The Sun.
London, England, 1864-04-23 00:00:00

LAW INTELLIGENCE-April 22,

COURT OF PROBATE AND DIVORCE.
(Before the Judge Ordinary.)
KNOX V. SMEE AND SMEE-THE BROMPTON ORATORY.
In this suit the plaintiff, the Rev. Thomas Francis Knox,
propounded the will and codicil of the Rev. William Hut-
chinson, deceased. The defendants, Dr. Alfred Smee, and
Mrs Smee, his wife, pleaded that the will was not accord-
ing to the requirements of the statute, that the testator
was not of sound mind, and that the execution of the will
was secured by the undue influence of the plaintiff and
others.

Mr. Kerslake, Q.C., Mr Coleridge, Q.C., and Mr. Inder-
wick appeared for the plaintiff; and Dr. Deane, Q.C., Dr.
Swabey, and Mr. Fooka, of the Chancery bar, for the
defendants.
Mr. Kerslake said he appeared for the plaintiff, the Rev.
Thomas Francis Knox, who as executor propounded the
will and codicil of the late Rev. William Hutchinson, who
died on the 12th July, 1863. The will was dated 24th July,
1860, and the codicil on the 7th August in the same year.
Alfred Smee, one of the defendants, was the brother-in-
law of William Hutchinson, having married Elizabeth, his
sister, the other defendant, who had been made a party to
the proceeding, not only as the next of kin, but also as
heiress-at-law, there being some small Irish property, worth
£l5 a year, left by William Hutchinson at his death. He
should be able to show conclusively that when the testator
made the will and codicil he was in a perfectly sane state of
mind, and that he acted entirely according to the dictates
of his own conscience, without any undue influence on the
part of the Rev. Mr. Knox or any other person. The
testator was the son of George Hutchinson, a cashier.in the
Bank of England, who died in 1833, leaving two children,
the testator and a daughter, who married Alfred Smee. The
testator was born in 1822, and the daughter in 1818, and
William Smee, the father of Alfred Smee, the defendant,
was executor of the elder Hutchinson's will. Smee,
senior, who also held a position in the Bank of England, was
likewise appointed guardian of the children. The Rev. W.
Hutchinson inherited considerable property, both present
and prospective, under his father's will. Both he and his
sister were brought up by William Smee with his own chil-
dren, and some years ago Alfred Smee married the sister.
In 1843 William Hutchinson became a student at Trinity
College, Cambridge, and in 1844 he went to Italy. About
that time he made the acquaintance of Dr. Faber, a member
of the University of Oxford, bat had previously expressed
his intention to join the Roman Catholic religion. Mr.
Alfred Smee did all he could, and in an extremely offen-
sive manner, to prevent his taking that course, but he was
unsuccessful. That gentleman, who was a medical practi-
tioner, resident in Finsbury-circus, wrote a very long letter
in 1845, entreating him in the most earnest terms not to at-
tach himself to that community. In another letter, dated
September 17. 1845, he said his rraolution arose not from
reason but from a mind diseased, and that the idea of his
lending himself to tbo "mummery" of such a relentless
body, who would rob him of every farthing, was most hor-
rible and distressing. It was addressed to " Wm. llatchin-
son, E.q., member of the Church of England, and student
of Trinity College, Cambridge." On the 21st of the same
month ho was received into the Roman Catholic Church
at Birmingham. About the same time, or subsequently,
Dr. Faber joined the tame religion, and they became ex-
tremely intimate and went on a tour together. In 1846,
they joined a community known as the Winifredians, who
had just removed to Cotton Hall, Staffordshire. Shortly
afterwards there was a paragraph in the papers stating that
Mr. Hutchinson had become a priest. This led to a letter
from Mr. Smee, dated October 13, 1846, in which he spoke
of the " debased" villain Faber, who ruled him for his own
ambitious ends, and complained of the injury which Hutch-
inson's embracing the Roman Catholic religion had done to
the writer in his professional capacity. In August, 1847,
Hutchinson was ordained a priest of the Roman Catholic
Church, In February, 1848, a new community called the
"Oratorians" was established in St, Mary-vale, Birming-
ham, and they were joined by the Winifredians. Next year
they became divided into two bodies, and Dr. Faber and
some other members, including Mr. Hutchinson, came to
London and established a house of their own in King Wil-
liam-street. In 1850 they became an independent commu-
nity, but Dr. Faber ceased to be superior and was a simple
novice. Whatever authority he enjoyed over the rest of the
community was by reason of the rules and regulations of the
house to which he belonged. During the same year they
removed to Brompton. Mr. Smee said he was deprived by
Mr. Hutchinson's will of £4,000 which ought to have been
left to him, but a large portion of the testator's property
was expended in charitable and other good works during his
lifetime. Among these were ragged schools in Holborn, and
Drury-lane, which he superintended himself, an orphanages
a reformatory, and model lodging-houses. lie also contri-
buted largely towards the Oratory at Brompton. He fitted
up a side chapel entirely at his own expense, and also spent
several hundred pounds in forming a library, the catalogue
of which he was engaged upon at the time of his death.
The learned counsel then read several letters to show that
he transacted all matters in the most business-like way, and
that he had a fixed determination not to leave any of his
property to his family.
The Judge Ordinary—l suppose his capacity is distinctly
in issue ?
Dr. Swabey—Yes; most distinctly.
Mr. Kerslake said that by the will the testator be-
queathed to the Ray. Thomas F. Knox, of the Oratory, a
legacy of £39, and subject to that all his real and personal
estate to the use of the Very Rev. F. W. Faber, D.D., of
the same place, his heirs, executors, and assigns, and if he
died in his lifetime then to the Rev. Charles Bowden and
his heirs and assigns. The Rev. F. W. Faber was appointed
executor of the will, and the codicil revoked that appoint-
ment and substituted the Rev. Thames F. Knox, the present
plaintiff. His will evidently carried out the long-cherished
intention of the deceased, and was not brought about by any
undue or improper influence. His sister had been amply
provided for under his father's will, and it was clearly his
desire that neither she nor her husband nor children
should participate in his property. There could be no
doubt that he suffered a good deal from illness, and was
ultimately afflicted with paralysis, but there was no ground
for alleging that he was of unsound mind when he executed
the will, As already stated, he died on July 12, 1863, and
three weeks previously he was entirely under the profes-
sional care of Dr. Smee. About three months afterwards
Dr. Faber died. The learned counsel then said that the
Oratorians were under no vows, and were free to dispose of
their property as they liked, and to leave the community
whenever they chose. The whole property of the testator
only amounted to between £4,000 and £5,000, and nothing
was more reasonable than that he should leave it to those
for whom he entertained the greatest affection and regard.
Before his death he desired Father Knox to purchase a
diamond ring and pin of the value of about £4O, and present
it to Mr. Smee, as an equivalent for his professional ser-
vices. Mr. Smee attended the funeral at the burial-
ground at Sydenham belonging to the order, and he then
intimated that it was his intention to dispute the will.
Afterwards he wrote to the superior of the Oratorians, say-
ing, that as far as bodily ailments were concerned, his
brother-in-law had received the attention which might be
expected from gentlemen and Christians, but that ho con-
sidered his death was due to a spiritual intimidation, which
was not only contrary to the Christian religion, but con-
trary to the law of the land, and that he should hold all
concerned in it responsible. In another communication he
said his wife claimed part of the Oratory as next of kin,
and he demanded particulars of all the receipts. The
learned counsel said he had no doubt the court, after hear-
ing the evidence which would be adduced, would pronounce
in favour of the validity of the will.
The following witnesses were then called :
The Rev. George Fred Ballard, one of the clergy of the
Oratory at Brompton, which he joined in 1850, said that in
that year he first made the acquaintance of Father Hutchin-
son, who was then a member of the order. He said the

library cost about £lOOO, which Father
He was ^^^ of " ag witnesses to
re was that of
and was signed in witness's presence.
what became of the will afterwards. He also witnessed the
signature to the codicil. On both occasions Father Rut-
chinson was in full possession of his reasoning powers, and
was so during the whole time witness knew him. As one
of the" deputies' Father Hutchinson was consulted on the
business of the Oratory. The Oratory was a society of
secular persons living in community. It was, he believed,
the only religious older in which no vows were taken by the
priesthood. There was no vow of poverty or obedience.
The members were entitled to withdraw at pleasure. They
all contributed a small annual sum by way of commons.
Except in that respect, they had the entire control of their
own property. Any qaestions with regard to the common
property of the society was decided by a majority of the
votes of the members. The deputies of the order were
elected at triennial elections. The congregation could dis-
solve themselves. The father vies also elected every three
years. Witness never influenced the testator in the dispo-
sition of his property, nor did he know the contents of the
will when he witnessed the execution.
Cross-examined—The will was executed at the Oratory,
at Brompton. Father Rowe, the ether witness, and myself
were the only pars ins present except the deceased. Father
Hutchinson sent for me, I think I and Father Rowe went
into his room together. Father Hutchinson's hand was
steady. (The will was handed to witness) There is
something like an erasure in the will, but it may have been
produced by a thick pen. The colour of the ink is darker
in the deceased's signature than in the signature of the
witnesses, but not considerably. It dotes not at all follow
that they were written in different ink. The codicil was
executed at St. Mary's, Sydenham. The testator asked me
to witness it, Father Stanton was present. The testator
first asked nee to copy the codicil, as there was a mistake
in the one the solicitor had sent him, and I did so in another
room. The codicil executed is in my handwriting. Father
Faber was not present at the execution, but he was in the
house. In 1855 I noticed a considerable difference in the
deceased's health. His speech became partially affected
at that time. His mouth was partly drawn aside, but his
walk was not affected. Afterwargs his speech became
more affected. He left off preaching in 1855, in conse-
quence of the defect in his articulation and his general
ill health. His walk was not neaterially *fleeted until
he, returned from the East in :1858. There was a kind
of roll in his walk. He was not absolutely inarticulate
until his death, bat he had a difficulty in_pronouncing his
words. We dined together at the Oratory. He had also a
difficult in swallowing. I noticed this in 1856, and it in-
creased. He complained often of pains in the back of his
head. We enter into no engagements when we enter the
Oratory. As long as you are in the house you have to
attend to certain regulations. There is only one set of regu-
lations. 'We do not sign them, but merely assent to them.
There is no form of assenting to them. After admission
there is a religious ceremony, but quite different from that
on being admitted to holy orders. The service is in print.
It is read, and we take the part of novices. We are bound
to pay the superior some sort of obedience, and he has to see
that those appointed to offices in the congregation carry
them out. All questions of detail are referred to him. I
should not say he possesses considerable influence over
the members. As a matter of fact Father Faber had con-
siderable influence over the members, not as superior, but
from his own attributes. There is no mode of enforcing this
obedience. The superior cannot direct penance or mortifica-
tion. He has a moral power, which is exercised through the
feeling of the community that they ought not to disobey
what he commands. Father Hutchinson had a great sense
of the duty of obedience to the superior. I never heard
him say that obedience was the great duty of members of
the Roman Catholic Church. I saw Father Hutchinson last
on the Saturday before his death: In 1860 his bodily ill-
ness was very gteat. I don't think that extreme unction
was administered to him in that year. It would have been
the duty of the superior to have administered it.
Re-examined by Mr. Coleridge—Though Father Hutch-
inson had strong convictions on the subject of obedience,
he exercised an independent opinion, Father Faber was a
man of considerable abilities and distinction, remarkably
pleasing in his manners, and very much beloved by those
who knew him in both religions. I have myself been in a
conveyancer's office. Blotting-paper makes a difference in
the appearance of ink. We signed last, and if the blotting-
paper had been in our signatures they would probably be
rather different in colour from the signature of the deceased.
Sir H. Holland said, in 1857, he met Mr. Hutchinson at
Mount Carmel, while travelling in the East, and was with
him for about 14 days. They travelled together, and for
seven or eight days they were stationary at Jerusalem.
With regard to intelligence, Mr. Hutchinson was perfectly
competent. The only complaint for which he consulted
him was a swelling of the larynx, which affected his voice,
and he did not observe any sign of paralysis.
The Judge Ordinary said he thought that evidence as
to the state of the deceased in 1857 was immaterial.
The further hearing of the case was then adjourned.

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BONNET'S SILKS A LYON.--Every Article of
commerce takes its title either from the inventor .or
*manufacturer, and the more perfect the production the
greater is the credit which attaches to the originator.
BONNET'S SILKS are said to be incapable of identiflca -
Mon in England; but the fallacy of such an assertion is ex-
pos .d by the very trade mark of the firm, as exhibited by

Messrs. JAY, of Regent-street.
The following interwoven mark may be seen at the end
ofeach piece :—" Manufacture de C. J. Bonnet et Cie., h Lyon
e a Injurieux." Wear guaranteed.

"ROYAL ITALIAN OPERA,
Covent-garden.
From this time until the end of the season there will be four
Opera nights in each week, viz., every Monday, Tuesday,
Thursday, and satsrday.
Mdlle. Emilia Lagrua ; Mdlle. Giuseppini Tati ; Mdlle. Marie
Battu; Signor Graziani ; Signor Mario.
This Evening (Saturday), April 23, will be performed
(for the first time these two years i, Verdi's opera, UN BA L LO
IN MASCHERA. Amelia, Mdlle. Emilia Lagrua, her first
appearance in that character in England ; Ulrica, Mdlle.
Giueeppini Tati, her first appearance in England ; Oscar,
Mdlle. Marie Battu ; _Renato. Signor Graziani ; Armando,
i nor Tagliafino; Angri, Signor Capponi ; Silvano, Sig-nor
Fal.ar ; 11 t.A iudice, Signor Rossi ; and 11 Duca, signor Mario.

Conductor, Mr. Costa.
The incidental Divertissement wi 1 be supported by Illdlle
Selvoni and ?d„yesplace.

Commence at half past Eight.
pit tickets, 7s. ; amphitheatre sta Is, 10s. 6d., 75., ard ss. ;
amphitheatre, 2s. 6d. Boxes, stalls, and tickets may be had
z t the box-office under the portico of the theatre, which is
open from ten to five, and at the principal musicsellers' and
librarians'.

THEATRE ROYAL DR U R Y-L AN E
Managers, Messrs. Edmond Falconer and

F. B. Chatterton.
THIS EVENING, a scene from TWELFTH NIGHT.
Atter which, will be produced the Grand Stage
Revival of Shak,pere's Chnnicle or Historical Play, entitled
the First Part of
HENRY THE FOURTH.
The cast will include impersonations by those emintit
irtists, Mr. PHELPS, Mr. Walter Montgomery, Mr. Walter
Lacy, Mr. A ddiso-,, Mr. Ryder, Mr. Eobert Roxby, Mr.
Barrett, Mr. E. Phelps, Mr. Rayner, Mr. H. Vandenhoff, Mr.
G. Belmore, Mr. Ellerton, Mr. Fitzjames, Mr. Neville; Miss
Edith Wynne, M ss Rcse Leclercq, and Mrs. Edmund Fal-
eoner, supported by all the Members of the Drury-lane Ccm-
pany.
Concluding with a new Masque, called THE FAIRIES'
FES rivAL.

EIEATRE ROYAL HAYNIARKET.-
Sole Lessee4'and Manager, Mr, Buckstone.
THIS EVENING, AN UNLUCKY MORTAL.
Followed by TWELFTH NIGHT • Messrs. Howe, Chip.
pemlale, Bucastone, Rogers, Compton, Farren, &c. ; tics
dames Angel, Lindley, Fitzwilliam, 36c.

After which, the new Easter piece, entitled VENUS AND
ADONIS. Messrs. Compton, Wm. Farren, Coe. &c.; Mes-
dames Louise Keeley, Snowden, Nellyi'ower, Hill, Wright,
Rogers, &c.

Commence at 7.

ROYAL PRINCESS'S THEATRE.--.
Sole Lesee and Manager, Mr. Geo. Vining.
THIS EVENING, Selections from Shakspere's Works.
including AS YOU LIKE IT, THE MERCHANT OF
ti ENICE, and the entire COMEDY OF ERRORS. The
Two Dromios, by the Brothers Webb. Messrs. 'Vining, Her-
mann Vezin, Nelson, D. Fisher, &c. ; Mesdames Hermann
Vezin, H. Marston, Mdlle. Parepa, Rebecca Isaacs, &c.

MR; vhFolEe perlclfiTtsEofß
thebefisrsttNoigahnt'nounce s
etnhtaattionthoef
Hamlet will be divided between the NATIONAL SHAK-
SPEARE COMMITTEE and the DRAMATIC COLLEGE
SCHOOLS FUND. Mr. FECHTER'S indisposition pre-
venting the production of Hamlet this Evening, the 23d, the
LYCEUM THEATRE will be closed.

On MONDAY, April 25, first time at this Theatre, Mr.
John Brougham's Original Comedy, PLAYING WITH
FIRE.

Doors open at 7, commence at halt-past.

NEW THEATRE-ROYAL, ADELPIII.
bolo Proprietor and Manager. Mr. B. Webster.

THIS EVENING, LEAH: Miss Bateman, supported by
Messrs. A. Stirling, R. Phillips, Biliington, Stuart, Eburne,
Stephenson ; Miss H. Simms and Mrs. Billington.
Af er which, an apropos Sketch, SHAKESPEARE'S
HOUSE: Messrs. J. L. Toole, R. Phillips, Stephenson.
To cmaclude with THE AREA BELLE : Messrs. J. L. Toole,
p. Bedford, A. Romer, Miss Woolgar, and Mrs. 11. Lewis.