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Decisions of the Superior Courts of New South Wales, 1788-1899

Bullivant v. Ikin [1838] NSWSupC 67

succession, insanity of testator - succession, drunkenness of testator - ejectment - land law, title - insanity - dower

Supreme Court of New South Wales

Willis J, 4-6 July 1838

Source: Sydney Gazette, 10 July 1838[ 1]

(Before Mr. Justice Willis and a Special Jury.)

Bullivant v. Ikin. -- This was an action of ejectment brought by the plaintiff to obtain possession of a cottage in Cumberland-street, left to the plaintiff by the will of the defendant's father.  The action was resisted on the ground that at the time Ikin made the will he was non compos mentis.  The principal witnesses for the plaintiff were a daughter of the testator, who proved that she was desired by her father to go for Mr. D. Chambers for the purpose of getting him to draw up a will, and Mr. D. Chambers himself; and as the plaintiff's case principally rested upon his testimony, we have given his evidence entire:--

Mr. David Chambers said -- I am an attorney of the Supreme Court; I recollect being called on to make a will for Alexander Ikin in the latter end of October, but I cannot remember the day of the month; Miss Ikin called upon me for that purpose; it must have been between the hours of nine and ten; I do not know that she called at my office more than once; she told me her father was unwell, and wished me to prepare his will; and she requested me to go to his house for that purpose; I knew Ikin, but I had not seen him for five or six years before that time, and all the knowledge I had of him was preparing a conveyance of some property for him to his son-in-law Hatfield; I did not know where he lived until the girl told me; about an hour or two after she called on me I went to Ikin's house; as well as I can recollect the girl told me to call on Mr. Bullivant who lived next door to Ikin; I had not known Bullivant before that time; I cannot recollect distinctly whether I went first to Ikin's or to Bullivant's , but my impression is that I called first at Bullivant's, ad that he accompanied me to Ikin's house; I went into a room on the left side of the door at Ikin's house; Bullivant was with me, and we found Ikin lying on a sofa; he awoke at our entering, and I think Bullivant told him who I was, and that I had come to prepare his will; I received my instructions from Ikin, who told me how he wished to dispose of his property, namely, to leave it all to his son and unmarried daughters, except the cottage in question, which he wished to leave to his sister, Mrs. Bullivant; I then discussed with him the necessity of his having trustees, on account of all his property being freehold, and his children, except his son, being all minors; Bullivant joined in the discussion respecting the trustees, and suggested to Ikin one or two persons who were fit for trustees; I pointed out to Ikin the necessity of having solvent persons as trustees, as the trust was very considerable; some persons were named as trustees at the time, but I went away before Ikin had made up his mind who to appoint; he did not object to the appointment of trustees, indeed he saw the necessity of their being appointed, and I told him to consider the matter and name them to me when I went again; the difficulty seemed to be in getting decent and respectable persons to accept the trust; two persons named Bray and Peat were named, but they were not determined upon; other persons were also named but not decided upon; during the time I was taking my instructions from Ikin, Mrs. Ikin was in and out of the room, and the son was also present; Mrs. Ikin was exceedingly violent, and objected to any will being made; she made a great noise, and talked so fast that I cannot remember the exact words she used, and I paid little attention to what she said, but went on quietly taking my instructions; when she appeared so violent on the trustees being named, I suggested that she should be nominated as one of the trustees, but I did not then know her habits; on my mentioning her name Ikin and Bullivant looked at one another very significantly, and smiled, and Bullivant then made some remark about her not being a fit person to be nominated; Ikin told me not to mind her noise, and I did not mind it; I took the instructions to my office and gave them to Mr. Minithorpe, my conducting clerk, who is also an attorney of the Supreme Court, and requested him to make a draft of the will; I cannot say whether it was the day after the will was drafted that I again saw Ikin; and I rather think that the girl called on me a second time to request me to call on her father; on my second call on Ikin I took the will with me, and Mr. Minithorpe accompanied me to witness it; I found Ikin in the same room in which I had formerly seen him, and it was evident to me that he had been drinking recently; on this account I at first hesitated about letting him execute the will, but after I had examined him in the presence of Mr. Minithorpe, two other witnesses, and his wife and daughters, and I think his son also, on the instructions he had given me, in order to satisfy myself that he was sufficiently collected, and these person agreeing with me that he did know what he was about, I determined that he should execute the will; I should have deferred the execution of the will, but considering that in case he might die before he came to the full possession of his faculties, his intentions as to the distribution of his property would be defeated, I proceeded to read the will to him, and as it was written in legal language, I particularly explained the meaning of the clauses; he then seemed to understand it on my explanation; I produce the will witnessed by Mr. Minithorpe, John Gibbs, and James Pashley; I was altogether unacquainted with the two witnesses who were called in at my suggestion about the trustees; Thomas Bray and George Peat who had been named on a former occasion, were fixed upon; Bullivant asked me if I had any objection to be a trustee, and after some hesitation I consented, and entered my own name with Bray and Peat as joint trustees, but when I heard young Ikin object to the will, and state that his father was not able to make one, and when I also saw Mrs. Ikin so violent I struck my own name out of the will; I did not know the trustees named, and I think they were suggested by Bullivant on the first occasion, or rather one was named by Bullivant and one by Ikin.  Before the will was executed it was found that no provision had been made for Mrs. Ikin; I do not know how the omission occurred, but it was so; there was then a discussion about making provision for her; Ikin wished to leave her a small house in Sussex-street but I suggested to him that the demise of a house to her would interfere with the other trusts of the will, and he then said he would leave her twenty five shillings a week; I then pointed out to him that the best way of providing for her was, authorising the trustees to set apart out of the sale of his property such a sum of money as would realise an income of five-and-twenty shillings a week; I had at this time ascertained what her habits were, and I saw them by her demeanour when I was there; this arrangement was consented to, and I entered a codicil to that effect on the will, which authorised the trustees to invest the sum of £625 and pay he interest to his wife by monthly payments during such time as she remained unmarried in full satisfaction of dower; at first Ikin did not like to leave her so much as 25s., but I suggested that if he left her less she choose to take her dower, and if she did, the trust would be embarrassed; he then agreed to it; I took the will with me for two reasons -- first, because Ikin had been drinking and was under the effects of drink when he signed it; and secondly, because from the erasures and interlineations, it was so rough that it had not a good appearance; I accordingly drew out another will, and I then found that there had been a mistake in the first one, in which the property that had been intended for the unmarried children, according to Ikin's instruction, was devised in trust for all his children; that blunder in the first will had escaped my notice; I think it was the day after the first will had been signed that I went to get the second executed; I know that it was prepared immediately, and I am certain that it was drawn on the third and executed on the fourth of November; the date of the second will was filled up at Ikin's house; I went myself to have the second will executed and he was not then under the influence of drink.

Mr. Chambers was cross-examined at great length upon this evidence, but did not vary from the point that when he went to receive the instructions Ikin was perfectly sober: that when the first will was executed, although Ikin was labouring under the effects of drink, he was perfectly competent to execute a will, and knew what he was about; and that, when he executed the second will, he was quite sober.

Mr. Foster, for the defendant, contended that from habitual drunkenness, to which in fact the plaintiff (who is a publican) had pandered, Ikin was not in a fit state to make a will when he did so, nor had he been for some time.

A great many witnesses were called, who proved that Ikin had been a dreadful drunkard, so much so that some of the witnesses doubted whether he had been sober for the last six years.  The consequence of this was that Ikin laboured under strange hallucinations, and was, in fact, often insane.  To give the whole of the evidence on this disgusting point would be superfluous, and we shall therefore only give the evidence of Dr. Nicholson, the most important witness called for the defendant.

Dr. Nicholson said - I attended professionally upon Alexander Ikin for a length of time before his death; on one occasion I asked him whether he had made a will, and what disposition he had made of his property; after repeating the question to him two or three times, I found that his intellect was so obscured by drink, and by his dissolute habits, that it was difficult to make him understand me; he at last stated that he thought he had made a will; this conversation occurred in what I call one of his lucid intervals, and he answered to one of my questions, ``I have left the children all alike;" some person, I think one of his daughters, who was standing by, said that was not the purport of the will he had made, that he had not left anything to his married daughters, and I asked him about the discrepancy between what he told me, and what was stated by his children, and he seemed quite unconscious of what his will really was; my conviction was that he was quite unconscious of what he had done; I think that the lucid interval was then drawing to a close; I am still of opinion that by carefully explaining the tenor of any proposition and making him repeat it sentence by sentence, he might be made sensible of it meaning during those lucid intervals, but they were extremely rare, and of very short duration; when I say lucid intervals, I mean the times when he was free from the influence of drink; I never saw him perfectly sober during the three years I attended him, until the last day or two before his death, and then he was bed-ridden and could not go out to procure spirits; he made an allusion to an attempt his wife had made to poison him, but her conduct to him in my presence, was assiduous and exemplary.  It is exceedingly common for persons labouring under insanity to suffer from hallucinations, supposing those persons who are the most attentive and kind to them, to be their greatest enemies; I recollect seeing Ikin at Bullivant's on one occasion; he had his usual modicum of rum before him, and was in his usual state of excitement, half inebriated; this was in the morning about ten o'clock, but I cannot say whether Bullivant was with him; this was in the month of November, and he must have got progressively worse from that time, but his constitution had been destroyed years before; there were moments in which he was lucid and capable of forming correct notions of what he was about, but they were rare; when I spoke of gradual decay, I meant that of his body, his mind had been in the same state two months before his death; his mind was characterised by the same imbecility two months before as it was at his death; I did not know until two or three days after he had done so, that he had made his will; I never saw such a drunkard in all my life; I think that if he had given up drinking spirits entirely he would not have lived so long as he did; taking a small quantity by a drunkard always gives relief in cases of delirium tremens, and I should say that a person of his habits would be more collected after taking a moderate quantity, than if he took none; I attended him every second or third month for three years; immediately after sleep a person of his habits would be more collected than at any other time; I never saw Bullivant at Ikin's house; Mrs. Bullivant was there constantly, and was as attentive to him as Mrs. Ikin was; but I must say that she did not appear to be a peacemaker in the family; I don't know that Mrs. Ikin was an habitual drunkard; I never saw her drunk although I have seen her hundreds of times, I saw her once after the death of her husband partially excited; I saw Mrs. Bullivant give Ikin food but I do not know who prepared it; I was anxious to see Ikin's solicitor as I thought he might possibly prepare the will without being aware of Ikin's state of mind; in fact I anticipated the very circumstance.  I thought there might be litigation in the matter; I had often urged him to make his will before this; I do believe that he was capable of making a will at the time this will was executed provided he was free from drink, and from those phantasies to which he was subject, but it would require considerable discretion and judgment to become acquainted with those times -- I must add that having been told by some of the family that he had made a bequest of a house to Bullivant, I asked him whether he had done so and he said -- No.

When His Honor was about to sum up, the foreman of the jury told him that most of the jury had taken notes of the evidence, which was fresh in their minds, and there was no occasion for him to read his notes.  His Honor told the jury, that notwithstanding the habitual state of mind of Ikin, if, at the time he made the will, they considered he was lucid and that it was his intention to leave the cottage to Bullivant, they would find a verdict for the plaintiff.

The jury retired for a few minutes and found a verdict for the plaintiff.

The case lasted the whole of Wednesday, Thursday, and Friday.

Counsel for the plaintiff, Messrs. Foster, Windeyer, and Broadhurst, attornies, Messrs. Chambers and Thurlow.  For the defendant, Mr. Attorney General and Mr. a'Beckett; attorney, Mr. D. Chambers.

 

Notes

[ 1]See also Australian, 10 July 1838.

Published by the Division of Law, Macquarie University