Saturday 15 November 1828
New Times (London)
MARSH V. TYRRELL AND HARDING
This case, which was fully argued on the last court day, related to a question arising on the will of Mrs. Mary Harding, of Walworth deceased. The will propounded was executed in March, 1827, and by this will the testatrix left the bulk of her fortune, amounting to about 35,000L. to her husband, Mr Harding.
The testatrix also left another will, dated so back as April, 1818, in which Mrs Harding left the bulk of her property to Mr Marsh, of the firm of Marsh, Stracey and Co., bankers, and to his family.
The will of 1827 was now opposed by Mr Arthur Cuthbert Marsh, on the grouted
executed her fortune, n March, wort h, lB7: and deceased. by this The will amounting to about 35.000L. to her husband, Mr. Harding. The testatrix also left another will, dated so far back as April, 1818, in vvhich Mrs. Harding left the bulk of her property to Mr. Marsh, of the firm of Marsh, Stracey, and Co., bankers, and to his family. The will of 1827 was now opposed by Mr. Arthur Cuthbert Marsh, on the ground that it was invalid, inasmuch as the testatrix was not of a sound mind, and competent to dispose of her property, when the will was executed; and also that, in executing this will, she was under the control of her husband, and did not exercise her own free will.
The KING’S ADVOCATE having been heard in support of the objections to the will of 1827 on the last court day.
Dr. LUSHINGTON now addressed the court on behalf of Messrs. Tyrrell and Harding, the executors of the will propounded. After noticing that Mr. W. Marsh, the father of Mr. A. Cuthbert Marsh, and the party who was chiefly interested in setting aside the will, was not a party in the suit, proceeded to observe on the credibility of the Witnesses who spoke to the capacity of the testatrix, and the circumstances under which the will was executed in March, 1827.
The witnesses were Mr. Edward Tyrrell, the solicitor, Mr. F. Tyrrell, a surgeon of St. Bartholomew’s hospital, and Dr. Burrowes, a physician of great eminence. The only reflection on Mr. Edward Tyrrell’s testimony was, that he was, at the period of the execution of the will, and for many years anterior, the friend and solicitor of Mr. Harding, and, upon that account, it certainly was proper that the court should receive his testimony with caution.
Mr. F. Tyrrell was the brother of Mr. Edward Tyrrell, but did not appear to have had any professional connexion with the family of Mr. Harding and as to Dr. Burrowes, his evidence was free from all suspicion, for he had no connexion whatever with the parties. He had the reputation of great knowledge concerning all diseases affecting the mind, and, therefore, in giving his evidence in this case, he had no other object in view but the preservation of his high character.
If the court found the evidence of those three witnesses correspond and unite, and that it furnished no other discrepancies but such as arose necessarily, he submitted that the court could entertain no doubt as to the veracity of the statement deposed to it.
Dr. Burrowes’s testimony as to the capacity of the testatrix was stronger than the evidence of Mr. E. Tyrrell and Mr. F. Tyrrell, and, therefote, reflected back on them, and corroborated their testimony on this point in the strongest manner.
Mr. E. Tyrrell having learned that Mr. Dellmar, who had formerly been the solicitor of Mrs. Harding, had stated he considered her incapable, adopted those precautions which it became a respectable solicitor to take. He applied to his brother, a surgeon of great respectability, and who, of course, would not have allowed him to draw discredit on his character by taking instructions for a will from an incapable person – and he subsequently, as a matter of extraordinary precaution, called in Dr. Burrowes, not because Mr. F. Tyrrell had any doubts as to the capacity of the testatrix, but because he was desirous that his opinions should be corroborated by that of a person who had devoted his attention particularly to diseases of the mind.
Dr. Burrowes visited the testatrix for the purpose of ascertaining her capacity, having previously learned that she had several attacks of paralysis. He remained in the room with the testatrix for three quarters of an hour, and it was impossible to contend that solong a visit, a person of Dr. Burrowes’s character and discrimination must not have ascertained that fact if the testatrix really was imbecile. Imbecility, the court would remember, was very different from insanity. The latter might have been lurking in the mind, and concealed for several days; but imbecility was permanent, and quite capable of being ascertained during a short intercourse. D r . Burrowes, however, felt the responsibility of his situation
He made a second visit, when he expressed his conviction that situation, claiming, that the testatrix was fully capable of disposing of her property. After all these means of precaution had been adopted, Mr. Edw. Tyrrell took the instructions for Mrs. Harding’s will, under circumstancet which he contended must tend to bring the court to the conclusion that she was perfectly capable.
After the ordinary salutation, Mr. Tyrrell having observed that he had seen his mother that morning, .Mrs. Harding, who was acquainted with Mrs. Tyrrell, said, “And how is. your mother!” She then informed Mr. Tyrrell that she wished to leave her property to Mr. Harding, and legacies to three of her servants. She then named the servants, and the amounts which they were to receive; and it was worthy of notice that, whilst she was giving those instructions, Mr. Harding was not in the room, and that he immediately acquiesced in the suggestion, previously made by Mr. Edward Tyrrell, to call in Dr. Burrowes, in order to have his opinion.
The conduct of the testatrix at the period when the will was executed was equally indicative of her capacity; and in a month subsequent, at her desire, a codicil was executed, in which she left three rings to three parties. Two of those parties were dead when the codicil was executed, and this fact was rered on to show that the deceased was incapable; but he submitted that there was no proof that the testatrix was acquainted with the death of the parties to whom she left the rings.
When signing this codicil the testatrix was asked whether she confirmed her will, and she replied distinctly that she did; and Dr. Dixon, who was called in to see her on that day, added his testimony to that of the other witnesses that she was perfectly capable.
The learned civilian then entered at great length and with much minuteness into the evidence of the witnesses to support the allegation that the testatrix was imbecile and incapable. He submitted that the evidence of those witnesses was insufficient and contradictory, and that their opinions were not entitled to credit, from the circumstances under which they had formed their opinion, and the bias under which they had given their evidence.
He alluded, with considerable severity, to the testimony given by Mr. Lambert, a young medical man, who had visited the deceased for ten minutes, and described her as “a negative being,” and one who was labouring under great imbecility and fatuity; and he afterwards defined fatuity as a state of the brain which rendered it incapable of exercising its functions.
The precipitation and ignorance manifested in the testimony of this witness, the learned counsel contended, was not to be weighed for a moment in the balance against the character, experience, caution, and sober judgment evinced by Dr. Burrowes; although it might happen that Mr. Lambert himself, who was only twenty-five years of age, might consider his opinion of equal weight.
Almost all the servants in the house of the testatrix were examined, and some of those witnesses stated that the deceased could not articulate more than a single word, whilst others stated that she conversed and gave her orders as usual until a few days before her death.
The learned counsel was proceeding to advert to some supplemental evidence which was given in, when he was interrupted by The JUDGE, who suggested, that, as the hour had arrived at which the court usually rose, the further hearing of the case should be postponed until Friday next. The court was then adjourned to this day se’nnight.