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remember this circumstance, but should remember to specify it with the particularity
which they all do, in their respective [205] depositions, does savour strongly of pre-
concert, considering who these witnesses are, and how they are connected together.
The mode of executing the instrument (sheet by sheet) is, I have already said, no very
usual or likely one for the deceased to have adopted. It is, too, I may further
observe, not very probable that the deceased, an old man of eighty, should have
perused the will at all, mentally or otherwise, at the instant of execution. The
deceased himself had given instructions for it, which, when taken, were read over to
and approved by him. The will itself, when drawn up, was also read over first to



72 SAPH V. ATKINSON 1 ADD. 206.

and then by the deceased, at the time of his affixing his seal to it. The deceased had
the intermediate possession of it from that time to the time of execution ; an interval
of at least three days. All this according to the evidence of Mr. John Saph. That
the deceased, under these circumstances, should have perused this instrument as they
describe him to have done, in the presence of these three witnesses, whom he must
have kept waiting, accordingly, during the operation one of the three, a young
apprentice, pressed into this service of attesting the will during an interval in which
he had merely stept home for his breakfast is a little unlikely.

I am not aware that the depositions of these two witnesses suggest any further
material observation, nor am I willing to press against them, to any thing of a harsh
extent, the one or two remarks which they have actually suggested. It will be quite
sufficient to observe that the testimony of these two witnesses so biassed so impli-
cated so not devoid of suspicion upon the face of their testimony by [206] no
means furnishes the evidence of their fellow-witness, Mr. John Saph, with that sort
of corroboration of which it stands in absolute need in my judgment : and, in con-
clusion, I may safely dismiss the evidence upon the condidit with this general remark :
It is very far from satisfying the moral conviction of the Court against all the
probabilities which have been already stated, that this, really and truly, was the
deceased's own act.

Before actually dismissing it, however, it may be requisite that the Court should
redeem its promise of saying a word as to the purported legacy of the "bank stock"
to Ann Saph, apparent on the face of this instrument.

The deceased Mr. Harcourt, jointly with his wife during her life, was a holder
of bank stock, which, as long back as 1790, had amounted to 5941. stock, and which
had increased by bonuses to 7421. 10s. stock, producing, as at 10 per cent., an annual
income of 741. 5s. The dividends were received by Messrs. Hoares, of London, and
carried to the credit of Mr. Atkinson ; who accounted for the amount from time to
time to the deceased. Out of this same bank stock he had given, by the wills of 1818,
"so much as would produce 601. per ann." to a purpose, and "the remainder" in a
manner already stated. This third will, however, purports to bequeath " 8001. bank
stock" (worth nearly 20001. and more by 571. 10s. of that stock than the testator had
to bequeath) to Miss Ann Saph, and "the remainder," specifically, to the mother
Mrs. Saph. Why, here again is a circumstance utterly inconsistent with any notion
of this instrument being the deceased's act ; but easily reconcileable with the [207]
supposition of its being a fabrication of these Saphs, which it is admitted that it must
be, if it be not the act of the deceased. The deceased, who, of course, was fully
acquainted with the nature and properties of bank stock, could not but have dis-
covered this obvious blunder whilst repeatedly perusing, first the written instructions,
and then the will itself, as already observed ; granting even that he might have
committed it, by saying, as deposed to by Mr. John Saph, that he should give his
sister Ann "8001. bank stock," and "the remainder" to his mother, in the first
instance. But there is no improbability in the commission of this blunder by the
Saphs ; they may well be supposed ignorant of the rate of interest payable on bank
stock; and as it appeared by the former will that the deceased had more than
sufficient bank stock to produce 601. per ann. (which itself at 5 per cent., the standard
rate of interest, would require 12001.), they might very naturally conceive that the
deceased's interest in that fund was quite sufficient to cover these several bequests
of "8001. bank stock," and "a remainder."

An attempt, however, a last attempt, has been made to support the credit and
character of this instrument, by what are technically called " recognitions ; " that is, '
by declarations or acts of the alleged testator referring to this instrument. Previous
acts or declarations, as of dissatisfaction with his former will or the like, there are
none, excepting the declarations spoken to singly by Mr. John Saph ; which, for
reasons that need not be repeated, are entitled to no sort of consideration from the
Court. But still clear and distinct subsequent recognitions of this will, proved as
clearly and distinctly by [208] witnesses above exception and suspicion, might alter
the whole complexion of this case, and carry irresistible conviction to the mind of the
Court that the paper set up in it is, what it asserts itself to be, the deceased's will.
It is material therefore to consider, both who the witnesses are that speak to them,
and what the asserted recognitions themselves amount to.

Two witnesses only (besides Mr. James Gilbert, the supposed recognition, contained



1 ADD. 209. SAPH V, ATKINSON 73

in whose deposition, I have already said, giving it credit, amounts to nothing) have
been relied on in this respect a Mrs. Betsy Bursey and a Mrs. Elizabeth Gilbert.

Bursey, by business a dress-maker, at Lymington, is the intimate friend of
Mrs. Saph, whom she confesses to have "assisted her memory" in some things
relative to which she has been subsequently examined : she has been active too in
collecting testimony in the cause. Now I do not mean to say that these are circum-
stances which would at all induce the Court not to take this person's oath to a mere
matter of fact ; but they are circumstances which do induce the Court to listen to her
with some degree of suspicion when she is brought to speak to expressions said to
have been used by the deceased several years before expressions liable to misappre-
hension, possibly insincere, and certainly not unlikely to be distorted and exaggerated
in the deposition of a witness, whose scanty memory, in respect of them, is admitted
to have been eked out by that (or the invention) of Mrs. Saph. The declarations too,
themselves, when accurately considered, amount to little or nothing ; they are either
equivocal or immaterial ; and by no means directly [209] come up to what I am bound
in law to consider distinct recognitions of this will.

Mrs. Gilbert's evidence is of still less weight. She is the sister of Mrs. Saph,
and the mother of the witness James Gilbert, whose evidence has already undergone
the investigation of the Court. Her deposition is open in its outset to the same
remark which was applied to that of her son; that of bearing a strong internal
character. For instance, speaking of her nephew, John Saph, she says that, "he
misapplied some of his master's money, which she considers a mere frolic of youth ;
she believes him to be a good young man." Such is her moral estimate of the trans-
action at Winch's and of her nephew's general conduct and character. Again her
examination broke off at five o'clock upon a Monday, and she was appointed to attend
the examiner at seven o'clock on the same evening. Instead of this, however, she does
not in fact so attend again until the Wednesday evening following, at the same hour,
by reason, as pretended at least, of indisposition ; and then, after forty-eight hours,
"recollection," as she terms it, she desires to amend her deposition, as taken by the
examiner, upon the second article of her sister's allegation. Now that deposition, as
already taken, was pretty minute as to favors conferred by the deceased upon her
sister Mrs. Saph ; but, after an interval of two days (admitted by her to have been
spent at the Saphs, in the company of both mother and son, though she, too, protests
to the examiner that not a syllable was exchanged between them on the subject of the
suit, after that interval I say) for " recollection," she comes out with a long story,
wholly extra articulate, [210] of Mrs. Saph having shewn her about Christmas, 1818,
three notes of hand (as she calls them), given to her by the deceased ; the one for
1001.; the other for 301. odd; and the third for 251. She says that after this (conse-
quently in 1819) she heard the deceased Mr. Harcourt say that a very unpleasant
thing had happened to him, relative to a Mrs. Alie (to whom he had left 101. by his
will) appearing to be entitled to some houses and land under the will of his late wife,
which he (Mr. Harcourt), conceiving them to belong to him, had sold ; but the value
of which he was now obliged to refund to this Mrs. Alie. And she adds that, sometime
after this again, her sister Mrs. Saph told her that Mr. Harcourt had taken back the
three notes, amounting together to 1501. odd; and had given her one note for 4501.,
which note she then produced, and shewed to the witness.

The account furnished by the witness John Saph, relative as it should appear to
this same note of hand for 4501. is as follows : In answer to an interrogatory suggesting
him to have said that, "Even if the will would not stand, still that his mother had the
deceased's note of hand for a considerable sum," this witness, after, in the first place,
denying the use of that or any similar expression, goes on to state that " the only
note of hand he ever knew of, as given by the deceased to his mother, the producent,
is one for 4501., which was given, as the deceased told the respondent, for what he
owed to the producent, and for a sum of money lent to him by the respondent's -sister,
Ann Saph, who was just come of age, to enable him to pay the relations of his deceased
wife some money, which the deceased [211] had, inadvertently, and conceiving it to
be his own, applied to his own use." He says that " he, at the desire of the deceased,
drew such note, which was to secure both his mother and his sister, as he now best
recollects, in the latter part of 1818; that he has seen it once since in his mother's
possession ; but whether before or since the deceased's death he cannot recollect."

E. & A. II. 3*



74 SAPH V. ATKINSON 1 ADD. 212.

He further answers that "if the same is now in existence, he does not know in whose
care, custody, power, or control, it is."

Now it appears from the above, and by the names "Alie" and "Heyley " (which
are nearly idem sonantia, especially vulgarly pronounced), that the transaction to
which these witnesses would, some how or other, refer this matter of the " notes of
hand," is the identical transaction deposed to by Mr. Fletcher Wilmot, in speaking of
the deceased having altered his will of June, 1818, by that of October in the same
year, as already stated, in consequence of his displeasure at the conduct of a Mrs.
" Heyley," a legatee in the former will, in making some claims upon him as under
the will of his deceased wife. But he deposes to the deceased's having borrowed
money of Mr. Atkinson, and not of these Saphs, to pay Mrs. Heyley's demand ; and
the transaction itself plainly belongs to the former year 1818, and not to the year
1819, where Mrs. Gilbert's evidence would place it. Not to dwell, however, upon
these inconsistencies, this circumstance of the notes, altogether, is one of a very
suspicious character. If the transaction itself were fair and genuine, how is it possible
that it should not have been brought forward in some shape (for instance, in proof of
the intimate connexion between the Saphs [212] and the deceased, and of the obliga-
tions which they mutually conferred upon each other) during the long pending of
this cause? Mrs. Gilbert's account of it, after an interval of forty-eight hours for
" recollection," confessedly spent with the Saphs, by no means either clears up the
character of the alleged transaction itself, in my judgment, or impresses me with a
favorable opinion (and it is with this view alone that my attention has been directed
to it) of the credit due to her testimony in other particulars.

But, lastly, supposing even this witness, Gilbert, entitled to full credit, still the
declarations to which she has deposed would leave the case pretty much where they
found it. They are of the same character as those spoken to by Bursey, and are
open to the same remarks. At all events, they are by no means so forcible as those
of a contrary tendency stated by Nash and Randall, witnesses wholly unimpeached ;
which are directly referential to the will of October, 1818, and are plainly inconsistent
with the alleged subsequent will of June, 1819, propounded on Mrs. Saph's part.

Supposing, then, the case to have rested here, the Court would have felt itself
bound to pronounce against the instrument propounded ; looking, in the first place,
to the improbability that it should be, and, secondly, to the insufficiency of the
evidence tendered in proof of its being, the deceased's will. Before actually arriving,
however, at this conclusion, it is proper that I should notice the evidence which has
been introduced into this case, on the direct question of whether the signature is, or
is not, in the hand-writing of the deceased.

Evidence as to hand-writing, in questions touching [213] the factum of any
instrument, is (or may be) common to both parties. Affirmative, may be produced
by the parties setting up the instrument ; and negative, by those whose object it is
to impeach it. The advantage to be derived from either is, in a great measure,
dependant on circumstances. Where neither the character of the transaction, nor the
credit of the witnesses, is materially affected ; affirmative evidence upon this head is
unnecessary ; and negative is unavailing : the converse of both these almost necessarily
follows where the transaction is suspicious, and where the witnesses are discredited.
Such evidence, indeed, either affirmative or negative, is commonly inconclusive for
obvious reasons ; the former from the exactness with which hand-writing may be
imitated ; the latter from the dissimilarity which is often discoverable in the hand-
writing of the same person, under different circumstances. Still, however, it is
admissible evidence in these, as in other Courts ; although the assertion that greater
weight is attached to it here than in other Courts is by no means correct. On the
contrary, the rule here rather inclines to hold that a will cannot be proved by mere
evidence to the hand-writing of (without some concomitant circumstance, as the place
of finding, or the like to connect it with) the party whose suggested will it is.

In the present case, however, evidence as to the deceased's hand-writing was not
merely admissible ; but affirmative was actually called for from the parties, that is,
who have propounded this instrument, from the circumstance of negative being
tendered, by its opponents, in every capable shape. Nor were they unaware of this,
as it should seem, [214] from their having pleaded the affirmative; although they
have not ventured to produce a single witness to an opinion that the signatures to
the asserted will are of the deceased's hand-writing. The first circumstance, therefore,



1 ADD. 215. SAPH V.ATKINSON 75

that strikes one on turning to this part of the case is, that the evidence is all upon
one side ; on that side, too, in favour of which, in the view just taken by the Court,
the scale, independent of it, decidedly preponderates.

I have said, and repeat, that negative evidence of this kind was vouched by the
parties opposing this instrument in every capable shape. For it was, in substance,
pleaded by them, not only 1st, that the subscriptions to this instrument were not
those of the deceased in the cause, and were known not to be such by persons who
had seen him write, and were acquainted with his manner and character of hand-
writing ; but it was further pleaded, 2dly, that the said signatures would appear not
to be those of the deceased, on a comparison of them with other, his admitted,
signatures; 3dly, that they would appear to be of the proper hand-writing of Mr.
John Saph ; 4thly, that they would appear to be, let who would write them, written
in a feigned, and not in a natural, hand.

Now, as to the first of these four special allegations, no witness has been produced
who will undertake to swear, from a previous knowledge of the deceased's hand-
writing, derived from having seen him write, that the subscriptions to the instrument
in question are not those of Mr. Harcourt, the party deceased in the cause. Mr.
Wilmot ventures nearest, but does not go the whole length, possibly, as much, from
his disinclination a disinclination which is common to most of us to depose
positively to such [215] a fact, as from any great doubt which he entertains upon the
subject. But I am yet to learn that this absence of evidence upon the first of the
four is a bar, as asserted, to the reception of any, upon the other three. The
assertion has proceeded from an utter misconception, as I take it, of the true meaning
of the maxim, that "the best evidence must be given of which the nature of the
thing is capable." But the application, at all, of that rule (into the true meaning of
which this is not the right place to inquire) to the present case, assumes this position,
namely, that the evidence of witnesses acquainted with the supposed writer, and
who have acquired a previous knowledge of his hand-writing from seeing him write,
is the best proof of hand-writing a position to which, if laid down universally, and
without limitation, I am not disposed to accede. It may, or may not, be the best,
according to the means and extent of the witness's information, who deposes, one
way or the other, from such previous knowledge ; may be the best, that is, where
these are ample ; and may be very far from it, where these are scanty, or abridged.
Suppose the case of two persons who have written for years at the same desk ; the
evidence of one of these to the other's hand-writing, from his previous knowledge of
it so derived, may, for aught that I know, be the best evidence which the nature of
the thing admits. But suppose the case of two persons, one of whom has seen the
other write only a few words, or only once, or many years ago will it be said that
the evidence of that one to the hand- writing of the other, from his previous knowledge
of it, so derived (which still, be it observed, is that of a witness deposing to [216] the
party's hand-writing from a previous knowledge of it, acquired by having seen him
write), is the best evidence ? is better (for instance) than persons of competent skill
and experience could furnish, after comparing the signature (for instance) in dispute,
with ten or twenty admitted signatures of the same party, made about the same
time, and under not dissimilar circumstances 1 The proposition can hardly, I think,
be seriously maintained. All evidence as to the hand-writing of any party is the
mere statement of an opinion formed by the witness, on comparing a writing said to
be his, with some standard ; and to say that the mere having seen that party write,
furnishes, under all circumstances, and universally, the best standard would, in my
judgment, be absurd. I not only conceive, therefore, that the maxim of law which
has been invoked into this part of the case has been misunderstood in the attempted
application of it ; but I deny the universality, at least, of the position which has been
assumed, in the first instance, in order to its being invoked into the case at all.

Evidence, therefore, upon these last three heads being clearly admissible, notwith-
standing the absence, or failure, of evidence upon the first, is any other valid reason
assignable for its exclusion 1 I am aware of none. Evidence of this description Las
always been received in these Courts (see Beaumont v. Perkins, I Phillimore, 78). In
the cases of Revett v. Braham (4 T. E. 497), and The King v. Cator and Others
(4 Espinasse, N. P. C. 117), it has also been admitted in other Courts ; and although
under the special cir-[217]-cumstances of a late case, that of Gurney v. Longlands
(5 Barnewall & Alderson, 130), the Court of King's Bench did refuse a new trial when



76 TROWER f. COX 1 ADD. 218.

applied for on the ground that the Judge at Nisi Prius in that case had rejected such
evidence, I cannot deem that refusal decisive against its general admissibility, at least
in these Courts.

Such evidence being, then, upon the whole, admissible in this case, it remains
only to see to what it actually amounts.

It is impossible that evidence of this sort can be stronger, or amount to more.
The witnesses who have been examined, in proof of these special averments, have
given it as their opinion, quasi uno ore, 1st, that the subscriptions to the will pro-
pounded are not of the hand-writing of the deceased ; a number of whose genuine
signatures were submitted to them, at the time of their examination, for the purpose
of being compared with those in dispute ; 2dly, that they are written in a feigned
and not in a natural hand ; 3dly, that they are of the proper hand-writing of Mr.
John Saph.

The persons who speak to these several particulars (b) are persons of skill, persons
whose profession, I may almost say that, it is to examine hand- writing critically in
order to the detection of forgery. In cases where witnesses of this description
entertain different opinions they may so neutralize each other that their evidence, as
taken alto-[218]-gether, is good for nothing. But that is not the case here. These
witnesses all give their opinion as to each of these several particulars ; some indeed
with greater and some with less confidence, but they all give it one way. As to one
particular, namely, as to these signatures being in a feigned and not in a natural hand,
they all speak, without the slightest hesitation, and with the fullest confidence.
They say that, acting with all caution, where they entertain any doubts, they either
state those doubts, or decline giving an opinion altogether. Here, as to this particular,
they neither state any doubts, nor are backward in drawing their conclusions con-
clusions in which, in substance, they all agree.

There certainly is a very considerable likeness, to a common observer, between
the deceased's alleged signatures to the will propounded and his admitted signature
to the prior will of October, 1818 ; from which last, by the way, the first of the two,
if not those of the deceased himself, most probably were copied. At the same time
there is one feature of dissimilarity which, as it is noticed by all the witnesses, the
Court will briefly advert to I mean the dissimilitude between the final " t's " in the
deceased's name of "Harcourt," in the genuine and disputed subscriptions. In every
admitted signature the " t " is made without carrying the pen back behind the
perpendicular line, and then crossing it. In every disputed one it is made by carrying
back the pen behind the down stroke, and then crossing it, with a loop. This, in
itself, is a strong circumstance of the kind, and will appear more so when I add, that
in every admitted signature, of which there are several, of the deceased's name by
Mr. John [219] Saph, the final "t" in Harcourt is made in the same way in which it
is in the disputed signatures to the alleged will.

Upon the whole, I am bound to pronounce that the party setting up this will has
failed to establish its authenticity ; and I think that I am also bound, as well in justice
to the other party, as by way of general example, under all the circumstances of this
case, to condemn her in the costs of the present suit.

TROWER AND SMKDLEY v. Cox. Prerogative Court, Trinity Term, 2nd Session,

1822. The attornies of an executrix having withdrawn from the suit, after

propounding an alleged will, and suffered a next of kin to take administration,

held, under the circumstances, not to bar that executrix from calling upon the

next of kin to bring in the administration, and re-propounding the alleged will.



Online LibraryGreat Britain. Parliament. House of LordsThe English reports (Volume 162) → online text (page 15 of 299)