quite correctly given, appears at first sight strong and favourable; but the Court must consider, whether the bias and prepossession of the witness have not led him to colour his deposition in chief rather too highly. It must be recollected that the husband was present nearly the whole time. How far he may not have impressed, and by influence com

signified her approbation by saying, Very well,' or something to that effect. The deponent then made an appointment with the deceased for the execution of a will to be drawn pursuant to the said instructions; the 9th of March was named, after which he took his leave. Between the 5th and 9th of March, deponent suggested to his brother Frederick that, to remove all doubts as to the capacity of the deceased, and all responsibility from him, the deponent, as a professional man, it would be proper for Dr. Burrows and himself to attend with the deponent to be present at the execution of the will then in preparation, which was agreed to; and accordingly, the will having been engrossed from a draft will, which in the interim deponent had prepared from the aforesaid instructions, deponent attended at the deceased's residence at about 2 o'clock on the 9th of March, meeting his brother and Dr. Burrows there, so nearly at the same time, that they were all shown into the deceased's sitting room at once; finding there the deceased and her husband. A few complimentary words had passed chiefly between Dr. Burrows and the deceased, when deponent produced the will he had prepared for execution, telling the deceased, that it was the will which he had drawn according to her instructions,' or to that effect; and that he would read it to her.' The deponent then audibly and distinctly, and in a deliberate manner, read over the will. When he had read the legacy to the deceased's second maid servant, namely, as a legacy of 1504, the deceased stopped him, saying, 'I wish so and so (naming the servant) to have the same legacy as the other two servants.' Upon which deponent made an alteration in the said will, by striking the sum of 150l. through with a pen, and by inserting in lieu thereof, and over the same, the words 'three hundred' or 'three' instead of the words 'one' and 'fifty.' Dr. Burrows then in an under tone to respondent, observed, 'that Mr. Harding had better leave the room while his wife executed the will,' and deponent suggesting it to Mr. Harding, he did so. When Mr. Harding had left the room, the deponent read over a second time, that part of the will which he had so altered, and the remainder thereof, and having finished, the deceased signified her approval of it by bowing her head: deponent then handed her a pen, requesting her to sign her name opposite the seal (already affixed); the deceased made an attempt to sign her name, first, with her right hand, and then with her left; but she was unable to do it; her fingers appeared to be contracted and her hand unsteady, which previous thereto was unknown to the deponent. Deponent perceiving the deceased's inability to sign her name, took the pen out of her hand, saying, 'we must get you to sign with your mark, Mrs. Harding;' to which she replied, "Yes,' and the deponent, preparatory to such mode of execution, and to make the latter clause of her will, and clause of attestation conformable, altered the same severally, and, having done so, handed her the pen a second time, pointing with his finger to the seal, or place whereon her mark was to be made. The deceased accordingly made a cross: deponent then placed his seal on the wax impression, desiring her to lift it off, which she did: she next, at his desire, laid her hand on the will, and after his dictation, being so directed to do by him, she repeated the words, 'I declare and publish this to be my last will and testament, and request you gentlemen, present, to affix your names as witnesses thereto.' Dr. Burrows, Mr. Frederick Tyrrell, and deponent, then subscribed their names at the foot of the clause of attestation. While the witnesses still remained, deponent asked the deceased, 'what he should do with the will? to which she answered, 'I think you had better keep it for me:' upon which deponent folded up the said will and put it in his pocket. After the usual parting compliments, deponent withdrew in company with his brother and Dr. Burrows, leaving the deceased and her husband together. Sophia Harding was, as well on the day she gave instructions for her said will, as on the day and time of the execution thereof, as deponent verily believes, of perfect sound mind, memory, and understanding, and well knew and understood what she at such times said and did, and what was said and done in her presence, and was fully capable, as the deponent verily believes, of giving instructions for and of executing her last will, or of doing any other serious or rational act requiring thought, judgment, and reflection. Deponent has no doubt whatever of her capacity, having in the first instance his attention drawn in a particular manner to the enquiry of that fact, as aforesaid: she, at the times deposed, was evidently very debilitated in bodily strength, and had almost lost the use of her limbs; her speech also was affected; and at times, particularly on the day of his taking the in

pelled, her to say all this (if she did say it exactly as it stands upon the deposition in chief) may be suspected. There is sufficient to raise a presumption against the husband, that she was a mere instrument in his hands, and it was incumbent upon him to repel the presumption so raised. But it would be extraordinary if all did take place exactly in the manner the deposition is calculated to represent. Here is a long, smooth, fluent account of all the circumstances, which Harding had before represented to Mr. Edward Tyrrell; almost totidem verbis, all told without interruption; of her own accord; Harding not interfering, not dictating, merely supplying a date and the name of his co-executor. If this were so, it is extraordinary that Frederick Tyrrell after his first interview should have required the attendance of Dr. Burrows: if there was all this ready and active capacity, this clear expression of her wishes, it is extraordinary that Dr. Burrows should have desired a second interview, before he gave a decisive opinion of her being capable of making the sort of will he was induced to suppose she wished to make: particularly when, at this interview with Edward Tyrrell, Harding represented, that "the deceased had had a bad night and was not so well that morning."

But it is extremely difficult to reconcile this deposition in chief, so far as respects the spontaneity of the deceased, and the active part she takes in the communication to Mr. Edward Tyrrell, with what he himself states when pressed upon interrogatory. The Court cannot suppose that he has intended to give an unfair representation; but his bias may have caused him unawares, in his deposition, to convey a very incorrect impression of the real character of what took place. For example, he states this: "After deponent had taken a seat, as Mr. Harding did also, and after the deceased had made some inquiries after deponent's mother and other branches of his family, who were known to her, she proceeded to give a statement of her affairs." Now, on reading this account I was led to suppose that the deceased, recognizing Edward Tyrrell, began the conversation of her own accord, and therefore that her behaviour showed memory, intelligence, and alertness of mind, and all that might lead to the inference of spontaneity and capacity; and that this evidence was on that account important. Yet, on the eighteenth interrogatory, he says: "On entering the room, and being introduced by name, the deceased said to respondent, I hope you are very well,' and shortly after, I hope your mother is well:' she made the latter inquiry on respondent saying, 'that he had that morning seen his mother, who desired her compliments."" This gives quite a different character to the inquiry: the one account inducing a belief that the inquiry originated with the deceased; the other showing that it grew out of a previous observation, and was such a remark as a person in a state of great imbecility might well make.

In respect to this "statement of her affairs," it is difficult to reconcile it with his own answer on the third interrogatory: "At the interviews which the respondent had with the deceased, and at which he was pre

structions, she was for a moment flurried and shed tears; but the impression was very transitory; she soon recovered herself; on the day of the execution of the will, she was only once excited to tears, or apparently flurried; that happened, when deponent dictated to her the words of publication: she, for an instant, was then excited, but readily recovered herself, and repeated the words in a very firm and deliberate manner, showing that she knew and fully understood the import thereof."

sent with others, she did not speak until she was spoken to; when so addressed, she confined her answers, as much as she could, to monosyllables; but not always so: it appeared she did so on account of the difficulty of utterance under which she laboured: she never, in his presence, attempted spontaneously to join in general conversation: she only in general gave answers to the questions put to her, but she did, of her own accord, and not in answer to any question, make a statement to respondent on the day of his taking instructions for her will, viz. that she had been ill-used by the Marshes (her own words) and that she could not get an account from them, nor her will out of their hands.'" Here, again, is difficulty of speech: she seldom spoke but in answer to questions, generally only in monosyllables, yet she entered on a "statement of her affairs:" but what does the witness specify?—that she had been "ill-used by the Marshes, and could not get her will." These are the very circumstances about which Harding had been "worriting her," and might now either have impressed on her weakened mind or compelled her to hold out: or they are the mere repetition of what Harding had previously told Edward Tyrrell. It was the tale that was to be told and that might easily be learnt. As to "not getting the will,” either she was capable or incapable: if capable, she must, I repeat, have been aware of the duplicate delivered to Apostles, and have purposely concealed it: if incapable, then she might have forgotten the existence of that duplicate, but then she would not have had mind and memory sufficient to remember the contents, nor consequently to revoke her will. But what is the ostensible reason?" The Marshes had used her ill." Is that true? or, if true, does it account for cutting off all Mrs. Amelia Marsh's children, and passing over all her other friends, and abandoning all the other peculiarities of the wills of 1816 and 1818?

Again, how does Mr. Tyrrell state in chief the actual instructions? "After Mr. Harding had so left the room, deponent and the deceased being left together, the deceased said, 'I wish to leave my property to Mr. Harding after my death, and a legacy to each of my old servants.” ” Now on reading this, it would be supposed the deceased, the moment she was left alone with Mr. Tyrrell, began the conversation, and of her own accord commenced giving the instructions, perfectly understanding, and spontaneously proceeding with, the transaction intended to take place; and in that view, as far as capacity was concerned, it would be a favourable fact: it would not indeed go far as to the control, marital authority, and undue influence of the husband (the more important branch of the case); for it was a short lesson easily imprinted and remembered, which was to be submitted to and repeated. But when the witness is: pressed upon interrogatories, it has not even this circumstance (favourable at least to the capacity) of the deceased proceeding of her own accord to give the instructions: for, on the twentieth interrogatory, Mr.. Tyrrell answers, "The instructions given by the deceased for her will were given freely by her, but not until respondent put questions to her on the subject: no third person was present. After two preliminary questions, (viz. whether she wished the will made by Delmar to be revoked; and to make a new will; to both of which the deceased answered 'Yes.') Respondent asked her, To whom she wished to leave her property?' she answered, To Mr. Harding after my death.' 'What! the whole of your property?" "Yes, the whole, except legacies to my servants.' Respondent then requested her to give him the names of the

servants, and amount of their legacies, which she did with some difficulty, that is, she was not able to articulate their names readily; and she did not appear to have made up her mind till then as to the amount of such legacies. Mr. Harding at this period returned into the room: respondent inquired, who she would have as executors? She said, Mr. Harding,' and, turning to him, added, and the gentleman you named.' Mr. Harding said, 'You mean Mr. Tyrrell of Lincoln's Inn:' she answered, 'Yes.'" This gives a very different colour to the business: even these short instructions, instead of originating with the deceased or being delivered of her own accord, are extracted from her by interrogatories.

The Court has no reason to impute to the witness any intention to misrepresent; but he was duped: he was prepossessed: he had had repeated conversations with Harding: he had got thoroughly impressed that the deceased thought herself ill-used by Marsh; that she could not get her will; that she wished to make a new will and to give her property to Harding: he was not aware of the disposition in the former wills-the considerations on which they had been made-the manner in which they had been adhered to-the fruitless attempts Harding had made to get the deceased to take her concerns out of Marsh's hands and to transfer them to himself: not knowing these circumstances, perhaps it may be too much to impute to Mr. Edward Tyrrell even a want of vigilance, in allowing himself to be so imposed upon by Mr. Harding, or a want of penetration and sagacity in not suspecting his objects. But, hearing that there had been a former will and that the state of her mind was doubted, it is to be regretted that he did not inquire a little more into the contents of that former will, and probe the mind and memory of the deceased as to the disposition she had before made and was now about to revoke. Seeing also the large property she had at her disposal under these deeds of settlement made in the year 1816, how weakened she was in capacity, and how entirely the origin and conduct of this new will was managed by the husband himself-every thing passing in his presence except mere formalities-it is to be regretted that Mr. Edward Tyrrell's penetration did not point out to him the propriety and importance of satisfying himself, that there were no marital authority and undue influence interposed: and yet all he hunts after is a little testable capacity to give effect to a testamentary disposition, which, upon the previous representations of Harding, he allowed himself to believe she really wished to make.

If the instructions, with the previous visits of the two medical men, do not satisfy the mind of the Court as to the testamentary intentions of the deceased, the execution, on the ninth of March, carries the case no further. Here are the same sort of inquiries made: the husband is present, except being sent out of the room for a minute, just while the formality of the execution by the attempt to sign takes place. There is, however, the single circumstance of her desiring George's legacy to be increased and made the same as the other two servants. Whether ́even that circumstance is not more like a cunning artifice, devised by Harding, in order to give the deceased the appearance of capacity, than the spontaneous desire of her own mind, may admit of some doubt; for neither George's station, nor the length of her service, nor the deceased's former estimate of it, lead to her being placed on the same level with

Rigden and Apostles. (a) It may have been, and it looks, like a contrived suggestion of Harding; for his conduct has exposed him to every suspicion.

On the 11th of April the deceased has a fresh paralytic attack, and yet on the 21st here is a codicil obtained from her, which, Mr. Edward Tyrrell being out of town, Mr. Timothy Tyrrell is employed to prepare. He comes with the same prepossessions and impressions derived from Mr. Harding, and he ventures upon no better ground to communicate the same prepossessions and aspersions to Dixon, the medical attendant; for on the fourth article he says, "Deponent briefly stated to Mr. Dixon, that Mr. Marsh had prevailed on the deceased to make a gift to him of 10,000l. and had procured from her a will in his favour, and also, unknown to Mr. Harding, a settlement of her property." There is no proof of one nor of the other: the will is not in his favour, though it is in favour of part of his family. "That she had since made a will revoking that in favour of Mr. Marsh, and that the last will was in favour of Mr. Harding." All this he states as fact upon mere hearsay, proceeding from no better source than the imputations of a most interested party -the husband-who was getting a new will, almost exclusively in his own favour. Here the husband is still more directly an agent; he is the medium of communication between the deceased and the witnesses, the deceased being by the last paralytic attack rendered so weak as to be unable to express herself intelligibly to Mr. Tyrrell.

What then is the Court to consider this codicil?-the wish of a capable testatrix, or the fraudulent contrivance of the husband to give a semblance of confirmation to the will? The witnesses were off their guard, for, since it was to the prejudice of the husband, they might easily have pinned their faith upon him as to the volition of the deceased, not discovering that he might have quite a different object in view. The codicil confirms the will, but what is its disposing object?-to give rings to three near and dear friends of the deceased-the three Misses Binstead. The deceased by her will had given them an annuity of 100%. with benefit of survivorship: a ring is now substituted! that change is not very probable: but the fatal fact is, that two of the Misses Binstead were dead! the death of one, if not both of them, must have been known to the deceased. Harding might not have known either event, for the deceased does not seem to have been in much confidential communication with him; but what must have been the state of her capacity when this codicil was obtained? The transaction lies under a strong suspicion of being a contrivance to give the appearance of confirmation to the will: and it is the only confirmation; for as to any recognition of the act, through any disinterested parties, there is none.

The case in my judgment might rest here: but there are detached circumstances which throw some light upon the character and conduct of the transaction.

Repeated applications were made to Marsh for money, but all access to the deceased was prohibited him: drafts were drawn and presented, one for 4007., a second for 100%., and a third for 100%. When the drafts were presented, the signatures were suggested not to be the hand-writ

(a) It appeared from Rigden's evidence on the eleventh article and thirteenth interrogatory, "that he went into the deceased's service, as footman, in 1795; Mary Apostles, as housemaid and lady's maid, in 1799; and Mary George as cook, in 1804."

VOL. IV.

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