Swinfen v Swinfen
| Jurisdiction | England & Wales |
| Judgment Date | 22 April 1858 |
| Date | 22 April 1858 |
| Court | High Court of Chancery |
English Reports Citation: 175 E.R. 862
QUEEN'S BENCH, COMMON PLEAS AND EXCHEQUER
[584] oxford circuit,. 1858 Stafford Summer Assizes, coram Byles, J swinfen v. swinfen. (On an issue demsavit vel -non, it appearing that at the time of the will the testator was in extreme old age, and in the last stage of bodily infirmity, bed-ridden, utterly helpless, and dependent on the care of the plaintiff (sole devisee of the realty), and a nurse (the only legatee), and a physician, an attesting witness, and an intimate friend of the devisee, her own attorney (another witness), having prepared the will, upon instructions elicited by himself from the testator by interrogatories, they having a few days before represented him as " quite incapable of managing his own affairs, or taking care of his person " ; and it being admitted that two or three days before he was not competent to make the will, yet the jury, being told that if he understood the state of his property, and his family, and the effect of the will, and if he had free volition, aftd the will wag IF. &F, 685. SWINFEN V. SWINFEN 863 really in accordance with his intentions, and there being evidence that it was, a verdict in favour of the will was not disturbed ) [Prior proceedings, 2 De G & J 381 , 18 C B. 485 , 1C B , N. S 364 Subsequent proceedings, 24 Beav 549 ] ThiB was an issue, devisawt vel non, directed by the Master of the Rolls, to ascertain whether Samuel Swinfen, the testator, at the time of making the will (dated 7th July, 1854), was of sound mind and memory The plaintiff was the devisee of the real estate under the will The defendant, Captain Swinfen, was the testator's heir-at-law Kennedy, Gray, Cripps, and Macnamara for the plaintiff Edwm James, Huddleston, and Henry James for the defendant The testator, who was eighty at the time of his will, became possessed of the family estate, called Swinfen, in 1828 He had a brother John (a lunatic), and a son named Henry, who, with his wife (the plaintiff), in 1851, then came to live at Swinfen Hall, and by degrees the son took the management of the testator's affairs In 1851, his writing was tremulous with age In 1852, the testator devised the estate to his son, who had previously devised all his property to his wife, the plaintiff. Down to 1852, he appeared to understand business, but in October, 1853, he had ceased to have the power even of writing cheques, and his son always after that signed them for him In November, 1853, the testator, who was now very infirm, took to his room, and afterwards to his bed, and from that time [585] hardly any one but the plaintiff and her husband, the nurse (Mrs Taylor, a legatee under the will), and Dr Rowley (an intimate friend of plaintiff), ever saw him. He was unable without their aid to discharge the common offices of nature, and was totally helpless and dependent on their assistance On the 15th of June, 1854, the testator's son Henry (his heir) died , and there was evidence that the testator was aware that his son had made a will, devisang all he had to his wife, the plaintiff Soon after the death of the plaintiff's husband, Mr John Charles Simpson came to stay at the hall, and remained there until after the will On the 18th of June Mrs. Rowley (wife of Dr Rowley, who saw the testator daily) wrote to a friend., '' He (the testator) is happily spared the affliction of this mournful event (his son's death), being through great loss of memory not able to dwell many moments on the same subject " On the 19th he underwent a painful operation, by which he was quite prostrated, after which he was described as making incoherent ejaculations from time to time On the 20th the plaintiff consulted her solicitor, Mr Simpson, about her position, and he told her it was altered, that the testator's former devise was lapsed by her husband's death, and that her husband's will, leaving her all his property, was of course inoperative to pass the estate. Dr Rowley stated :-" About three days after the son's death the testator spoke to me, and was anxious to make his will. He frequently said, ' Poor Henry ' ' He likewise said, ' I wish to provide for Mrs Swinfen ' I asked him what he meant to give her ? His answer was, ' I shall give her Swinfen ' I said, ' For her life I suppose, sir ' He said, ' I shall give her Swinfen ' " On the 26th Simpson saw the plaintiff and the testator's brother, and they had conversation on the subject Simpson admitted that he then had an impression that the testator was childish, and incompetent to manage his own affairs, and it was agreed that he should consult his agents He [586] then wrote to them forwarding a " case," in which it was stated that the testator had become gradually " quite incapable of managing his affairs, or taking care of his person , that he had been m this state some months ; but that there were moments when he recognized familiar persons." The answer, received on the 28th June, suggested that it was a case of senile imbecility, and that it would be well to have the certificates of two medical men This was shown to Dr Rowley, a medical man, who had known the testator for twenty years, and who attended him then and down to his death. Dr. Rowley said, Simpson spoke to me on the 28th He declined to certify unsoundness. Dr. Evans, another medical man, saw the testator, with Dr Rowley, on the 2nd July, and both declined to certify unsoundness On the 3rd July, Dr Rowley mentioned the matter of a will, and Simpson wrote to his agents that the testator was " roused " by the death of his son, and was anxious to make some provision for his family, and that, with occasional fits of apathy and eccentricity, he was competent to make a will On the 4th July, Simpson saw both the doctors who, when asked if the testator was incompetent to make a will, said, " Not physically, but he is of feeble mind " Dr. Evans thought the " instructions must be postponed " Dr. Rowley said, '' On the 2nd July, when Dr Evans came and saw him in bed, 864 SWINFEN V. SWINFEN 1 F. & F. 587. I said, ' I understand you wish to make your will, sir.' [ don't think lie replied at all Dr. Evans repeated the question, and spoke very loudly There was no answer I leaned on the bed and said, ' Do you wish to provide for Mrs. Swinfen, sir,' and he made no answer. Dr Evans then turned to me and said, ' You must not put the question in that form ' " The witness said, " On the 4th, Dr Evans saw the testator again, and said that the case must be postponed On the 5th, Simpson said the testator was not in a humour to communicate with him On the 7th the will was read to him distinctly, and he was asked if it was what he meant, and he said distinctly, ' Yes ' " [587] On the 5th July, Simpson saw the testator and " took instructions " for the will, of which his notes in pencil were as follows ò- July 5th, 1&54 Mr. Swinfen says he wishes to provide for Mrs Taylor (the nurse), not more than £20 Mrs Swinfen (the plaintiff) not the personalty. Not Swinfen ?-I don't know Mrs. Taylor £20 a-year. Will you give Mrs. Martin anything ?-No. Was she honest ?-No When shall he come again ?--When we come again. Will you have the will made ?-Yes, very good Will you do it ?-Yes, Mrs S. Is Mis. Swinfen £ -Any Will you give her Swinfen, but how ?-Not, I mean (yes) (a). Very good. Then again on the following day the notes were :- July 6th, 1854. Do you wish to see Mr Bacon ?-No. Mrs. Taylor very attentive to me Yesterday you said you would leave her £20 a-year. Very well , I think that is not too much. Have you seen Mr Chawner lately ?-No. Frank, a scamp, at Lapley. Is Mrs Swinfen below ? Oh ' dear me (6) I ana sorry to give you so much trouble I gave him his former will to read, and showed him his signature He said, I know that. I wish to give all this property. I wish Mrs Swinfen to have S I wish Mrs. Taylor to have £20 a-year I wish Mrs Taylor- Do you want her ?-Yes Shall I fetch her for you ?-Thankey Mrs Taylor having come up, he said to her,-Is not £20 a-year about the mark ? She brought some strawberries and went away He ate them. The unfortunate (death) -Yes. [588] Mrs Swinfen in his place You had left all your property here to your son Do you wish her to stand in his place ?-I don't know Mrs S for things here, give her, give He placed his finger on these notes and said something I did not catch Do you wish Mrs Swinfen to have the furniture and moveables ?-I think so. He pointed and said,-Read it I read the formal parts of a will, and then the bequest to Mrs Taylor. I said, do you understand that?-Yes How much have you given to Mrs Taylor ?-£20 £20 a-year ]-Yes This estate to Mrs. Swinfen Do you leave to Mrs. Swinfen this estate ?-Yes The Swinfen estate ?-Yes. (a) Sic in the original; strikingly showing how incoherent and unintelligible the instructions were (b) Obviously an ejaculation of pain or of uneasiness IF. &F. 589. SWINFEN V. SWINFEN 865 He Baid,-Well, what have you put down ? I told him what I had put down, and that Mrs. Henry Swinfen is to have it at your death ?-Yes The widow of your son ?-Certainly The pictures ?-Yes Where is your father ^-Below. Whom do you make executor, Mrs 8 or Mr. C . or both ?-Not both, but I don't mind which. I am going to Mr. S , can I do anything for you ? No, I thank you. Open the door, Mrs Swinfen came I said I would come again between 10 and 11 on the morrow (a) He said,-Very well. Before she came he said, when I proposed the same thing,-I want to get rid of it. The writer of the above notes, the attorney of the plaintiff, was of course called as a witness for her, and had to give explanations and interpretations of the notes, often (as will be seen) unintelligible He stated that he went to him between ten and eleven on the 7th, and that the will was then read over to him, and executed in the presence of the witnesses, and that he understood it The witness's words were, " On that day I did not observe anything defective in his mind I...
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