The Sun.
London, England, 1862-04-25 00:00:00

'AYS

LONDON-, FRIO AY E-V ENE)) G, A P .111 t, 25, ISf32.

LAW---THIS DAY.

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Business done

COURT OF PROBATE.
(Eefcre the Judge Ordinary and a Special Jury.)
SMETHURST V. TOMLINS AND DANRES.--.-TITE WILL Or

65
1.011 2i

ISABELLA EANKES

The plaintiff in this case, Thomas Smethurst, propounded
the will of the late Isabella Bankes. The application for
probate was opposed by the defendants, on Vie ground that
the will was not made in accsrdanee with 1 Vic., cap. 2G ;
that undue influence was exercised ; and that at the time
the will was signed by Miss Isabella Bathes, she was a
person of unsound mind. The property in dispute amounts
to about £l,BOO.

Dr. Phillimorc, Dr. Swabey, Mr. Bruce, and Mr, B.
Webster appeared for the plaintiff; Sergeant Ballantine
and Mr. Merryweather appeared for the defendants, trustees
of the deceased.

Dr. Phillimore said the probate of will of Miss Isabella
Bankes was opposed on the ground above stated, but ho
thought he should be able to show that the objections
raised against it were unfounded. The will was very short,
and bore date May Ist, 1859, after having bequeathed to her
dear friend Miss Jenkins, her brooch set with diamonds, it
proceeded, " And as to my real property, estate, and effects,
I give and devise the same to my sincere and beloved friend,
Thomas Smethurst, doctor of medicine, of 10, Alma Villas,
Richmond, absolutely for his own use." Having given a
short outline of the history of the case,
The following witnesses were called :

Mr. Frederick Senior said--I am a solicitor residing at
Richmond. I recollect the year 1859. On the 30th of
April the plaintiff, Dr. Smethurst, called upon me and pro-
duced a paper. On the following morning (Sunday), he
called upon me again, and in consequence of what he said,
I went to 10, Alma Villas. I arrived there about half-past
10, Dr. Smethurst let me in, and I proceeded to the parlour,
from thence upstairs to the bedroom, where I saw a lady in
bed. When we first went into the room Dr. Smethurst
said, " My dear, this is the gentleman come to make your
will." She merely bowed, and handed me a piece of paper,
which I believe to be that which I now hold in my hand.
I said nothing to her before she gave me the paper. I said,
"Is this what you wish ? Perhaps you will allow me to
read it to you." She nodded assent, so I read it over to
her. When I had finished reading it I said, "Is that
correct ?" and she said, "Yes, except that I wish to leave a
brooch to a friend ; how can you des-zibe it ?" Dr.
Smethurst said, " My dear, it contains the hair of your late
father, does it not ?" and she said " Yes ; and it is set with
brilliants and pearls. I said that would do ; I would de-
scribe it as such. Dr. Smethurst and I then went down
to the parlour, and I wrote oat the will. The lady told me
the name of the person to whom she wished to leave the
brooch. The paper put into my hand is the will I drew out.
After I had done I went upstairs and read it over to her.
She said it was all right, and I said it would be necessary
to have another witness, and Dr. Smethurst said he would
call up Miss Wheatley. When she came in I said, "The
lady and myself will see you sign the paper." Dr.
Smethurst said, " You've not said the will.' " I turned
round and said to the lady in bed, " This is your will, is it
not, and you wish me and this lady (Miss Wheatley) to
witness your signature?" She said, " Yes," and I then
gave her the pen and she signed it in our presence. After
the paper was signed by us as witnesses, I handed it back
to her. I thought the lady was dying—she was very pros-
trate. As to the state of her mind, she seemed to under-
stand everything I read to her. Her voice was very feeble.
She was perfectly placid and calm:

Cross-examined by Sergeant Ballantine—The lady signed
the name of Isabella Bankes. The word spinster was in the
will when I gave her the will. Dr. Smethurst told
me told me they were living together as man and wife,
but that they were not married. The lady was lying
back in the bed, and was deadly pale. She merely answered
by nodding her head. Smethurst reminded her that the
brooch had the hair of her late father in it. I asked who
was attending the lady, and he said Dr. Julius and Mr.
Bird. He said she's in first-rate hands—don't you think so?
I said I had no doubt of it. I suggested, When Dr.
Smethurst came to me on Sunday morning, that one of the
medical men should be present at the signing the will. He
said, " Oh, no, there's no occasion; she's perfectly right in
her mind. On the contrary, I want you to come at ten to
got it all over before the doctors come at half-past ten." I
purposely went at half-past ten in order to meet the doctors
there. I was in the house on. the Sunday morning not
more than 25 minutes. The doctors did not come during
that time. When Smethurst came to me with the paper,
he told me it was what a barrister or friend of his in Lon-
don had written out, but the lady had wished to write it out
herself, but he thought it would be better done by a profes-
sional man.

Susannah Wheatley—ln Apiil, 1859, I was living at 10,
Alma Villas, Richmond. It was my mother's house. I
recollect a man and woman passing by the name of Mr.
and Mrs. Smethurst coming to lodge there. I recollect the
lady dying there. They had been stopping there about six
weeks. The lady was very ill. Dr. Smethurst stayed
there the whole time. The lady was confined to her bed-
room all the time she was there. I once saw Dr. Smethurst
and the lady together. I remember the last witness being
in the house. It was on a Sunday morning, I went up
into the bed-room where the lady was ; it was about half-
past ten in the morning. Mrs. Smethurst, Dr. Smethurst,
and Mr. Senior were there. :When I got into the room Dr.
Smethurst asked me to sign a paper. Mr. Senior asked me
if I would be a witness to the paper, and I said yes. I
don't recollect that Mr. Senior said anything to the lady.
I don't remember that the lady said anything while I was
there, Mr. Senior:produced a paper, but I don't recollect that
anything was said about it. I put my name to it, and Mr.
Senior did the same. Mrs. Smethurst also put her name
to it. I don't recollect who signed first. The lady was
very

SHERIFFS' COURT.

WHIFFIN.

Cross-examined by Sergeant Ballantine—They occupied
an upstairs bedroom and the parlour. The only time I ever
iaw them together was when the will was signed.
By the Judge—l was seventeen years of age in the June
of that year.

Dr. Thomas Smethurst said—l am about fifty years of
age. I married in 1858. I have retired from practice for
the last eight years. After I retired from practice I went
to Mr. Smith's boarding-house, 4, Rifle-terrace, Bayswater,
when I first went there to live with my wife. After I had
been there about fifteen months Isabella Bankes came. She
came there in September, 1858, and remained there until
May. I was not acquainted with her previously. I became
very intimately acquainted with her, but not im-
properly so until after the marriage which was
performed between her and myself on the 9th of December.
The ceremony was performed at Battersea Old Church.
Miss Isabella Bankes was then perfectly aware that I was
already a married man. On the 11th of December we left
Rifle Terrace and went to Tonbridge Wells. We stayed
there a month, afterwards we went to Dorking, then to Sur-
biton, and next to Richmond. We lived at 10, Old Palace
Terrace for, 10 weeks, and finally we went to Alma Villas. We
went there on 15th of April. Miss Bankes first became
unwell about the 15th or 16th of March. Miss Bankes
mentioned the subject of her will to mo about a fortnight
before her death. She said, doctor, I wish you to do me a
favour. I replied, " With pleasure, what is it ?" She said,
I think I've got poor dear pa's complaint of which
he died, and I should like to make my will, you
will, therefore, write to your friend, the barrister, in
London, and ask him to come and make my will.
I kn-w whom she meant by "my friend." I said what ?
I asked her, "What will do you wish to make ?" She said,
"You are the only friend I have on earth, and I therefore
wish to leave you all I have. Miss Jenkins is my next
best friend." I said, you had better defer your will until
you get better; but she said, "No, I'd rather not:" I
said, if you don't it will leave an impression on your mind
that you will not recover. She said, "No, it will not." I
said, " I would not interfere at all in it. I don't require it.
I've sufficient for my use, and probably your sisters will
expect it." She said, "They are all now well provided
for." I said, "Itis a matter which has caused you some
trouble, the property being in Chancery. The will could
only be disputed if you made it in my favour." She then
said, " To obviate that I'll write it myself, and they cannot
dispute my writing." I then wish( dto decline it. She
said, " No, you must comply wilh my wishes." I said,
" Then you must write it, for I will have nothing to do
with it." She begged me to hand her her writing-desk,
from which she took a sheet of paper and asked me to take
down her instructions, which I did. She then requested
me to send it to the barrister to put it in due form. lac
cordingly did so. The paper was returned. I then showed
it to her, and after it had been examined I burnt the in-
structions she had given me. I went for Mr. Senior on
a Sunday morning, because she pressed me to do so
very ranch. I urged her as she was getting
worse to write for her sister Louisa Bankes (one of the co-
defendants) for her to come and see her. I wrote to her,
and having informed Isabella that I had done so, she said,
" Get the will settled before she comes" Miss Louisa
arrived about half-past 12 or 1 on the morning after the
will had been executed. I told her that her sister had made
her will in my favour, although 1 had resisted it with all
my power. The barrister I have mentioned is named
Smethurst,

Cross-examined by Sergeant Ballantine—The barrister is
no relation of mine. I have been very intimate with him.
lam certain he is no relation. He has called me "Dear
Coz " and I have done the same to him. He used to sign
the letters "yours affectionately," I did the same. I
first formed his acquaintance when he was a patient of
mine at Moor Park. I obtained about £7l of Miss
Bankcs' money before her death. The barrister did not
assist me. It was the dividend under her
uncle's will. I saw the will at Doctor's Commons.
before we were married. It might be a fortnight or three
weeks. She wished me to go and see the will, to satisfy
myself that she had some property—for nothing else that I
know. I went there entirely on her account I took down
some notes, which affected her interest. I showed her the
note. I was stopped in taking the notes by the attendants,
who told me if I wanted a copy I must pay for it in the
regular way. She wrote to the executors for further infor-
mation touching the will. The letter put into my hand is
the ore she sent,

The letter was read by the registrar. It was addressed
to F. J. Tomlin®, and amongst other things it asked for the
loan of the copy of her sister's will.

Cross-examination continued--I Paw the letter lA.

r fore it was sent. It was dated re&er;-?; 1859.
It was dated from "The Grubs, Wit hvham." I
had a friend there who received the letters, and
forwarded them to us. She did not wish her friends to know
where she was, and I did not wish my wii e to know where
I was. Mr. Trehern is the name of
gentleman who
forwarded the letters. Ile is in the se,rvice of Lord. Dela-
ivarr. The letters were always sent 0.0 The dividends
under the will were sent through the; channel. She re-
ceived the money and gave it to rile, it
vas the only
money of her I ever had. IN her.
left i:iayswater with
me she did not have more tha:,, ss. I ne...er
represented to
her that my first niarriar4e, was an invalid one. I never
told Miss Bankes that the woman I was living with was a
married woman. I never told her sc,, or anybcdy else.
I was tried and convicted for bigamy. I never
set up a defence to the effect that the woman
called my wif, was already married. My counsel
did, but I don't know who gave the instructions. I beard
the defence with surprise, and I wrote on a slip of paper to
Mr. Sleigh, my counsel, rot to expose my first wife's ante-
cedents. My brother managed my defence. The reason I
did not tell Mr. Sleigh that it was not a true defence
was that I was in his hands and he was in the midst
of the cross-examination. They tried to set up that my
wife had committed bigamy. 1 again say I had no-
thing to do in getting up that defence. My brother
is a private gentleman—he formerly was a chemist and
druggist. I am now living with my first wife, and have
been ever since I left prison. I was formally convicted for
murder. I afterwards received her Majesty's pardon. I
then was convicted for bigamy, and, after undergoing a
twelvemonth's imprisonment, I went back to live with my
wife. She was a complete wreck, and I returned to live
with her because she bad suffered so much on my behalf.
When I first met Miss Bankes, we commenced mutually to
make love together. She began first. I did not resist her
attentions.

By the Judge—l am certain she wished me trimarry her.
Cross-examination continued—lt began by making ap-
pointments to go out together. I cannot say that
I at all objected to her overtures. The ques-
tion of marriage arose aboLt a month before it
took place. She began by saying that she had a cousin of
the name, I believe, of Tomlins, who had been secretly
married for three years. She also said she had another
friend in tho same position. She asked me how I should
like a secret marriage. I made no reply. This conversa-
tion took place at Kennington. It never occurred to me
to say " I'm already married." She knew I was already
married. Miss Banks has, before Mrs. Firth
expressed a wish for a secret marriage, When
the marriage proposed was made, I took out the license
about a month afterwards. I had then neon her uncle's
will. After Miss Bankes had received notice to quit the
apartments in Mrs. Smith's house she came to me, and said
she was very wretched, and asked me if I would consent to
a secret marriage. I made no reply. She said it cannot
injure you, doctor, as I'm sure your wife will not ap-
pear against you, and I cannot, for I know you
are already a married man. After this I met her again.
She then said, " I am very wretched; let's go and live in
the country, and get away from our friends." Having
then found that the love and attachment was so great I
said to her, "Would you not, before that, pre-
fer the marriage you have spoken of." I knew I
was going to commit bigamy, but I never thought.
I should be punished for it, as it was perfectly
mutual. I intended to watch over and comfort—(laughter)
—my first wife as far as money and other things are con-
cerned. I wrote to my wife while I was at' ttichmond. In
that letter I told her I should I hoped soon return to her, I
wrote that letter on a Moiiday, and Isabella Banks died on
the Tuesday following. I wrote to my brother James on
the same day. I don't recollect seeing my bTother James
while I was at Alma-villas. The letter to my brother in-
formed him that "J. B." was beyond all. hope. When we
went to Alma-villas Miss Bankes was very ill. We went
to the house in 4 cab. I treated her for bilious diarrhoea.
During the time we were living at Mrs. Wheatley's she
cleaned the things away and did everything, that was re
quired. She could hay e entered the room at any time she
pleased. She swore falsely when she said that I took the
things from her when she brought them up to Miss
Banker, and prevented her entering the room. She always
had access to the apartment. In the letter I wrote to Miss
Louisa I gave her directions as to how she could come to
Richmond. When she arrived she was with her sister
Isabella alone for half an hour. lam certain of that.
After she returned to town I wrote to tell her that her sister
was so much worse that the medical men had prohibited
visitors. • I told her in the note I would inform her when
she could again come to Richmond.

The oaso was not concluded when we went to press.

SERIOUS STREET ACCIDENT.-11AYWARD V. TROLMAN.

This was an action to recover damages for an injury to a
horse belonging to the plaintiff.
Mr. Buchanan for the plaintiff said his client was a cab-
proprietor, and upon a certain day one of plaintiff's men
was with a fare proceeding down Skinner. street. A cart
belonging to the defendant came out of Farringdon-street,
and rapidly crossed in front of plaintiff's cab. The horse
was struck and one cart wheel passed over its foot, inflict-
ing a serious injury. So far from defendant expressing any
regret he said that " his business was of more importance
than twenty horses," and "plaintiff's driver ought to have
seen him coming." Plaintiff only aoug.ht 45, though the
actual damage would be nearer L:O.

Witnesses were called, and Mr. Chamberlain, for de-
fendant, addressed the Court, calling evidence to controvert
that produced for tho plaintiff,

His Honour found for the plaintiff with costa.
APPLICATION FOR NEW TRIALS.—IIIIMPHREYS V.

Mr. Beard applied for a new trial on the ground that de-
fendant had mistaken her ground of defence, and was not
duly represented on the first occasion. She had been sued
under a certain deed, whereas be (Mr. Beard) should be
able to show that defendant received no property under the
instrument.

Mr. Buchanan, for the plaintiff, said that the case was
fully tried, and defendant defended herself most ably. It
would be a great hardship upon suitors if parties could
come and obtain new trials simply upon the ground that on
the first occasion they had neglected to provide themselves
with professional assistance.

His Honour saw some force in Mr Buchanan's remarks,
but would grant a naw trial upon the usual terms.
In a second case Mr. Whitehurst applied for a new fria
on the ground that the jury had decided against evidence.
Mr. Gibbons, who tried the case, being satisfied,
His Honour did not like to interfere.
Application refused.