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July, 1809; and the testator's he lived, to build the Blue-coat death happened on the 4th of School on it. March, 1810, on which day he The will was executed at an atwas found drowned. The parties torney's office in Manchester. The who would have been entitled to codicils were all in Mr. John Athis property, if dying intestate, kinson's hand-writing, and each were his second wife (whom he executed at his house by the tesmarried at the age of 67, and who tator in presence of two witnesses. had a family by a former husband) This cause was first heard in and his niece, who was unmarried, the Consistorial Court of Chester, and who had offended him by where the will and all the codicils having had an illegitimate child. were pronounced for. It was thence These parties endeavoured to set appealed to the Archiepiscopal aside all the testamentary papers, Court of York, where the former which were supported on the other judgment was affirmed with costs. side by the executors, Mr. John The appellants, however, brought Atkinson, formerly an eminent it again by appeal to the Court of manufacturer at Manchester, and Delegates, where it was argued Mr. Joseph Atkinson, a Quaker, for five days in the summer, benot at all connected with the pre, fore six judges, who pronounced ceding.

themselves satisfied of the validity The substance of the will was of the will and all the codicils, exto leave 2001. per annum to Mrs. cept the third, on which, being Henshaw; 20001. to each of her equally divided, they gave no judgthree daughters ; the land and ment. It became therefore necesbuildings at Oldham equally be- sary to have a rehearing before tween her sons, and George Had- part of the former commission, field, the illegitimate child above- assisted by adjuncts : and the mentioned; various legacies of present argument, which lasted 1001. 500l. 10001. &c. to different for six successive days, was conlegatees, about sixty in number; ducted on the part of the appeland the residue to found a Blue- lants by Drs. Swabey and Jenner, coat School and Blind Asylum, and Messrs. Warren and Wiliams; the trustees of which were to be and on that of the respondents by named by a subsequent codicil. Mr. Hart, Drs. Stoddart and

The first codicil gave 20,0001. Lushington, and Mr. Cross. to the Blue-coat School, and de- It was contended against the clared Mrs. Henshaw entitled to will and codicils generally, that her savings during marriage. the deceased had been of a weak

The second gave legacies of and decaying capacity ever since 6,000). in all, to other charities. 1800, when he had a paralytic at

The third named the Trustees tack ; that Mr. John Atkinson had referred to in the will, and gave obtained an entire ascendancy over 18,0001. to Mr. John Atkinson, him, principally by assisting him who was one of the number. in June, 1807, to set aside the

The fourth revoked the devise will of his brother Henry Henof a small piece of land, in the shaw; that by means of this inwill, the testator intending, had fluence, Mr. Atkinson had per


suaded the deceased to alter those paralysis, and as a man, with retestamentary dispositions by which spect to whom his regular medical he had bequeathed his property to attendant had advised that he his wife and family, and to devote should be strictly watched, to the mass of his fortune to the en- prevent that catastrophe which dowment of eleemosynary institu- eventually occurred. They intions, leaving Mrs. Henshaw the sisted, that when a testator, thus slender pittance of 2001. a year- vacillating between the extremnes that he had urged him to do so, of sanity and insanity, was pracnot by a single testament, but by tised upon by a person who had a series of codicils, with the in- obtained anabsolute controul over tention of keeping him in a course him, such as Atkinson unques, of testamentary disposition, in tionably had over the testator, order that he might seize some the will made, under such cire, favourable opportunity, when the cumstances, was not the will of testator was in the humour, of the testator, but was in truth the procuring a bequest to himself. will of the party by whom he was The Learned Counsel for Mrs. influenced. Henshaw, in language the most Against the third codicil it was energetic, dwelt upon the conduct specially urged, that being in the of Mr. Atkinson in obtruding hand-writing of a party benefited himself into the family of the under it, common proof of its testator, and diverting him from exccution by the deceased, in prethose benevolent intentions to- sence of witnesses, and of his tes. wards his family, which, till his in- tamentary capacity at the time, terference, had uniformly actuated would not suffice to establish the him. They represented to the act; but that there must be speCourt, the artful and insidious cific proof that he knew the conproceedings of the defendant in tents, by some declaration coming deporting himself as a friend to- from him, either before, at, or wards Mrs. Henshaw, dining at after the execution : and several her table, and expressing his re- cases from the year 1723 to the gard for her; when, at the same present time were cited, to show time, he must have been conscious, that this was the rule of the Fcthat, by his persuasion, her hus- clesiastical Court. Lastly, it was band, by what he had left her, contended that a sum of 30001. had comparatively disinherited mentioned in this codicil as having her. They argued from the volu- been previously given by the tesminous evidence before the Court, tator to Mr. Atkinson, was, in and by the last act of the testator, reality, only lent, which seemed which was self-destruction, the im- to show, that the testator could paired and weakened state of his not have understood what he inteilects. They contended that signed. it was not necessary to prove a In support of the will and coderanged niind : it was sufficient dicils generally, it was replied, that the facts of the case presented that, upon all the evidence, there the testator before the Court as a could not be a doubt but that the man who had been afflicted with testator was a man of extraordi

nary nary activity of mind, that he was oldest friends the testator had, so described by the learned phy- from a period long antecedent to sician (Dr. Ferriar, of Manches- his second marriage ; that he had ter) who had attended him for a been on all occasions of difficulty slight paralytic attack in 1900, resorted to as an arbitrator and from which he perfectly recovered adviser by the testator and all his in a few weeks, and who saw him connections, and had rendered frequently afterwards till his them all most essential services; death; that his having been so that in the affair of Henry Henaffected in 1800 could afford no shaw's will, George Hadfield had inference against his acts in 1807, voluntarily released his interest to 1808, and 1809, done in the pre- the amount of 60,000). acknow, sence of unimpeached witnesses, ledging under his hand and seal, who spoke fully to his capacity. that that will was executed when That his letters, many of which Henry Henshaw was in a state of were before the Court, shewed incapacity; that it did not appear extreme shrewdness in resisting that Mr. Atkinson had advised attempts at circumvention and Hadfield to this step at all; but if fraud; and that the conduct of he had, it was probably the best the opposing parties themselves advice that could have been given, was conclusive against their plea, as no man would, without very they having, whilst the testamen- strong reasons, have been induced tary acts were going on, joined to give up 60,000l. That in short, in a great variety of most impor- there was not one syllable in the tant transactions of business with whole voluminous mass of evihim, and having all of them de- dence to show that any undue rived great benefit from his libe- means whatever had been resortrality and judicious kindness to- ed to by Mr. Atkinson to obtain ward them on those occasions : an influence either with the dethat there was not a tittle of evi- ceased, or with any of his condence to shew that any one pro- nections; that it was true the devision in any of the papers was ceased had a high opinion of him, suggested to Mr. Atkinson ; and and always spoke of him in such as to the charities, it was most terins as to induce their common manifest that they were the fa- acquaintance to believe he would vourite objects of the testator's leave him something very consithoughts, after providing, with derable. That this furnished a remarkable liberality, for all his reasonable motive for, and solufriends and connections, particu- tion of, the bequest in the third larly for Mrs. Henshaw's family, codicil ; that if this codicil was in who had large fortunes of their Mr. Atkinson's hand-writing, own, greatly owing to his good those in which he was not at all management of their property, benefited were so too; that it and to his having given her sons was written in a large, plain, lea large share of his own business. gible hand, all on one side of a It was stated, that Mr. Atkinson, sheet of paper; that the bequest far from intruding himself into to Mr. Atkinson occupied the upthe family, had been one of the per half of the page, the other




part being filled with the appoint- rities, which was done by this
ment of the trustees; that the tes- codicil ; and it would be absurd
tator not being a man of educa- to say that he had a sufficient ca-
tion, wished to have the aid of pacity to understand the lower
Atkinson, merely as to style and half of a paper lying open before
orthography; but that he signed him, and not to understand the
in a clear strong hand, and wrote upper half, when he executed the
in the date in words at length. It whole as his will in the most de-
was admitted that the writing by liberate and formal manner.
a legatee is always a circumstance After the arguments on both
proper to awaken the vigilance sides had been fully gone through,
of a Court, as to the necessary the Court adjourned for a week,
proof of execution and capacity, and reassembled on Wednesday
but that at Common Law if these last, when, after remaining four
be proved, the party setting up hours in deliberation, they de-
the will has discharged his bur- clared as before, that they were
then of proof; and it was denied satisfied of the validity of the will,
that the cases cited, had shewn and all the codicils except the
any different rule to prevail in third, but being equally divided
the Ecclesiastical Courts; that on that they gave no judgment.
indeed the fullest proof of execu-
tion and capacity must give way Doe, dem. Barford v. White.-
to positive proofs of fraud; but Mr. Serjeant Blossett moved for a
that the burthen of proving fraud new trial of this ejectment before
lies strongly on the party sugges- Mr.J.Heath, at the last Cambridge
ting it; that what is said of the Assizes, on the ground that the
3000). is merely loose inference, birth of a child after the death of
from words not technically used, the husband, the wife being then
and in a transaction not clearly four months pregnant, unknown
before the Court ; that at all to herself and her husband, ope-
events there is nothing to show rated as a revocation of the hus-
that the testator himself did not band's will. The rule of law is,
consider this sum as an ultimate that marriage and the birth of a
gift, and that it would be con- child impliedly revoke a bache-
trary to all justice to build upon lor's will; but in the case of Shep-
a vague conjecture a charge of herd v. Shepherd, in the Preroga-
fraud so deeply involving the cha- tive Court, it was held by Dr.
racter of a person who, upon the Hay, that a married man's will
evidence, stands high in point of shall not be set aside by the birth
respectability. That even if it of children. In the case of Doe
were necessary to corroborate the v. Lancashire, 5 T. R. 49, it was
proof of execution and capacity, held that marriage and the birth
by specific proof of knowledge of of a posthumous child amount to
the contents of this codicil, the an implied revocation of a will of
case supplied such corroboration; lands made before marriage ; but
for it was in evidence that the tes- in that case the pregnancy was
tator was fully aware of having known to the husband.
appointed the trustees of the cha- The court sanctioned the opin-

ion of Mr. J. Heath, that this was amongst them Taylor and his no revocation of the will; this wife. Taylor died possessed of was a step beyond Doe v. Lanca- property to the amount of about shire; and it would have been 4000l. and a bill in Chancery better if the law had held only was filed by the next of kin of the that marriage should operate as wife against those of the husband, an implied revocation of a will; to ascertain who was entitled to that was such an alteration of the this property, but the proceedings relations of a man, as might rea- were at a stand for want of a personably be supposed, to revoke sonal representative of the hushis will ; but there would be no band. Both parties, therefore, end to revoking it upon the birth applied to the court for letters of of every new child : besides, a administration generally, or that husband might intentionally suf- the court would suspend granting fer his will to stand, from a suspi- them to either party during the cion that the child with which his dependence of the Chancery suit, wife was pregnant was not his. and in the mean time grant to a And Lord Ellenborough men- nominee an administration limittioned an instance of a sailor who, ed to the purpose of substantiathaving early in life left his whole ing the proceedings in that suit. estate to a woman of very ordi- This latter prayer was, however, nary rank, went abroad and mar- abandoned, on understanding that ried a lady of fortune, and at last the court could not grant a limitdied possessed of a very large ed adıninistration where a geneestate, which went to the woman ral one might be granted, and in whose favour he had first made was applied for ; and the present his will, notwithstanding he had question, therefore, was, to whom acquired the greater part of it by the general administration should marriage.

be granted,—whether to the next

of kin of the husband as dying Taylor and others v. Diplock intestate, his wife not having surThis was a question as to a grant vived, so as to become entitled of administration of the effects of under his will, or to the repreJob Taylor, late staff or quarter- sentatives of the wife as his resimaster-serjeant in the Royal Ar- duary legatee, she having surtillery, deceased. He had made vived so as to become entitled in his will, appointing his wife, Lucy that character. Taylor, sole executrix, and sole It appeared, from the affidavits residuary legatee. Having been exhibited on both sides, that at for some time in Portugal on fo- the time the accident happened, reign service, he was returning Lucy Taylor was below in the cawith her on board the Queen bin, and her husband on deck. transport, when the vessel, in The water was rushing in fast, Falmouth harbour, struck upon a and he offered large sums to any rock, owing to the violence of the one who would go below and save weather, and sunk almost imme- her; but finding none would vendiately afterwards. Nearly 300 ture, he descended himself, and persons on board perished, and the vessel immediately afterwards



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