[Caveat Board - will, forgery - succession]

Murphy v. Daly

Supreme Court of Van Diemen's Land

Pedder C.J., 6 October 1837

Source: Cornwall Chronicle, 14 October 1837[1]

This was an action directed to be brought before the Jury by the Commissioners of the Caveat Board, to decide a question that has been the subject of much litigation - the question to be decided is, whether a paper purporting to be a copy of the will of the deceased Timothy Daly, be genuine or not.

Mr. A. Stephen, for the plaintiff, stated, there were three questions to be determined, viz: - lst - Whether, in fact, it was his last will and testament, 2nd - Whether it was as is by law required, attested, 3rd - Whether this document is a real copy of an original will.

The Council concluded his speech by saying, that if the Jury were of opinion, that the principal witness, Joseph Bond Clark, together with Quin[sic]. And King, have not perjured, (for these can be no mistake) then they are bound to give a verdict for the plaintiff - her claim has been advertised 3 times via the Gazette - no Caveat put in - but it is merely for the satisfaction of the Commissioners to ascertain the truth. Will left with Mr. Simpson, but could not be found after Mr. Simpson’s death.

Joseph Bond Clark, sworn. - I knew Timothy Daly, deceased; I know Hannah Murphy since the latter end of 1830; T. Daly lived at High Mount, about 2½miles from Launceston; plaintiff lived with him as his wife some time; she was called Mrs. Daly, and sometimes Mrs. Murphy; there were two children, which I have repeatedly heard him speak of as his; Mrs. Murphy is their mother; Mr. Daly and I were intimate acquaintances up to his death, about 4 years ago; in the latter end of 1830, or beginning of 1831, Daly was a licensed publican at High Mount; at the end of 1831, he said he was very much indisposed, from a fall he had some time previously, and he should like to make his will, and would send for Wallace Turner to make it; I told him I would do it as well as Turner, if he would explain his intentions; I told him to write down his intentions; he wished particularly to secure the old woman and his two children; I drew out memorandum on paper, of what his intentions were, and then made out the will, ready for his signature; he was perfectly satisfied that it was according to his wishes; I read it to Mr. Daly, and he read it himself; I said to him, this must be signed and attested as your last will and testament; I asked him who should witness it: he said Quinn, who is here, and King, who are both neighbours, and have known my affairs many a day; they were then both called in; Daly said to them, I want you to witness a will I have made, to secure the old woman and the children; Quinn then asked him, what have you done with the last will I witnessed of yours, with Henry Boyle? To the best of my recollection, Daly said, I don’t know whether it was lost or stolen, with my other papers; I told him I ought to have a copy of that will; he desired me to do so, and keep it; he then executed the will; I made a copy of it, and then Daly said, I shall place this in my friend Mr. Simpson’s hands, for fear that any accident may befall me, or I may be shortly taken off. The copy was compared by Quinn, King, and myself; I think Quinn compared it by taking it into his hand; both copy and original were lying on the table at the same time; I should know the copy again; Daly told me shortly after, that he had placed the original in Mr. Simpson’s hands; this is a true copy of the original, that Daly signed; my own, Quinn’s and King’s signatures are to it; the original had a seal to it; I swear this is a true copy; I signed Daly’s name in the copy; it was executed 7th Nov. 1834, to the best of my recollection; Mr. Simpson died in 1832; I never heard of Daly having executed any other will since; I had the copy in my possession and produced it for the first time[???], I think in June or July, 1834.

[This witness underwent a most rigid cross-examination from the Attorney-General, who conducted it in a strain of irony, that kept the Court in continual laughter. The Learned gentleman sarcastically alluded to the very excellent character the witness had received from Mr. Stephen. Nothing, however, was elicited, to induce him to alter his evidence.]

Timothy Quinn - corroborated his friend, Mr. Joseph Bond Clark‘s evidence as to the making of the Will, except in the important fact, that instead of Mr. J. Clark signing the copy, Mr. Daly did so himself.

Charles King - confirmed the statement of the last witness.

William Phillips was sworn - but being drunk, his evidence was not taken and he was ordered out of Court.

Mr. David Williams, sworn. - I often heard Timothy Daly say he would make his will and leave his property to his children and Mrs. Murphy. He had been hurt by a cart; and a few days afterwards he told me he had got his will made by Peter Fowler; this was about nine or ten years ago; about five or six years since I heard him speak of another will; he said he had made a fresh one, and had made over a farm at High Mount to his daughter, and another to his son after Mrs. Murphy’s death; he said his will was done by Clark; Daly often went to Mr. Simpson’s.

Mr. W. T. Stocker and Lewis W. Gilles, Esq. were examined - but their evidence was of no importance to the case.

The Attorney General suggested to the Jury that the whole circumstances detailed in evidence as to the making of the will, are highly improbable. He had no doubt that it was the intention of the deceased to dispose of the property in the manner stated - indeed, it is very probable that he did actually execute this very will which is now brought forward as a “copy” of his original Will. The discrepancy in the evidence of Joseph Bond Clark (who swears, that he signed Daly’s name) and that of the other two witnesses, who attest it (Quinn and King) who both swear, that Daly signed his own name to the “copy;” contradictory as that evidence is, and unsupported by other proof, and considering the character of the witnesses - it would be setting a bad precedent were the Jury in this case, by returning a verdict for the plaintiff, to countenance what might be of endless injury to the community at large.

[The trial lasted so late an hour at night (10 o’clock), that we are unable to do justice to the whole of the Attorney General’s remarks.]

Verdict for the Defendant.

Notes