THIS case was argued by Phillimore and Addams for Mr. Young, and by Lushington and Dodson, contra. JUDGMENT. SIR JOHN NICHOLL. The evidence in this suit is sufficient to satisfy my mind. It is not a case involving a variety of circumstances inferring doubtful capacity, nor circumstances from which mere fraudulent circumvention is to be presumed; but it turns on a plain broad fact whether the instrument was executed by the deceased, or is an absolute fabrication and forgery. The case assumed that shape from its very commencement; for when the instrument was propounded in the condidit, the first article of the allegation opposing it contained a direct averment that the paper was not signed by the deceased, nor was his act, though it was admitted that at the time of the date he was of perfect capacity. The history of the party and of the transaction may bear materially on the probability whether it was or was not his own act. The deceased's name was James Brown Unwin, and he died suddenly of apoplexy on the 20th of July 1827, though seized two days before with cholera morbus; he was the only child of Walfred and Elizabeth Unwin, and having been born in 1787 or 1788, was about 40 years of age: his mother's sister married one Kings, a coachmaker, and the two sisters afterwards lived together with their husbands in Duke Street, Bishopsgate-but Kings, for the last five years, resided in Southampton Street, Pentonville. About 1796 Richard Salter Young, then an infant of eighteen months (whose child he was does not appear) was placed at nurse with Mrs. Unwin-he was seven or eight years younger than the deceased was brought up as one of the family-called Mr. and Mrs. Unwin father and mother-Mr. and Mrs. Kings, uncle and aunt-he and the deceased called each other brother, and they went to the same school. The deceased was afterwards apprenticed to Messrs. Savage and Taylor, Apothecaries in Bishopsgate Street, and when he was out of his time was principally by the assistance of Mrs. Kings, set up in business first in Widegate Street, Bishopsgate, from whence he removed to Bethnal Green Road: he took this brother, if so I may call him, to assist in his shop--not as an errand boy, as Brown pleads-(though when the errand boy was absent he did occasionally carry home medicines) but in compounding drugs and in the ordinary business of an Apothecary's shop. The deceased married a wife rather of an unfortunate tempershe brought about a quarrel between the deceased and all his family, and having also taken a dislike to this lad he and the deceased were at length forced to part; the immediate complaint of the wife seems to have been, that in weighing out three penny-worth of senna he had given too much weight: but it clearly results from the evidence, that the separation took place not on account of the misconduct of Young-not from an alienation of the deceased's regard-but owing to the influence of the wife.-In consequence, about 1811, Young took to a seafaring life,-went first as a surgeon-then engaged in the Mediterranean trade, and is now master of a vessel. The deceased continued on ill terms with his own family, and on that account Young's only communication, when in England, was with the father and mother and the Kings, and for fourteen or fifteen years or longer he had no intercourse with the deceased. While matters were in this state, the deceased-alienated from his own family through the wife-made two wills. The first dated on the 28th of September, 1814, is all in his own handwriting and attested by three witnesses: it gives nothing to any part of his own family, but leaves every thing to his wife and appoints her the sole executrix. The second, dated on the 10th of February 1819, gives to his wife, the furniture, &c. absolutely, and every thing else for life, with the remainder to John Brown, son of the Rev. William Brown: and appoints his wife and William Brown executors. Thus his wife and his friend Brown's family are alone benefitted by the will of 1819; his own family and all his other friends are excluded, and that will was deposited with Brown. As executor of this will of 1819, under which his son is solely benefitted, (for the wife is dead,) Brown now opposes a later will--the will in question in this cause. Subsequent to the will of 1819, a material change of circumstances took place. The deceased's wife died about three years before him— and his mother appears to have died still earlier: his father, Walford Unwin-an old man of 74, who had lived with the Kings and was entirely supported by them till the death of the deceased's wife-was, on that event, very naturally and very properly taken to reside with the deceased: the latter had quitted business, had agreed for the purchase of a cottage at Warminster, and was preparing to go and reside there. That he should therefore continue to adhere to this will of 1819, giving every thing to John Brown, and leaving his own father wholly unprovided for, now that his wife was dead and his father had been taken to reside with him and was wholly dependent upon him, was not only extremely unnatural and improper, but highly improbable. In addition, he had taken offence at William Brown-he mentioned to some of his friends, that Brown had insinuated that an improper intimacy existed between him and his housekeeper; he was much hurt--he felt it as an insult: and though this breach appeared in a short time to be made up, and though they were again outwardly friends, yet he said "he should. not forget it"-it rankled in his bosom: the way in which he mentioned, it to Pocock, who was a gardener and saw him frequently, is this: On the sixth article, the deponent says, that the deceased and the articulate William Brown used to be very intimate; they were of the same party in parish disputes; but about four months or so before the deceased died there was a question in the parish about the appointment of a mistress to the workhouse, on which they took opposite sides, and a quarrel followed. Deceased told deponent that Brown in the course of the dispute had insinuated something improper about him and his housekeeper which he could not stomach, and that he never would forgive him so long as he lived; that he ought not to have used him so; he had been such a friend to him. Deponent told deceased, they should forget their disputes as soon as they left the vestry; but deceased said, it was quite impossible; Brown had hurt him here, pointing to his breast, and he never could forgive him.' Before this deceased used to talk with deponent about William Brown as one of his friends." Now though the deceased does here express himself so strongly, yet their differences were partly reconciled-still however he thus mentions the subject to Bigg: "The deceased was giving deponent an account of what had passed at the vestry, and the deceased said, 'Bigg, Brown has injured me, and I won't forgive him; he has insinuated that I and my servant maid are thick together.' The deceased was very much excited at the time, and in a great passion: but deponent knows that deceased and Brown were reconciled after this; and very shortly too, for a few days afterwards deceased dined at Brown's house-at least he told deponent so; and deponent joked him about his having said he never would forgive Brown, and about his having made up his quarrel so soon, and the deceased said between joke and earnest-Ah, but I shan't forget it."" The plain fact is that it was a quarrel which very much hurt the deceased, who at the time was highly indignant, but as he had always acted with Brown in parish matters, he did not entirely break off nor discontinue his intercourse with him: but this quarrel had its effect. Besides this, it is in evidence, that though he was anxious that young Brown should succeed well in business as an apothecary, yet he made some little complaint of his want of attention to him. Hardingham says; the deceased used to complain that John Brown did not call upon him and had forgotten him." So there are some symptoms of dissatisfaction with the principal legatee. In this situation of circumstances his old friend-his quasi brotherRichard Young-who had been excluded from his society during the lifetime of his wife, was in London, and an accidental meeting took place between them in May. All their former feelings and affections seem to have revived at this meeting; they spent a long evening together, smoked their pipes, took their wine freely, talked over former days, and, as is not very extraordinary, their meeting ended in intoxication. Hardingham found them smoking together in the deceased's garden,-perceived they were on interesting topics and soon retired:-"The impression on the deponent's mind was that they were on the most cordial terms, and there appeared to have been an old and strong friendship between them." In continuation of this history, Pocock-who was very intimate with the deceased, had a garden ground adjoining his premises, and had allowed the deceased to open a door of communication into it for his own convenience, for he was something of a Tulip fancier-states:-"He remembers very well that about the latter end of May, before the deceased died, he came through deponent's garden; sat down at the door of the house, and complained of a head-ache, and said, he had had too much the night before, that a friend had come to see him, whom he had not seen for sixteen years, that that friend (whom he called Dick') had lived with him when he was in business; but that they had separated through the interference of his the deceased's wife." The deceased then gives him an account of the quarrel about the senna, which the witness details. Here then is not a mere accidental meeting, but a complete renewal of their boyish attachment, though it was the only interview. The deceased and the Kings, from some difference about a money transaction, were not upon very cordial terms and did not see much of each other; but there had been no absolute quarrel. Mrs. Kings also, from knowing the deceased had some propensity to drinking, on hearing of this interview, and of the intoxication that ensued, advised Young not to go again, though several messages were sent to him from the deceased by his father. Now this renewal of the early affection, in addition to the circumstances respecting his father and the Browns, renders it not improbable, that the deceased should make a new disposition, such as that contained in the will propounded. This will is dated on the 18th of June 1827, and bequeaths all his property to Richard Salter Young in trust to pay to his father, Walford Unwin, an annuity of 100%.,---to his housekeeper Hannah Turner an annuity of 10., to whom is also left the cottage of Warminster---(describing it as in Devon instead of in Wiltshire---an error to which I shall presently refer-in this cottage it appears Hannah Turner had some interest---I remark this because it shows the accuracy of information respecting the deceased's affairs);---to William Gale, weaver, 501.,---to Charlotte Gale his daughter 2007.,---the residue it gives to Young and appoints him executor---it is signed, sealed, and attested by three witnesses. This is the will and such is the disposition it contains. Connected with the circumstances, it carries with it every presumption in its favour, and except that the mode of preparing it is rather singular, and that the person employed to prepare it is, to no inconsiderable extent, attacked in credit, there would be nothing extraordinary in the case; for the time and manner of its appearance is the natural sequel of the mode of execution: but, on the other hand, the difficulty of supposing this a fabrication and forgery appears to be much greater than those objected in opposition to the will. Plaisted, the drawer, is an old attorney, in embarrassed circumstances, and not in the most respectable practice. Witnesses have been produced against his character: five would not believe him on his oath-one of these only knew him in his youth-a second forms his opinion only on what he has heard; and some by their own showing do not stand much higher in credit than Plaisted himself would, if their depositions were believed. On the other side, there are witnesses who entertain a favourable opinion of him-particularly Mr. Bates a silk-weaver, who appears respectable and a man of property, and who has had some considerable experience of Plaisted's integrity. However Plaisted is not omni exceptione major, and the Court would hear him with caution; particularly if speaking to that which was matter of opinion or which might be easily misrepresented-such as capacity, volition, or affection, -but here the sole inquiry is a broad simple fact, whether the will was or was not executed at the asserted time: he says "he had a speaking acquaintance with the deceased for twenty years," and that accounts for the deceased employing him; though it has been observed that this was very singular; and it has been asked, why he should not employ the Vestry Clerk Brutton. If it were necessary to explain this, there are some manifest reasons-Brutton was in the constant habit of seeing Brown-it was not singular that the deceased should be unwilling to employ any person through whom it was possible that Brown might be made acquainted with the change in his testamentary intentions: but he certainly was unfortunate in his selection of an attorney, for the individual was not the most respectable. "He had been acquainted with the deceased for about twenty years; and in the habit of conversing together. About the middle of June, 1827, he met the deceased in or near to Gracechurch Street, who after talking on some common topics, spoke to him about his will: deponent recommended him to make it immediately, on account of the bad results he had seen from delay:"There was another reason perhaps :-however he thinks it a good opportunity, and he takes the deceased with him to the Temple, where he knew Mrs. Cobbett, who had the care of some chambers, and she lends him a room. Plaisted states that, as they pro great passion: but conciled after this ceased dined at deponent joked } and about his ha between joke a The plain fa ceased, who ed with Brc discontinue Besides thi Brown shc some littl says;—" upon hir dissatisf 248 Am. verbally, the disposition he wished of his execution. the whole together, previous to the exe was in a state of great poverty, property, so that he was it is not extraordinary that he should be ceeded to the Temple in a hacker couch the deceased communicated to that while he was preparing it he read over each passage; and finally at once able to write it out fair, and it for execution;" he also says, dering that he had passed most of the last twenty years in a gaol and' This is, in substance, Plaisted's account of the transaction: and consian immediate execution; and as he says he was going to the Temple on anxious that the job should not escape him, and that he should propose other business that accounts for his carrying the deceased to this woman's appearance of being composed without a draft, but rather of being a fair objection is, the paper itself is so correctly written that it has not the chambers rather than to his own office in Millman Place. The chief years of age might not have prepared it off hand; and if his skill was copy; but I am not able to say that this experienced practitioner of 64 far advanced, as it would entitle him to his fee, though he states he was not paid at that time: but even admitting that the Court cannot with other two witnesses, Mrs. Cobbett and Mrs. Craddock, who heard the ment cannot be gainsaid, Plaisted's evidence may be blotted out of the paper read and with Plaisted attested the execution? and if their stateThe story they tell is quite plain-and the account given of Plaisted's acquaintance with Mrs. Cobbett-of his taking the liberty of applying to do the business in these chambers-and of the circumstances either of these women are not what, upon interrogatories, they reprethat brought Craddock there-is perfectly probable and natural.(a) If sent themselves, it might have been disproved after publication. In th Richar lifetir place to ha ed t is r in ce P case. adequate to the task, his safety rely on penury would urge him to get the business thus Plaisted singly, what is there to shake the credit of the Now Craddock particularly fixes the time in confirmation of the in- (a) Mrs. Cobbett deposed, "that she was introduced to Plaisted about September 1826; and that she employed him to recover a small debt; that she never saw him upon any other occasion before the latter end of June last, in the forenoon of the day, when he came with a stranger to her apartments in Fig-tree Court, and asked her if she would let him come in and do a little writing, and she allowed him to do so; that the stranger and Plaisted conversed, and the latter wrote; that after they had been so engaged about an hour and a half, Plaisted asked deponent, "if there were any Clerks," and being told, "none in the chambers," he asked her and Mrs. Craddock (for they were both in the room-Mrs. Craddock had called in) to witness Mr. Unwin's will-pointing to the strangerto which they consented—and Plaisted read the will over in an audible and distinct manner."-On the fourth interrogatory she said: "she is employed by Mr. Walker to wait upon him and take care of his chambers: that she has been acquainted with Mrs. Craddock about five years, who had formerly lodged with respondent; but had since her marriage lived at Stratford in Essex." |