The Sun.
London, England, 1859-04-12 00:00:00

LAW INTE

COURT OF PROBATE AND DIVORCE.
(Before the Z-udge Ordinary.)
SYMES V. GREEN.-YXTRAORDINARY WILL CASE.

This was a suit instituted by the executors of the late
Captain William Notts, of the 83d regiment of infantry, for
the purpose of proving his will, which was disputed by
the defendant, his nephew, on the ground that the instru-
ment was not duly executed in conformity with the pro-
visions of the act, and that the testator was not of " sound
memory, and understanding," at the time of signing it.
Dr. Deane, Q.C., was counsel for the plaintiffs, and Dr.
Addams, Q.C., fo'r the defendant.

Dr. Deane stated the case. The circumstances connected
with the present suit were of a singular character, and not
without some features of interest as regarded the testator.
It appeared that Captain Notts was born in 1810, and was
the son of a solicitor, who was practising in London at that
time, His real name was Frederick Green, and in early
life he had been apprenticed to a surgeon ; but, not liking
the medical profession, or from some misunderstanding
with his master, he suddenly departed, and was not heard
of by his family for some time, when it was
ascertained that he had enlisted, and that he
had gone out to Canada with his regiment, having
taken the name of William Notts, by which he was
known up to the period of his • decease. Mr. Symes, the
plaintiff, who was a surgeon, carrying on his profession in
London, but who had subsequently removed to Lewes, was
acquainted with the father and mother of the deceased, and
on the death of the former he married the latter. It ap-
peared that at the time of his death Mr. Green left three
sons, including the deceased, and a daughter, all of whom
were dead ; and the only next of kin surviving was the pre-
sent defendant, who, in the event of the will not being proved,
would come into possession of the estate of the deceased.
In 1841 Captain Notts returned to this country and visited
the plaintiff and his mother, with whom he remained for
some time. In consequence of his good conduct, Captain
Notts, who was then a private, was presented with a com-
mission in the 83d regiment, in which he had originally
enlisted, and went out to India, the plaintiff having ad-
vanced him the amount necessary for his outfit. He re-
mained in India from 1847 till 1857, when he again re-
turned to this country, and as previously visited the plain-
tiff, whose wife, deceased's mother, had died, and who was
married again. He went to Chatham to obtain instruc-
tion in musketry practice, and remained there for some
months, occasionally visiting the plainliff, with whom he
continued to be on the most friendly terms. In July,
1857, there could be no doubt that he was afflicted
with mental disease, and for a period he became incapable.
While in this state Mr. Symes, who was telegraphed for,
went to Chatham to see him, and when he recovered he
(deceased) went to his place at Lewes, accompanied by one
of the hospital orderlies, who, however, left the following
day. He remained at Lewes from the 15th of August to
the 29th of the following September, during nearly all which
time he lived with the family, and acted in every way like
a person perfectly rational. Towards the end of his visit,
however, he received the sacrament, which seemed to have
a considerable effect on his mind, he expressing his con-
viction that he had taken it unworthily, and that he had
risked his happiness hereafter. He returned to Chat-
ham, accompanied by Mr. Symes, and when they
reached the barracks, the latter mentioned to Dr. M'Lean,
the battalion surgeon, that he had been in a very excited
state, and delivered him to his care. Sometime subse-
quently Captain Notts recovered his usual health, and on
the 3d of April he drew up a will, in which he set forth
that he was in send mental health, and directed the whole
of his estate, after the payment of his debts, to be divided
equally between the plaintiff and a Miss Lucy Tinsley.
That will was duly executed on the Ist of October, and for-
warded by Captain Notts, with some other papers, to Mr.
Symes. On the 3d of September, he wrote two letters, one
of which was addressed to Mrs. Symes, thanking her
for her kindness to him, and he subscribed the letter,
" Your truly affectionate, Frederick." The other
was addressed to a lady named Ireland, whose acquaintance
he had formed at Mr. Symes's, enclosing her a book ; and
both letters were perfectly rational, although he e'spressed
his apprehension as to what would happen to him in conse-
quence of having taken the sacrament on the occasion pre-
viously alluded to. In these letters there were some mis-
takes in the spelling, and some of the sentences were not
complete, but those inaccuracies arose from defects in his
education. In the month of October, Captain Nott's health
became so bad that the battalion surgeon required a medical
board to inquire whether he was labouring under mental
disease. The board, having made the inquiry, found
that he was " 47 years of age, had been in the
regiment 30 years; that prior to last June his health
was good, but subsequently he exhibited great eccentricity
both in speech and writing, and on certain, occasions it was
found necessary to restrain him from throwing himself out
of the window ; that he was not in a sound state of mind,
and was incapable of taking care of himself. He was then
placed in confinement in Fort Pitt, at Chatham, but was
shortly afterwards removed to a lunatic asylum at Henly,
in Warwickshire, where he died in September, 1858,
With respect to Miss Tinsley, to whom he had left
half of his estate, it appeared that he had known
her in early life, and it was arranged between
them that they should be married as soon as he
obtained his commission, but on his return from India
his mind changed, and the marriage was broken off. How-
ever, they continued on good terms, and he wrote her a
letter, in which ba expressed a hope that they should be
good friends chz.ring their lifetime. The learned counsel
concluded 13:7 citing a number of cases bearing on the ques-
tion, relative to testaments executed during lucid intervals
by persons who had been afflicted with insanity.
several witnesses were examined on 11',ehalf of the plain-
tiff, and the case was not concluded wlien. we went to press.

Mortimer was arrested there. I found the papers in the
desk. I opened the desk with the keys. I did not get
them. They were procured by another constable.
Mr. Humphries, solicitor, said—l received the bag of
papers and letters from the police. I found the letter pro-
duced amongst them.
Mr. Ribton objected to the letter being read. He thought
there was not at present sufficient evidence to connect
Marshall with Armstrong and Co.
Mr. Henry—l will make a note of your objection.
(The copy of the above letter to the Duke of Cambridge,
and the certificate of Mr. Bridson's baptism, was then read.)
Witness continued—After I had seen the letter I pro-
ceeded to the bank of White and Co., in the Haymarket,
on the 9th of July. £4OO had been deposited there in my
name. On the day mentioned I gave a gentleman named
Moore some directions respecting the money. The day after
this I left town, and from the cou _retry I addressed a letter
to Armstrong and Co.
(The letter was here read. It ias to the effect that Mr.
Bridson had not yet received notice to attend for exami-
nation, and that the remaining am Ingements had been com-
pleted at White's.)
Mr. Bodkin—l will now put in the answer.
Mr. Metcalfe objected to the lc tter beindread, unless it
could be proved to be in the hand writing of Marshall.
Mr. Pugh was called, and said to the best of his belief the
letter was in the handwriting of Ma rshall.
The letter was then read, in whicl it was stated that the
consequence of Mr. Bridson not reo eiving notice was a mis-
take, and that in consequence of I Ir. Bridson being over
the age, extra exertion had to be used, for which an extra
twenty guineas would not be objected to, but the whole of
the charge was not to exceed £4OO, and that when the busi-
ness was completed £l5O of that mouv3y was to be paid into
the bank to Messrs. Armstrong, and. the remaining £250 to
the account of the writer, R. Marsh: all.
A number of other letters were tt ten received, written by
Marshall, some of which congratulal.ed Mr. Bridson on Mr.
Coningham being gazetted, and of hers soliciting the order
to prepare Mr. Coningham's outfit.
By Mr. Metcalfe—The statement contained in the letter
to the Commander-in-Chief was -perfectly true. All I
know is that I forwarded the letter to Messrs. Armstrong,
and I received an answer from the Horse Guards. I never
inquired where the £4OO was to go to.
By Mr. Ribton—l have the official letter I received from
the Horse Guards. I have not got i t with me. The trans-
action occupied some weeks ago. J. never saw the Captain
Mortimer now in Court during the whole of the time.
Mr. Coningham said—l am an ensign in the 13th Light
Infantry. I asked my brother-in-law to obtain a commis-
sion for me. On the sth of July I arrived in London, and
on the 7th I put myself under a military tutor. I took my
certificates to Armstrong and Co., in Russell- court. Be -
fore I went up for examination I called at Armstrong's. It
was about the 14th of July. I saw a boy there, to whom I
gave my card, and told him to give it to Mr. Armstrong.
I saw the boy deliver it to the dellndant Mortimer. He
said, " Oh, Mr. Coninghant, will you walk in." I went
in and the boy closed the door after me. I told
Mr. Mortimer I had. 'brought him the testimonials,
which I had been instructed to do. Mortimer took
them, and said he would send them in. He asked me if I
was reading very hoed. I said I was, and then he asked
me if I was going into the examination (the one that was
coming), and I said I was. Nothing was said about
gazetting. I left, but before. I did so he asked me to drop
in occasionally, and I promifted to do so. I then went on
with my studies. Not hearing from the Horse Guards, I
addressed a letter for Sir Charles Yorke on the 13th of
July. I received an answer on the 15th. I was under
examination on the 15th, 16th, 17th, and 19th. On
the 15th, the first day of the examination, I called
in Russell-court. I saw Mortimer. He asked me
how the examination was going on, and I said
I thought I had written a good paper that morning. I
asked if he had any idea when I should be gazetted, and he
said, " Oh, I should think in about two months after you
have passed." I was gazetted on the 24th of September as
ensign, 13th Light Infantry, Ist battalion. I afterwards
came to London and remained sometime with Mr. Fother-
gill, the military tutor. I afterwards called at Russell-
court. I there saw three gentlemen—Mortimer was one—
a person of the name of Eicke, and another Steinbach.
With respect to Eicke, Mortimer introduced me to
him ; ho said, " Here is Mr. Armstrong." When
Eicke was introduced he said, " I see you've been gazetted
to the 13th." I did not remain longer than a minute. I
employed Mr. Marshall to prepare my outfit. I called a
number of times about the end of October, I heard some-
thing about Mr, Pugh writing to the Drle of Cambridge.
I asked Marshall why Pugh had th,..eatened to lay the
business before the Commander -in-rJhief, and explaining
the whole affair. He said Armstrong and Co. had had
their share (£200), and that they 'had handed Pugh's and
his share over to him .(Mir:shall) ; but Pugh owed
him some money, and that he had stopped what
he owed him out of it. Down to that time I knew nothing
about any irregularity. I knew there must be a screw loose
by Pugh threatening .t!: lay the whole business before the
I Commander-in-Chief.
By Mr. Metcalfe—T_ previously wrote to the Horse Guards
for an appointment, but I had received a letter stating that
I was over age. I 'had asked Mr. Bridson to procure a
commission previous to that (about Christmas), and he pro-
mised to do so. I now know that army tailors procure com-
missions for the army. I did not when I first came to Lon-
don. I never saw Stirnbach until after I had been gazetted
By Mr. Ribton—l don't know that Mortimer had ever
been in the army. I know there are offices in existence not
recognised by the Horse Guards, which effect exchanges in
the army.

By Mr. Henry—l was gazetted without purchase. I
never asked how that was, after £4OO had been paid.
Mr. Bodkin—What you know was told you by Marshall
himself ?
W;Aness—Yes.
ildr. Gregory, from White & Co., bankers, Haymarket,
said—The account of Armstrong and Co. was kept in the
name of Henry Eicke, as of No. 8, Ponsonby-street, Bel-
gravia. The account was opened on the 23d May, 1857.
There was a deposit of £4OO on the 3d July by Mr. Bryd•
son to be paid over on Mr. Conningham's name appearing
in the Gazette to an ensigncy. The £4OO was trans-
ferred to Eicke's account on the 27th September, and
on the same day a cheque of Eicke's was paid to Mar-
shall for £2OO, and one to Captain Mortimer for £5O.
I wish it to be clearly understood that our firm have nothing
whatever to do with the defendants, beyond receiving de-
posits of money in the ordinary way as bankers.
The cashier at Messrs. White's said. the cheque drawn
in favour of Marshall was paid on 23d September in two
£lOO notes.
Mr. Ribton contended that the account of Eicke was a
private one, and in no way connected with Armstrong
and Co.
Mr Gregorysaid when Eicke opened his account in 1857,
he said he was trading under the name of Armstrong and
Co., but the cheques would be signed by himself.
Mr. Ribton—As no one else could draw upon that ac-
count, I therefore contend that Mr. Mortimer is in no
way connected with it.
Mr. Joseph Eaton, cashier to Messrs. Hopkinson, said—
I cashed a cheque for £5, drawn by Marshall in November
last, to a person named Pugh.
Mr. Bodkin—l shall not proceed further with the case
to-day.
Mr. Metcalfe—l wish it to be distinctly understood that
my client, Mr. Marshall, is prepared to show that the only
interest he had in the transaction was the hope of getting
the outfit of Mr. Conningham.
Mr. Henry—At the proper time you will have ample op-
portunity of making any statement you may think proper.
Mr. Metcalfe—l wish to make a statement—
Mr. Bodkin—l have no objection to the public knowing
that Mr. Marshall denies the charge.
Mr. Metcalf—l wish the public to withhold their judg-
ment as the case has been opened with a gloss.
Mr. Ribton—Everything Mr. Bodkin does is done with
a gloss.
Mr. Bodkin—l am quite indifferent to what you may say.
The further hearing of the case was then adjourned till
Monday next at eleven o'clock.