The Sun.
London, England, 1859-12-10 00:00:00

last three or four years Of his life.
Mr. Steward, a solicitor, who had advanced
£B,OOO on an estate called Toperoft, in 1854, proved
that Mr. Smyth had executed the mortgage and
given authority to Delf to receive the money.
Mr. Swatman, a solicitor at Norwich, who had
been engaged in the same transaction on the part of
Mr. Smyth and Mr. Delf, said Mr. Smyth told him
the money was to be given to Delf, and Delf was to
pay the interest. He had not the slightest doubt of
Mr. Smyth's competency.
Mr. White, a London attorney, who had prepared
and attested the will of 1856 in favour of Massey,
stated that he had received his instructions from Mr.
Smyth, who expressed his confidence in Mr. Massey,
and seemed perfectly to comprehend the business.
The attesting witnesses to a number of the various
wills and codicils were also called, and gave their
opinions that Mr. Smyth was of testamentary
capacity.
Several letters written by Mr. Smyth to Mr.
Massey and Skipper were read, extending from 1849
to 1855, containing nothing at all remarkable either
in matter or in manner. Two receipts, with his sig-
nature attached, dated the 22d February, 1859, and
24th March, 1859, for the monthly £2O paid him by
Messrs. Skipper, were also put in evidence.
Mr. Edwin James said that no witnesses would
be called for the defendants.
Mr. Sergeant Pigott therefore summed up the
plaintiff's evidence. He submitted that as there
was no evidence at all of undue influence, the only
question was that of incompetency. Even if the
jury thought that the testator was a man of im-
moral habits and liable to let his associates take
advantage of him, that was no reason for invalidat-
its g his will. His disposition of his property- might
appear whimsical, but he had no relatives about him.
He was alone in the world. He assigned reasons
more or less valid for the benefits that he conferred
on different persons, and it clearly appeared to be his
intention that none of the Bodkins should have his
property if he could help it. Various calumnies as to
his mode of life had been insinuated in the course of
the case, but they were not consistent with his let-
ters and his acts. and no evidence had been given to
show what foundation, if any, existed. There. was
was nothing unusual or improper in the manner in
which the instructions for the final will were given,
or in which the will itself was executed, and both at
the time of the execution and subsequently he gave
indications of perfect testamentary capacity. It was
• several months afterwards-that he -objected to the
charge of Dr. Hutchison and employed another
medical man. The learned sergeant concluded by
calling upon the jury not lightly to set aside a will,
as they were all interested in upholding wills unless
it could be clearly proved that they did not carry
out the intentions of the testators.
Mr. E. James, in his address to the jury for the
defendants, said that the ground upon which the
will was opposed was that this weak-minded and
vacillating old man, not being of mental capacity to
resist the dark and mysterious influence of his
associates, Massey, Newton, and Delf, made various
conveyances to them at different times, and confirmed
all these conveyances by the will, not knowingthat
it would have that effect. The object of Messrs.
Skipper in inducing him to execute it was to obtain
the entire control, as executors, of the whole pro-
perty, thinking there would be no one to call them
to account. Mr. Bodkin, who was a gentleman of
landed property in Ireland, and had represented
Galway in Parliament, learned in 1855 that his
uncle was perfectly incompetent, and had got rid
of all his property ; but, instead, of annoying the
old gentleman by issuing a commission in lunacy,
he took the proper course of waiting until he
died, to see whether Messrs. Skipper would dare
to set up such a will as the present. The
learned counsel then went through the evidence
arguing that it proved that the old man was a mere
automaton in the hands of Messrs. Skipper, or of
any one who could get hold of him. He signed
whatever was given to him, and became at last so
utterly incapable of managing his own affairs that
he was only allowed a miserable £240 a-year, out
of his £l,BOO, and all his concerns, even the most
trivial, were managed. by Messrs. Skipper. He
had accused Massey and. Delf, the one of stealing
his plate and the other of stealing his deeds ; he had
called Newton a rascal, and yet all his conveyances
were confirmed by a compendious line in his final
will: His conveyances to various people—Alfred
and Wm. Massey, a Mr. Tyler and his wife, Hut-
chison's wife, Delf, and his relative, the Rev. H.
Delf, and others—comprised property to the value
of no less than £60,000, and the will confirmed them
all. The learned counsel commented in severe
terms upon the conduct of Messrs. Skipper in their
dealings with Mr. Smyth. They had, he said, the
greatest interest in the result of this cause, and it
was their evidence alone which was relied on to
uphold the will, because they had neither dared to
call the Edwards's, who: knew more about the de-
ceased than anybody else, nor Delf, nor Massey, nor
any of his intimate associates. In conclusion, he
expressed a hope that the jury would defeat the
attempt now made to establish the validity of these
suspicious transactions.
The learned Judge then summed up. With re-
gard to the first issue he directed the Jury that the
deceased would not be incapable of making a will
if lie was able to understand the nature of the pro-
perty he was disposing of, -to bear in mind his rela-
tives and the persons connected with him, and to
make an election as to the parties he wished to
benefit. It was not enough, on the one hand, that
he should be able to say " yes" or " no" to a simple
question ; nor, on the other hand, was it necessary
that he should be a well-informed man or a scholar.
He might be stupid, dull, or ignorant ; but if he
understood the nature of his property, and could
select the objects of his bounty, that would be suffi-
cient. With respect to the second question, in order
to establish undue influence it was not enough to
show that a man had been persuaded or cajoled by
pretended friendship, nor that he had been induced
by importunities or requests made from time to
time. If that were sufficient, in how many families
would wills be set aside! The influence, of attach-
ment, argument, or importunity would not suffice,
unless the importunity was carried to such an ex-
tent that it amounted to depriving the testator of
his free judgment, and of the exercise of his free
will. If the will was the will he wished to make,
by whatever means he might have been induced to
make it, or by whatever persuasion, barring fraud,
it would be a good will ; but, if he made it in con-
sequence of pressure, it was no longer his will, and
must be set aside. With regard to Mr: Skipper,
his lordship observed that he would unquestionably
have stood better before the public if he had not
been so largely benefited by this unfortunate old
man during his life, No doubt Mr. Smyth, early
in his career, had been driven from society by some
grievous imputation ; and Mr. Skipper said that,
in consequence of that stigma on his character, he
did not visit him. Mr. Skipper would have Clone
well to have followed the. example of Mr. Dunnan
and refuse to take any benefit from him. His lord:
ship then read over the material parts of the
evidence. _
The jury retired at half-past five o'clock, and re-
turned at the end of an hour and a-half with a
verdict for the plaintiffs upon the issue of capacity,
and for the defendants upon the issue • of undue
influence.

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