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

MARSH V. 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 after 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
declaration at this stage of the proceedings.

His Honour's decision was in favour of the devisee.
£20,628, deducting legacy duty, was to be brought into
court. Costs to be paid out of the trust fund.

COURT OF PROBATE.
(Before the Judge Ordinary.)

SMETIITJEST V. TOMLINS-THE WILL OF ISABELLA BANKS.

Dr. Phillimore this moaning 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
executed a will, bequeathing the whole of her property,
with the 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 Aet 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
did not prevent him from discharging the duty of an exe-
cutor. It must be observed that the Crown did not ap-
pear in this case, but the next of kin, and this proved too
much ; for if Dr. Smethurst's right was gione 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. Tomlino 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 of that view, and the Court had a right to exercise
a discretion, and that in this case it could be most bene-
ficially used by refusing to grant probate of the will. Dr.
Smethurst 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.
Smethurst 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—l recollect hearing my Lord Chelmsford
say it was a judge's
rivilege 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—l 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 is the present case -without some considera
tion. He must, therefore, take time before he delivered
judgment.