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

LAW INTELLIGENCE, Dec. 9.

COURT OF PROBATE.
(Before Sir C. Cresswell and a Special Jury.)
SKIPPER AND A. SKIPPER V. BODKIN AND OTHERS.
Mr. Sergeant Pigott, Dr. Tristram, and Mr. Couch
appeared for the plaintiffs, who are the executors of
the late Rev. J. W. Smyth, of Cringleford, in Nor-
folk ; and E. James, Q.C., Dr. Phillimore, Q.C., and
Mr. Coleridge for the defendants, who are heirs-at-
law and next of kin of the deceased, and who op-
posed probate on the grounds of incapacity and
undue influence.

At the sitting of the Court the examination of
Witnesses in support of the will was resumed.
Mr. Hardy, a grocer of Norwich, said the testator
had dealt with him for many years, and used to
drive or walk to the shop, give his orders, and pay
his bins. There did not appear to be any defect in
his understanding. He did not pay his own bills
after 1856.

Mr. Cannell, an overseer of Cringleford and col-
lector of the poor-rate, proved that he was gene-
rally paid by Mr. Smyth. Five or six years ago he
wrote a cheque for £9O instead of £l9, but disco-
vered his mistake and wrote another. In the quarter
before he died he complained that the rate was ra-
ther high, and said, " the poor, if I had my own
mind they should be sent to their own parishes."
He added that he would rather give his money to
them than to his relatives. On a previous occasion
he said he would rather burn his money than let
his relatives have it.
Cross-examined—Alfred Massey is now living at
Cringleford. He and I have been out shooting
together once, but we are not on intimate terms.
Sometimes Mr. Smyth did not know me when I
first went in. Either Edwards or Mrs. Edwards
was with him when he paid the rates during the
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. Swatsnan, 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 thaantersst. He had not the slightest doubt of
Mr. Smyth's competency.
Mrs 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 1851), containing nothing at all remarkable either
in nasitter or in manner. Two receipts, with his sig-
nabare 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 ames 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-
ing his will. His disposition of his property might
appear whimsical, but he had no relatives about him.
lie 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 he his
intention that none of the Bodkins should hare 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 up; folding wilts unless
it could be clearly proved that they did not carry
ont the intentions of the tes,tPstors.
Mr. E. James, in his arlilress to the jury for the
defendants, said that t'sit ground upon -which the
will was opposed was that this weak-minded and
vacillating old man, not being or mental capacity to
resist the dark astd mysterious influence of his
associates, M asse-4-, Newton, and Dell, made various
conveyances to them at different times, and confirmed
all these convoyances by the will, not knowing that
it would hays that effect. The object of Messrs.
Skipper in inducinf.s, him to execute it was to obtain
the entire, Control, as executors, of the whole pro-
- perty, Olinkini- there would be no one to call them
• to accssant. Mr. Bodkin, who was a crentleman of
. landod 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 New eon 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
alls 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 he was able to understand the nature of the pro-
perty ho was disposing of, to bear in mind his rela,
fves and the persons connected with him, and to
make au election as to the, parties he wished to
benefit. It was not enough, on the one hand, that
he ilould 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, uestion, 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 suffier.",
Unless the importunity was carried to such an 'ax_
tent that it amounted to depriving the testatrir of
his free judgment, and of the exercise of free
will. If the will was the will he wished t',4 make,
by whatever means he might have been ir,duced to
7nake 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
teen 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
srievons imputation ; and Mr. Skipper said that,
to consequence of that stigma on his character, he
did not visit him. Mr. Skipper would have done
well to have followed the example of Mr. Ballwin,
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 plaintiff-, upon the issue of capacity,
and for the defendants upon the issue of undue
influence.

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