[succession - will, validity of - dower - equity, delay in]

Lord v. Birch

Supreme Court of Van Diemen's Land

Pedder C.J., 14 March 1838

Source: Hobart Town Courier, 23 March 1838 [1]

Before a Special Jury

Mr. Simon Lord, of St. Paul’s Plains, brought this action to try the validity of the will of the late Mr. Thomas William Birch. The evidence was of a very conflicting character, some of the witnesses deposing that Mr. Birch was not of sound mind when he made his will. Mr. Lord had married one of Mr. Birch’s daughters. The property is said to be worth upwards of £40,000. After a very long trial the jury returned a verdict for the plaintiff, so the property will be divided among the children. Had the verdict gone for the defendant, the whole property would have been locked up, as it is said that the heir-at-law is of imbecile mind, and a ward of the Court.

Source: True Colonist, 6 April 1838

In Lord v. Birch, the issue which was a feigned one, and directed by the Judges i[?] Equity, to try the validity of the will of the late Mr. Birch, on which depended whether the property, which is of great value, should be divided between the whole of the children of the testator, the widow taking a third of the whole, or whether it should all go to the heir at law, who is imbecile, subject to the widow’s dower, and the rest of the family be left unprovided for. The will, which was more rational, and just, than any other will that we remember to have seen, was attempted to be set aside on behalf of the heir at law, (we never could discover at whose instance or suggestion,) on the grounds that the testator was insane. The jury very properly found for the plaintiff, thus confirming the validity of the will. This extensive and very valuable property, will now be brought into the market, and divided amongst the family, as soon as the Judges have delivered their award, in equity, on the verdict of the jury. We understand that the Chief Justice would willingly have relieved the family from the great hardship which has been inflicted on them by delivering the award immediately, but the Puisne Judge being in one of his freaks, thought that it was a great display of dignity and independence, to refuse to sit in an equity case out of term, and thus the family are subjected to further loss, and probably expense for other two months. We understand that the loss occasioned to the family by the delay will, in consequence of the depreciation of property, amount with expenses to £5000, and we cannot possibly conjecture for what good purpose they have been subjected to it.