Case of Arthur Cuthbert Marsh Verse John Harding
and John Tyrrell
regarding the will of Sophia Harding nee Smyth
Arthur Cuthbert Marsh came into an inheritance from Sophia Harding who had died in 1827. Sophia had been a friend of Arthur's mothers (Amelia Marsh) and had married late in life to a John Harding of York Place. John already had a family before he married Sophia. After she had died John had attempted to take Sophia's money but in the end the court decided that it was to go to the Marsh family.
Marsh v Tyrrell and Harding. -p 84.(a)
A feme covert - having, under certain powers, made a will and codicil in February, 1818, (eight months after marriage) by which, after making provision for her husband and leaving sundry legacies, she bequeathed the bulk of her fortune to, and appointed executors, strangers in blood; such disposition (except the provision for the husband) being similar to a will in 1816, - made a will on the 9th of March, 1827, and a codicil thereto on the 21st of April (she dying on the 8th of May) 1827, which papers, except legacies to three servants and rings to three friends, left all her property to her husband, and appointed executors, him and a total stranger: the Court, holding that the latter papers were obtained by the husband's undue influence, when her faculties were much impaired, pronounced for the will and codicil of 1818, and condemned the husband (who though he denied the validity of the powers and nominally prayed an intestacy, was the real party setting up the latter papers) in the costs of the executors of the will of 1818.
Where there is a great change of disposition and a total departure from former testamentary intentions long adhered to, it is material to examine the probability of the change, especially, if at the time of making the latter disposition the capacity is doubtful, still more, if the person in whose favour the change is made, possessing great influence and authority, originates and conducts the whole transaction.
A person who can understand and answer, rationally, questions, may still not be capable of making a will for all purposes. The rule of law is, that the competency of the mind must be judged of by the nature of the act to be done, and from consideration of all the circumstances of the case.
Lushing and Nicholl, for Mr. Tyrell.
Phillimore for Mr. Harding.
The King's Advocate and Addams, contra
Sir John Nicholl.
This cause was very ably and fully argued in the former part of this term, and the material parts of the evidence were then stated and discussed: it is not therefore necessary to recite in detail much of the depositions. The grounds of the decision must be looked for rather in the conduct of the parties and in the documents, than in the oral evidence. The necessary inferences to be drawn from that conduct will afford a solid and safe basis for the judgement of the Court; where the oral evidence harmonizes with those inferences a moral conviction rightly follows, but the depositions, where they are at variance with the conduct of the parties and with the res gestae, are less to be relied upon.
Some parts of this case afford a strong illustration of these remarks, and induce me to consider with more than usual attention the conduct of the several actors in the matters which are the subject of inquiry.
The question arises on the testamentary acts of a married woman; and for the purpose of deciding it the Court must assume that she had a right to make a will, since the consideration of the validity of the deed, under which the power is asserted, belongs to the jurisdiction of another Court.
The alleged testatrix, Mrs. Sophia Harding, wife of John Harding of York Place, Walworth, died on the 8th of May 1827, and left property amounting to 20,000l. or 25,000l., exclusive of a sum of 10,000l. due to her from the estate of Marsh and Son. Two wills are propounded. The first, dated on the 28th February, 1818, with a codicil of the same date, by Mr. Arthur Cuthbert Marsh, one of the executors and a joint residuary legatee. The other, dated on the 9th of March, 1827, with a codicil of the 21st of April, 1827, by Mr. John Tyrrell, one of the executors. Of this latter will Mr. Harding, the husband, is also an executor, and is a party in the suit; appearing, however, separately, for the purpose of reserving to himself the right of questioning the deeds under which these wills were made: not opposing the factum of this latter will, for in truth he is substantially the party setting it up. The real question is, upon the factum of this latter will, for to the validity of the former will no serious objection has been, or can be, taken; though some insinuations have been thrown out against the conduct and supposed influence of the parties benefited under it.
The general substance of the two wills is to the following effect. By the former will, the dividends on 5000l. navy five per cents, are given to the husband for life, and then the stock itself is bequeathed to his eldest son. Her leasehold house and furniture at Walworth are given to her husband absolutely, and several remembrances to friends, and legacies to servants are also bequeathed by it; but the bulk, the residue, is left to the children of Mr. William Marsh, "by Amelia Marsh his first wife, formerly Amelia Cuthbert, deceased." William Marsh, Arthur Cuthbert Marsh, and Richard Creed are appointed executors, and to each of them is given a legacy of 1,000l., "as a compensation for their trouble." It is sufficient at present to state the substance thus generally, though it may be necessary hereafter to examine some of the contents more in detail. Here, then, is a provision for, and benefit to, the husband and to his eldest son,, but the principal objects of her bounty are the children of Amelia Marsh, formerly Cuthbert. No other children of William Marsh are mentioned: and the two Mssrs. Marsh, and Mr Creed, are selected as her confidential executors and trustees.
The contents of the latter will, of the 9th of March 1827, are more brief, for by it every thing is left to the husband, Mr. Harding, except legacies to three servants of 300l. each; and the codicil on the 21st of April, bequeaths only rings to three ladies, sisters, two of whom were dead; but it contains a clause confirming the will. Here then is a great change of disposition: the character and objects of the former will are totally abandoned.
In inquiring into the factum of the latter will, it becomes material to examine the probability of this great change of intention, and it becomes the more necessary to examine the probability, if at the time of making the disposition, the capacity was in any degree weakened or doubtful; still more if the husband, in whose favour this great change is made, and who from the relation in which he stands to the deceased, must almost necessarily have great influence and authority, should be the person originating and conducting the whole business of the new will. To examine then, the probability of this change, it may be proper to consider the grounds and circumstances of making the first will; if that were made upon hasty, capricious, temporary considerations, the departure from it becomes less improbable; but if made under motives long existing, and quite naturally inducing it, the adherence to it will be the more strongly presumed, and the circumstances to account for the complete revolution in her intentions will be required to be more forcible.
The deceased was, originally, Miss Sophia Smyth, and derived the principal part of property from a brother, William Smyth, who about the year 1779 was in the East Indies, and succeeded Mr. Cuthbert as naval store-keeper and agent victualler of the fleet in India under Sir Edward Hughes. There is no proof that Smyth acquired the situation through the recommendation of Mr. Marsh, who was navy agent to Mr. Cuthbert; but it is admitted, in Harding's answers to the second article, "that William Smyth may have professed and felt a great regard for Mr. Cuthbert, and he had also a great regard for and confidence in Mr. Marsh, for upon his death in 1784, he by will appointed Mr. Marsh his executor and trustee, and under that will the deceased and her sister, as joint residuary legatees, became entitled to a considerable part of William Smyth's fortune."
In 1785, Mr. Marsh married Miss Amelia Cuthbert, daughter of Mr. Cuthbert, and she died in 1793, leaving four children, two sons and two daughters. Mr. Marsh married again, and had a family by his second wife. After the death of the first wife, Mrs. Amelia Marsh, the friend of the deceased, ti was not likely that any great intimacy would be maintained between the deceased and Mr. Marsh; but there is no appearance of her having at any time withdrawn her confidence in him, still less her regard for the children of his first wife. Messrs. Marsh and Creed continued her agents, and had the management of her property as her friends and the executors of her brother.
In 1813, the deceased's sister, Miss Elizabeth Smyth, died intestate, and her joint share of her brother's fortune devolved upon Miss Sophia Smyth, the testatrix. There is no proof that previous to the death of the sister the deceased had made any will, and probably she had not, as the sister died intestate; but she now was left along, her father and mother were dead, her sister was dead, and she had no known relation. She was about fifty years of age, past the hopes of having a family of her own; she had a large fortune, and it was not unnatural, it was highly probable, that the children of Mrs. Amelia Marsh, formerly Miss Cuthbert, should be adopted as the principal objects of her bounty; there were no persons presenting themselves likely to stand in competition with them in the deceased's affection and regard. It was not improbable, nor unwise, that she should vest her property in trustees to her separate use, and at her own disposal in case of coverture. She might at her time of life, and with her large fortune, suspect herself, and wish to guard against her own imprudence, lest she should fall a sacrifice to the designs of some artful person, who, for the sake of her fortune, might inveigle her into marriage. She might do this without having any person specially in view, or without being even solicited by any individual; or she might do so, because she was addressed by some particular person, and suspected his motives and designs. Accordingly, in 1816, there were several acts done for the arrangement of her property, vesting it in trustees for her separate use, and making a disposition of it by will, which, being revocable, she might at all times alter upon any change of circumstances.
By the deed of the 20th of February, 1816, recited in a subsequent deed, 10,000l. were left in Marsh's hands as executor of William Smyth, to answer all outstanding demands on Marsh in that character. The rest of the property was invested in the funds. This was no extraordinary security, considering that William Smyth was a public accountant, having been naval store-keeper and agent victualler to the fleet in the East Indies. In such transactions, in a distant part of the globe, it is hardly possible to say when the representatives of public accountants are quite safe from demands; but, in the present arrangement, there was nothing particularly advantageous beyond mere indemnity, for the principal was to remain for ten years, and then it, or what then remained of it, was to be transferred to Miss Smyth or her representatives, and in the mean time interest at four per cent was to be paid to her: which, considering the war was over, and there was a prospect of a very permanent and firm peace, was a fair interest and not disadvantageous to Miss Smyth; for the credit of Mr. Marsh, at that time, stood quite unsuspected.
On the 8th of March, 1816, all the other property of the deceased, both as surviving residuary legatee of her brother and as administratrix and sole next of kin of her sister, having been invested in the public funds in the joint names of William Marsh, Arthur Cuthbert Marsh, and Richard Creed, a deed or declaration of trust was executed, by which this funded property was held in trust to the separate use of Miss Sophia Smyth, subject to her disposal by will at her death, notwithstanding any future coverture, and as if she continued a feme sole; "independently of any husband, who is not intermeddle therewith,, nor is the property, or the dividends, to be liable to his control, debts, or interference." The 10,000l. at the end of ten years, were to be invested in the life trusts, with an additional power of disposal by deed in her lifetime. If Miss Sophia Smyth made no disposition of the property, either by deed or will, it was to go according to the statute of distributions, as if she had died intestate and unmarried. This is the substance of the deed of the 8th of March, 1816.
On the 12th of March, 1816, she executed a further deed, irrevocably giving the 10,000l. at her death, to Mr. Marsh; but there was perhaps nothing very extraordinary or improvident in this gift. He had had the whole trouble of winding up and managing the concerns of her brother, her sister, and herself; he was to have the additional trouble of this trust; he was married again, and had a second family: her fortune still remaining at her own disposal was ample. It was not astonishing that she should consider it but a reasonable remuneration to Mr. Marsh to secure him this 10,000l. at her death, reserving the interest of it for her life.
Shortly after this she made her will, which probably was in preparation at the time the deed gift was executed. This will was executed on the 23rd Marsh 1816, and it contents are material. It directs, that she shall be buried at Highgate, in the vault of her sister. It appoints as her three executors and trustees, William Marsh, Arthur Cuthbert Marsh, and Richard Creed, and leave them as a compensation for their trouble 1,000l. each. To Edward Rigden, if in her service at her death, it gives 500l.; if not, 200l,: to Mary Apostles, if in her service, the same; if not, 100l.; also her wearing apparel, and 2s.6d. a week to take care of her dog: to Mary George, the cook, if in her service, 50l. and to the coachman 20l., and her carriage, harness, and horses. Rigden and Apostles are to live in her house for three months, and to be paid a guinea a week as board wages; and her wines and liquors are to be divided equally between them. These are the provisions for the servants, and she then proceeds to give remembrances to her friends. To Charlotte Hillyer is left a diamond ring with her late sister's hair; to Sybilla and Sarah Hillyer, each diamond ear-rings: to the three Misses Binstead, an annuity of 100l. with benefit of survivorship: to Mrs Isherwood, for a ring, 20l.: to Mrs Rogers, for a ring 21l.: to Mr. Creed, her house and furniture at Walworth, but with a stipulation that there shall be no auction on the premises. It is her "express wish" that the family paintings should be burnt, or otherwise destroyed. The miniatures of her brother and sister are to be put in her coffin and interred with her remains. The residue of her property is given to the children of William Marsh, by Amelia Marsh, his first wife, formerly Amelia Cuthbert, spinster, deceased, to be divided equally between them; and if only one of them be living at her death, then to that one.
This will had features strongly marking the mind, character, and testamentary intentions of the testatrix; here are friends recollected with tokens of remembrance, some with pecuniary benefits: here are old servants provided for according to their stations and length of service: here is her confidence continued to her brother's executors - Mssrs. Marsh and Creed - one of the former, the husband of her late friend Mrs. Amelia Marsh: but the great objects of her bounty are the children of that friend Mrs. Amelia Marsh; to these the bulk of her fortune is given in exclusion of Mr. Marsh's family by a second wife. On the 26th of March 1816, she made a codicil, merely giving an additional 50l. to her servant Rigden, and 100l. to her solicitor, Martelli. It is observable that in this will no notice whatever is taken of Mr. Harding: and although, in three months afterwards, he procured a marriage licence, yet there is no proof that she acknowledged him as a friend when this will was made, still less that he at that time, nor in the month of June, was received as an accepted lover, nor that the marriage was delayed by her ill health. If she was in ill health, it is more probable that she should make her will while she remained a spinster, than enter into a matrimonial engagement.
A twelvemonth afterwards, however, she did accept and marry Mr. Harding; but not with any peculiar marks of confidence or affection; for, a few days only before the marriage, she executed another deed of trust settling the house and furniture, and some other property at Walworth, to her own separate use; in the same manner as she had the year before settled the funded property. Whether this deed, executed just before marriage, is or is not valid, may depend upon circumstances: but the fact is, that the other deed of March 1816, is furnished by Harding himself, as the foundation of the will made by his own solicitor in his favour; and is pleaded by Mr. John Tyrrell - Harding's co-executor, so nominated by Harding himself - and who, it is apparent, merely lends his name in this cause. Thus then Mr. Tyrrell, though he does not admit the validity of the deed of June 1817, sets up the validity of the deed of 1816, as the very groundwork of the will which he propounds; but Mr. Harding, though obtaining, and sworn executor to, that will, now denies the validity of both deeds and all wills made under them. That is the shape the case assumes.
In June, 1817, Harding became the husband of the deceased, he being about sixty-three years of age, with a family by a former wife; she a spinster about fifty-one. On the 28th February, 1818, about eight months after the marriage, the deceased made a new will, the will propounded by Mr. Arthur Cuthbert Marsh. It was very natural and proper that she should now make a provision out of her ample fortune for the husband, to whom she had united herself. It was not made in the first moon; eight months had elapsed since the marriage; she could therefore form a fair estimate of his qualities, his society, his real affection, and his just claims. She accordingly applied to Mr. Delmar, the successor of Mr. Martelli, who had prepared the former will of 1816, but who had since died; and there is not the least ground to suspect that this was not her own free, voluntary, uninfluenced act. Mr. Delmar's account of her first visit is a follows:-
"on the 21st of February, 1818, (deposing from his books) the deceased called upon him in Norfolk street; she came in her carriage, and was introduced to deponent by a clerk who had been many years with Mr. Martelli: she told deponent, 'she wished to make an alteration in will:' deponent referred to her papers, and took out the draft of the former will: he went though it, item by item, with the deceased: she specified the alteration she wished, and deponent noted most of them in the margin. He afterwards directed a clerk to copy the draft embodying the pencil alterations; deponent revised the same, and after the draft had been settled by a conveyancer, deponent had two copies made ready for execution. On the 28th of February (again deposing from his books) deceased called again upon the deponent, when he read over, or explained the contents of, one of the duplicate copies of the will, item by item, to the deceased, and she signified her approbation, as he proceeded, - but he does not remember in what terms."
The will being thus executed in duplicate each part was sealed up and indorsed; one part was deposited at the office of her agents and trustees, Messrs. Marsh, in a box, in which her other deeds and papers were deposited, and in which it was found at her death: and the indorsement on the envelope expressly states, "Duplicates in Mrs. Harding's possession." In conformity with this, the other packet was delivered to herself, was retained by her for several years, was then delivered for safe custody to her confidential servant, Mary Apostles, since dead, who delivered it over, shortly before her death, to a friend of hers, Mr. Easton, in whose custody it remained, unopened, till after the commencement of the present suit.
Such being the history of the will propounded by Mr. Arthur Cuthbert Marsh, in the making of which, there is not the slightest appearance of Mr. Marsh's interference, or even of his being privy to its contents, it becomes material to consider what alterations were by it made in the will of 1816. There is a provision made for the husband, 5000l. navy five per cents., part of the trust stock, are bequeathed to him for life, and then to his eldest son. The house, furniture, plate, &c. at Walworth, before given to Mr. Creed, are now given to Mr. Harding; there is a trinket given to his eldest son's wife; the other trinkets are given as before, and the rest of her trinkets to the eldest Miss Marsh: but all the peculiar features of the will remain; she is to be buried at Highgate with her sister; memorials are given to various friends, legacies to servants, an annuity of 100l. to the three Misses Binstead, and to the survivor; the pictures are to be destroyed; the miniatures to be buried with her; all is nearly verbatim as in the former will; but, above all, the same confidence is given to her executors, with the same legacy for their troubles; her husband is not even one of her executors; and, what is still more important, the bulk of her fortune is still given to the children of Mrs. Amelia Marsh.
Looking then to the considerations on which this disposition was originally made; looking to the change which had taken place by the marriage, the estimate of, and provision for, it, thus fixed; looking to the full confirmation thus given,, after an interval of two years, and after the intervening marriage, even to the peculiarities of the will and to all the testamentary intentions of the deceased, it is difficult to suppose a case, in which adherence to the disposition is more strongly to be inferred and presumed.
The next subjects for consideration and examination are the circumstances, subsequent to this will of 1818, either inferring the continued adherence to the will, or departure from it.
To show adherence, in the first place there is time. No testamentary act is suggested to have been done for nine years, till Harding's will of March, 1827, which was set about the latter end of February, 1827: but there are intermediate circumstances in aid of the proof of adherence. In 1823, the deceased had a severe paralytic attack, which caused a state of great bodily infirmity, whatever might be its effects upon the mind. It was natural that such an event should have induced the deceased to have made an alteration in her will, if she were dissatisfied with the existing disposition. Six years of matrimonial cohabitation had taken place: if it had produced this "growing affection and confidence," so much relied on by Mr. Harding's counsel, she would not have remained in that deplorable state without expressing some wish, or taking some measures, to increase the benefit to the husband; but nothing was done in consequence of that attack.
In 1824, Mr. Marsh's misfortunes took place; in September of that year he became a bankrupt; from what circumstances does not appear I the evidence. His bankruptcy did not induce her to alter her will; not even to substitute a different executor. Some communication with Mr. Delmar took place, as to whether it might not be necessary to make a slight alteration, not hostile to Mr. Marsh, but to secure the benefit to him in exclusion of his creditors: but that was not done, and on Marsh's obtaining his certificate in November, 1825, it became unnecessary. This cannot infer departure from the disposition of 1818. There is no reproach expressed with regard to Mr. Marsh: the evidence is all the other way: it is pity and compassion for his misfortunes which she evinces. She does not take the management of her concerns out of his hands: the Messrs. Marsh are continued as her agents - that is a fact not disputed in the evidence - indeed the navy agency house was not bankrupt at that time, and did not become so till within a few days of her death. There is not only the simple fact, that she did not take away her agency from them, but that fact has much increased force when it is admitted, that the husband recommended and pressed her to take her concerns out of the hands of the Messrs. Marsh. This is admitted and justified: bit it is proved that very urgent and harsh means were used to induce such a measure; and if the advice were justifiable, the urgency might not be so. Yet notwithstanding all the advice, whether properly or improperly administered, notwithstanding all the supposed increase of affection, and this marital influence and authority, the act is not done; the influence is resisted above two years, till this new will is obtained; and yet if it were her wish, what would have been more easy and practicable? Where were the risk and danger, she living at this time under the protection of her husband - he constantly with her? It is unnecessary to rely minutely upon the evidence of the servants who are releasing witnesses - the fact speaks for itself, and their evidence is in accordance with the fact, and it is confirmed by another witness (who is entitled to full credit), Mr. Delmar, and who speaks to circumstances strongly corroborative; some of which will be presently stated. It is further confirmed by another part of the case. In answer to Marsh's allegation, which sets forth matters inferring adherence to this will, a responsive allegation was given, which consisted of above twenty articles: to above half of those articles not a witness is examined. Most important would it have been to have produced something demonstrating dissatisfaction at the former will; some intention of altering it, and making a new one; but there is not a circumstance of the sort: not a single declaration of that tendency.
Two servants, and a woman who was principally employed in the garden, are brought up all the way out of Devonshire to prove, that, in 1822, the deceased and her husband appeared to be living on kind and conjugal terms together. A few ladies who made occasional calls at Walworth, are produced to prove, that Harding was outwardly attentive to his wife, and never ill-used her in their presence; and some of these say, that "in their opinion, the deceased had a testamentary capacity." But in this mass of responsive evidence, which was to support the condidit and factum of the last will, there is not a single circumstance, coming from the deceased herself, showing dissatisfaction at the former disposition, or the intention to make a new will. There is a total absence of any such supplementary evidence, important as it would have been to lead up to the factum of this new will.
The evidence as to adherence and departure, as well as the inferences and presumptions, are all on one side. Nay, the only circumstance relied upon, the bankruptcy of Marsh, instead of affording a probable ground for this altered disposition, operates on my mind in the contrary direction. What could afford a stronger reason for her adhering to her former intentions of giving the bulk of her fortune to the children of Mrs. Ameilia Marsh, two sons and two daughters, than the misfortunes of their father, now a bankrupt, with another family to provide for? But, further, why should Marsh's bankruptcy induce her to depart from all the characteristic peculiarities of this will? The place of her interment; the memorials to her friends; the burning of these pictures, and the placing of these miniatures in her coffin: for the change is total and complete. Looking then at the circumstances which preceded the first will, and those which intervened between February 1818 and February 1827, nothing can in my judgement be more improbable than the disposition contained in the will propounded by Mr. Tyrrell.
With this foundation of improbability, the next inquiry is, whether there are not circumstances leading to a strong suspicion that this will was obtained by the husband through undue influence, and circumventing, exercised over a testatrix incapable of protecting herself, and of resisting his marital authority. Mr. Harding's object and motives in marrying this lady can only with certainty be known to himself; but circumstances may afford some inferences. He suggests that he was not aware how her property was settled, till after Marsh's bankruptcy. Some facts however render it difficult to suppose that to be true, and that he was not apprised of it at the time of, and before, the marriage. Did he marry this lady supposing that her property was not vested in trustees to her separate use, and that by marriage he at once acquired the right to it? How came it then that no settlement was made on the marriage? Had she no sense? No friends? And had he no honesty, so as to make a settlement out of this large fortune, if he supposed that by marriage he became entitled to it? How came it that from the first moment after marriage he never interfered, in the slightest degree, in the appropriation or management of the property? With allowance for his disinterested liberality, it is hardly credible that in seven years he never should have interfered. He must therefore have been at all times fully aware, as his conduct proves, that her property was settled to her separate use. Here are also these facts leading to the same conclusion.
Harding produced a copy of the deed of trust, of 1816, to enable Tyrrell to draw the will of 1827. Shortly after Marsh's bankruptcy, he went to Delmar and told him, "that he came from Mrs. Harding, who wished to have her settlements and will sent to her." Delmar went there shortly after, taking the drafts of these papers with him, not having the originals, for they were in the box at Marsh's office: but Harding then told him "that he had copies:" that is, copies of the settlements: for his own case is, that he did not know the contents of the will of 1818 to the last. How and when, then, came he by these copies? It is true indeed that Delmar says, "he believes, that, about that time, Harding received from the deceased a copy of the settlement of the 8th of March, 1816:" but that is contrary to the whole of her conduct; for she was, at that time and at all times, most anxious to keep him ignorant of her concerns of every sort. But there is another circumstance that renders it not improbable, that he had these very copies communicated and delivered to him before the marriage, as in common fairness they ought to have been, and as his conduct, in never attempting to interfere in the management of this property, strongly infers; that circumstance is, that the very copy of which Harding was in possession, was a copy certified by two of Martelli's clerks in 1816. This copy was then in existence before the marriage, and the whole conduct of the parties renders it by no means improbable that he was in possession of it at that time.
It is true, that, if he then knew of these instruments, he may appear the more disinterested in marrying the deceased without any settlement being made of some part of the property in his favour. It may be so: but an artful, cunning, experienced man might feel some confidence, that, when married, he should have sufficient influence to persuade his wife to appoint and dispose of the property in his favour. If he had such a design and such a hope he would probably adopt two modes of effecting his purpose: first, by wheedling and coaxing to get her affairs and confidence into his power; and next, if those failed, by importunity and rigour to subdue her into acquiescence and submission. The two modes are by no means inconsistent with each other.
The letters of Mr. Harding to his wife have been exhibited by Mr. Tyrrell, and they are rather of an extraordinary tone, considering the ages of the parties: they display something of a character and plan not irreconcilable with the design just suggested. Mr. Harding had a cottage in Devonshire, and was engaged in manganese works, from which, as he represents, he was deriving considerable profit - about 1,000l. a year: he goes down to this cottage soon after the marriage - the first month is scarcely over, and he is absent from his bride about two months. These are passages in his letters. The first is dated July 1817, he having been married in the June preceding. After giving an account of his journey into Devonshire, he writes, "I have air and exercise in abundance, but I sigh that you do not partake of both with me; for happy should I have been to have had my dear, my beloved wife with me; but to this our separation I must be reconciled, knowing it to be necessary and not of long duration; but in fond imagination you are and ever will be present, for while I live my bosom will ever glow with warm affection, and with the purest regard for you, and with these sentiments do I now subscribe myself, my dearest Sophia, most tenderly and most affectionately yours."
The next is from Ilfracome, and is dated on the 25th of July. "Thus, my beloved Sophia, I am separated from you by necessity, or by a sort of destiny not to be commanded or controlled. My heart is yours, and in mind and thought you are ever present; for you my fond imagination is my present comfort, and my only bliss. Yes, my dearest Sophia, be assured I am with affectionate regard and the most tender love truly and affectionately yours."
The third is on the 11th of August: that concludes: "I greatly regret that my absence from you is so long, but I shall not stay one hour more than is absolutely necessary. To me this separation is more than painful, for not a day or hour passes but I think of my much loved Sophia, my beloved wife: for be assured I am most faithfully and most affectionately yours."
The next is dated on the 3rd of September, from Manchester: &ldots; "Do write to me, and let me hear from you; that will be the highest pleasure I can now receive. I trust in Heaven, that a few days more will dismiss me from this wretched place, and enable me soon to embrace my much loved wife, who has my warmest affection, my highest regard, and the tender love of him, who is, my beloved Sophia, your J. Harding."
The letter of the 15th of September, thus concludes: "Oh! How I anticipate the joy I shall experience on seeing you. Yes, my Sophia, this thought throws a glow of happiness over my whole frame, and makes me feel that I am wholly and truly yours."
The next is much in the same too. "I know not how to express to you the pleasure I felt on reading your last letter: it was the language of an affectionate wife; it was the harbinger of my future happiness, for nothing on earth can be more pleasant to me than your presence. Yes, my dearest Sophia, my greatest wish is, an always will be, to be inseparable and ever near to you. My heart glows with a warm affection for you, and I love you with tenderness and with truth."
These are passages from some of the letters written at this period of time. Why, the very heyday of life, the most ardent affections of youth, could not have dictated warmer effusions: they have more the appearance of being written with a view of wheedling her out of her large fortune, at her own disposal, than of being the expression of the real genuine feelings of a husband of sixty-four, to be second wife of fifty-one. This last letter is dated on the 12th of April 1818, shortly after she had been making the will now propounded by Mr. Marsh. Her answers are not produced, and if they contained expressions of equal warmth they might have shown something of this "growing affection:" they may have been rather cold replies; she may have seen through, or thought she saw through, these high-flown effusions, and suspected that they had her property rather than her person in view. None of her letters are exhibited till after her paralytic attack. - the first is dated in May 1825, when she was no longer able to write herself: they are in the handwriting of her servant, Mary Apostles: they are dry and formal, possibly on that account: but it is not wholly unworthy of remark, that, though written after Marsh's bankruptcy, they contain no expression of dissatisfaction towards the Messrs. Marsh, nor the least allusion to her accounts with them; still less a wish or suggestion of any new testamentary act.
That Harding advised her to take her concerns out of Marsh's hands is admitted: that she refused to do so is demonstrated by the fact; but it is important to inquire, whether he did not then resort to rough means. That he did so is proved by the servants, who advert to the particulars of their depositions; they were fully pointed out in the argument: nor even if their evidence is biased and high coloured, would it be material, for it is not necessary to rely on them alone, nor on the exact details of their testimony: for sufficient is stated by Mr. Delmar in confirmation of them; and I see nothing to impeach his credit.
That Harding endeavoured to get at the original deeds and will, is proved by Delmar. Delmar carried the copies, but Harding then said, "he had copies, he did not want copies." But there is this strong mark of falsehood; he pretended that he had applied to Delmar by the deceased's desire, but when the three parties are together, he does not venture to appeal to her in the presence of Delmar to confirm the truth of his mission; he does not venture to say - "Now, Madam, here is Mr. Delmar, deliver your message to him yourself; I will leave the room; he is your confidential solicitor, he prepared your will in my absence, tell him what your real wishes are; he may suspect that I have some selfish object in view." It is quite incredible that she had any wish of the kind. The res gestae and the evidence of the witnesses concur to prove, that she was most anxious no papers of hers should be given up to Harding, and that no account of hers should be rendered to him.
What is the substance of Mr. Delmar's account? "Mostly, when he called, Harding seemed to make a point of being present and was painfully intrusive; he constantly kept speaking of Mr. Marsh and his son, in a way tending to excite an unfavourable impression of them; and conversation always took that turn; he uniformly manifested a wish to pry into her pecuniary affairs, even at times when she was evidently very ill; his object seemed to be to wean the deceased's regard from Marsh and his family. The deceased for the most part sat silent, but at times, when he urged the subject more closely, she used to manifest patience, saying, 'No, no,' to avoid the subject: the very mention of such matters seemed to give the deceased pain, but Harding's conversation was nevertheless always about them. Deponent's visits were continued principally because they seemed to soothe her, and operated as a check on the irritation Harding's conduct excited: &ldots; Harding was constantly alluding to the subject, and there was an unhappy state of discord on that account. He used great harshness of expression towards the deceased on that subject, and at a time when from ill health she required every tenderness. On several of his visits, deponent found her in tears; he sometimes observed to Harding, that the deceased was in the delicate state is was very necessary to treat her with kindness. She appeared to grow gradually weaker."
This is the general substance of Delmar's evidence, and it is in perfect accordance with, though not quite so strong as, the evidence of some of the servants. It needs no comment.
There is another fact not only inferring, but nearly conclusive upon the absence of all previous intention of the deceased to make a new will. She had a duplicate of the will of 1818, as I have said, in her possession; but fearful of its falling into the hands of her husband, she delivered it to her confidential servant, Mary Apostles, in the presence of Rigden; and Apostles, when in a dangerous state, delivered it to her friend Easton; and in his hands it remained till some time after her death. Now Harding had been applying to Delmar, as from the deceased, for her will: supposing that to be true, and that Delmar had declined to deliver it, yet she had the duplicate within her power. If she had wished to revoke the will, would she not have communicated the fact of her
possession of this duplicate to her husband, unless indeed her capacity was so gone that she had no recollection of its existence? But if she wished the will to be revoked, and recollected the existence of that duplicate, it is quite incredible that she would not have apprised her husband of it, and would not have required Rigden and Apostles to deliver it up; and yet it is Harding's own case that he did not know the contents of the will, nor the existence of this duplicate till after her death. How fully, then, do the facts and the conduct confirm the parol evidence that Harding was anxious to possess himself of the will, and the property of the deceased, and that she was no less anxious to keep both her property and her will out of his hands.
Such being the circumstances of the case, up to the very commencement of the transaction of Harding's getting this will made, it becomes essential to inquire what was the state of the deceased's capacity at this period. This part of the case, again, lies within a narrow compass, and is established by the conduct of Harding and his own witnesses, which are generally conflicting upon the subject of capacity.
The deceased had a paralytic attack in 1823, which reduced her to great bodily infirmity; but, whether she had another in 1825, or whether she was in a state of despondency, and made an attempt upon her own life is not material; she certainly had a good deal to prey on her mind and spirits: the misfortunes of Mr. Marsh, the "worritting" of her husband, and subsequently, the illness of her confidential old servant, Apostles, were not likely to be without their effect upon a nervous patient. It is admitted, that Mr. Delmar had intimated an opinion, that she was incapable of managing her own concerns: it is admitted that an operation on her maid, Apostles, was wished to be postponed lest it should agitate her to much, and render her unfit for making this will: it is admitted that, before the drawer of this will would undertake to attend for the purpose of receiving her instructions, he wished her to be visited and examined by medical gentlemen, to ascertain the state of her capacity: it is admitted, that the opinion of a surgeon, the drawer's brother, was not alone deemed sufficient; was not alone deemed satisfactory: it is admitted that Dr. Burrows, a medical person, supposed to be particularly conversant with defects of the mind - at least in cases of derangement - after sitting with her for three quarters of an hour, would only give a limited opinion as to her capacity, and wished for a second interview before he gave a decided opinion. In such a case, to resort to the judgment of persons who occasionally, or of others who frequently, saw her, whether she was quite capable or quite imbecile, would be utterly useless: she was at all events in a state of very weakened and doubtful capacity.
If then, in addition to these circumstance; first, that the disposition in the new will is highly improbable; next, that the husband had been endeavouring to get at her deeds and testamentary instruments; and further, that she was in this state of doubtful capacity; if in addition to all this, we yet find that the husband, as far as the evidence goes, originates and conducts the whole business, representing or rather misrepresenting the previous facts, and being present at all the material parts of the transaction, the case proceeds to the evidence of the factum under presumptions of fraud and imposition, which hardly any evidence would be sufficient to repel. It would at least be extremely difficult to show that she was a free as well as capable testatrix; to show that she had a real disposing testamentary mind, and an intention to abandon all the dispositions of her former will made so carefully, and adhered to so firmly. The strong presumption would be that, in whatever she said and did, however it might impose upon the witnesses, she was a mere instrument and puppet in the hands of her husband.
We come then now to the evidence on the condidit.
The witnesses to the factum are three. Mr. Edward Tyrrell, a solicitor, and deputy-remembrancer of the city of London; Mr. Frederick Tyrrell, a surgeon, his brother; and Dr. Burrows, a physician. Certainly three persons, respectable in situation, of unimpeached general character, and competent to arrive at a fair opinion, as far as their opportunities and the means they used of judging, enabled them to form an estimate of her mental capacity. There is no reason whatever to suppose, that they would either enter into a fraudulent conspiracy with the husband to obtain this will, or that they would have come forward to support it by wilful perjury; nothing of the sort can possibly be imputed to them: but it is necessary to see under what prepossessions they engaged in the matter, in order to form a correct judgment of the inquiries which they made, and of the conclusions at which they arrive. They may have been imposed upon and duped by the artful misrepresentations of Mr. Harding: they may have suffered their vigilance to be lulled, and their penetration to have slept, and after having embarked in the transaction, and after their characters were in some measure implicated, they may be under a strong bias to support and give effect to the act. Under that bias very honest persons (such is the infirmity of our nature) often deceive themselves without being aware of it: they fancy impressions to have existed, nay they sometimes even suppose facts to have taken place, because those impressions now exist, or because those fact might or ought to have passed, in order to support their impressions. Hence this strong bias will often give a false colour to a transaction, without the witness intending to speak falsely or to suppress the truth. Without, therefore, in the slightest degree suspecting any thing of conspiracy or wilful misrepresentation, on the part of these gentlemen, it may be necessary to examine their evidence upon those other principles which have been just stated, for it was correctly said by the leading counsel for Mr. Tyrrell, and it cannot be expressed in better words, (if I have taken them accurately) "even persons of high character may fail to do their duty when nearly connected." This he applied to the evidence of Mr. Delmar.
The principal witness, and he who begins the history, is Mr. Edward Tyrrell, the solicitor who prepared the will: he states, "He and his family for two generations have been intimately acquainted with Mr. Harding; he had a slight knowledge of the deceased." He then was the intimate friend, and he was also the solicitor for Mr. Harding, but not the solicitor of the deceased. He goes on: "On or about the 19th or 20th of February, 1827, Mr. Harding called on deponent at his office, and informed him, that Mrs. Harding wishes to see him for the purpose of making her will, and for him to act as her solicitor. Mr. Harding said, that his wife had since her marriage made a will without his knowledge, and that it was either in the hands of Mr. Delmar, or Mr. Marsh, the navy agent; that his wife, and he, at her request, had applied to them both for the will, and also to Mr. Marsh for her, the deceased's, account as her agent: he further stated that Mr. Delmar had called upon the deceased a few weeks back, and that on his , Delmar's, leaving the room, Mrs. Harding became agitated, and burst into tears, upon which Mr. Delmar turned around, and asked, whether he thought the deceased in a fit state to manage her affairs, to which he, Harding, replied, 'that he certainly did think her quite capable.' After this statement Mr. Harding handed to deponent an attested copy of a deed of gift, dated antecedent to deceased's marriage, whereby she had assigned 10,000 to the elder Mr. Marsh: also a like copy of the deed of settlement which she made of the greater part of her property, shortly before her marriage; which settlement reserved to the deceased the right of disposal by will of the property therein mentioned. Deponent, referring himself to what Mr. Harding had let drop, as to Mr. Delmar's doubts about Mr. Harding's capacity for the management of her affairs, told Mr. Harding 'that he, deponent, should not feel himself justified in taking instructions for a will from Mrs. Harding, until some medical person of respectability had seen her, and given an opinion as to her state of mind.' Mr. Harding having concurred with the deponent in respect of such a caution, deponent, with the like concurrence, applied to his brother, Mr. Frederick Tyrrell, requesting him to call upon the deceased for the purpose of ascertaining her state of mind, which he promised to do."
Upon this account of the commencement of the business, several observations occur. First, the matter, as far as here appears, originates entirely with Mr. Harding: there is no note from the deceased, no servant, nor disinterested messenger sent by her: Harding goes himself to his own friend and solicitor; and it is Harding's own story "that Mrs. Harding wished to see Tyrrell;" but of the reality of that wish, there is not a tittle of evidence, and from the circumstances already adverted to, there is every reason to suspect that it was misrepresentation. "He told him the will was in the hands of Delmar or Marsh, that his wife and he, at her request, had applied to Delmar and to Marsh for the will." This again, is false; the deceased never did apply to Marsh or to Delmar for her will; but Harding applied to Delmar as from the deceased, when Delmar told him, "that the will was at Marsh's office:" and though Delmar afterwards attended the deceased in Harding's presence, yet the will was never mentioned by, nor even in the presence of, the deceased to Delmar. It is clear also that Harding was not aware the deceased either then had, or ever had, a duplicate in her own possession, of which she must have apprized him had she wished to revoke it. By this misrepresentation then, "that the deceased wished to revoke her will, that it was in the hands of Delmar or Marsh, that the deceased herself, and he, at her request, had applied to each of them for the will without success;" is Mr. Edward Tyrrell imposed upon, and induced to engage in making this new will. This is the very origin and foundation of the whole sequel. Upon this false basis, originating entirely with Harding, the subsequent transactions are all built. There is no reason to suppose that Tyrrell did not fairly embark in the business under the impression that he was going to carry into effect the real wishes of a free and capable testatrix. Upon the former point, her free agency, with a little more penetration, Mr. Tyrrell ought perhaps to have taken some alarm, when he saw by this settlement, that the wife had in her own power the disposal of a very large property, and that the channel of communication was her husband. Upon the latter point, the capacity, when told that Delmar had insinuated her incompetency, he did take the precaution of desiring that medical persons should first see the deceased; but all his precautions were directed to ascertain, whether she was fit to make a will, which she really desired and wished to make. Upon the other point, by far the most important, whether in this questionable state as to capacity, she was or was not under the influence and dominion of her interested husband, no precautionary inquiry whatever took place; and this course was pursued throughout the whole business, and by all the witnesses.
Edward Tyrrell applied to his brother Frederick, one of the surgeons of St.Thomas' Hospital, and (upon the authority of the husband) he conveyed to him the same impression, "that the deceased was desirous of making a will in favour of her husband, but that some doubts had been raised by Marsh, or by some one on his behalf, respecting the deceased's fitness for the performance of such an act." This is stated by Mr. Frederick Tyrrell in answer to the 6th interrogatory. So that Edward Tyrrell not only received himself, but conveyed the same false impression, from the misrepresentations of Harding, that the deceased really wished to make a will in favour or her husband, but that Marsh or some one was raising doubts in order to obstruct it. He also mentions, "that he has a notion, that before his first visit to the deceased, he saw Mr. Harding."
Frederick Tyrrell saw the deceased four times, but Harding was always present, except that, on one occasion, he went out of the room for a few minutes to call the maid-servant, Apostles, and was also absent at a part of the execution; so that the examination of the deceased's capacity was always in the presence of the husband. He says, "that he was with her the first time about half an hour, and was satisfied of her capacity:" but the fact is, that he and his brother did not act on that opinion. They, upon conference, thought it best to call in Dr. Burrows. It is not necessary to examine minute discrepancies between the witnesses, nor to inquire whether a medical person, whose particular line of practice is attending lunatic persons, is more fit than other medical practitioners to form a judgement on the capacity of a mind weakened by paralysis, where there has been no delusion nor derangement. Be that as it may, Dr. Burrows' opinion is entitled to attention: but he again, visited the deceased under the same prepossessions and prejudices. He states, "Two or three days previous on the 27th of February, 1827, (referring to a note witness made at the time) the deponent was called upon by Mr. F. Tyrrell, who informing him, 'that he wished deponent to see a lady he, Tyrrell, was attending at Walworth, who was desirous of making a will; but that she was very much debilitated by paralysis, and that her husband wished to have her state of mind, relative to its fitness for a testamentary act, properly ascertained: that disease of the mind not being within his particular practice, as it is that of the deponent, he, Tyrrell, had on that account applied to deponent, who on the 27th of February, met Mr. F. Tyrrell at the deceased's house, being then introduced to her as having called to see one of the deceased's servants: on that occasion he sat and conversed with the deceased nearly three quarters of an hour, after which deponent informed Mr. F. Tyrrell, that as far as he had seen of the deceased on that day, she appeared capable of disposing of her property, but that he could not come to a decided opinion on the subject until he had seen her a second time. Deponent was desirous of seeing the deceased a second time, although she was perfectly rational while he so saw and conversed with her, yet she was under very considerable agitation, in contemplation of an operation which her maid-servant, of whom she spoke with great kindness, was to undergo; and deponent, not willing to increase such agitation, did not touch upon the subject of her will." Thus, then, the impression travelled: Dr. Burrows received it from Frederick Tyrrell; Frederick Tyrrell from Edward Tyrrell: Edward Tyrrell from Harding, the most suspicious and interested source from which the impression could possibly originate: and the deceased's wishes in that respect are highly improbable; are unsupported by any proof; and are contradicted by all the facts and evidence in the cause.
Dr. Burrows never saw the deceased but twice; on the 27th of February, when he and Frederick Tyrrell were there together; and on the 9th of March, when the instrument was executed. On the third interrogatory he says: "He never was alone with the deceased. Mr. Harding was in the room on both occasions for great part of the time." On the seventh interrogatory: "The deceased was alone when Mr. Harding introduced him and Mr. Frederick Tyrrell: he introduced respondent as a medical friend of Mr. Frederick Tyrrell, who had come to see the maid-servant. Mr. Harding went out of the room to call the maid-servant alluded to, but he returned saying, she had gone out."
This is the sort of contrivance by which the medical gentlemen were brought into the society of the deceased, in order to judge of her capacity. Contrivances are always suspicious. If the deceased really wished to make this entirely new disposition, had a capacity for the purpose, and was a free agent, why not frankly and fairly explain to her the object and reasons of the visit? Why did not Harding say to her, "Mr Marsh and Mr. Delmar refuse to deliver up your will, and they suggested that you are not in a fit state to make a new one: under such base conduct, and unfounded insinuations, it is prudent, in order to insure the execution of your wishes and kind intentions, that respectable persons - persons of medical experience, of skill and judgement - should visit you, and converse with you, and learn your real wishes from yourself; I will bring respectable medical men for the purpose; you can have no objection to see and converse with, and satisfy, them of your intentions, and that what I represent are your own real wishes." This would have been proper and natural conduct, and having thus introduced these gentlemen, and thus prepared the deceased, the husband should have withdrawn from the room, if not the house. Far more was necessary than the ability to answer a few questions on common topics: here was not only capacity to be proved, but here was volition and free agency to be ascertained, and to that point he should have desired the two medical gentlemen to address their inquires. But here are these two medical men introduced by this contrivance on the 27th of February; a few questions are asked on common topics in the presence of the husband, on whose sole authority it is assumed that the questions are answered correctly: but still the visit ends by Dr. Burrows deposing "that he could not come to a decided opinion on the subject, until he had seen her a second time." After an interview of three quarters of an hour, this is the result even as to capacity. As to the power of making any will, he goes a little further on interrogatory than on his examination in chief, in one respect. In his answer to the eighth, he says, "At his first visit he had no doubt whatever of the deceased possessing her mental faculties and power of reflection, sufficiently to enable her to make a general disposition of her property in one bequest, and to bequeath legacies to her servants; he cannot swear the deceased was able to recollect, know, and understand the purport of any former will which she had made. He has no doubt whatever that she was able, at such time, to comprehend the effect and purport of such a will as that she subsequently executed in his presence" This is the utmost length that Dr. Burrows can go, prepared as he was by the partial view which Harding exhibited to him of the deceased, and of her wishes. If this will were in conformity to her previous intentions, and declared or ascertained wishes, Dr. Burrows thinks she had sufficient capacity to give effect to the act: but if, when he gave his evidence, he had been in possession of the earlier history of this transaction, and of all the circumstances which preceded this will, then from his testimony it is clear, he must have arrived at a different conclusion, and have given a different opinion. His answers to other interrogatories infer as much: for instance, on the eleventh, he thus answer: "That when he visited the deceased on the 27th of February, he was informed by Mr. F. Tyrrell, as he best recollects and believes, that the deceased had, previous to her marriage, made a will in favour of some individual other than her husband, upon which respondent inquired, 'whether such individual was her next relation.' Tyrrell replied, it was not, but that she now wished to revoke that will, and to make a new one in favour of her husband, and that it was to satisfy all parties of the deceased's competency to make the new will that respondent was applied to." Now, though the person principally benefited under the will referred to was not a next of kin, yet it is to be remembered the deceased had no known relation. And how was this application to Dr. Burrows "to satisfy all parties?" What! The parties in whose favour the former will was made: they knew nothing of what was going on. "Respondent knew not, and did not hear that such former will had been made in favour of Mr. William Marsh or his family, or that such individual was on of the deceased's oldest friends, and a friend of her late brother - through whom he heard the deceased's property was derived: he never heard that the deceased, subsequent to her marriage, executed a will, by which she gave her house and furniture at Walworth to her husband absolutely, and 5000l. navy five per cents to him for life, with reversion to his son by a former marriage, or that by such will she bequeathed the residue to Mr William Marsh and his family." If then Dr. Burrows had known all the previous history, it is to be inferred that he would not have sanctioned this instrument without some better proof, that she was acting of her own free, uninfluenced , will and wishes.
To revoke this former will so made and so adhered to, it was necessary that the deceased should be proved to have recollected at least its general contents; to have recollected, that she had distributed memorials among her friends; that she had provided for her servants; that she had given her husband a certain portion; that she had bequeathed the bulk of her fortune to those whom she had long adopted for that purpose, the children of Mrs. Amelia Marsh: it was necessary that she should be proved, upon some rational grounds negativing the importunity of her husband, to have become desirous of abandoning all her former intentions; but to no part of her former will is there the least reference. That this new will was without the importunate influence of the husband, there is not the slightest appearance in any part of the evidence of Frederick Tyrrell, or Dr. Burrows. Harding is always present, he scarcely goes out of the room for an instant, and no question upon the point of free agency is put to the deceased.
Without then stating this preliminary evidence more minutely, there is nothing to convince me that the mind of the deceased was sufficiently probed to ascertain, whether she was or was not either a free or, as applied to such a will, a capable testatrix; nothing satisfactorily to discover what her real wishes were, without the restraint and influence of her husband. "It is a great but not an uncommon error to suppose, that because a person can understand a question put to him, and can give a rational answer to such question, he is of perfect, sound mind, and is capable of making a will for any purpose whatever; whereas the rule of law, and it is the rule of common sense, is far otherwise: the competency of the mind must be judged of by the nature of the act to be done, and from a consideration of all the circumstances of the case." In Combe's case, the rule is laid down in those words.(a) "It was agreed by the judges, that sane memory for the making of a will is not at all times when the party can answer to any thing with sense, but he ought to have judgement to discern and to be of perfect memory, otherwise the will is void." It is not answering, that "she had been round Clapham Common," or "that her house was leasehold," or the like, even if the questions were answered correctly and the husband had not bee present that would be sufficient in the present case. So again, in the Marquess of Winchester's case:(b) "by the law it is not sufficient that the testator be of memory, when he makes his will, to answer familiar and usual questions, but he ought to have a disposing memory so as to be able to make a disposition of his estate with understanding and reason." To support then such a complete revolution in the testamentary dispositions of the deceased, it was necessary to show that she had recollection of what the former disposition was, even supposing there were no grounds to suspect a mere tutored acquiescence under the influence of the husband. The influence of the husband, however, is much more readily inferred to have its effect than the importunity of the wife, and yet it is laid down, "If a man makes a will in his sickness by the over importuning of his wife, to the end that he may be quiet, this shall be said to be a will made by restraint, and shall not be good." (c) And, Swinburne says in respect to restraint, "Whereof no certain rule can be delivered, but it is left to the discretion of the Judge, who is to consider all the circumstances." (d) In my judgement in the present case, the circumstances are quite sufficient, prior to the application of the husband to Mr. Edward Tyrrell, and quite sufficient, from his presence upon all subsequent occasions, to require that he should afford the most satisfactory proof that the deceased was not a mere unresisting instrument in his hands, so taught, tutored, and impressed, as to say and do all that Mr. Edward Tyrrell states to have taken place.
With this view of the case it may hardly be necessary to go, with any minuteness, through the account given of the instructions and execution. Mr. Edward Tyrrell having given entire credence to the representations of Harding, and to the report on the capacity made by the medical gentlemen, proceeded, on the fifth of March, to take the instructions; and his account of what then passed is stated at considerable length: and had it not been already so repeatedly cited in the argument, it might have been important here to have read it at length; but it will be sufficient to refer to parts of it.(a) His narrative, supposing it to be quite correctly given, appears at first sight strong and favourable; but the Court must consider, whether the bias and prepossession of the witness have not led him to colour his deposition in chief rather too highly. It must be recollected that the husband was present nearly the whole time. How far he may not have impressed, and by influence compelled her to say all this (if she did say it exactly as it stands upon the deposition in chief) may be suspected. There is sufficient to raise a presumption against the husband, that she was a mere instrument in his hands, and it was incumbent upon him to repel the presumption so raised. But it would be extraordinary if all did take place exactly in the manner the deposition is calculated to represent. Here is a long, smooth, fluent account of all the circumstances, which Harding had before represented to Mr. Edward Tyrrell; almost totidem verbis, all told without interruption; of her own accord; Harding not interfering, not dictating, merely supplying a date and the name of his co-executor. If this were so, it is extraordinary that Frederick Tyrrell after his first interview should have required the attendance of Dr. Burrows: if there was all this ready and active capacity, this clear expression of her wishes, it is extraordinary that Dr. Burrows should have desired a second interview, before he gave a decisive opinion of her being capable of making the sort of will he was induced to suppose she wished to make: particularly when, at this interview with Edward Tyrrell, Harding represented, that "the deceased had had a bad night and was not so well that morning."
But it is extremely difficult to reconcile this deposition in chief, so far as respects the spontaneity of the deceased, and the active part she takes in the communication to Mr. Edward Tyrrell, with what he himself states when pressed upon interrogatory. The Court cannot suppose that he was intended to give an unfair representation; but his bias may have caused him unawares, in his deposition, to convey a very incorrect impression of the real character of what took place. For example, he states this: "After deponent had taken a seat, as Mr. Harding did also, and after the deceased had made some inquiries after deponent's mother and other branches of the his family, who were known to her, she proceeded to give a statement of her affairs." Now, on reading this account I was let to suppose that the deceased, recognizing Edward Tyrrell, began the conversation of her own accord, and therefore that her behaviour showed memory, intelligence, and alertness of mind, and all that might lead to the inference of spontaneity and capacity; and that this evidence was on the account important. Yet, on the eighteenth interrogatory, he says: "On entering the room, and being introduced by name, the deceased said to respondent, 'I hope you are very well,' and shortly after, 'I hope your mother is well:' she made the latter inquiry on respondent saying, 'that he had that morning seen his mother, who desired her compliments.'" This gives quite a different character to the inquiry: the one account inducing a belief that the inquiry originated with the deceased; the other showing that it grew out of a previous observation, and was such a remark as a person in a state of great imbecility might well make.
In respect to this "statement of her affairs," it is difficult to reconcile it with his own answer on the third interrogatory: "At the interviews which the respondent had with the deceased, and at which he was present with others, she did not speak until she was spoken to; when so addressed, she confined her answers, as much as she could, to monosyllables; but not always so: it appears she did so on account of the difficulty of utterance under which she laboured: she never, in his presence attempted spontaneously to join in general conversation: she only in general gave answers to the questions put to her, but she did, of her own accord, and not in answer to any question, make a statement to respondent on the day of his taking instructions for her will, viz. 'that she had been ill-used by the Marshes (her own words) and that she could not get an account from them, nor her will out of their hands.'" Here, again, is difficulty of speech: she seldom spoke but in answer to questions, generally only in monosyllables, yet she entered on a "statement of her affairs:" but what does the witness specify? - that she had been "ill-used by the Marshes, and could not get her will." These are the very circumstances about which Harding had been "worriting her," and might now either have impressed on her weakened mind or compelled her to hold out: or they are the mere repetition of what Harding had previously told Edward Tyrrell. It was the tale that was to be told an that might easily be learnt. As to "not getting the will," either she was capable or incapable: if capable, she must, I repeat, have been aware of the duplicate delivered to Apostles, and have purposely concealed if: if incapable, then she might have forgotten the existence of that duplicate, but then she would not have had mind and memory sufficient to remember the content, nor consequently to revoke her will. But what is the ostensible reason? - "The Marshes had used her ill." Is that true? Or, if true, does it account for cutting of all Mrs. Amelia Marsh's children, and passing over all her other friends, and abandoning all the other peculiarities of the wills of 1816 and 1818?
Again, how does Mr. Tyrrell state in chief the actual instructions? "After Mr. Harding had so left the room, deponent and the deceased being left together, the deceased said, 'I wish to leave my property to Mr. Harding after my death, and a legacy to each of my old servants.'" Now on reading this, it would be supposed the deceased, the moment she was left alone with Mr. Tyrrell, began the conversation, and of her own accord commenced giving the instructions, perfectly understanding, and spontaneously proceeding with, the transaction intended to take place; and in that view, as far as capacity was concerned, it would be a favourable fact: it would not indeed go far as to the control, marital authority, and undue influence of the husband (the more important branch of the case); for it was a short lesson easily imprinted and remembered, which was to be submitted to and repeated. But when the witness is pressed upon interrogatories, it has not even this circumstance (favourable at least to the capacity) of the deceased proceeding of her own accord to give the instructions: for on the twentieth interrogatory, Mr Tyrrell answers, "The instructions given by the deceased for her will were given freely by her, but not until respondent put questions to her on the subject: no third person was present. After two preliminary questions, (viz. whether she wished the will made by Delmar to be revoked; and to make a new will; to both of which the deceased answered 'Yes.') Respondent asked her, 'To whom she wished to leave her property?' she answered, 'To Mr. Harding after my death.' 'What! The whole of your property?' 'Yes, the whole, except legacies to my servants.' Respondent then requested her to give him the names of the servants and the amount of their legacies, which she did with some difficulty, that is, she was not able to articulate their names readily; and she did not appear to have made up her mind till then as to the amount of such legacies. Mr. Harding at this period returned into the room: respondent inquired, who she would have as executors? She said, Mr. Harding,' and, turning to him, added, 'and the gentleman you named.' Mr. Harding said 'You mean Mr. Tyrrell of Lincoln's Inn:' she answered, 'Yes.'" This gives a very different colour to the business: even these short instructions, instead of originating with the deceased or being delivered of her own accord, are extracted from her by interrogatories.
The Court has no reason to impute to the witness any intention to misrepresent; but he was duped: he was prepossessed: he had had repeated conversations with Harding: he had got thoroughly impressed that the deceased thought herself ill-used by Marsh; that she could not get her will; that she wished to make a new will and to give her property to Harding: he was not aware of the disposition in the former wills - the considerations on which they had been made - the manner in which they had been adhered to - the fruitless attempts Harding had made to get the deceased to take her concerns out of Marsh's hands and to transfer them to himself: not knowing these circumstances, perhaps it may be too much to impute to Mr. Edward Tyrrell even a want of vigilance, in allowing himself to be so imposed upon by Mr. Harding, or a want of penetration and sagacity in not suspecting his objects. But, hearing that there had been a former will and that the state of her mind was doubted, it is to be regretted that he did not inquire a little more into the contents as to the disposition she had before made and was now about to revoke. Seeing also the large property she had at her disposal under these deeds of settlement made in the year of 1816, how weakened she was in capacity, and how entirely the origin and conduct of this new will was managed by the husband himself - every thing passing in his presence except mere formalities - it is to be regretted that Mr. Edward Tyrrell's penetration did not point out to him the propriety and importance of satisfying himself, that there were no marital authority and undue influence interposed: and yet all he hunts after is a little testable capacity to give effect to a testamentary disposition, which, upon the previous representations of Harding, he allowed himself to believe she really wished to make.
If the instructions, with the previous visits of the two medical men, do not satisfy the mind of the Court as to the testamentary intentions of the deceased, the execution, on the ninth of Marsh, carries the case no further. Here are the same sort of inquiries made: the husband is present, except being sent out of the room for a minute, just while the formality of the execution by the attempt to sign takes place. There is, however, the single circumstance of her desiring George's legacy to be increased and made the same as the other two servants. Whether even that circumstance is not more like a cunning artifice, devised by Harding, in order to give the deceased the appearance of capacity, than the spontaneous desire of her own mind, may admit of some doubt; for neither George's station, nor the length of her service, nor the deceased's former estimate of it, lead to her being placed on the same level with Rigden and Apostles (b) It may have been, and it looks, like a contrived suggestion of Harding; for his conduct has exposed him to every suspicion.
On the 11th of April the deceased has a fresh paralytic attack, and yet on the 21st here is a codicil obtained from her, which, Mr. Edward Tyrrell being out of town, Mr. Timothy Tyrrell is employed to prepare. He comes with the same prepossessions and impressions derived from Mr. Harding, and he ventures upon no better ground to communicate the same prepossessions and aspersions to Dixon, the medical attendant; for on the fourth article he says, "Deponent briefly stated to Mr. Dixon that Mr. Marsh had prevailed on the deceased to make a gift to him of 10,000l. and had procured from her a will in his favour, and also, unknown to Mr. Harding, a settlement of her property." There is no proof of one nor of the other: the will is not in his favour, though it is in the favour of part of his family. "That she had since made a will revoking that in favour of Mr. Harding." All this he states as fact upon mere hearsay, proceeding from no better source than the imputations of a most interested party - the husband - who was getting a new will, almost exclusively in his own favour. Here the husband is still more directly an agent; he is the medium of communication between the deceased and the witnesses, the deceased being by the last paralytic attack rendered so weak as to be unable to express herself intelligibly to Mr. Tyrrell.
What then is the Court to consider this codicil? - the wish of a capable testatrix, or the fraudulent contrivance of the husband to give a semblance of confirmation to the will? The witnesses were off their guard, for, since it was to the prejudice of the husband, they might easily have pinned their faith upon him as to the volition of the deceased, not discovering that he might have quite a different object in view. The codicil confirms the will, but what is its disposing object? - to give rings to three near and dear friends of the deceased - the three Misses Binstead. The deceased by her will had given them an annuity of 100l. with benefit of survivorship: a ring is now substituted! That change is not very probable: but the fatal fact is, that two of the Misses Binstead were dead! The death of one, if not both of them, must have been known to the deceased. Harding might not have known either event, for the deceased does not seem to have been in much confidential communication with him; but what must have been the state of her capacity when this codicil was obtained? The transaction lies under a strong suspicion of being a contrivance to give the appearance of confirmation to the will: and it is the only confirmation; for as to any recognition of the act through any disinterested parties, there is none.
The case in my judgment might rest here; but there are detached circumstances which throw some light upon the character and conduct of the transaction.
Repeated applications were made to Marsh for money, but all access to the deceased was prohibited him: drafts were drawn and presented, one for 400l., a second for 100l., and a third for 100l. When the drafts were presented, the signatures were suggested not to be the hand-writing of the deceased; Mr Edward Tyrrell presented the last himself and said, he saw it signed. An offer was made to carry the money to the deceased, but access was refused. This seems extraordinary. What reasonable grounds could there be for refusal, if the deceased were a free and capable agent, dissatisfied with the Messrs. Marsh, and having with sufficient capacity transferred her entire confidence to her husband and freely made a will in his favour? She was under the protection of her husband, assisted by his attorneys, and residing in her own house: where could be the fear, or the objection to the money being carried and delivered to her? She would merely have had to recognize the draft, and declare her wishes to have the money. When the signatures had been doubted, it is extraordinary that the parties, for their own credit, did not insist that some person - if not one of the Messrs. Marsh, that some clerk belonging to their house - should accompany them to the deceased to verify the signature: but, even now, the drafts themselves are not forthcoming.
Here is, however, a letter, produced on the other side, dated the 31st of March, addressed to "Messrs. Marsh." Demanding the delivery of the deeds, wills, and papers; and signed "Sophia Harding." Here are also a great number of drafts signed by the deceased from 1817 to 1`820. The signatures to the earlier drafts are a neat formal hand; to the latter drafts, from the autumn of 1824, the signature become very slovenly, bearing very little similitude to the earlier ones, and the suggestion is, that the signature to the latter is a forged imitation of the earlier signature of the deceased. The explanation offered is, not that the deceased really signed the letter herself, but that her hand was guided by Harding. When she executed her will on the 9th of March she could not make any signature; she attempted but failed, and was obliged to make her mark - a mere cross. Whether a person, with her hand in this paralysed condition, could so far assist in the signature, or her hand could be so used, as to make a signature nearly approaching the original character of her handwriting, is more than the Court will venture to give an opinion upon: but here is her hand entirely in the control and use of her husband, and there is no proof that her mind was not equally under his influence and authority; he uses both to endeavour to get at her property and her papers, excluding from all access to her those persons to whom her property and her papers had been intrusted by herself. The inferences against the husband are obvious.
It should have been noticed that earlier in March, about a week after the execution of the will, Mr. Edward Tyrrell, in the character of the deceased's solicitor, wrote to Mr. Marsh requiring her account. Mr. Marsh, in his answer, says, "that he has directed his son to make out Mrs. Harding's account immediately, but before he puts it into other hands than her own, he deems it necessary to see the deceased in person; and he proposes, accompanied by Mr. Delmar, to meet Mr. Tyrrell at the deceased's house;" to this Mr. Tyrrell answers, that the deceased refuses to see him and has given orders that he shall not be admitted." Mr. Marsh replies, "he cannot consider such a message as emanating from her own free will, and must persevere in his determination, more especially as it is in compliance with her repeated injunctions, both to him and to his son, not to give any papers or information respecting her concerns but to herself personally." The truth of this is confirmed by the history and by the res gestae. Here then is a careful exclusion of Marsh, of his son, and of Delmar; here is an attempt to get the original papers and to get money; first by the solicitor, Tyrrell, then by drafts withy the deceased's asserted signature, then by this letter, with a signature at best made by Harding guiding and using the deceased's hand: but though Marsh offers to attend with papers and to meet Mr. Tyrrell; though Arthur Cuthbert Marsh offers to carry the money and to deliver it into the deceased's own hand; though she is living in her own house with her husband, and Marsh only proposes to see her at a time to be fixed by Tyrrell, yet non-access is enforced under a pretended order from the deceased herself to exclude these, her longest and dearest friends. Certainly these circumstances do pretty strongly increases the suspicion, that Harding was at this time making use of the deceased as a mere instrument in his own hands, and for his own purposes.
There is one further circumstance to be noticed. The deceased died in the middle of the night, between the 7th and 8th of March. Harding alone was with her; no other person was present; no other person was sitting up; so that she must have died rather unexpectedly, though he admits her incapacity for a few days before her death. He states, "that she died about four o'clock in the morning; that he went out about six, leaving the bed-room locked up and no key in the door, and without apprising the servants of her death; that he returned about half past eleven, unlocked the door, and then told the servants of the deceased's death;" but he even then desired them not to communicate it to any one, particularly not to the Messrs. Marsh or Mr. Delmar. The next morning being the 9th, he and Mr. John Tyrrell are sworn executors, as appears by the jurat on the will. I cannot understand, if the making of this will was a fair and honest transaction, why, this poor woman dying in the night, her body was to be locked up and the matter kept secret from the servants for seven or eight hours, or why the death was afterwards to be kept secret, especially from the Messrs. Marsh and Delmar, or why there was this great haste in getting sworn to the will. Where was the necessity for this clandestinity and contrivance? Here was non-access to the deceased, and exclusion of the Messrs. Marsh, not only when the deceased was alive, but even after her death. What could induce an honest man, having acted honestly and fairly, to have pursued this conduct? It serves to confirm the suspicion, that Mr. Harding has throughout been a man of contrivance; that he has by misrepresentation induced witnesses to embark in his object, and that these persons have in a great degree been the dupes of his imposition.
Upon the whole, having in various parts of the case explained the feeling that has been impressed on my mind in respect to the transaction, and the grounds and principles upon which that impression has been formed, it is superfluous to recapitulate the several points. Considering the extreme improbability of this entire change of disposition - the means used by the husband to urge her to place her concerns in his hands - her long resistance till reduced to a weakened state of capacity - the presence of the husband conducting all those transactions, it is not proved to my conviction, that this latter will was the real mind and wish of a capable and free testatrix.
On the contrary I am of the opinion, that it was the will of Mr. Harding - obtained by him by undue influence and marital authority - contrary to the real wishes and intentions of the deceased, as far as she was capable at that time of forming any testamentary intention.
In my judgment she never did depart with a willing disposing mind from that disposition of her fortune which she made in 1818. That will therefore remains her true will: - and, as the whole transaction of this latter will originated with Mr. Harding, and the whole expense of this suit was occasioned by him (for Mr. John Tyrrell is merely the nominal party), I feel bound in justice to condemn Mr. Harding in the costs of Mr. Marsh.
Footnote page 52 (a)"Within a day or two after deponent (Edward Tyrrell) had learnt from his brother, that Dr. Burrows and he were both of opinion, that the deceased was in a fit sate to manage her own affairs, he, deponent, informed Mr. Harding, who called on him, 'that he was not quite satisfied, and had no objections to attend to take Mrs. Harding's instructions whenever she should make an appointment.' An appointment was then made by Mr. Harding for deponent's attendance: in consequence whereof deponent, on the 5th of March 1827, (having refereed to his book) attended at the deceased's house in York Place, Walworth: on his arrival there about noon, Mr. Harding said, "I am sorry our appointment was made for to-day, as Mrs Harding has had a bad night, and is not very well to-day. Deponent said, 'he was sorry to hear it, but he supposed she was well enough to see him:' Mr. Harding said, 'that she was:' and the deponent was shown up stairs into a small sitting-room on the first flor in the front of the house; Mr. Harding accompanying him: they found Mrs. Harding alone evidently expecting deponent, sitting by the fire, and writing materials were on a table at hand. On deponent entering the room the deceased with some difficulty rose to receive him; on which Mr. Harding said to her, 'Don't trouble yourself, Mr. Tyrrell will excuse your rising.' After deponent had taken a seat, as Mr. Harding did also, and after the deceased had made some inquiries after deponent's mother, and other branches of his family, who were known to her in consequence of her marriage to Mr. Harding, she proceeded to give deponent a statement of her affairs. The deceased of her own accord entered upon such statement, saying,, 'I suppose Mr. Harding ahs told you what it is I want you to do, and how ill the Marshes have behaved to me.' Deponent told her 'that Mr. Harding had so informed him;' and deponent then said, 'that he was come according to her desire, as he had been informed, to take instructions for her will.' The deceased said, 'she was much obliged to him, but she wanted to know, what she should do to get her former will and papers out of the hand of Mr. Marsh,' (meaning Mr. Marsh the elder). Deponent asked the deceased, 'in whose hands she considered her will to be, whether in the hands of Mr. Delmar, or of Mr. Marsh.' She replied, 'that she supposed in the hands of Mr. Delmar, as she had executed it at his office, and left it there:' she said, 'that she had several time called on Mr. Delmar for the purpose of getting her said will out of his hands, but could not get it, and that she wished to have it that it might be destroyed.' The deceased gave deponent to understand that the will, she so wished to destroy, was made in favour of Mr. Marsh, but she did not otherwise specify its tenor: she, in continuation, said, 'that she was very uneasy at not being able to get any account from Mr. Marsh, and that she should be very thankful if deponent would exert himself to get both the will and the account from Mr. Delmar as soon as possible.' Mr. Harding then left the room: he had not joined in the conversation before deposed of in any manner, except to correct a date, and to correct the deceased, when in the course of such conversation she named Mr. Arthur Marsh instead of his father. What the deceased so addressed to the deponent was spontaneous on her part, and was not, in deponent's presence, dictated to her, now was she, save as aforesaid, prompted in what she said. When Mr. Harding had so left the room (deponent and deceased being then left alone together) the deceased said, 'I wish to leave my property to Mr. Harding after my death, and to leave a legacy to each of my three servants,' at the same time naming the three servants: to the man-servant, who name he does not without reference recollect, and to Mary Apostles, 300l. each; and to her other maid servant, whose name he does not recollect, 150l. Such instructions as the deceased dictated the same were by the deponent committed to writing, and he had written thus far, when Mr. Harding returned into the room. Deponent then asked the deceased, 'whom she appointed to be her executors?' She answered, 'Mr. Harding;' and turning to Mr. Harding and addressing him, she added, 'and the gentleman you mentioned to me.' Mr Harding replied, 'you mean Mr. Tyrrell of Lincoln's Inn. The deceased answered, 'Yes.' Deponent then wrote down the name of Mr. Harding and of Mr. John Tyrrell as the deceased's executors. This done, the deponent, in the presence of Mr. Harding, read over to the deceased, in an audible and distinct manner, the instructions which had had, in manner aforesaid, committed to writing; and having done so the deceased signified her approbation by saying, 'Very well,' or something to that effect. The deponent then made an appointment with the deceased for the execution of a will to be drawn pursuant to the said instructions; the 9th of March was named, after which he took his leave. Between the 5th and 9th of March, deponent suggested to his brother Frederick that, to remove all doubts as to the capacity of the deceased, and all responsibility from him, the deponent, as a professional man, it would be proper for Dr. Burrows and himself to attend with the deponent to be present at the execution of the will then in preparation, which was agreed to; and accordingly, the will having been engrossed from a draft will, which in the interim deponent had prepared from the aforesaid instructions, deponent attended at the deceased's residence at about 2 o'clock on the 9th of March, meeting his brother and Dr. Burrows there, so nearly at the same time, that they were all shown into the deceased's sitting room at once; finding there the deceased and her husband. A few complimentary words had passed chiefly between Dr. Burrows and the deceased, when deponent produced the will he had prepared for execution, telling the deceased, that it was the will which he had drawn according to her instructions,' or to that effect; and 'that he would read it to her.' The deponent then audibly and distinctly, and in a deliberate manner, read over the will. When he had read the legacy to the deceased's second maid servant, namely, as a legacy of 150l., the deceased stopped him, saying, 'I wish so and so (naming the servant) to have the same legacy as the other two servants.' Upon which deponent made an alteration in the said will, by striking the sum of 150l. through with a pen, and by inserting in lieu thereof, and over the same, the words, 'three hundred' or 'three' instead of the words 'one' and 'fifty.' Dr. Burrows then in an under tone to respondent, observed, 'that Mr. Harding had better leave the room while his wife executed the will,' and deponent suggesting it to Mr. Harding, he did so. When Mr. Harding had left the room, the deponent read over a second time, that part of the will which he had so altered, and the remainder thereof, and having finished, the deceased signified her approval of it by bowing her head: deponent then handed her a pen, requesting her to sign her name opposite the seal (already affixed); the deceased made an attempt to sign her name, first with her right hand, and then with her left; but she was unable to do it, her fingers appeared to be contracted and her hand unsteady, which previous thereto was unknown to the deponent. Deponent perceiving the deceased's inability to sign her name, took the pen out of her hand, saying, 'we must get you to sign with your mark, Mrs. Harding;' to which she replied, 'Yes,' and the deponent, preparatory to such mode of execution, and to make the latter clause of her will, and clause of attestation conformable, altered the same severally, and having done so, handed her the pen a second time, pointing with his finger to the seal, or place whereon her mark was to be made. The deceased accordingly made a cross: deponent then placed his seal on the wax impression, desiring her to lift it off, which she did: she next, at his desire, laid her hand on the will, and after his dictation, being so directed to do by him, she repeated the words, 'I declare and publish this to be my last will and testament, and request you gentlemen, present, to affix your names as witnesses thereto.' Dr. Burrows, Mr. Frederick Tyrrell, and deponent, then subscribed their names at the foot of the clause of attestation. While the witnesses still remained, deponent asked the deceased, 'what he should do with the will?' to which she answered, 'I think you had better keep it for me:' upon which deponent folded up the said will and put it in his pocket. After the usual parting compliments, deponent withdrew in company with his brother and Dr. Burrows, leaving the deceased and her husband together. Sophia Harding was, as well on the day she gave instructions for her said will, as on the day and time of the execution thereof, as deponent verily believes, of perfect sound mind, memory, and understanding, and well knew and understood what she at such times said and did, and what was said and done in her presence, and was fully capable, as the deponent verily believes, of giving instructions for and of executing her last will, or of doing any other serious or rational act requiring thought, judgment, and reflection. Deponent has no doubt whatever of her capacity, having in the first instance his attention drawn in a particular manner to the enquiry of that fact, as aforesaid: she, at the times deposed, was evidently very debilitated in bodily strength, and had almost lost the use of her limbs; her speech also was affected; and at times, particularly on the day of his taking the instructions, she was for a moment flurried and shed tears; but the impression was very transitory; she soon recovered herself; on the day of the execution of the will, she was only once excited to tears, or apparently flurried; that happened, when deponent dictated to her the words of publication: she, for an instant, was then excited, but readily recovered herself, and repeated the words in a very firm and deliberate manner, showing that she knew and fully understood the import thereof."
(b) It appeared from Rigden's evidence on the eleventh article and thirteenth interrogatory, "that he went into the deceased's service, as footman, in 1795; Mary Apostles, as housemaid and lady's maid, in 1799; and Mary George as coo, in 1804."