The Sun.
London, England, 1861-05-24 00:00:00

FRI►Y EVENING, MAY 24, 1861,

LAW INTELLIGENCE—(2hts Day).

COURT OF CHANCERY.
(Before the Lord Chancellor and Lords Justices o:
Appeal.)

THE EMPEROR OF AUSTRIA V. KOSSUTH AND DAY.

The further hearing of these part heard appeals were
resumed this morning, and the defendants' counsel have
been fully heard.

Mr. Roundell Palmer, Q.C., is now being heard in reply
for the plaintiff, the Emperor of Austria.
The court is densely crowded.

ROLLS COURT.
(Before the Master of the Rolls Sir John Romilly.)
JUDONIENT -TATHAM V. VERNON.

His Honour, the Master of the Rolls, in delivering judg-
ment said—The question here is, whether under the settle-
ment made by the testator his children take an estate of
inheritance in the real property settled thereby or whether
there was in the settlement such words of limitation as
limits the right of the children to the inheritance. The
testator had two classes of property, freehold and copyhold.
His will was executed on the 23d April, 1824, by which he
undoubtedly disposed of his freehold, but then there was a
settlement made at a subsequent date, and the question
raised is whether its provisions supersede or release the
provisions in the will. The settlement was voluntary, and
disposes of the freehold, copyhold, and leasehold. It is dated
24th and 25th June, 1825. The will and settlement were
both executed by the late John Miller Vernon to two trus-
tees, disposing of his freehold, copyhold, and leasehold pro.
perty in favour of his wife, son, and daughter. His Hon-
our, on considering the terms of the devise contained in
the settlement, was of opinion that the freehold estates
remain entire and go to his heir. But his copyhold
estates stand on a different footing; they go to his wife
and children, subject to the directions and limitations con-
tained in the will, and that the will and settlement should
be read together. And, being of this opinion, a third ques-
tion is raised—whether under the will the children take
absolutely ? His Honour, on reading the word " issue,"
contained in the will, was of opinion that the children were
entitled to take on the death of their mother, or on attaining
the age of 21, and if not divided the interest was to be paid
till they arrived at the age of 25, or were married. His
honour declared that the son took absolutely, but the
daughter took a vested interest in her lifetime, and it re-
turned to her children in the events stated. Costs properly
incurred to be paid out of the respective estates.

MARSH Y. KEITH.-JUDGMENT.

His Honour, the Master of the Rolls, said—ln this case
the testator, Joseph Marsh, created a charge on his real
estate of £20,000. I have appointed new trustees; and the
only question before me is, whether the devisee or owner of
the estate is entitled under this sort of charge to receive the
money before the amount devised becomes actually devise-
able among the persons entitled to it. His Honour con-
sidered that the result of the decided cases, and the opinions
of Lord St.Leonards, establish that in a question of intention,
the whole of the settlement must be taken as a charge on
the testator's estate. And alter expressing his views on the
matter, and appointing new trustees who would act accord-
ing as they thought fit, his Honour declined to make any
declaraiion at this stage of the proceedings.
His Honour's decision was in favour of the devisee.
£20,628, deducting legacy duty, wag to be brought into
court. Costs to be paid out of the trtst fund.

COURT OF PROBATE.
(Before the Judge Ordinary.)

SMETHURST V. TOMLINS-THE WILL UP ISABELLA BANKS.

Dr. Phillimore this mot ning appeared on the part of Dr.
Thomas Smethurst to support the demurrer that had been
entered to pleas of the respondent. The will of Miss Isa-
bella Banks, whom, it will be remembered, died under very
peculiar circumstances at Richmond in the spring of the
year 1859, and Dr. Smethurst was accused of causing
the death of the unfortunate lady by poison. After
a very long trial Smethurst was convicted of wilful murder
and sentenced to be hanged in front of the county gaol.
Owing to the doubtful nature of the medical evidence, a
free pardon was granted to Dr. Smethurst, but as he had
also committed bigamy by feloniously intermarrying Miss
Isabella Banks, his first wife being then alive, an indict-
ment for that offence was preferred against him, upon
which he was found guilty, and sentenced to one year's
imprisonment. Previous to her death, Miss Banks had
exec.Vg4 a will, bequeathing the whole of her property,
with fhe exception of a brooch to one of her female friends,
to Dr. Smethurst. At the expiration of the term of
imprisonment, Dr. Smethurst applied for probate
of the will of the testatrix. The learned gentle-
man said his client propounded the will of Miss
Banks on the 31st of May, 1860, but the respondents, Mr.
and Mrs. Tomlins and Miss Louisa Banks, appeared by
counsel and objected to probate being granted on the ground
that the will was not executed according to the Act of 1856 ;
that it was obtained by undue influence and control ; that
the testatrix at the time she executed the will was not in a
sound state of mind ; and also the special plea that the
conviction fur the bigamy disqualified him from
all interest in the will of the deceased lady.
To these pleas Dr. Smethurst had demurred,
and he now appeared to support that demurrer.
His contention would be, that although the cases were not
many and the authorities few, they were sufficient to esta-
blish the proposition that a person being convicted of felony
c----sro discharging the duty of an exe-
,;.tor. it must be °lase. .cat the urown. dia 1104 ap-
pear in this case, but the next of kin, and this proved too
much ; for if Dr. Smethurst's right was gone by reason of
his having committed felony, that of the next of kin was
gone also, and the right reverted to the Crown, and the
Crown was not on the present occasion represented in
the case. The learned doctor then quoted from the Crown
cases a decision of Mr. Justice Williams to the effect that
there were but few crimes that would prevent a person
from acting as an executor. The judgment set out several
offences, amongst which were outlawry and bankruptcy,
but felony was not included.

The Judge Ordinary—The question is, does the convic-
tion bar the right to apply for probate.
Dr. Phillimore agreed that that was the question, and,
according to his opinion, Dr. Smethurst was not precluded,
by the law of the land, from acting in such a position.
Dr. Swabey followed on the same side.
Dr. Deane, for Mr. Tomlins and other respondents, ar-
gued that the conviction for felony was a total and effectual
bar to the right of Dr. Smethurst to probate of the will of
Miss Banks, Every case bearing on the point was a
support
used o
fthbayt view,
refu andsing the Court had a right to exercise
to
grant probate of the will. Dr.
a discretion, and that in this case it could be most bene-
ficiallySmethurst was here seeking to secure no interest but his
own, which had in fact ceased to exist, because by
reason
of his felony he had forfeited his rights.
Mr. Sergeant Ballantine and Mr. Mereweather followed
on the same side.

Dr. Phillimore, in reply, contended that whatever dis-
abilities Dr. Smethurst might have laboured under, if they
had ever existed, had now ceased to exist, and, looking to
the judgment of Mr. Justice Williams, he thought Dr.
Smethurs: was in a good position to ask for probate of the
will in question, and was quite competent to act as an
executor.
The Judge Ordinary—Can a convicted felon make a will
and appoint an executor ?
Dr. Phillimore--I recollect hearing my LordChelmsford
say it was ajudge's privilege to ask questions, and a coun-
sel's privilege to refuse to answer. I will not go that
length, my lord; but I must say I am not at•the present
moment prepared to answer the question.
The Judge Ordinary—Therefore the court is to be left
in ignorance on a point on which it requires information.
(Laughter.)

Dr. Phillimore--I am very sorry, my lord, but I cannot
answer the question at this moment.
The learned gentleman having concluded his reply,
The Judge Ordinary said he was not prepared to give
his decision in the present case without some considera-
tion. He must, therefore, take time before he delivered
judgment.

MANCHESTER R A CES.—(This Day.)

- -
BY•ELECTRIC TELEGRAPH.
WILTON STAKES.

Marignan 1
Egyptian
North Pole 3

Three ran.

LATEST BEI:TING.
SALFORD BOROUGH CUP.
2to 1 agst Wildman (taken)
2to 1 agst Cramond (taken)
Cape Flyaway scratched.

HARPENDEN RACES.—(This Day.)

(BY ELECTRIC TELEGRAPH.)
HARPENDEN HANDICAP.

Eskdale
Ambush
Dorking
Ten ran.
ROTHAMPSTEAD STAKES.

, • .
Calytte
Little Fawn

Eight ran.

POLICE INTELLIGENCE.—(This Day.)

MARLBOROUGH-STREET,

808 TRAVERS AND THE POLICE.—Bob Travers, the
well-known pugilist, was charged before Yardley, as
follows :

Mr. Edward Lewis, of Great Marlborough-street, ap•
peared for the defendant.

Fitch, 186 0, said that about two this morning he heard
the defendant hallooing and singing, in Leicester-square.
He told him to go away, and as he would not he took him
into custody. The defendant was drunk.
Mr. Lewis put several questions to the constable with
the view of showing that he turned his bull's-eye on him,
and said, " Oh, it's you, Travers; you are not among
your pals now, calling for brandy and water and making
me pay for it;" that he had been drinking with Bob
Travers, and fell out with him because he (Bob Travers)
would not pay for it, at Alec Keene's ; that he had never
told the Inspector (Mr. IN ebb) that the defendant
had used obscene language ; and that he had
told the defendant he was a better man than he was,
and that he was a -- black; but the constable denidd the
questions entirely.

Mr. Yaz dley asked Mr. Lewis if he was prepared with
witnesses to support the defence, and Mr. Lewis replied
that he was not.

Inspector Webb said the defendant was drunk, but that
he had known him to assist the police on several occasions.
Ms. Lewis, having addressed the magistrate at some
length, ptating that he should be prepared with witnesses
to support his case, if adjourned,
Mr. Yardley said he did not consider the defence at all
supported as it might have been, but he should only im-
pose a nominal fine of ls. At the same time he must say
that he did not believe the insinuations thrown out against
the constable, unsupported as they were by witnesses.
Mr. Lewis said he had simply acted according to his in-
structions.