The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1841-04-13 00:00:00

SOUTH LANCASHIRE SPRING ASSIZES,

NISI PRIMCOURT

-THURSDA

Mr. Baron Rolfe took his .seat on the benchk at nine o'clock
this morning.

BRINDLE WILL CAUSE

-MIDDLETON AND OTHERS V

SILERBUILNI

Mr. CUESSWELL, shortly after his lordship had taken his
rat on the bench, handed up to him a copy, of that morn-
ing's Liverpool Mail, and' said, " I beg to call your lord-
ship's attention to an article in that paper." The article in
question was a leader containing some observations on the
special jury case fixed for trial that morning, and seemed to
have caused no ordinary degree of excitement amongst the
gentlemen of the bar, especially those retained on the side of
the defendant. Mr. Baron Rolfe read the article, or a,por-
tion thereof, and then returned the paper to Mr. Cresswell.
The learned gentleman remarked, on receiving it, " I think
this is a case for the Attorney-General, my lord."

This special jury case was appointed to come on this morn-
ing. The following gentlemen coMposed the jury :—John
Swire, Liverpool, merchant; Robert Wynne, Liverpool,
merchant ; John Wilson, Toxteth-park, meroliant ; James
Jackson, Liverpool, merchant; William Nicholl, Liverpool,
merchant; Samuel Dutton, Liverpool, merchant; John
Caton, Toxteth-park, merchant ; Atkinson Wilkin, Liver-
pool, merchant ; John Hamilton, Toxteth-park, 'merchant ;
Walter Marten, Liverpool, merchant; Francis Ja3ques, Li-
verpool, merchant; and Charles R. SiMpson, Liverpool,
merchant.

The counsel for the plaintiffs were Sir William Follett,
Mr. Dundas, Mr. Crompton, and Mr. Cowling ; for the de
fendant,•Mr. Cresswell, Mr. Watson, and Mr. Murphy.
A long consultation took place, after the jury were sworn,
between the counsel on both sides, for the purpose, most
probably, of trying whether some accommodation could not
be effected. This having failed,
Mr. COWLING opened the pleadings. In this case, John
Francis Middleton, and his wife Alicia Maria, and Thomas
Eastwood, and his wife Catherine, were the plaintiffs, and
the defendant was Mr. Thomas Sherburne. The case came
down here by writ of inquiry from the equity side of the
Court of Chancery, to ascertain whether William Heatley,
the testator, who was seized of certain freehold lands in this
county, did, in February; 1829, by a written paper purport-
ing to be his will. devise those lands to certain persons, and
whether by a second written paper, purporting to be a codi-
cil, and dated the 12th of August, 1835, he devised his
lands; and whether by a third written paper, dated the 2d of
January, 1836, purporting to be a codicil to his will, he de.
vised his lands ; and the first question to be determined was,
whether the testator did really devise those lands ; secondly,
Whether by the paper written purporting to be his will, he
did devise them ; thirdly, and fourthly, whether by either of
the papers purporting to be codicils to his will he devised
them.

Sir WILLIAM FOLLETT requested that his lordship would
direct all the witnesses in the case to leave the court. This
was accordingly done, and a great number of persons rose
and went out.

Mr. Cuesswei,i, then proceeded to open the case for the
defendant. Ile said that he, had the honour to appear in
this case as counsel for the Rev. Thomas Sherburne,- who,
though the defendant in this issue, yet had the burthen of
proof cast on him. He had to establish that the late Wm.
Heatley, being of competent understanding, and exercising
a free will, made a last will and testament, by which he de-
vised certain lands. The jury would perceive at once that
this was a question of very great importance to all members
of the community, because it was an inquiry as to how far
the right of every man in this country to deal with his pro-
perty after • death should be interfered with or not. The
plaintiff Mr. Middleton, and the plaintiff Mr. Eastwood,
married two nieces of the late Mr. Heatley, and he by his
will and codicils left to his two nieces property worth about
£40,000, and to Mr. Sherburne his real property, worth
about £10,000; and because Mr. Heatley thought fit so to
deal with his property, the husbands of his nieces had now
called in question his competency and free agency in making
the will. rt would therefore be necessary, in order entirely
to clear Mr. Sherburne's character from any supposed mal-
practice, to vindicate his reputation, and not to leave on it
the slightest stain, to refute all those calumnious reports
which had been so industriously circulated, some of which
had been circulated by Mr. Eastwood himself, as would be
proved in evidence. Be (the learned counsel) should call
on the jury to pay particular attention whilst he traced the
personal history of the late Mr. Heatley from the earliest pe-
riod to which the memory of his friends went back, down to
the period of his death. By so doing he felt the utmost con-
fidence that he should prove the testator to have been a man
not only of competent, but of more than competent under-
standing. He should also prove him to have been a gentleman
of excellent feeling, of good disposition, and of generous heart,
but at the same time firm of purpose, choosing to judge for
himself, and to act according to the dictates of his own judg-
ment ; and he should show ample reason why the testator
should think fit to judge for himself, and if any other were
wanted than that desire to deal with his own according to his
individual judgment, it would be found in the conduct of
those very parties who now sought to call in question his
judgment and the exercise of it. Mr. Heatley died in the
summer of 1840, at the age of 75 years, having during that
long life bought and sold and managed his property as he
thought fit—having mortgaged, having transacted business
of every kind; and he descended to the grave in 1840, no
one of his acts having ever been called in question, up to
that period, on account of his want of judgment; and now,
after such a life thus spent, so occupied with business of
every description—aye, and during the last three or four
years of it in company with Mr. and Mrs. Eastwood—the
plaintiffs brought against him a charge of being a drivelling,
half-witted, priest-ridden man, labouring under insane delu-
sions, and making a will, not from his own judgment, but
under the duresse and control of others. The testator, Mr.
Wm. Heatley, was the son of Mr. James Heatley, who was
for many years the land steward of Lady Stourton. By care,
prudence, and some fortunate speculations in land, for which
his situation us steward gave him good opportunities of effect-
ing, the father amassed, for him, a considerable property. His
son was sent to school in this country for a time, and after-
wards to a college at Douay, to finish his education there;
and on looking through tne different imputations cast on the
testator, or rather the different stories by which it was sup-
posed his competency was affected, they found that he was
not correct in his Orthography ; so because a gentleman born
in the last century, and educated in a foreign country, did
not spell English words correctly, he was to be pronounced
iAcompetent to make a will. Having returned from Douay,
and Wm. Ileatley entered the Landashire Fencibles in 1835,
rbetng sometimes
in the regiment, holding the situation of captain,
maer to the
in England and sometimes in Ireland, down
Pretty near
1804. In the meantime timh
time of
et:
its being disbanded, in 1803 or
Year 1798. Before his his father
father had died; this was in the
death chased the prort called Jamesßrindle. of which he remainedA ha
tHwe.sast Heatley hadproperty pu -
death.in possession up to the period of his
a son arullitewloefdt
ilauwoluow, who had a jointure on the property,
and the other marriedters. One of the latter died unmarried,
time a deputay l a Mr. Taylor, an attorney, and some
1808, leaving clerk of the peace. Mr. Taylor died in
vas divided ow and three daughters, when the pro-
perty Mr. Hartley was equally between the three children, and
will. A Mr. sappointed'one of the executors under the
executor. At Stoner,this time
a nephew of Mr. Taylor, was another.
time the testator and his mother lived at
a Place called Barton Lodge, not far from Brindle, and three
daughters of Mr. Taylor were taken home with him. They
were afterwards sent to school; but from time to time passed
their vacations at the house of Mr. Heatley. Things went
.on in this way until about 1817, when the young ladies were
brought home from school. But in the meantime, Mr.
Heatley, having beucodmge, e possessedase of his father's property,
L
resided at Barton Lodge, because the house at Brindle was a
bad one. The testator, however, thought proper to build a
new one at Brindle; and he (Mr. Cresswell) should show
that he took great pleasure in this, and superintended the
works in their progress. The house erected, together with
its conservatories, &c was erected at an expense of from
£lB,OOO to £20,000. "It might be well that at this stage he
(the learned counsel) should show the extent of the property
devised by Mr. James Heatley to his son William, because
be could not help thinking that a great deal of the imputa-
tion cast on Mr. Sherburne had arisen from some false sup-
Position as to the extent of the property which Mr. Heatley
had acquired from .his father. In consequence of the •
haste with which this case had been brought to trial, they
bad been discovering from day to day fresh papers, almost
down to the hour at which he (the learned caunsel) was speak-
ing; and they had lately discovered an account of the pro-
perty of the father, which was given by his then steward,
Mr. Teebv, This account showed what the property of Mr.
James Heatley was, and what would be the proper return for
him to make to the income tax. The total rental was set
down ; the payments that every tenant had to make to him ;
there was also put the interest of money paid to Mr.
Heatley, and there were traces elsewhere that there were
certain promissory notes in his hands which would
make
e
£27. .‘The profits arising from your commission in the
militia," amounting to £l6B was entered ; and the whole
income was made out to be £2476. " The yearly value of
Your own estate in your own hands, £3O, and one-fourth
added," because, probably, it was thought that the estate
might have let for so much more, making £37 10s. Then,
on the other hand, were put down all the out-goings, amongst
others, his mother's jointure, amounting to £867, leaving a
clear income of £1647 3s. 6d., which was given in £1650, on
which the steward observed—" You will have to pay £165,
or 10 per cent." This return showed that the out-goings
consisted of a number of rents ; for a good deal of the pro-
perty which the testator's father left to his son consisted of
leasehold estates, which would necessarily decrease in value
as the lives fell out, and ultimately there would be an end
of the leasehold estate which he had obtained. And there
was here a little trace of the spirit which Mr. Heatley showed
throughoughout life—a spirit of kindness, generosity, and
charity—for there was set down in the return, " yearly gra-
tuities to the poor, £100," He (Mr. Cresswell) happened
to know aireminent merchant in London, certainly not under
any priestly dominion, who laid by for the same purpose
£lOO a week. So that at this period Mr. James Heatley
was id the possession of £1650 a year. Such was the amount
of property received by the testator from his father—not a
property descending from remote ancestors—not a property
as connected with which there might be supposed to be any
feelings of family pride, but a property made in his vocation
of land steward, for some successful anticipators of the rise
or fall of land in the market at the time. The testator then hav-
ing received this property in this state, thought fit, as some
men not very young, but young enough to have anticipations of
pleasure, frequently did, to build the house at Brindle, before
mentioned, Whether that cramped his means, and he
thought he would try his father's art of speculation, he (the
learned counsel) did not know ; but in 1820 he sold a con-
siderable portion of landed property to Mr. Brockholes, and
a most excellent bargain he made, The property consisted
0f 1400 acres, held on lease under the Duchy of Lancaster.
The lease had been renewed from time to time without in-
crease, and it seemed that Mr. Brockholes had purchased
under the impression that he would be allowed to renew on
light terms. For that sale the testator received £58,000.
The bargain turned out a bad one for Mr. Brockholes, for
d
When the lease ran out he bad to renew on bad. terms.. This
was no great proof of want of jug e
mnt, foresight, or intelli-
gence, on the part of Mr. ..neatley•
in the management of his
property. He (the learned counsel) would now mention the
circumstances under which the testator became acquainted
and intimate with Mr. Sherburne. While Mr. Heatley was
living at Barton Lodge in 1808, the Rev. Mr. Sherburne
-- •
tin
went to reside at Blackburn, as an oit cift
name of Mr. Sherburne's mother was
Irving, and priest, The
and the chil-
dren of Mr. and Mrs. Irving were then living
neigh-
bourhood. The father died, and the widow in that
afterwards mar-
ried a person named Swarbrick, the butler of Mr. Heatley*
He became the patron of the children, and sent them abroad
to receive their education. One of the brothers, resigning
the name of Irving, became a priest, and was sent to officiate
at St. Andrews, at Valladolid. The defendant also gave up
his mother's name, and went to Blackburn. In the course
of the year 18Q8 the testator went to reside at Brindle Lodge,
six miles from Blackburn, and there commenced a most
intimate friendship with the defendant, which continued down
to the period of Mr. Heatley's death. In 1813 Mr. Sherburne
removed from Blackburn to a place called the Willows, 13 miles
from Brindle Lodge, and though the esteem and friendship
Continued unabated, the intercourse was less frequent than
it had been before. Things remained in this state when the
Misses Taylor, who were now Mrs. Eastwood and Mrs. Mid-
dleton, with their sister Henrietta, came from school. Mr.
Ileatley was a gentleman of retired disposition, and accord-
ngly he never accompanied his nieces to any places of amuse-
Pleat. But " every one to pursue his own liking" was his
maxim, and he bad no objection to their going into company
With a proper person as their guide. They were accordingly,
Under the conduct of Mrs. Stoner, introduced into many fa-
milies in the neighbourhood. In the house of Mr. Willacey,
Who lived at Barton Lodge—(whether this was the Barton
Lodge formerly occupied by the testator he could not say)—
Miss Catherine Taylor first met Mr. Eastwood, and there

GRATIS.]

this gentleman first conceived an attachment for her. There
were circumstances connected with the Eastwood family
which made Mr. Heatley averse to the addresses of Mr.
Eastwood being paid to his niece, and he showed coldness,
but did not attempt to controul the affections of the young
lady. Miss Taylor thought fit to judge for herself, and she
accordingly married Mr. Eastwood. Alicia Taylor, or Mrs.
Middleton, countenanced her sister in forming this alliance
—it being no uncommon thing for one niece to support the
other in opposing what they considered the tyranny of an old
uncle. The consequence was something like a quarrel, and
Mr. Heatley declared that if his niece did marry Mr. East-
wood, they should not be married from his house. Mr. Sher-
burne, as a friend of the family, was appealed to, and his good
offices requested to bring about a change of mind in the tes-
tator, and induce him to consent to the marriage. Mr.
Heatley kept his ground, and Mr. Sherburne offered the
young ladles an asylum in his house. The three went to the
Willows, and afterwards to Lytham, and there Catharine
Taylor was married to Mr. Eastwood. There had been from
first to last an endeavour on the part of Mr. Eastwood to
obtain.and to hold every farthing of money that he could get
into his grasp. This was made apparent in a letter dated
May 1, 1818. addressed by Mr. Eastwood to Mr. Sherburne,
in which the writer intimated that he must have-the whole of
Miss Taylor's property, real and personal, and that he would
settle on her £lO,OOO. After his death, the property was to
be divided amongst his children as he thought flt. The mar-
riage was solemnized soon after. and though Mr. Heatley
would not allow it to take place from his house, he, as soon
as it was over, was perfectly desirous to be on friendly terms
with, his niece and her husband, and even invited them
both to come to luncheon at his house, as they returned
from church. And although through life he exhibited
great firmness of piirpose, tells them that as to the dis-
posal of his property he would exercise hisjudgment, yet he
ever manifested to them every kindly feeling. In the fol-
lowing year Mr. Heatley went to Rome, and, as pretty good
evidence of his capacity for managing his property, he (the
learned counsel) should lay before the jury a series of letters
which the testator bad addressed from that city to his land.
agent, Mr. Teeby. These letters were then read by Mr.
Cresswell, who afterwards remarked, that he was sure the
jury would be of opinion that in 1819, when the testator was
in Rome, he was as competent.to dispose of his property as
any gentlemen in England. Alicia Taylor was subsequently
married to Mr. Middelton. The third daughter, Henrietta,
was married to Mr. Deese. an Irish gentleman. Each
of the young ladies had a fortune of about ten thou-
sand pounds. Mr. Sherburne, iu 1822, left England,
by order of his superior, to take charge of St.
Andrews, in Valladolid, in lieu of his deceased brother. He
remained in Spain till the autumn of 1825, when he returned
to England. In that interval Mr. Heatley had made his
first will, of which they had obtained possession ; and it would
be found that at that period, when the testator could be no
otherwise than in the full vigour of his intellect, when there
was no trace of suspicion that he was not a free agent, when
the nieces were in England, and Mr. Sherburne was at Val-
ladolid, he made a will much more favourable to the defen-
dant than that which the plaintiffs that day sought to im-
peach. The whole of this first will was in the handwriting
of Mr. Heatley, though it was very likely, from the language
of it, that some lawyer was prepared to give him a sketch
of it. It would be found, however, that Mr. Heatley
was rather proud of his legal knowledge. Mr. Cress-
well read the will. It was dated the 21st day of April, 1824,
and gave to the testator's niece, Alicia Middleton, £6OOO ;
to his niece Catherine Ann Eastwood, £6OOO ; and bequeathed
all the remainder of his real and personal estate to his faith-
ful friend the Rev. Thomas Sherburne, alias Irving, late of
the Willows, his heirs, executors, administrators, and assigns,
ps his own proper estate for ever. Mr. Sherburne was con-
stituted sole executor of the will, which was witnes-ed by
three persons, one of whom was Mr. Teeby, the land-agent
of Mr. Heatley. An incident at this time occurred which
might account for the testator then making his will, and for
his thinking that £6,000 was a sum large enough for his
nieces. Mrs. Deese had shortly before died in France. It
would appear, from the correspondence that be should read
respecting her affairs, that Mrs. Dease had had left under
her control the larger share of her property. By the mar-
riage settlement her husband was entitled, in the event of
there being no issue, to £l5OO only ; and it would be found
that one of the gentlemen, Mr. Middleton, who now talked
of practice in the making of a will, suggested to this
dying I,ady the propriety of leaving the property under
her control, not to her husband, but to her two sisters
—that she acted on his recommendation—that he him-
self made the will, and that under this will, just before the
period at which Mr. Heatley had made his will, Mrs. East-
wood and Mrs. Middleton were entitled to divide all the re-
versionary interest of Mrs. Deese, after her death, with the
exception of £l5OO. This might work in two ways on the
mind of the testator. It might put him in recollection of
the common fate of mortality, and suggest the propriety of
his then making a will, and the fact of his nieces having ob-
tained between them the greater portion of their deceased
sister's fortune, might make him think that he should be
dealing handsomely by them if he left them £6,000, which,
added to their fortune of £lO,OOO, and a moiety of the pro-
perty of their sister, would make altogether a fortune of
£20,000. In the will of Mrs. Deese, Mr. Heatley was con-
stituted the executor; but he declined the trust, thinking
that the will was one which was likely to involve him. He
perhaps thought that the circumstance of his nephew having
made the will would lead to litigation, and he desired to
be excused from undertaking the office. Mr. Dease, the
widower, wrote to Heatley, requesting him to act, and
stating that it was by the desire of his late niece that lie had
been named executor. Mr. Heatley then consented to act.
Mr. Cresswell then proceeded to trace the personal history
of the .testator during this period by his correspondence.
He...observed that it had been discovered, in ransacking for
papers for this cause, that the testator carried on a trade in
Manchester goods, which appeared to have been known only
to himself and the person acting as his agent. The letters
read were extremely numerous, and some of them, as Mr.
C. remarked, exhibited a strain of deep piety, though
nothing like an approximation to bigotry, superstition, or
slavish dependence upon priests. They also showed that
Mr. H. was munificent, though courteous in his charities—
that he was fond of active exercise and field sports, that he
was mixed up in county business, and that he was a shrewd
and far-seeing man, of whose perfect competency to manage
his affairs there had never been the slightest doubt.
Mr. Baron RoLFE here interrupted Mr. Cresswell, to say
that if the learned gentleman, from physical incapacity,
should not be able to go on with his statement for the whole
day, all other cases must be in readiness to be proceeded with.
Mr. CRESSWELL thanked his lordship, but said that with
ten minutes' rest at one o'clock, he thought he could go on
for the whole day.
Mr. DUNDAS took this opportunity of asking his lordship
whether the special jury case fixed for Monday would come
on at the appointed time.
The Learned JUDGE could not tell. He hoped that on
Saturday his brother Maule would be able to take civil causes,
and a great deal must depend upon circuur.stances. His
lordship added, that there were 56 cases in one civil list re-
maining for trial. _ . .

Mr, CRESSWELL then proceeded with the documentary
part of the case, tracing the history of the testator from the
year 1826 to 1833. Of the immense mass of letters read, it
would require several columns to give even an outline. They
showed that in November, 1826, Mr. Heatley, (who was
an old batchelor, and to restore from the annoyances
and discomforts of keeping up an establishment,) made an
offer to his niece, Mrs. Eastwood, of Brindle Lodge, and the
lands belonging thereto, a property which had cost him
£30,000 or £lO,OOO, on condition that she should reside on
the mansion, and pay to her sister £l5O annually. The
same offer had previously been made to Mrs. Middelton, and
refused ; and it was now also refused by Mrs. Eastwood,
who pleaded that her husband's finances were not in a con-
dition to enable her to live in a style that ought to
belong to such a residence, and to continue the mu-
nificent charities of the testator. Mr. Heatley kindly com-
bated their arguments, and pointed out that she could limit
her benevolences to the extent of her means, but the generous
offer was refused with many thanks. Mrs. Eastwood, how-
ever, proffered to go with her husband and family to Brindle
Lodge, and do all in her power to make her uncle comfort-
able ; " but," said Mr. Cresswell, " if one thing could have
been more uncomfortable than another, to a man like Mr.
Heatley, anxious to rid himself of the cares and annoyances
of a domestic establishment, it must have been to have su-
peradded to his establishment the wife and children of ano-
ther person. He would not take a wife of his own ; how,
then, should he like to take that of another man, to hector
over him in his own house? I speak for myself," said the
learned gentleman warmly ; " I would beg in the streets for
a living rather than do it." A courteous reply was sent by
Mr. H., who was surprised that the offer of a house which had
cost some £20,000, with 120 acres of freehold land, and lease-
hold land besides of the value of £lOO a-year, should not be
thought worthy of acceptance. He begged that the matter
might be altogether. forgotten, and that they should continue
on their former friendly terms. In March, 1827, Mr. Heatley
wrote to Mrs. Eastwood, intimating his intention that he
should continue to reside at the lodge ; but that, as some re-
pairs were needful, and he wished them to be done in his
absence, and, moreover, as he wished to have an excuse
for ridding himself of some of his domestics without injuring
their characters, he should take an out for some time. Mr.
Heatley mentioned that if the season had been more ad-
vanced, he should have gone to Lytham or Blarpkburn ; but
the weather would not suit for a visit to a watering place,
and he had therefore fixed upon going to Mr. Sherburne's,
at the Willows. Thither he accordingly—staid some time—
then paid a visit to Lytham, at the direction of his physi-
cian, and returned to Brindle Lodge, after being absent about
four months; for his next letter to his niece was dated
" Brindle Lodge, August 25." Several letters followed on
the subject of a visit of Mr. and Mrs. Eastwood to the tes-
tator at his house, which, after having been fixed to take
place shortly, was declined on account of some offence taken
by the niece, who thought that the tone of the invitation was
not sufficiently cordial. The next and most prominent sub..
jest of this voluminous correspondence had reference to the
testator's disposal of his property. It had been ascertained
by Mrs. Eastwood, or suspected by her, that her uncle had
no intention of leaving the whole of his property to his
nieces ; and after the question, whether a person would be
justified in disposing of his property otherwise than to his
direct heirs, had formed the subject of conversation at
the table of Mr. Heatley, it formed the subject of a long and
somewhat angry correspondence between the niece and her
uncle. The letter stoutly maintained that he had a right to
dispose of his own property in any way he thought fit, and
declared his determination of doing so ; and the former in-
sisted that the estate was the property of her grandfather,
and ought in justice to descend to the next heirs. To com-
bat this doctrtne, the niece had recourse to argument ;
this was ineffectual ; and she then had recourse. to scripture,
pointing to the 97th chap. of the book of Numbers, which,
she said, shewed what the will of God with regard to inherit-
ance was. The testator replied to this by urging that the
Mosaic law and ceremonial had been superseded ; but the
niece still urged her point with great ability and resolution,
and put it to her uncle whether he could consmentiooslydis-
pose
of his property to strangers, when he had near and dear
relatives, direct heir to the estate. In this emergency, he had
recourse to several divines of the Catholic church, who coin-
cided with him in opinion that a man might justly divert a
portion of his personal property from his lineal descendants.
Mrs. Eastwood contended that she had received an opposite
opinion from eminent divines, and boldly avowed that her
uncle would be committing an act of great injustice by de-
priving her and her children of their " just and natural
right " to inherit what she termed the paternal estate, 171-
' timately, when Mr. Heatley, with firmness but great mild-
ness, adhered to h,s opinion, she resorted to threats, and
said that if he earned out his intention he would be placing
his soul in jeopardy', The Rev. Mr. Sherburne was written
to by the testator, when the correspondence began to as-
sume a theological shape, and. a letter of Mrs. Eastwood's
was enclosed to him, with . instructions to answer
it firmly but mildly, and suggesting topics to the rev.
gentleman. Mr. Cresswell remarked that if it should be
contended that all the letters to the niece were not thy