. I noticed he had a difficulty in swallowing, but
his voice was much altered, I didsee him .in 1859. In
September, 1360, I went to visit him at St. Mary's, Syden-
ham. I was struck with his feeble manner. When I
went into the room he was sitting in an easy chair,
but on rising he had to hold by a table to steady
himself. He appeared averse to all conversation. Formerly
ho was very talkative. My mother attempted to draw
him into conversation, but it altogether failed, as he
answered merely " Yes" or " No," His eyesight was
very defective, as ho mistook the bugle ornaments on m y
mother's shawl for water. I saw him again in 1862. Ile
visited us at our country-house at Cashalton. He seemed
very much better in mind, but ho was still very feeble. He
could walk but very little, and that only by staggering
along, When I saw him at the Oratory he did not walk
at all.
Cross-examined by Mr. liarslake—My uncle came three
times to Cashalton, and on each occasion ho remained the
day. My brother did not return home on purpose to see
my uncle. My brother returned with my uncle on two
occasions of his visit, and my father returned with him the
other.
Dr. Erasmus "Wilson said—l was acquainted with Mr,
Hutchinson, the deceased. I attended him professionally
in November, 1856. He came on thet occasion to see me.
Ho was then very much exhausted and debilitated. Ile
was very hoarse, and spoke with greet difficulty. I found
the cause was paralysis. Oneohalf of the tongue was
smaller than the other, and when he put it out it was drawn
on one bide by the muscles of the second half. There was
loss of control over the tongue that was evidence of paralysis
which must have been quite recent. The exterior of the
mouth was not affected. I saw him frequently in 1856-7,
during which time the disease got rapidly worse. I re-
commended him to abstain from mental anxiety, and to
seek a more genial climate than England. I sa ,v him on
his return, Ile was better in health, but the paralysis had
increased. I referred the paralysis to the exertions he had
undergone. It is perfectly possible that a person may suffer
from paralysis without its affecting the brain, but, on the
other hand, the whole nervous system might be affected,
including the brain. That which I saw in 1858
might have been the beginning of that which
Miss Smee described in her evidence. There is nothing
inconsistent with the disease under which he was labour-
ing the fact of his walking nix or sae miles. n
Dr, Bennett said—l am a physician, residing at Fins-

bury-square. I have had much experience in paralysis.
I have heard Mr. Smee's evidence with respect to the state
of the testator at Sydenham, and I am of opinion there was
disease of the nervous system. Judging from Mr. Smee's
evidence, the disease under which Mr. Hutchinson was
suffering was one affecting the base of the brain, which
would tend to impair the mind more or less.
The Judge Ordinary—lt was net such as would render
a person incapable or incompetent.
Witness—No.

This being the evidence for the defence,

Dr. Deane summed up the case on the part of the defen-
dant, and contended that ho had (roved that in July and
August Mr. Hutchinson was not iL a fit state of mind to
execute his will.

The Judge Ordinary said he did not think it would he
necessary to hear the counsel for the plaintiff in reply. The
case presented by the plaintiff was a strong one, and he
had forborne to express any spiuion until he had heard
the evidence; but, having heard it, he felt no ono could
doubt what the decision of the Court would be. He therefore
pronounced unhesitatingly in favour of the validity of the
wiil. He could not but express his regret at the litigati,n ;
but it appeared that Mr. Smeo had been animated only by
esteem for his relative, and not in the slightest measure
to obtain personal advantage for himself or his relatives.
Mr Hutchinson, he felt, had disposed of his property as he
desired, and there was a total absence of proof that the
slightest pressure was placed on the testator by any
person resident within the Oratory. The medical
gentlemen who had been called upon to give evidence
during the case had all acted with that candour which was
to be expeott;cl from persons of their eminence, and the
answer he received when he asked them whether they could
nndertake to say the mind of the testator was impaired, was a
frank and straightforward negative. There, therefore, had
bees an utter failure to impeach the validity of the will,
and to carry the matter further would be going to an unjust
and preposterous extent. With respect to costs he felt
that tho whole of them must fall on Mr. Smee, as no
reasonable ground had been shown for contesting the
legality of the will.

POLICE INTELLIGENCE—This Day,

Liverpool Cotton Market—This Day,

Sales, 15,000 or 20,000 balm Advanoing. Im
ports, 1,186 bales.

MARKETS—This Day.

COVENT GARDEN.

Our market was seasonably well supplied with produce.
Fruit commanded a steady sale at about last week's prices;
and vegetables were in fair average request at full quota,
tions. The currency was as follows :

FRUIT.

0. d. a. d.
Pine apples 8 0 to 10 0
Colonial do., each 0 0 to 0 0
Grapes,per lb.— 6 0 to 10 0 ,
Foreign do 2 0 to 3 0 !
Melons ... 0 0 to 0 0
Nectarines, per dz 0 0 to 0 0
Apples, per hi-sv. 3 0 to 4 0,
Pears, per do
Oranges, per 100 1 0 to 10 0
Lemons, per 100 3 6 to 7 0 ,
Gooseberries lit sveo 0 to 0 0
Strawberries pr pt 0 0 to 0 0 !

a. d. 8
Mulberries,prpt..o oto 0 0
Cherries, per lb. 0 oto 0 0
Foreign ditto, pun() oto 0 0
Filberts, per lb .. 2 oto 2 0
Walnuts, per 100 0 oto 0 0
Cobnuts, per lb .. 0 oto u 0
Almonds, per bus 0 oto 0 0
Figs, per doz. .... 0 oto 0 0
Peaches ..... 0 oto 0 0
Currants, per b.sv 0 oto 0 0
Plums, per di,. .. 0 oto 0 0
Greengages, pr do. 0 oto 0 0