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

Hillas v. Hillas [1839] NSWSupC 63

succession - Supreme Court, ecclesiastical jurisdiction - lunacy - costs

Supreme Court of New South Wales

Dowling C.J., Willis and Stephen, 12 September 1839

Source: Australian, 17 September 1839[1] 

The Chief Justice delivered judgment. in the cause Hillas v.Hilla[s].

This was a libel in the Ecclesiastical Jurisdiction of this Court, by Mark Hillas of Stanhope Farm, in the county of Cumberland, farmer; against John Hillas and George Hillas, of Argyle, graziers, and William Bradley of Goulburn, gentleman, propounding and praying probate of the last will and testament of John Hillas, late of Stanhope Farm, yeoman, deceased, bearing date the 23rd February, 1837, and made and published in the presence of Martha Wood, John Hegin, and John Armistead, gentleman, attorney at law, and constituting M Hillas, J Hillas, G Hillas, and William Bradley, executors thereof.  The three last named persons having refused to join in proving the will, alleging that it was not the last will of the testator.  Mark Hillas prayed probate to himself alone, with costs.

To this libel J. Hillas, G. Hillas and W. Bradley, put in a responsive allegation, and propounded four articles.  First, that the testator was not of sound and disposing mind, memory and understanding, on the 23rd February 1837, when the will propounded by M. Hillas, was alleged to  have been made and published.  Secondly, that the making and signing of that will, was not the free and spontaneous act of the deceased, but was procured to be made and signed by him, by the arts and contrivances of M. Hillas, who took advantage of the weak and unsound state of the deceased's mind for that purpose.  That at the time his signature was so procured, he was wholly unable to comprehend or understand the terms or nature of the instrument he was signing, and in fact, was a person of unsound mind and incapable of making his will, or doing any act of that or the like nature, which required thought, judgment, and reflection.  Thirdly, that the deceased had been for about a month before, and at the time of the making the said will, extremely weak both in mind and body, and labouring under d[e]lusions, and had almost wholly lost his memory, and continued in the like state up to the time of his death, which took place very shortly after the 23rd February 1837; and Fourthly, that the deceased did on the 17th August 1829, duly make and publish, his last will and testament in writing in the presence of J. Bradley, W. Cross, and A. Cross, and afterwards on the 26th June, 1834, did make and publish in writing, a codicil to that will in the presence of J. Bradley and J. Hegin, and afterwards on the 19th August 1835, did make and pub[l]ish another codicil thereto, in the presence of J. Bradley, J. Hegin, and D. Brien, and by said will did appoint J. Hillas, G. Hillas, and W. Bradley, executors thereof; and that the deceased at the several times of making and publishing the said will and codicils, was of sound and disposing mind, memory and understanding; and that deceased whilst he remained in a sound state of mind, did frequently after the making of his said will and codicils, declare to said Jonas Bradley, who had been for many years extremely intimate with the deceased and much in his confidence, that it was his intention never to alter such will and codicils.  The fourth article then propounded and set forth verbatim the said will and codicils, and prayed probate thereof to J. Hillas, S. Hillas, and W. Bradley, with their costs.

In the determination of this case which has been so ably and elaborately argued, it is unnecessary to enter into any lengthened consideration of the immense mass of evidence adduced on the one side and on the other, nor need the Court offer any opinion upon the credit due to the testimony of the several witnesses, who have been examined.  It is sufficient to advert to such facts as raise the true question upon which our decision must be governed.  Conceding that the testator was in a sufficiently competent state of mind to execute a will, the true question is, whether at the time he executed the will of the 23d February, 1837, he considered, and understood that he was revoking his will of 1829, and the codicils to that will attached.  That question may be determined without the slightest impeachment of the testimony of Mr Armistead and Dr. Stuart, to which the utmost credence may be given, and yet leave the question alluded to, quite distinct for consideration.

The material facts upon which our present decisions turns are these: -- In the year 1828, the testator made and published a will duly attested to pass real estate.  On the 17 August 1829, he executed another will in like manner, which had been prepared by Mr Jonas Bradley, an old neighbour and friend, whereby he expressly revoked his will of 1828, and on the 26th June 1834, and on the 19th August 1835, he executed respectively two codicils to his will of 1829, which were drawn by the same old friend and neighbour.  The will of 1829 was deposited by him for safe custody, in the care of one Matthew Pearce, a neighbour; and after Pearce's death it was left in the care of his widow Martha Pearce, who kept it locked up in a chest until after the testator's death in March1837.  The will was contained in a tin box, of which John Hillas, the testator's son, kept the key.  Mrs Pearce had received strong injunctions from the testator to keep the will safe, and not to let his son Mark Hillas get at it.  He was occasionally speaking to her about the will whenever he saw her, and desi[r]ed to see it as late as two years before his death.  The deceased was addicted to drinking spirituous liquors, and about a year before his death, his health began to decline, and he became bedridden from thence until his death.  Mark Hillas, his eldest son, appeared to have resided chiefly at Van Diemen's Land, but came to this colony occasionally.  His son John, who was stated to be a favorite, did not live with the testator, but conducted his father's farming concerns up the country and managed his affairs generally.  On the 18th February 1827, the testator became suddenly ill, when Mark Hillas, who then resided at Parramatta, came to see him.  It did not appear what became of the will of 1828 immediately after it had been revoked by that of 1829, but Mark Hillas became possessed of it; in what manner was not proved.  There was no evidence that he knew of the existence of the will of 1829 and the codicils thereto.  On the 22nd of February, he employed a convict schoolmaster named Bridges, to prepare a codicil to the will of 1828, which was signed in the middle of the night in the testator's name.  Early on the morning of the 23rd February, Mark Hillas called on Mr John Armistead, an attorney, then only about six months in the colony, to come out to Stanhope Farm and prepare his father's will.  Mr Armistead, who was a perfect stranger to the family, came immediately to the testator's house, and then ascertained that Mark was the son of the testator.  Mark Hillas met him in the yard of the house, and he asked him how his father was?  he said, ``he is a little better, but he is at present asleep -- you had better come in and take some breakfast, and by the time you have eaten it, he will be awake and you can see him."  A short time afterwards, Martha came and said, ``my father is now awake and you can see him." Mr Armistead then went into the adjoining room and found him lying on his back ou [sic] a bed sofa.  Martha Hillas said, ``father, this is the lawyer come from Parramatta, to make a codicil to your will."  Before Mr Armistead went into the room, he requested to see the testator's last will and Mark Hillas produced the will of 1828, and also a codicil on a separate sheet of paper, which he stated the schoolmaster had made the day before.  After Mark Hillas had so spoken to his father, the latter turned round and said, ``oh! is it."  Mr Armistead then said to the testator --`` I understand Mr Hillas you wish to make some alteration in your will, and I perceive by your last will, that you have divided your real property equally amongst your four sons" (one of them James, being in fact then dead), `` and I wish to know is that still your intention?"  He said ``yes, except John."  Mr Armistead then said, ``I perceive by the last codicil you have made" (speaking of that drawn by Bridges), ``that you have made an exception to your son John, on account of certain lands purchased by him, and which you consider ought to be yours.  Is it your intention, if your son John does not allow of those to go into the general estate, he is to be debarred from any interest under your will?"  He replied ``yes."  At this time he was in a very weak state.  Mr Armistead took down in writing a memorandum of his wishes, and retired into an adjoining room, and prepared a draft of a will.  He then went alone into the testator's room, and read over the draft to him slowly, and asked him if those were his wishes and intentions?  He said ``yes."  He then asked him did he wish any other alteration to be made.  He said ``no, he did not."  Mr Armistead then retired, and made a fair copy of the will for execution.  When ready, and the witnesses in attendance, he returned to tho [sic] testator's room, and sat down on a chair close to him, and read over the will sl[o]wly, deliberately, and audibly, in the presence of the witnesses.  He then asked him if that w[a]s his last will and testament, and if he requested himself and the other persons present to be witnesses thereto.  He replied ``yes."  His voice was rather feeble.  He was lying on his back, and he had a thickness in his speech, which Mr Armistead attributed to the position in which he lay.  He did not seem to be in pain, and had a sort of stupor and heaviness about him.  Mr Armistead said to him, ``Mr Hillas, I am afraid you will not be able to sign your name, but if you will make your mark it will be quite sufficient."  His reply was, ``I think I can do it, if they will bring me the little foot stool."  Mark Hillas brought a sort of writing case or desk, and placed it on the bed, and raised his father up a little.  Mr Armistead then put the will on the desk, and gave the pen into the testator's hand.  From the position in which he was lying on his back, he had no support to his wrist in order to enable him to sign his name.  Mr Armistead then placed his left hand under his wrist to support his hand for that purpose.  The testator wrote his name very slowly, letter by letter.  After he had so signed his name, the will was attested by the witnesses.  Before leaving the house, Mr Armistead went into the testator's room to bid him good bye.  He shook hands with him, and said, ``I hope, Mr Hillas, you will soon be better."  The testator took hold of his hand and said, ``I hope now you have made it all right."  He replied, ``you may depend upon it Mr Hillas; I have done everything according to your wish."  He then left the house.  Mr Armistead said, that at this time he thought the testator was sinking, and had not long to live.  He saw, however, nothing with respect to his mental faculties which would not induce him to make his will.  He considered from the answers he gave him, that he was of sound and disposing mind.  This was the only opportunity he had of forming a judgement of his competency to make a will.  When the testator signed, he said to him, ``do you declare this to be your last will and testament, and request us to be witnesses thereto?"  He said ``yes."  On his cross-examination, Mr Armistead said that it was from the will of 1828 (revoked by that of 1829), and the codicil prepared by Bridges, that he principally collected the testator's intentions.  He made a memorandum of what the testator said in his presence, on half a sheet of paper, but he was not positive that he had read it over to him.  He asked him if the persons named in the codicil as executors, should be continued as his executors, and he said ``yes."  In some measure he got all the instructions which were in the will of 1828, and the codicil made by Bridges.  He got no distinct instructions from the testator, but what he obtained by putting leading questions from the instruments alluded to, considering him in such a weak state of body.  Upon putting a leading question to him, he at once saw that he was in a very weak state of body, though his mind appeared to be quite sound from the answers he gave him.  At that time he was not aware of any doubt entertained by any body as to the state of his mind.  There was no allusion made by any of the family upon the subject.  All the parties were strangers to him, except Mrs Green, the daughter, whom he only knew by sight, and did not know till then she was a daughter of the testator's.  He had the will of 1828 in his hand and shewed it to the testator and said, ``I perceive by your last will, &c.," and read those passages to which he alluded.  The testator m[a]de no observation as to his having made a will subsequent to that of 1828.  He thought the testator could not have read that will, in the weak state in which he then was.  The will did not leave his (Mr Armistead's) hands.  The testator did not read it to him; he only refreshed his memory as to the different devises and bequests.  He went through the will -- read it to him, and then asked him as to the alterations before mentioned.  He did not think that he mentioned the date of the will to him.  He spoke to the testator of it as his last will, conceiving that it was so.  He fancied that the testator was almost in extremis, but from the whole of his demeanour he was more convinced, when he last left him, that his mind was perfectly sound.  He had no misgivings at all about his mind; he only thought he was sinking very fast.  The circumstance of his asking for the foots[t]ool, and wishing to sign his name, convinced him that he was quite competent, and understood what h[e] was doing.

Giving full credit, as we undoubtedly do, to the circumstances thus stated by Mr Armistead, and without adverting to the other evidence relating to this or any other part of the transaction, the question, is, whether the will of 1837 was a revocation of the will of 1829.  It could not be intended as a revocation of the will of 1828, for at that time the will of 1828 was an absolute nullity, it having been revoked by the will of 1829.  Was it then a revocation of the will of 1829?  In order to render it operate as a revocation of that will, it must be clearly shewn in evidence by those who have propounded the will of 1837, that the testator was aware, or considered, that he was revoking the will of 1829.  It must be left to mere implication of inference.  There must be some distinct proof of consciousness that he intended to revoke, and had in his mind a sufficient memory of that will, to render the last will prepared by Mr Armistead, a revocation of the former.  Had he the intention to revoke in his mind, and was that intention expressed; all the evidence, not only negatives he fact, but even rebuts the presumption.  It was clear that his attention was not called to the will of 1839, and that he did not at all allude to it himself, or had it in his memory or consideration.  Mr Armistead knew nothing of the will of 1829, nor did it appear that even Mark Hillas knew of its exi[s]tence.  There were no instructions proceeding direct from the testator himself.  There was no spontaniety -- no voluntariness emanating from uninvited concurrence: Mr Armistead's instructions were obtained solely by putting leading questions to the testator, founded upon the will of 1828, and the codicil to that will prepared by Bridges.  The instructions originated with Mr Armistead, not with the testator.  All the authorities go to shew that there must be some expressed intention by the testator to revoke a former will.  In executing a last will, it is not sufficent to shew that the testator had sufficient capacity to make a will as a mere mechanical act; it must be made manifest that in making his will, he considered in his mind he was revoking all former wills, and comprehended the consequences of the act he was performing.  Now here there is nothing to shew that the testator had any memory of his will of 1829, or considered in his mind that he was revoking that will.  The testimony of Mr Armistead and of Dr Stuart, is perfectly consistent with the capacity of the testator to make a will as a mechanical act, but there is no evidence to shew that in making the will of 1837, he considered that he was revoking his will of 1829; unless it appeared that he remembered his former will, or expressed an intention to abandon all his testamentary dispositions, it could no be determined that he had revoked his former will.  There is here wanting proof of a revoking capacity.  His competency of mind to revoke must be judged of by the nature and consequences of the act, and the circumstances accompanying this act.  Having reference to the nature and consequences of this act, and the circumstances accompanying it; it appears to us, without going into a review of the numerous cases which have been acted, that we must pronounce sentence against the will of 1837.

It remains therefore to consider whether we shall grant probate of the will of 1829.  This will is alleged by way of responsive allegation, and is not propounded in a cross libel, although the responsive allegation prays probate.  Perhaps in strictness, it ought to have been propounded by a cross libel; but shaped as the pleadings are, the validity of both wills are respectively put in issue, and therefore we may deal with it as if a cross libel had been filed.  No replication has been filed by Mark Hillas to the responsive allegation to his libel.  Both parties appear to have come prepared to consider the question, to which will probate should be granted.  The will of 1829 has been duly proved, and no attempt made to impeach its validity.  It appears therefore to us that we are bound to pronounce sentence in favour of that will; but, under all the circumstances we think it must be without costs.

When the Chief Justice had delivered judgment, the Attorney-General said that the costs in this case of such importance that he hoped the court would keep the question open, and hear argument from counsel on it.

Mr Justice Willis said that his mind was made up upon the question, and could not be altered by any argument which might be addressed to him by counsel.  He could not in conscience consider this a case of costs, and he had come to this conclusion by a careful examination of the merits on which the case had been decided.  He would do Counsel the justice to say that every thing that could be, had been urged in the course of the proceedings; but the question of costs was purely on the merits, and the facts which had come so fully before the court could not be altered by argument counsel.  However, for his part, he was ready to sit and hear what could be said, although he had felt it to be his duty to state his already formed opinion.  The decision had been arrived at from the evidence which had been adduced, and no case could be brought forward by counsel which would alter the peculiarities of this particular case, and consequently could not alter the decision of the Court which was formed upon these peculiarities.

Mr Justice Stephen said, that he did not see how the question could be kept open, as there had not been any reservation of the question of costs by counsel, and it was now too late to urge it.  The case had been of great doubt and difficulty, and must rest solely on the events which had been gone into very elaborately, and from a full and very careful examination of the whole facts, the Court had come to the decision that Mark Hillas had had probable cause for taking proceedings, and ought not to be saddled with costs, as he might have conceived himself to be in the right.

The Chief Justice said, that he had been of opinion that it ought to be a case for costs, but he was bound to bow to the united opinion of his learned brethren; and as their decision was final, there could be little use in counsel addressing argument to the Court, to shew that his opinion was right.

Mr Justice Stephen said, the case resolved itself into the questions.  Was there probable cause for litigation?  Was there room for doubt?  Two of the Judges, after a careful review of the whole evidence, had formed their opinion that it was not a case for costs.  If the question was to be opened again, the Court would have to go into all the evidence again, and after all it would have to be decided on the merits.

The case was finally determined to be without costs.



[1]  See also Sydney Herald, 13 September 1839; Sydney Gazette, 14 September 1839.  For an extremely long record of the trial, see Australian, 18, 20, 23 July 1839; and for brief notes, Sydney Gazette, 18 July, 3 August 1839.

Published by the Division of Law, Macquarie University