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

LAW INT:

.This Day.

COURT OF PROBATE.
(Before the Judge Ordinary.)

KNOX V. MEE.

' 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 counsel on the
other side of the life and career of the deceased, but there
were same circumstances which had not been developed.
In the that place it appeared that the deceased had been in
the dace of a conveyancer. 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 ho met Dr, Smee, 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 ceremonies 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 said, with regard to the plea of non-execution, it was
me,ely 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 neither in 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. Tegert, 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 opiuion 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 sy stem. The evi-
dence given by the plaintiff with regard to the
property of the deceased showed that there was great
confusion in his mind, 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 sas 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 my house, and
then I observed that he had great difficulty in
swallowing. In March, 1857, I became convinc.2cl there
was organic disease of the brain. While in Syria ho wrote
frequently to us deserbing the interesting places with great
minuteness. I saw him in 186) at the Oratory. He showed

me all over the building, and then I noticed another very
peculiar circumstance. I 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 and Septem-
ber in 1860 he 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,
bat after some difficulty I learnt that ho was about to
go out for a ride in a carriage. I waited about, as I was
refused admission. r 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 he walked up the gravel walk, he
appeared in a very enfeebled state. I went up, to him
and asked him how ho was, but he said he 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 holy
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 far 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 inquiries 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 18,58 he was again there, but although
he took his meals with us he slept at an hotel, I formed
my opinion that ho 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 fcrmer opinion.
I attended Mr. Hutchinson's funeral, and afterwards I
published a correspondence in which there was a sentence
that my relative's name had been altered so that his friends
would not know biol. 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

Acker. tiier.
Miss Smee—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, MO, 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
he 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 he mistook the bugle ornaments on my
mother's shawl for water. I saw him again in 1862. He

visited us at our country-house at Cashalton. He seemee

very much better in mind, but he was still very feeble. Ho
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. Karslake—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 professional:y

in November, 1856. He came on that occasion to see me.
Ho was then very much exhausted and debilitated, He
was very hoarse, and spoke with great difficulty. I found
tho cause was paralysis. One•half of the tongue was

smaller than the other, and when he put it out it was drawn
on one side 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 atlected. 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 saw him on
his return. He 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 eaw 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 !n the fact of his walking six or Bev° miles. 12
Dr. Bennett said—l am a physician, residing at Fins-