Harwood v. Baker (United Kingdom)

~ A R ~ O O ~ 21. BAKER [I 8 4 O ] 111 ~ O ~ ~ E , 281,

larity, any more than he availed himself of the supposed admission of his title by

the frame of the plea.

But, indeed, as the Statutory provisions respecting notice do not &end to

India, any more than those respecking the admissioii of evidence, %he plea of

~ s ~ ~ ~ ~ s ~ t put the bankruptcy and assignment in issue sufEciently without any

potsice.

Their Lordships are therefore of opinion, that the Judgment of the Court below

is well grounded, and ought t o be afErmed.

But it is necessary t o state, that their Lordships in coming to this conclusion do

not proceed upon a ground which appearfi, among others, t o have been Laken below,

which was also taken here, that the provisions of 6th Geo. lV., e. 16, s. 92, are so f a r

repealed by those of 2nd and 3rd Wm. IT., c. k14, s. 7 and 9, as to make the deposi-

tions evidence only in the ease specified by the latter Act, of the witnesses being

dead.

The J u d ~ ~ ~ e n t of the Court below must be affirmed, with costs.

[S.C. 2 Moo. Ind. App. 263. On poinG as to application of English bankruptcy law

to India (3 &loo. P.C. 219, 28#) see Ijote $of CoekereE v. Bickerrs, 1840, 3 Moo.

P.C. 1.16; and cf. L y o m (itlagor o f ) v. Bast Z& Co,, 1536, 1 Moo. P.C. 1'75,

and note thereto a t p. 299. See also the Indian Insolvent Act 1548 (11 and

12 Vict. e. 21.1

ON APPEAL FROM THE P ~ E ~ O ~ A T ~ ~ ~ COURT OF

CANTERBURY.

CHABLES ~ ~ ~ ~ ~ ~ ~ ~ , - ~ ~ ~ e ~ ~ a r r ~ ; NARIA BdKER,-Bespo.lzde& * [I i th, 1 Zth,

16th and 17th Dee. 18401.

A Will executed by a Testator on his death-bed in favour of his wife, to the

exclusion of the other members of his family, the Testator being of a weakened

and impaired capacity a t the time of the fnettcm, from disease affecting the

brain, which produced torpor, and rendered his mind incapable of exertion

unless roused, pronounced against: the disposition in the Will being a totaI

departure Prom, and contrary to, the previous expressed intentions of the

Test ator.

To constitute a sound disposing mind, a Testator must not only be able to

understand that he i s by his Will giviag the whole of bis property to one object

of his regard, but he must also have capacity to c o ~ p r e h e n ~ the extent of

the property, and she nature of the clainls of others, whom by his Will he is

excluding from participation in that property [3 Moo. P.C. 2901.

This was a n Bppeaf Erom a sentence of the Prerogative Court of Canterbury,

revoking Probate of the Will of Thomas Edward Baker, granted in common form

t o Mary Ann Baker, afterwards Mary Ann Rarwood, the widow of Thomas Edward

Baker, and the sale Executor and UniversaJ Legatee named in the said Will; the

facts and circumstances of the case are fully set forth in the Judgment,

"4EI&ftc C2821

The ease was argued by

Sir William Follett? Q.C., and Dr. A ~ d a ~ s ? for the Appellant ; and

Mr. Pernberton, Q.C., and Dr. Phillimore, on behalf of the Respondent.

The arguments on both sides turned wholly on a [2$3] comparison of the evidence

adduced, and of the degrees of credit due to the several witnesses ; but the decision,

eontaining an exposition of the capacity necessary t ' ~ coiistitute a tcstameiitary

disposition, i s given at length. Zmgranz v. Wyatt (1 Hagg. EGG. Rep. 384), $fur&

v. ~ ~ r r ~ l ~ (2 Bagg. Ecc. Rep. 84), and Bamy V. ~ ~ ~ ~ i . l z (2 Noose, P.C. Cases, 480 ; and

1 Custeis, Ecc. Rep. 814), vcre referred lo.

* Preeent: Lord Brougham, Mr. Raron Parke, Mr. Justice Bosanquet, and

Mr. Justice Erskine.

I_ -~ _I_

117

111 MOORE, 284 HARWOOD v. BAKER [ 1 8 401

Mr. Justice Emkine.-This case came on upon Appeal from the sentence of the

Prerogative Court of Canterbury, by which the learned Judge of that Court revoked

the probate which had been granted of the Will of Thomas Edward Baker, late of

Bath Place, Kensington.

Mr. Baker died in the night of the 27th of March 1833, and shortly after his

death, a caveat was entered on behalf of Mr. George Baker, a relation, but not the

next of kin of the deceased, against the issuing of any probate of the paper in

dispute; but that caveat having been afterwards withdrawn, probate was, on the

18th of April 1833, granted in the common form to, the widow of the deceased as

sole Executrix, and who was also the Universal Legatee under the Will.

In the month of May 1834, Mrs. Baker married the Appellant Harwood, and

she died in the month of October 1835, having by her Will, executed under a power,

appointed her husband sole Executor.

I n the month of January 1836, the probate which had been granted to Mrs.

Baker was called in by Maria Baker, who alleged herself to be next of kin, and who

was admitted to oppose the Will; and thereupon the paper was propounded by

Mr. Harwood, in a common con-[284]-didit, upon which three witnesses were ex-

amined-Mr. William Knight, Solicitor, the drawer of the Will, Mr. William Smith,

a friend of the deceased, and Mr. James Pollock, who attended the deceased in his

last illness as the assistant of Mr. Andrew Carrick, a Surgeon and Apothecary.

The two former were attesting witnesses to the Will. The third attesting witness,

Sophia Reade, was not examined in chief by Mr. Harwood, but was examined upon

interrogatories by Maria Baker.

Several other vrdnesses were afterwards examined on allegations asserted and

admitted on both sides, and four several testamentary scripts of the deceased,

besides that propounded as his Will, were brought in annexed to the affidavit of

script of Mr. Harwood.

The learned Judge having heard the cause on the 5th of August 1837, by his

Decree pronounced against the force and validity of the pretended Will, upon the

ground that the evidence adduced was not sufficient to prove tha t the deceased was

a capable Testator.

From this Decree the present Appeal has been instituted by Mr. Harwood, and

the case was very ably argued in December last, when Judgment was deferred, and

now, after a careful examination of all the evidence in the cause, their Lordships

concur in the opinion expressed by the learned Judge below, that the party pro-

pounding the Will has n o t satisfactorily proved, as he was bound to do, that the

paper in question does contain the last Will and Testament of the deceased.

As their Lordships do not however view some of the evidence in the same light

in which it was viewed by the Court below, it will be necessary to state the particular

grounds upon which they have come to the same result.

It appears by the evidence, that Mr. Baker died [285] about 12 o’clock in the

night of the 27th March 1833 ; that the paper propounded as his Will was executed

about 7 o’clock in the evening of that day. According to the evidence of Carrick,

one of his medical attendants, a t 9 o’clock that evening, Mr. Baker was nearly in-

sensible, unconscious, incapable of any act whatever-he was actually dying. The

Will, when produced, is found to be signed only with a mark, and had evidently

been with a very feeble hand. When, therefore, a Court finds that the paper pro-

pounded as the Will of the deceased was executed in the manner stated, only two

hours before he is found by his medical attendant in a n unconscious and dying

state, and only five hours before his death, it becomes the duty of the Court to require

the most satisfactory proof, tha t a t the time when the Will was executed, the deceased

was not only aware of the disposition he was making of his property, but that he was

in a state of mind to judge of the propriety of that disposition.

The infirmity of mind suggested by the Respondent, and relied on by the Court

below, is not an incapacity arising from any delusion or from any constitutional

o r long-established infirmity of mind, but one occasioned by a recent accession of

bodily disease affecting the brain, and producing torpor, and thereby rendering

the mind incapable of exerting those faculties which are essential to, a sound and

disposing mind and memory.

I n order, therefore, to form an accurate opinion of the condition of the mind of

118

~ - ~ R ~ ~ ~ D w. BAKER [I8401 I11 MOORE, 286

the deceased a t the time of making his Will, i t will not be necessary to go further

back than the 21st of March 1833, when he was first seized with the illncss which

terminated in [286] his death on the 27th of the same month ; €or before that time

it is admitted by all parties that the deceased was fully competent t o make any

tes tament~ry disposition of his property.

The earliest account that the evidence furnishes of the nature of the attack and

the early progress of the disease, is that, which is derived from the statement made by

Mrs. Baker, in a letter to Mr. Flooks, a friend of the deceased. This letter is dated

April 6th, 1833, about nine days after her husband’s death, in which she says, “ It

is now a fortnight last Thursday (this would be the 22nd of March) since my dear

Mr. Baker went into town to attend a meeting of the Bank Directors t o declare a

dividend, and as he went through Temple Bar he felt hiniself seized with a violent

shirering fit. He however proceeded to the Bank of England, and got, as soon as

possible, before a great fire; still the shivering continued, to that degree, that he

was unable to go and hear the speaker’s speech, which vexed him very much, and he

got in a coach, and returned home. When he canie back, his loolrs nearly frightened

me to death. We placed him instantly in a hot bed, and fronr that nzonzent I never

left him. He was sensible to the last inoiiient ;

but the stroke, which was paralytic, deprived him of the use of lzis right side;’--

and then she proceeds to allude to the making of the Will, and Hr. Smith’s visit.

Mr. Carrick was called in on the 22nd of March, and he says’he found the deceased

in bed, very ill, having a high degree of fever and erysipelas-affection of the brain,

producing a considerable degree of stupor. Carrick then adds, “ During the few

days he coiitiiiued to live, I saw him repeatedly, a t least four times a-day. [287]

For a day or two the disorder was stationary-one could not say he was better or

worse-but the bowel complaint continued obstinately ; debility gradually ~ ~ c ~ e a s e d ,

and stupor also continued. The brain was implicated, so that he required to be

roused before he would speak, though he was quite rational, and expremed his

feelings correctly, in reply to the medical inquiries addressed t o him. He mas not

irrational-there was n o delirium-only when not roused, he sank into a depressed

state of drowsiness and stupor, suck as I have described. He knew me perfectly well,

and all about him, when roused from the stupor, in which he would have continued

if not disturbed. When roused, he answered my questions very rationally, but

immediately relapsed into a state of stupor. As far

as I could judge, from what I personally observed, I consider the deceased to have

been, during the illness of .which I am now deposing, incapable of doing a rational

act of an important nature, requiring thought, judgment, aiid reflection, o r (on

account of great exhaustion of his bodily and mental powers) of resisting undue

influence and control.”

Mr. Hawkins, mho was called in by Carrick, and saw Mr. Baker as it should seem

on the 23rd, and every subsequent day till he died, describes Mr. Baker’s state in

substance much as Carrick does, though he seems to have forgotteri the attack of

the bowels, and thinks that though they apprehended apoplexy, they ascertained

there really was no tendency to it when the disease was fully understood. But these

differences in the recollection of the two witnesses cannot affect the credit due to

the substance of their testimony, in which they agree: for no suggestioii lras been

made against [288] tlie perfect honesty of their intentions to represent the truth.

Hawkins then entirely agrees with Carrick in describing the effect pi-odueed by the

disease, for he says, ‘‘ We was, throughout my attendance upon him, in a torpid and

drowsy state. He required to be roused, to say anything, for most of the period

of my attendance. Be recognized persons, when he was told who they were. He

was capable of answering questions-short questions--but not capable of continued

conversation.” And then he proceeds to state, that even in answering simple

questions, he was sometimes besides the mark; a circumstance which, as it appears

that the deceased was hard of hearing, and Rawkins himself states that i t was

necessary to speak loud to make him hear, may be fairly attributed more to the

dulness of hearing than to any incoherence of understanding, for none of the other

witnesses speak of any such incoherence; but there is one part of Hawkins’s

testimony, which is given in answer to the eleventh interrogatory, which is of much

importance, as indicating a condition of mind not likely to vary a t different periods,

119

We died on the folloTing Wednesday.

He was exceedingly drowsy.

111 MOORE, 289 ~~~~~0~~ zi. BAKER [IS401

SO as to admit of the conclusions contended for by the Appellant, that although the

mind of the deceased might generally be in a drowsy and torpid state, yet that

under circuiustances of excitement, it might be roused into a capacity t o comprehend

and deal with subjects requiring thought, reflection, memory, and judgment.

By the eleventh interrogatory, each witness is asked, “ A r e not the observers,

whether professional or unprofessional, of a sick person in a state of exhaustion,

frequently deceived and surprised a t the degree of energy such sick persons can

bring to bear, when roused by any important subject? ” Both Carrick and Haw-

[289]-kins answer this question in the affirmative, and Carrick adds, “ I do not

consider that the deceased’s state of exhaustion was such as not to admit of his

attention being aroused to any subject of importance; ” an answer which, taken in

connection with the rest of his evidence, niust in fairness be taken to convey his

opinion that the incapaGity of the deceased, of which he had previously spoken, was

the consequence of exhaustion, which might, therefore, so fa r be removed by

excitement, as to admit of a temporary interval in which the mind might assume

a testamentary capacity. Hawkins, however, though he answers the interrogatory

also in the affirmative, adds an observation, t o show that such answer would not

warrant the conclusion that Mr. Baker xnight have been roused to a state of

mental energy by the excitement of an important subject; for he says, “ B u t Mr.

Baker’s was not a mere state of exhausti~n, i t was oppression of the brain. His

state of exhaustion was not such as would not admit of his arousing his attention

so far as to answer a question;” but he adds, “ he did not always do that correctly,

and I don’t think he spoke a single word, but in answer to questions. The imporb

ance of a subject woulc not, I think, have made any difference in arousing his

attention.” Both of these gentlemen, after being shown the affidavit made by

Pollock on the occasion of the proof of the Will by Mix. Baker, decline swearing that

Mr. Baker could not have been, at the time of the execution of the Will, of sufficient

capacity to make his Will. Hawkins admits that there might have been a time

during his illness when he could understand questions put to him, and answer them

so as t o make a short Will. And Carrick says, ‘‘ He had so f a r thought and judg-

ment, that he could, [290] when roused, express what his feelings were. A simple

matter placed before him he might understand, but, from the state of his brain, I

do not consider that he was capable of suggesting anything, or of undertaking what

was complex.”

Both these gentlemen, therefore, seem to think that the deceased might have

been sufficiently aroused froin the state of torpor to which he had been reduced by

his illness, to assent to so simple a disposition of his property as that made by the

Will in question; but that i t would have been impossible to have made him com-

prehend the details of a more complex distribution.

But their Lordships are of opinion, that in order to constitute a sound disposing

mind, a Testator must not only be able to understand that he is by his Will giving

the whole of his property to one object of his regard ; but that he niust also have

capacity to coniprehend the extent of his property, and the nature of the claitns

of others, whom, by his Will, he is excluding from all participation in that property;

and that tho protection of the law is in no cases more needed, than it is in those

where the mind has been too niuch enfeebled to comprehend more objects than one,

and most especially when that one object may be so forced upon the attention of the

invalid, as to shut out all others that might require consideration; and, there-

fore, the question which their Lordships propose to decide in this case, is not

whether Mr. Baker knew when he was giving ‘all his property to his wife, and ex-

cluding all his other relations from any share in it, but Ghether he was a t that time

capable of recollecting who those relations were, of understanding their respective

claims upon his regard and bounty, and of [291] deliberately forming an in-

telligent purpose of excluding them from any share of his property.

If he had not the capacity required, the propriety of the disposition made by the

Will is If he had it, the injustice of the exclusion

would not affect the validity of the disposition, though the justice or injustice might

cast some light upon the question as to his capacity.

Next to the medical attendants, the most important witnesses would be those

inmates of Mr. Baker’s house, who were in the habit of attending him in his illness,

120

matter of no iniportance.

~ A R ~ ~ ~ O D v. BAKER [1840] I11 ~UURE, 292

and mho would have the nichst frequent opportunities of watching and observing the

condition of his mind during the progress of his disease. Unfortunately for the

ends of justice, the two principal attendants have placed themselves 111 such a

position, that even the Counsel for the parties in whose favour they speak were

compelled to renounce al l confidence in their evidence. Por Sophia Reader, one

of Xr. Baker’s servants, arid one of the attesting witnesses t o the Will, (who was not

examined in chief on the condidit, in consequence of contradictory statements

made by her out of Court,) on her examination on the interrogatories administered

by the Rcspondent, describes the deceased au wholly insensible t o what was going

on, and incapable of understanding the contents of the Will, but she pas proved to

have stated to Mr. Bee, the clerk of Mr. Harwood’s attorney, when examined by him,

for the purpose of ascertaining the circumstances under which the Will x as made,

that the Will was read over t o Yr. Baker, who seemed perfectly sensible a t the time,

and to understand the nature of it, and stated himself t o be perfectly satisfied with

it. On the testimony of this witness, therefore, whose [2921 evidence is directly

contradicted by her own attestation to the Will, and by her subsequent statements,

and also opposed t o the evidence of creditable and respectable witnesses, it is ini-

possible for their Lordships to place any reliance.

Sarah Taylor, whlo Fas in constant attendance upon Mr. Baker as nurse, would

have been another most material witnegs, i f her evidence had b e e m more consistent

with the testimony of those witnesses whose respectability place their veracity above

the reach of suspicion, and whose Inwitiis of knowledge were sufficient to exclude the

supposition of mistake ; but her statements are obviously so strained beyond the truth

in many points, that it is impossible aith any safety to rely upon, her testimony.

Neither is the evidenco of Catherine Macnabb, the only other servant who had

any opportunity of observing Mr. Baker’s state of mind, of much greater value; f o r

as the two other a t t e n d a i ~ ~ hwe extravagantly over-rated the inibe~ility of Mr.

Baker, and the importunity and violenca of Mrs. Baker, this witness as extravagantly

under-rated the effect of his illness, both upon his mind and body; representing Mr.

Baker as not being in a torpid o r weak state of either niind or body, and as not being

heavy nor more than usually sleepy; her evidence, therefore, may be fairly set

against that of Sarah Taylor, and both of them may be rejected as unsafe guides

in the investigation of truth.

Marian Elizabeth Rosaluond (Mr. Baker’s niece) was also examined for the Appel-

lants, and stated that she believed tha t Mr. Baker was, during the whole of his illness,

of sound mind, memory, and understaadiiig, and capable of resisting control and

undue influence, [293] and of doing any act requiring thought, judgment, and

reflection. In her answer to the fourth interrogatory, she adds, that he mas feeble

of body, but not of mind, and was quite capable of mental exertion; and in her

answer to the seventh interrogatory, she persists in s a t i n g that Mr. Baker was

sensible tst the last ~ I ~ I ~ i ~ I ~ t .

The bias under which this witness may be supposed to speak, would require that any

opinion or judgment formed by her upon the subject of Mr. Baker’s capacity should

be received with caution, and that the facts to which she deposes, as forniing the

ground of thah opinion, should be closely examined, especially when she is found

making statements in direct contradiction to those of the medical attendants. She

swears that Mr. Baker was not, generally during his illness in a torpid state of body

or mind. Carrick, Hawkins, and Pollock. all swear that he was; she states that Yr.

Baker was sensible to the last nioment; Carrick says he xas nearly inseiisible at nine

o’clock ; unconscious, and worse, a t eleven.

But when the evidence of this witness is closely examined, she mentions no one

fact up to the time of making the Will, which indicates a mind capable of any exertion,

for she admits she never hewd any long conversation with any one,-that he asked a

queetion and was answered, or he was asked a question and answered it, or he asked

for what he wanted, or he answered when he was asked whether he wanted anything,

-and she afterwards adds, the questions he asked s e r e simple, and in general had

reference to his wants, or his health. She further mentions his recognition of

Hutchence,but gives no instance of anythirlg being said bytbadeceased before he signed

the paper [294]1 in question, that indicated any intention on his part; to niakc a Will,

or a state of mind capable of entertaining any queRtioii of business. She does indeed,

in her answer to the eighteenth article, state an expression made use of by Mr. Baker,

I a1

111 MOORE, 296 HARWOOD 2). BAKER [I8401

after tlie supposed Will was made, which, i f true, shows that Mr. Baker was fully

conscious at that time of her claims upon his wife, and that Mrs. Baker m-odd, after

liis death, have the means of providing for her ; but there is nothing in the expressioii,

‘‘ Ah, Jfaalimi, your aunt will provide for you,” that necessarily implies his conscious-

ness, that he had given all his property t o his vife.

Other witnesses were evaiiiined by the Appellant f o r tlie purpose of proving the

state of Mr. Baker’s mind during liis last illness ; their evidence, however, is of coni-

paratively light importance. Mrs. House only saw him once, and though she saps

that he w a s capable of attending to business properly, if necessary, there is no fact

spoken of by her that sliows any reasonable foundation for tha t belief, and though

she states that lie was not in a torpid state of mind or body when she saw him, she

admits that neither she, nor any one else in her presence, had any conversation with

him, ai:d she states no facts that would prove him to have been in a different state

from :hat in whicli the medical attendants saw him; and their opinion is in direct

opposition to her’s.

Samuel House, her husband, was also examined:-lie saw Mr. Baker on the

Saturday night and Sunday afternoon before his death, and, according t o his account,

Mr. Baker’s mind was as collected as possible, and lie was as capable of doing any act

requiring judgment and reflection as any sick mail could be, and E2951 that he

seemed to understand every thing that passed-that his mind was as right as that of

the aiti!ess, and, but f o r his weakness, he was quite as capable of business. But

this T-iitriebs appears to have formed his opinion upon very slender grounds; for in

his eisiiiinatioii in chief, the only facts he states are, that the deceased knew him-

and that ill the course of tlie six hours which were spent by hiix in Mr. Baker’s

presence, t h e only observations specified are, that on the Saturday while he was

being cupped, he talked about it when he was asked if i t hurt him; that he reconi-

mended the TT-itiiess t o go home for fear he should make himself ill again ; so far

shoa ing recollection of the fact that the witness had been recently ill : and that on the

Sunday, when Hutchence and Severne called, Mr. Baker knew them both, and inquired

of them how they were, as m y other person would have done. And in Mr. House‘s

answer to the fourth interrogatory, he admits that there was no conversation with

him, or 3ny other person, on those occasions, further than liis asking or answering

simple questions, and his saying he would, or would not, have what was offered to

him.

Any opinion, therefore, of Mr. Baker’s capacity for business, built upon such a

slight foulIdation, could carry but little weight when contrasted with the evidence of

the medical attendants; and in one particular he is contradicted by Severiie and

Hutchence, who both state, that to the best of their recollection, when they saw Mr,

Baker on the Sunday, Mr. Baker did not speak a word to either of them. Hutchence

says he rhinks he knew neither of them-and that, in his judgment, he was not capable

of doing any act requiring thought, judgment, or reflection; and Severne, [296]

though he thinks Mr. Baker recognised him, said he appeared to him in w very

helpless stare, and incapable of either bodily or mental exertion.

KilPiniii Chillingworth, a wine merchant, also saw the deceased once during his

List illness, one or two days before his death, and says, “ S o far as he spoke on the

oceasioi: I WTV him, he was sensible, and showed that lie possessed his irieiiiory;” but

lie adds-“ I vas so short a time with him, that I could not judge how fa r lie was

capable of :in act requiring thought, judgment, and reflection ;” and Tvhen the par-

ticulars of the single interview of which he speaks are1 looked to, i t is manifest that,

he had n o sufficient opportunity of forming any conclusion upon the testable capacity

of tlie deceased: when lie went into liis room, he admits that Mr. Baker was either

asleep or in a state of lethargy ; arid when Mrs. Baker called to him, and said, here is

Mr. Chillingworth come to see you, he appears to have taken no notice of her ; but

upon heal repeating it, he turned and said, ‘‘ I don’t want any of that Madeira now ;”

and Chillingwortli fairly enough draws from this observation, which was the only

one he heard Mr. Baker make, that Mr. Baker recognized him, and had a recollection

of what had passed between tlieni on a former occasion, because he says, tha t wliell they

had last met, Nr. Baker had spoken to him about some Madeira, and had said he

would sake some of it if it was very fine; but though Chillingworth adds in his

answers o n interrogatories, that Mr. Bliker, though feeble in milid and body, was

1 2 2

HAR\voOD w. BAKER [ m o l 111 MOORE, a97

not incapable of mental exertion, and that it appeared to him he was quite capable

of conversation if he had been inclined to it, little importance can be attached to ail

opinion formed upon such insufficient grounds.

[297] Upon a revision of the whole of the evidence, their Lordships fully concur

in tlie view which the learned Judge of the Prerogative Court has taken of the

general evidence of tlie deceased’s state of mind before tlie execution of tlie disputed

JTilI, and their Lordships further agree with the learned Judge in thinking, that,

under such circumstances, tlie evidence of those who attest the capacity of the

deceased at tlie tiiue of the execution, requires to he watched with great caution and

jealousy.

Keeping, therefore, in mind the principle, that in all cases, the party propounding

tlie Will is hound to prove, to tlie satisiaction of tlie Court, that the paper iii questioii

does contain the last Tn7ill and Testament of the deceased, and that this obligation is

nioi-e especially cast upon him, when the eiTidence in the case shows that tliB mind of

the Testator was generally, about the time of its execution, incompetent t o the

exertion required fo r such a purpose; and further keeping in mind that the disposi-

tion in question was not in accordance with any purpose deliberately formed before

his mind became enfeebled 1Jy disease,-we come t o the examination of the witnesses,

whose evidence is relied on as proving, that a t the time of executing the Will in

question he iTas fully competent to form, and did deliberately form, the intention of

leaving to his mife the whole of his property.

The first account that we have of any intention entertained by Mr. Baker, after his

a tbck , to make any testamentary disposition, is given by Smith, whose account of

Mi*. Baker‘s general state during his illness is so inconsistent with that of the medical

attendants, uiild whose recollection of facts tha t occurred a t that tinie is so imperfect,

ilnle to rest with [298] any confidence on tlie statements which lie

makes; but his account of the transaction, as far as it can be made out from a very

coiifused and unsatisfactory statement, i n substance is this, tha t having been

acquainted s i t h Mr. and Mrs. Baker for many years, and liaviiig come up to town

upon some prjvate business during the time of Mr. Baker’s illness, lie called a,t his

house, and there learned, f rom Mix. Baker, that her husband was ill in bed. That

a t Mrs. Baker’s request he welit up to Mr. Baker’s bed-room, and had some conversa-

tion with him-in the coui-se of which, however, no allusion was made by Mr. Baker

to any wish on his par t to make, any Will. That a t some time after this visit, without

any previous allusion by Mr. Baker to the subject, Mrs. Baker requested the witness

t o go to Salisbury, to inquire of Mr. Tanner, Mr. Baker’s solicitor, whether Mr. Baker

had made o Kill. That he weiit accordingly, and made inquiry of MY. Tanner, who

gave him a draft of a Will, not signed, which he brought up to town, and gave t o

BIrs. Baker, wlio paid him his expenses. That on his return, he found Mr. Baker very

ill, and at Urs. Baker’s request remained in the house. He admits, that after his

return he never mentioned to Mr. Baker that he had been down to see Tanner, and

that no allusion was made by Baker to the subject of his Will, or to any intention of

iliaking one ; but he says, that 5ome days after his return, the nurse came down and

said, M i . Beker wanted an attorney to make his Will, and that upon her mentioning

the name of Mr. Knight, the nurse was ordered to fetch him. That Mr. Knight, who

a t that time was a perfect stranger to the witness, and also to Mr. Baker, came soon

after-and that the witness acconipanied Mr. Knight up to Mr. Baker’s [299] bed-

room. Smith then proceeds to detail the circunistances under which the \Till in

question was drawn and executed ; but as his account does not vary substantially

from that given by Knight, and as Knight’s testimony is not open to many objections

that have been fairly pressed against the accuracy of Smith‘s statements, we will take

the history of the circumstances under which tlie Will was made, from the deposition

of Knight.

But before we proceed to examine his evidence, it will be right t o ascertain the

degree of credit that ought to be given to his testimony: and this becomes the more

necessary, because his veracity has been brought into question by opposing testimony ;

has been much assailed by the Counsel for tlie Respondent, and has not, in the opinion

of their Lordships, been sufficiently appreciated by the learned Judge in the Court

below. Knight appears to have been a Solicitor living in the rieighbourhood of

Baker’s residence, unknown, a t the time, either to Mr. or Mrs. Baker, with no previous

* 123

111 MOORE, 300 HARWOOD v. BAKER [1840]

bias, therefore, that could he supposed to influence him in aiding Mrs. Baker in any

plan to procure, by undue means, the execution of a Will in her favour ; neither is

there anything in the case to shorn that Knight had any motive for giving an untrue

account of the transaction ; and although an attempt has been made by the Appellant

to iiiipeach the testimony of Knight, by the proof of subsequent declarations, mani-

festing a consciousness on his pa r t that the Will had been improperly made, their

Lordships are not inclined to give much weight to the testimony by which these

declarations are supposed to be proved, which Knight most positively denies.

The principal witness in support of these declarations [3QO] is John Harris Flooks,

a Surveyor near Wilton, in Wiltshire. He states himself to have been a confidential

friend of Mr. Baker, froiii whom he had learned liis intention to leave his property

amongst his relations, and an annuity only to his wife. That he had sonie conver-

sation with Mrs. Baker after her husband’s death, upon the subject of his Will, and

that at his request Knight was sent for-and that upon his arrival the witness

repeated to Mrs. Baker, in Knight’s presence, what he had before told her, that it was

a false Will, and explained t o Knight what Mr. Baker had told the witness about his

instructions. Knight, he adds, was very silent while be remained, and very shy of

saying anything a t all; he heard all the conversation; and when1 Mrs. Baker asked

me whether she should make a Will according to Mr. Baker’s intentions, or rather

said, she mould da so, Mr. Knight, I recollect, nodded his head, as approving of it.

Now, although at this interview Knight is not alleged to have made any direct

declarations indicative of any consciousness that Mr. Baker’s Will had been unfairly

obtained, it is obviously insinuated that his shyness, and ready assent to Mrs. Baker’s

proposal to make a Will, in order to carry out her husband’s intention, sprung out of

the consciousness that all was not right: and some weight appears to have been

given t o this par t of Flook’s evidence by the learned Judge of the Court, below, who

comments upon the absence of any denial by Knight of liis having been present a t this

interview ; but the fact appears to have been overlooked, that although by the tenth

interrogatory, administered by Maria Baker, Knight is asked if Mi-s. Harwood,

formerly Baker, had not admitted, in the presence of Mr. J. Yeates, that she knew

tha t [301] the pretended Will was not good for anything; and also whether he,

William Knight, had not declared to Flooks, that if a Bill was filed in Chancery, the

said pretended Will was not worth a farthing; and although by the fourteenth article

of the first allegation given on behalf of Maria Baker, i t is pleaded, that the said

William Knight, in June 1834, declared and admitted t o the said John Harris Flooks,

in the presence of E. Nightingale, when talking with him on the subject of the said

pretended Will, that if a Bill were to be filed in Chancery, o r a stir t o be made about

it, the said Will would not be worth a farthing, or to that or the like effect,-yet

there is no interrogatory or allegation pointed t o the interview between Mrs. Baker,

Mr. Flooks, and Mr. Knight, now under discussion; the reason f o r Knight’s silence

upon the subject is, therefore, obvious: he had no means of knowing that it was

alleged, and the fact of this interview rests entirely upon the evidence of Flooks.

In his evidence on the fourteenth article just alluded to, Flooks states the circum-

stances of his interview with Knight in June 1834, and swears that upon tha t

occasion, Knight said that the Will was a bad business,-that if a Bill in Chancery

was filed, or the Baker family to make a stir about it, the whole would be upset, and

the Will would not he worth twopence,-that he said the same thing in different ways

two or three times, and said i t in a confident way, t o assure me he was right,-that

Mr. Nightingale, a young man in his employ, was present, though he adds that he

does not suppose that he heard all that was said.

Nightingale is also examined to the same fact, and he says, that he remembers

Knight saying, that if the family made a stir about Mr. Baker’s Will, he did not [3Q2]

think i t would staiid good. He admits, however, that he did not know what led to the

observation, and that he did not pay particular attention t o the conversation, for tha t

h: was in conversation with Mrs. Knight.

Knight is examined to this fact upon the tenth interrogatory, and he denies, in

the language of that interrogatory, that he ever declared to Flooks, that if a Bill

was filed in Chancery, the Will in question was not worth a farthing, nor anything

to that effect; and he adds, I never said a syllable that could be so understood: I

deny the suggestion im toto, and the man who suggested i t must be base and wicked.

124

’

HARWOOD IJ. BAKER [I8401 I11 MOORE, 303

He does not indeed, in express terms, deny the words sworn to by Nightingale, be-

cause they were not suggested by the question, but the general denial aTould exclude

all such words, and, therefore, we have Knight brought in direct contradiction

to Flooks and Nightingale. The evidence, however, of the latter, cannot be much

relied on, because the import of the words which he; deposes to might be very much

varied by the context, which he admits that he did not attend to, and does not pre-

tend to recollect.

It becomes necessary, therefore, to contrast the credit of the two principal wit-

nesses, Knight and Flooks; and when their Lordships look to the conduct of Flooks,

in relation to the Will of Mrs. Baker, and the manner in which he attempts in his

examination on the seventh article to represent that Mr. Hatt, who drew up Mrs.

Baker’s Will from the instructions given to Flooks, was an attorney, or a t least had

been introduced to him a s such, though in his answer to the thirty-second inter-

rogatory, he admits that he did not understand that Hatt was a solicitor, but that

he was in a solicitor’s office,-yet he further admits tha t he [3Q3] spoke of him to

Crop as a solicitor, and then attempts to account for his conduct by representing

that he had applied to the landlord to recommend him a lawyer, and that Hatt

came to him; and yet is again forced to admit, that he asked the landlord if he knew

any person who could write out some law papers, and that lie did not want a lawyer

exactly, but some person who was accustomed to law matters, and tha t was the way

Hatt came to be sent for : and when, upon the elraniination of Hatt, it appears,

that instead of requiring him to draw up a fornial Will from the instructions pre-

pared by Flooks, he, Hatt, was only desired to copy a Will already prepared by

Flooks himself, and was not allowed to make any alterations, though informall?

drawn. When it is found that the Will itself gives to the witness Floo$s the

greater part of the property to his own use and benefit, though he represents it to

liave been so made for the purpose of enabling him t o carry out E. Baker’s inten-

tions towards his own family, their Lordships are not disposed to place niuch con-

fidence in the testimony of this witness, and cannot, therefore, consider the veracity

of Knight iu any ~ a y impeached by the contradiction opposed to him.

Their Lordships, therefore, think it due to Knight, and to the Appellant in

this cause, t o decide the question of the validity of the Will, upon the assumption

that all that Knight has stated of the manner in which the inswuctions were given,

and the Will itself was executed, is accurately true. Enight’s account then is this:

that having been sent for to make Mr. Baker’s Will, a s already stated, he ?Tent up

stairs into Mr. Baker’s bed-room, having received no previous instructions from

Mrs. Baker, Smith, or anyone else, upon E3041 the subject-without indeed having

seen Mrs. Baker or Mr. Smith-that he found Mr. Baker ill in bed,-that there

were with him Mr. Smith, whom he had not previously known, Sophia Reader, Mr.

Baker’s servant, and Sarah Taylor, the nurse. Mr-

Knight then says, ‘‘ I sat down by his bedside, and in effect &aid, that I understood

that he had sent for nie to make his Will : he said, ‘ Yes.’ I then asked him whether

he had made up his mind as to what his intentions or wishes were ; and his reply

was, that he had, and intended to give everything to his wife : he said that such was

his Will, to give everything to his wife, not doubting that she would take care of

her niece Marian, or some such name he called her by. I suggested (says Mr. Enight)

that he had friends, or some friends; but he said he had made up his mind to leave

everything to his wife; still, however, saying that he trusted she would take care

of her niece. I think I suggested to him, he should say who was to be llis Executor,

and he said, ‘My wife, she is to be sole Executrix.’ That was the whole of the

instructions I received. Mr. Smith was close by nie, or nearly close by me, the whole

of the tinie, and must have heard, as indeed every person must have heard, all that

passed.” He adds, “ KO person interfered in giving me the instructions ; the whole

came from Mr. Baker’s own lips; it WAS done in no haste. There 1:7as I believe

sxue gcnera! conversation beside, between Mr. Smith and Mr. Baker, but to which

I paid iio ir,tlpntion; and after about ten minutes or a quarter of an hour, havillg

had no occasion to make any minute of such very simple instructiolrs, 1 asked for

paper and writing materials, and sat down a t a table in the room close to the bed,

and wrote C3Q53 the Will out fa i r for execution. I needed no further instructions.

I had nothing to do but to use words sufficiently comprehensive to apply to property

125

Mrs. Baker was not present.

111 NOOBE, 306 HARWOOD 2). BAKER [18$0]

of every description. I made no inquiry as to what Mr. Raker’s property consisted

of : he did not tell iiie what i t did consist of in giving me iiistructions. He men-

tioned his wife’s christian name. Marv Ann, I tlxink; and in writillg the Wirill out,

1 had not any occasion to ask him for-furtlier ins t ruc t io~~s for nly guidance. After

I had written the Will completely out, and f a i r for execution, I took it to the bedside

and road it carefully, and slowly, a i d distinctly, t o Mr. Baker, and he said it was

quite right, o r to that effect ; and then I desired to h a w pel1 and ink brougllt to 11%

that lie might sign it,, arid I think Mr. Slnith brought then1 t o me, and then Mr.

Baker tried to sign his name, and could riot. He tried many times, but could not;

and not being able to write his name, I said, Well, Mr. Baker, you must make your

mark ; he, therefore, ~ c c o r d i ~ ~ l ~ made his mark, and sealed and delirered the

Will iii tlie usual way. I prepared the Will with the seal, a i d I ga3-e him the words

of publication, and he repeated the words, ‘ I publish,’ etc., ‘ and request you to sign

my Will ; ’ and then I signed my name, and smith his, and the servant Reader, her’s.

When the execution of the Will was quite completed, I sealed i t up in an envelope,

and then delivered it to Smith: I never SRW Mr. Baker afterwards.” We after-

wards adds, ‘‘ Mr. Pollock, the medical gentleman. came in before I left, axid I was

pleased that he did, for ?fr. Baker alluded to the Will Iw had made, to Mr. Pollock ;

Ize said in answer to Mr. Pollock‘s inquiry a8 to horn lie felt himself, that he was

easier, and when Mr. I’oXlock said that he understood lie had [SO63 been settling hi.,

affairs, he said tha t he was glad that he had.”

Taking the facts thus deposed t o by Knight as substantially correct, and admit-

t ing that Kiiight (who knew nothing of Mr. Baker’s previous intentions, or of the

state of stupor in which lie had generally been found by his inedieal attendants)

might fairly come to tlie conclusio~, which he; says he drew from whet he saw of Blr.

Baker, namely, that he mas perfectly capable of giving instructions for his Will,

and of making it, and of doing any act requiring thought, judgment, and reflection,

i t by no means follows tlmt Knight’s conclusion is sound, when all the other circuiii-

stances of the case not known to Knight are taken into account. If Knight had

known of the usual state of Mr. Baker’s mind since the covlimenceinent of his illness,

lie would probably have taken inore pains to ascertain the extent. of his recollection.

and of the powers of his mind, before he acted upon the general i i i ~ t r ~ c ~ i o n s for

Tiis Will, If he had known of the instructions f o r former Wills, he would doribtless

have questioned him about them, and might have been able, froin Mr. Baker’s

answers, to form an accurate estimate of the capacity of his mind to make a dis-

position of his property so inconsistent with his fornier views ; but the circumstance

of Knight being a total stranger to Mr. Baker and to his family, leaves the case

without any cIue by ~ l r r i e h the Court can judge tha t Mr. Baker had at the time any

r ~ o l l ~ c t ~ ~ n of the relations for whom i t is clear he a t one time inteiided to make a

provision, or of the fact tha t he had ever given instructions for any other Wil1,-

and there is not tlie slightest evidence of any fornier deciaration by the Testator,

that Be [307] intended making a Will in accordance with the instructions after-

wards given to Knight; QD the contrary, there is evidence that before his illness

Mrs. Baker bad suggested such a disposition to Mr. Baker, but he had answered t b n t

she was iiot capable of taking care of anything, but tha t she would have enough for

herself ; that there maa his own family to think of ; and no expression indieatiiig

any change of intention i s spoken of by ally witness in the suit. Smith indeed

supports the inference drawn by Knight, and Smith had had earlier opportunities

of observing the conduct of Mr. Baker and of judging of liis capacity; but their

Lordships are not disposed to place niuch reliance on the testiinony of this witness,

for, by his own evidence, his meniory appears to be infirin, and his account is

throughout confused, and proved to be inaccurate in many points by the testimony

of Tanner; and the ~ircuii~stances thst he bad gone down to Salisbury by Ers.

Baker’s desire to iriquire about Mr. Baker’s Will,-tha% he had ascertailied &e

existence of a draught Will, so materially differing from the instructions given to

Knight in his presence,--and the fact that he nevertheless did not suggest either

t o Mr. Baker o r t o Knight either the existence of such a document, or the fact of

his having been down to Salisbury to inquire for it,-lead most forcibly to one of

t v o conclusions, either that Smith mas afraid to remind Mr. Baker of his former

136

HARWOOD v. BAKER [1840] 111 MOORE, 308

intentions, lest Ihe should adhere to them, or that he felt that his mind was too

feeble to comprehend so complex an arraiigenient of his affairs.

Ac-

cording to Tanner’s evidence, he, in September or October, prepared the draf t [308]

of a Will for Mr. Baker from his owii instructions; that by the direction8 of Mr.

Baker, that draf t Will, when coinpleted, was in October 1831 sent by Tanner t o

the care of Mr. Hutcheiice of Coleman-street, London; that a t the time it \\-as so

sent to Mr. Hutchence, he believes no par t of the paper was torn off.

Nr. Hutchence says tha t about the latter end of 1831, a parcel v a s left a t his

warehouse in Coleman-street, to be under his care f o r Mr. Baker ; that it remained

under his charge sonie days, when Mr. Baker called and took i t away, thanking

him for his care of it, and saying i t was his Will from Tanner.

This draft Will is produced as the script marked D, by Mr. Narmood, aiid mhen

produced, the last and back sheet are torn off-just below the date, which is left

partly in blank, taking away that part of the paper on wliich the signature, or any

attempt a t a signature, by the deceased would have appeared if the Will had been

executed, or i f aily attempt to execute it had been made by the deceased. Now

Sniith swears that when he went down to Salisbury to inalre inquiries of Taniier

about Mr. Baker’s Will, that Taiiner gave him a draft Will, not signed, Which lie

brought back and gave to Mrs. Baker, and that the script D was the draft Will,

which he so received from Tanner. Tanner, on the other hand, not only swears, as

already stated, that he had sent the script D to Hutcheiice in October 1331, but

most positively asserts that he did not deliver to hiin any packet when he called

upon him about the Will ; and then Smith, who is again examined upon the second

allegation on behalf of Harwood, though lie perseveres in saying that accordilig

to his recollection, he could swear tha t Tanner gave him the draft. and that he

returned it to Mr. Baker, admits [309] that, as Tanner swears to the contrary, he

may be mistaken, and lowers his confidence down to almost swearing that he did

give him the draft. Now thi t is a fact so much connected with the whole object of

his journey to Salisbury, that it is impossible to look a t this par t of Smith’s testi-

mony without seeing that there must be a great defect, either in his recollection or

in liis veracity. There is another point, and one more immediately coiinected with

the question of Mr. Baker’s capacity, which, i f it had been satisfactorily proved,

Tvould have shown that Smith is totally unworthy of the slightest credi’c. Sanders

Trotman, a hairdresser, states tha t he was employed to shave Mi-. Baker on the

morning of his death, and that while there, a n elderly gentleman, vil-lzose name he

did not know, and whom lie cannot identify as Smith, placed a paper, xhich the

witness believes, on its being shown LO him, t o have been the script D, but n-hich was

not then torn at the bottom, before Mr. Baker, aiid asked hini to sign i t ; that Nr.

Baker tried to write and could not-he seemed to be running the pen down the

paper instead of across it, and did not seem to have any idea what he M - ~ S doing,

and so the gentleman took the paper away.

The only persons who, according to this witness’s statement, were present, were

Sophia Reader, and the nurse Taylor; but inasmuch as by the coiiinion consent,

the testimony of these witnesses cannot be relied on in respect of the main question

of Mr. Baker’s capacity, and the factum of the Will, it would be unsafe t o resort to

their evidence for the purpose of proving that Sniith mas the elderly person who

placed this paper before Mr. Baker for his signature, and the only other evidence

tending t o connect Smith with the [310] transaction spokeii to by Trotinan, is the ex-i-

dence of Mr. Pollock, who says that either on the day of Mr. Baker’s death, or the day

before, but he thinks the day before, Smith showed hini a paper, purporting to have

been signed by Mr. Baker, as Mr. Baker’s Will; hut Sillith, though charged with

having presented the script D to Mr. Baker for his signature, which he most posi-

tively and pointedly denies, is not asked whether he liad not shown Pollock a paper,

Xvliich he said was Mr. Baker’s Will, neither is he asked whether he had not told

Tenner that Mr. Baker had attempted to sign the draf t Will, but had blotted and

blurred it so that i t was of no use, S O as to bring the evidqnce of these two witnesses

illto direct contradiction upon this point ; and therefore though Trotiiiaii’s evidence

lllay be taken, as showing the state of Mr. Baker’s mind on‘the morning of the day

\Then tlze disputed Will vas executed, neither his evidence nor that of Pollock or

127

But there is another and more important objection t o Smith’s testimony.

I11 MOORE, 311 HAR WOOD v. BAKER [ 18401

Tanner can be taken as directly impeaching the credit of Smith, still less can the

evidence of the two latter witnesses be taken, as proving the fact that the draf t will

had been presented t o the deceased for execution; there still remains, however, the

discrepancy between Smith’s evidence and that of Tanner, as to the delivery of the

draft Will to Smith, which sufficiently proves that Smith‘s accuracy cannot be relied

on, whatever niay be the value of his character for veracity.

The only other witness who speaks of the state of Mr. Baker’s mind a t that

period of his illness a t which the Will was executed, upon whose testimony their

Lordships can place any reliance, is Pollock, who, as already observed, was a t that

time assistant to Mr. (Tarrick, and in that character attended Mr. Baker in [311]

his last illness. He saw Mr. Baker repeatedly during his last illness, but was not

aware, from himself, of his intention to make his Will, or of his making his Will,

till the very day he died.

It appears by PoUock‘s evidence, that, about seven o’clock of the evening of

Mr. Baker’s death, a message was brought to Mr. Carrick’s, for either Mr. Carrick

or Mr. Pollock to g o to Mr, Baker’s house, about his Will. That Pollock went imnie-

diately, and saw Mrs. Baker, who asked him to go up to Mr. Baker, as they were

making his Will. That on his going into Mr. Baker’s bed-room, Ihe saw Knight

engaged with some papers, as he presumed, on the Will. Smith was also present.

Pollock went to Mr. Baker’s bed-side, and felt his pulse, and asked some medical

questions, which he answered as usual. ‘‘ And then,” Pollock adds, “ thinking my

attendance had been required with reference to the Will which was making, I put

some questions to him upon the subject. I first remarked to him, ‘ You are engaged

just now, are you not? ’ He said, ‘ Yes, I am.’ I then said, ‘ Then i t was not done

before? ’ Ne replied, ‘ No, not satisfactorily.’ I then said, ‘Your mind will be

easier nhen it is done.’ This wa,s all that

passed.’’ From this conversation, and from what he had previously obserT ed,

Pollock draws the conclusion that Mr. Baker understood the questions put to him,

and the answers he made to then?; and that he mas competent to the understanding

a simple disposition of his property; but he adds what, in their Lordships’ view of

the question before them, is of great importance-that “ h e would not have been

equal to the understanding of a complicated Will; but a mere simple disposition of

his property, where there C3I.21 was to be no comparison or weighing of the claims

of relations upon hini, I think he was equal to.’’ He goes on to say, “ I had some

doubts before, from the nature of his illness, his dull lethargic state, answering

questions when roused, but relapsing again into a state of lethargy, whether he

was ctipable of making a Will, but-my doubts being in his favour-there was

always a dull, heavy state of mind t o induce me to be cautious in forming arid es-

pressing an opinion as to his capacity; he required rousing, but always answered

niy questions to the point; and I think he was capable of giving instructions for

and making a Will of a simple nature. I don’t think, from the state lie was in, that

the idea of making his Will could probably originate with him, but, if asked the

question, I think he would have answered correctly, whether he would or would

not malre i t ; mid, if asked who he would leave his property to, he would have

correctly stated who he wished to leave it to. There was no delusion ; it was a heavy,

clouded state of mind, from which he required to be roused to answer questions;

but, when roused, he amwered those questions correctly.” And in answer to the

sixteenth interrogatory, Pollock further says, ‘‘ I was not asked by Mr. Baker, or

any person, to be a witntss to his Will. If I had been asked to witness the Will,

I should have hesitated about it, without further investigation; but, a t the same

tinie, if I had heard i t read to hini, and been satisfied with the nianner in which

Mr. Baker conducted himself, and heard the matter, I should have witnessed i t

without difficulty : the whole would have depended upon circumstances. I cannot

now say whether I would o r would not have witnessed the Will without questioning

Mr. Baker further. I can’t say whether the idea of making [313] the Will did or

did not originate with Mi-. Baker, but I have no reason to believe or suspect that

it was unfairly o r unduly obtained.”

Taking the whole of this gentleman’s testimony together, it does not appear very

inaterially to differ froin that of Carrick and Hnwkins: he seems, indeed, to have

entertained doubts more favourable to the capacity of Mr. Baker to malre a Will;

128

He answered, ‘Yes, a great deal.’

MACDONALD 9. BELL [1840] 111 MOORE, 314

but he nevertheless concurs with Hawkins that he was capable of nlaking a short

Will ; or, as .Mr. Pollock expresses i t , '' a simple Will ; " and with Carrick, that he

might understand a simple matter placed before him; but he also concurs with

Carrick in thinking that he was incapable of understanding what was complex, and

Pollock explains what he considers a simple Will, as one that would require no

comparison o r weighing of the claims of relations upon him.

Now if their Lordships had found from the other evidence that Mr. Baker had,

while in a state of health, compared and weighed the claims of his relations, and had

formed the deliberate purpose of rejecting them all i n favour of his wife, but had

omitted to carry that purpose into effect before the attack of illness under which he

died; and that during that illness he had acted upon that previous intention, and

executed a Will in question,-less evidence of the capacity to weigh those claims

during his illness might have been sufficient to show that the Will propounded really

did contain the expression of the mind and will of the deceased. But when their

Lordships find, that up to the date of his illness he had entertained a deliberate

purpose of distributing a large portion of his property amongst hie relations ; and

that he had never before [314] the hour in which he gave the instructions for the

disputed Will, expressed any intention to leave his property to his wife; and when

their Lordships further find (as they cannot but believe to have been the case), that

during his illness he had attempted to execute n draft of a Will, containing a dis-

position of a large portion of his property amongst his relatives-to which, it is

probable the deceased referred, when he remarked to Pollock that his Will had not

been done satisfactorily before-their Lordships are of opinion that the Appellant

has not made out by his evidence that the paper propounded by hini as the Will

of Mr. Baker really does contain his last Will and Testament.

Their Lordships, therefore, will advise her Majesty to affirm the judgment of the

Court below, and to dismiss this Appeal, with costs.

[Mews' Dig. tit. WILL, I. TESTAMENTARY CAPACITY, g. Soundness 07 Mind. As to

criterion of testamentary capacity in mental disease, see Banks v. Goodfellow,

1870, L.R. 5 Q.B. 568; Boughton v. Knight, 1873, 3 P. and D. 73; Smee v. Smee,

1879, 5 P.D. 84; Murfett v. Smith, 1887, 12 P.D. 116; Roe v. Nix (1593), P. 55;

and notes to Barry v. Butbin, 1838, 2 Moo. P.C. a t p. 492 ; Dufaur v. Croft, 1840,

3 Moo. P.C. 148; and cf. Waring v. Waring, 1848, 6 Moo. P.C. 341; and

Delafierd v. Parish, 1862, 25 N.Y. 9.1

[315] ON APPEAL FROM THE SUPREME COURT O F THE CAPE

O F GOOD HOPE.

ALEXANDER ALAGDONALD and Anotlier,-AppeZ~ants; JOHN BELL,-

Bespondeni * [December 14 and 15, 18401.

By the Civil baw, sureties are not discharged from their liability to satisfy

the creditor, though the benefit of a hypothec of the debtor is lost by the laches

of the creditor to enforce his demands.

This was an Appeal from a Judgment of the Supreme Court a t the Cape of Good

Hope, pronounced on. the 13th of June 1836, in an action in which the Respondent

was Plaintiff, and the Appellants Defendants; and i n which the Plaintiff in the

Court below recovered Judgment for S.1500, with interest and costs.

The Action was upon a Bond, of which the following is a translation :-

" Appeared before us, the undersigned Commissioned Members of the Court of

Justice of this Government, in lieu of Schepenen (Judges having local jurisdiction),

Mr. Jan Frederick Reitz, Vendue Commissary a t this place, who acknowledged him-

* Present: Lord Brougham, Mr. Baron Parge, S i r Herbert Jenner, and the

Right Hon. Dr. Lushington.

P.C. 11. 129 5