Nicholas v Nicholas, 1839

[ejectment – land law – Stephen, Alfred, leaves Van Diemen’s Land – succession, validity of will]

This was an action of ejectment brought by the plaintiff, as heir-at-law to the deceased Mr. Nicholas, late of the Nante, in the district of Bothwell, against the defendant, his third brother, to whom the Nante estate was, as defendant alleged, willed by the deceased, and the object of the present action was to impeach the validity of the will.

Mr. Stephen appeared for the plaintiff. The Attorney and Solicitor-General were counsel for the defendant.

Mr. Stephen having explained to the jury, that the pleadings were of a character purely fictitious, proceeded to state the plaintiff’s case. He said he appeared before them as counsel for the plaintiff, whose story, as it was detailed in his brief, he must say, seemed to him one of peculiar hardship, meriting the sympathies of the jury - deserving that, which he was quite persuaded, at their hands, it would obtain - their attention; and if he was correctly instructed, the facts which he had to lay before them were of such a kind, that they must ensure a verdict for his client. He must state to them, in the first instance, that his case was not without difficulty, for his learned friends, on the other side, would admit nothing - not even that the present plaintiff was the eldest son of the late Mr. Edward Nicholas, nor that Mr. Edward Nicholas himself was seised, as it is technically called - in plainer terms, that he was, at the time of his death, in possession of the Nante estate. As to the latter of these facts, he should have no difficulty whatsoever in establishing it in evidence; and with respect to the former, if he was driven to it, he had the plaintiff’s own mother in attendance, who would, beyond all controversy, prove the fact. But he was anxious to avoid calling her, since it was part of his case to-day, that the writing called a will was the work of her own solicitation, and that in his latter days her unfortunate husband never enjoyed a moment’s ease until this instrument was extorted from him. If he was correctly instructed, the whole current of her kindly feelings ran in favour of the defendant, and were most bitterly, at all times, expressed towards the plaintiff. To him - to his wife and his family of children, it would be seen, by the testimony of the witnesses whom he should call before them, that she invariably expressed herself in language which would leave no doubt on the minds of the jury, that “she hated them with a perfect hatred.” Although therefore, he could at once prove the heirship of the plaintiff, by putting his mother in the witness box, yet, inasmuch as he felt he could establish it by other evidence, he should very reluctantly avail himself of her testimony. It would appear in evidence, that the deceased, Mr. Edward Nicholas, originally arrived in this colony about sixteen or eighteen years ago. The present defendant, and his fourth son, Henric Nicholas - now living near Jericho - accompanied him. His wife - his eldest son - the plaintiff - and his second son, remained in Wales. In 1824, he believed it was, he returned to England. Although he found but little favour in his mother’s eyes, yet he should know that his father invariably spoke of him with feelings, not only of kindness, but with pride, and regarded him as very much superior, in point of mental qualifications, to either of his brothers. Some years since, Mr. Edward Nicholas - the deceased - met with an accident, by falling from his house, which very seriously affected him, both in mind and body. From its effects, however, he had completely recovered when, by a similar accident, he was again reduced to a state of imbecility, and whilst in this condition, it was that he was perpetually practised upon by the undue solicitation of his wife - by which worn out - exhausted - he at length was induced, not indeed to make a will, but to give an appearance of consent to that which was constructed for him - not by his own desire - but by the importunity of Mr. Nicholas. This he should prove to them most satisfactorily, and even, therefore, although they should be of opinion that the paper termed a will was signed by Mr. Nicholas, yet if that was done through undue solicitation - if they were of opinion that his mind was sufficiently sound for the performance of the ordinary duties of life - if to regulate his business he was ever so capable - yet if in their opinion, such an overwhelming dominion was exercised over him, as to prevent his mind’s free action - such a supposition, if justified by evidence, was inconsistent with the possession of a disposing mind, and the will must fall. But another, and a far more important question arose, had this instrument ever been executed? Had it ever been signed by the person whose will it professed to be? On this point, if he was rightly instructed, the jury could not have much difficulty in arriving at a correct conclusion. At the time that instrument bore date, Mr. Nicholas, as he had already stated, was labouring under an indisposition, the effects of which extended far beyond his physical suffering. At that time, such was his physical suffering, however, that he could not reach his hand to his head, and yet at this time, they would, on the other side, have you believe that the signature to that will was written by Mr. Nicholas. The jury would examine it, and they would see at once that it was written in an extremely bold hand - with ink of a much darker character than that in which the names of the witnesses were written - and if such evidence were admissible, which His Honor would determine, he would undertake, by men skilled in such matters, to show that the signature was an imitation. He did not mean, however, to charge either the defendant or his mother with having forged this signature. Indeed, he believed it was not the hand-writing of either of them. Neither should he charge any person with having committed this act, for he was not instructed with sufficient accuracy to enable him to state by whom it was committed. But there was at this time, or if not now, at no considerable time since, in the service of the defendant, a very intelligent person who had for a similar crime been sent out to this country, and who was a most skilful imitator of hand-writing, but he was not prepared to assert, that even by that person this signature had been fabricated. Compared, however, with the admitted hand-writing of Mr. Nicholas, deceased, it was obvious that the signature was not in his hand-writing; but this was a matter he should not leave to inference, he should prove distinctly, by one of the witnesses to this supposed will, that although signed by the witnesses, and in the presence of Mr. Nicholas too, it never was signed by him. This he would show by the evidence of Mr. Quick, at that time holding the responsible situation of Government Schoolmaster at Bothwell, by whom the intended will was prepared. Mr. Quick would prove most distinctly, that he received his instructions exclusively from Mrs. Nicholas - that when the will was prepared, Mr. Thomson, one of the witnesses who was absent from the colony, happening to call at Mr. Nicholas’ was there when Mr. Brodie, another of the witnesses, called for the purpose of seeing him, and that they were asked to witness the will, but that they attached their signature to it, never having seen Mr. Nicholas sign it. To explain this apparent negligence on the part of the witnesses, it was necessary for him (Mr. Stephen,) to inform the jury, that on that day, or on the day before a sale had taken place at Allanvale, and Mr. Brodie and Mr. Thomson were so much engrossed with discussing the prices at which stock sold, that they paid no attention whatever to the scene before them. They were not in the room with Mr. Nicholas altogether for five minutes, and whilst there they were engaged in the manner he had described. All this he should prove by the testimony of Mr. Quick, who was a most respectable person, and as his avocation in life would suggest, a well informed man. They would find, from the evidence he should produce before them, that he was, whilst in a state of almost infantile weakness, continually importuned by his wife to make a will, and as often did he resist on such occasions, invariably expressing an anxiety to see his son Edward. It was on one of these occasions, when, in the weakness of his mind, and the pain of his body, he yielded, for rest’s sake to the worrying of his wife, that Mr. Quick, the schoolmaster, was sent for to make his will. It is undeniable that the deceased, in the presence of Mr. Quick, Mr. Thomson, and Mr. Brodie, saw a paper which was dictated to Mr. Quick by his wife, and he may have, in his then weak and worried condition, have assented to it; but an instrument thus extorted, from a weak and dying man, the law declared to be utterly worthless. He should show that he gave his assent to it merely for the sake of peace and quietness, but that he repeatedly declared it never should stand, and that at this time particularly, he expressed an extreme desire to see his son Edward. Such was a brief and uncoloured statement of the facts of the case which he had to make out before them in evidence. Every technical difficulty had been thrown in their way, by the refusal of the Attorney and Solicitor-General, who conducted this case on the part of the wealthy defendant, to admit anything. But he had nothing to fear for the result. There was something so shocking - so revolting - in the treatment of the deceased - in the circumstance of importuning a man in an almost dying state - worn out in body - depressed and exhausted in mind - to make a will, that he entreated the jury to weigh well the evidence by which the accusation was sustained, and if they found it was well sustained, he was convinced that the plaintiff would establish the best, and the most unexceptionable claim to their verdict. He need scarcely say, that every right-minded man in the community was interested in a verdict which would consign to utter worthlessness a will so improperly and so scandalously obtained.

The first witness called was Mr. John Sherwin, who said that he knew the plaintiff, and had known his father, Edward Nicholas. He was dead; he died last October twelve months; witness had, for 13 or 14 years, known him. At the period of his death, he resided in a small cottage on the Nante estate, the property he had at first granted to him. The defendant was in the occupation of the Nante estate at the time of old Mr. Nicholas’ death, except a portion of it about the cottage in which the deceased resided. Witness understood that he occupied the Nante estate under a lease from the deceased. He understood this from the defendant, and also from the deceased.

The Chief Justice intimated to Mr. Stephen - as we understood him - that it was not very prudent for him to go more particularly into this lease, or it might serve to defeat that section.

Mr. Stephen said, he had never before heard of this lease, and trusted that this objection would not prevail, since it would only have the effect of compelling them to bring a fresh action.

Cross examined by the Attorney-General: - The defendant was in possession of the Nante estate some time before his father’s death; two or three years, as well as witnesses remembered.

The Attorney-General here submitted, that as this witness proved a possession by the defendant, of the locus in quo at the time of the testator’s death, it was a waste of time to go farther. The Plaintiff must be non-suited.

The Chief Justice said it would be better to permit the plaintiff to close his case.

Witness continued - he had not seen much of the deceased for six months before his death; he had frequent opportunities of conversing with him; he had repeatedly heard him speak of plaintiff, he always spoke of him as a very indiscreet man, who had not at all improved his condition in life; who would always waste and destroy everything; plaintiff arrived in this colony five or six years ago, and witness had heard the deceased speak of him, both before and since his arrival, and he always spoke of him as a man altogether deficient in prudence. Witness knows the defendant, who is the third son of the deceased; has heard the deceased speak of him, and he always spoke of him and his fourth son, Henric, in the same terms; he used constantly to say, that they had been of as much use to him in getting what he had, as he had been to himself, and that therefore he should leave his property to them; that he had already given his son Henric so much, but he did not say whether he should give him more or not, and that his will would be made accordingly for his two sons here, his daughter and grand-daughter, and that he had one son in England, established on a farm; he frequently spoke on the same subject; when family matters were mentioned; witness knew that his two sons - the defendant and Henric - had assisted him. The decreased was a shrewd, sensible, and intelligent man.

In answer to His Honor - The witness said that he had seen the deceased after his first accident, but not since the last. He had seen him several times, and the vigour of his mind did not appear to him to be at all impaired.

Mary Wise - Said she was the wife of George Wise, and was well acquainted with the late Mr. Nicholas; she also knew the plaintiff, and has heard the deceased say that plaintiff was his eldest son.

The Solicitor-General objected to this evidence of heirship. The learned gentleman said, that he ought, perhaps, to apologise to the Court for submitting a proposition so plain as to amount to what might be deemed an axiom in the law of evidence - namely, that the best evidence must always be given - and in this case, by the very statement of the counsel for the plaintiff, he withholds the better evidence from the consideration of the jury. He avowedly reports to inferior testimony, because, by the production of the plaintiff’s mother, he might weaken his case. She is under the roof of your Honor’s Court, and as at all events, it must be admitted, that her evidence has nothing in it of that imperfection which belongs to mere hearsay evidence, I submit that she should be examined.

The witness continued - The plaintiff came out about six years ago, and she had frequently heard the deceased Mr. Nicholas speak of him as his eldest son.

John Harris. - Said that he had lived with the deceased for two or three years, and had left him about six or seven months before his death; he knew him in England for upwards of twenty years; deceased was a farmer and freeholder at home, and so was the witness; he lived near him at home, and when they were young gentlemen together, they were accustomed to ring a peal of bells on the first of May, as they belonged to the same company of ringers; he recollects the deceased having thrown from his horse at Bothwell, the soldiers carried him home much injured; he could get no speech from him, and thought he was dead; he continued ill a long time, and witness helped to turn him in the bed for a month or upwards; recollects Edmunds, a servant of the deceased, being sent for Mr. Quick and Mrs. Davis; on that day deceased asked witness if he knew where his son Edward was; witness told him he did not know, and deceased then asked him if he could go and fetch him. Witness proceeded - “At this time my old mistress came to the door and ordered me out, saying she did not want to see her son Edward, or one of my family. I heard my old mistress, many and many a time, speak to my master during his illness, about making a will; and then I have heard her say she wished to see her son Edward, and all his children hanged together, and that she would go and see them hanged; she said him should never make a will for his son Edward. He told me that he wanted to do something for his son Edward; that he had made gentleman of his sons George and Henric, and that he would do no more for either of them. I heard Master George ask him to make a will one morning particularly and he came out in a desperate rage into the kitchen, and said - slamming the door after him as if it would come down – d__n the place; I did not hear what George said to his father; I remember Mr. Brodie, Mr. Thomas and Mr. Quick, bring at my master’s, and in my master’s bed-room; it was some time about the sale of Allanvale; my master was then very poorly, confined to his bed, unable to turn himself without assistance. He was not strong enough that the day to have signed his name; he could not lift his hand to inches off the bed that day.

Cross-examined by the Attorney General - I don’t know who Mrs. Davis is; she is a woman and lives at Bothwell with her husband; I don’t know what he is, whether a sawyer or not; I have heard Mr. Nicholas speak to his wife about his son Edward; he said he had done nothing for him of any consequence, since he came to the country; the day that Quick and the other gentlemen were in the bed-room, my master could not have been moved to the sofa; a dead man could have walked there as easily; it is quite ridiculous to think he could write his name that day; I left Mr. Nicholas seven or eight months before he died; the last conversation I had with him he went out of the door thirty or forty yards before me, and then he shook hands with me, and said - John, John, if there should be any dispute about my will between the parties, mind you tell the truth.” This was the day I left for the hospital with my broken arm. Witness here produced a memorandum, written in a very lady-like hand - I had this wrote in the hospital, because I told them the words my old master had said to me that very day.

Q. - No - but I knew young Quick the schoolmaster at Bothwell - is not that Quick’s writing?

Elizabeth Davis - said that her husband lived at Bothwell, and that he was a sawyer; she nursed old Mr. Nicholas for seven or eight weeks; she recollected Brodie, Thomson and Quick being in the bedroom, and Mrs. Nicholas gave Mr. Thomson a paper, which they called will; Thomas looked at it, and then signed it, then handed it to Brodie, who looked at it for not above a minute, and then laid it down, and put his signature to it, and then it was given to Mr. Quick, and he put his signature to it; it was then handed to Mr. Nicholas to put his signature to it, to which he objected; he said he should not put his signature to any will or testament of any kind at that time, but when he was better he would go to town, and Mr. Allport should draw one for him according to his own instructions; they then all left the room, and Mrs. Nicholas wrapped the paper up, but it was not signed or sealed, and Mrs. Nicholas said it was no matter about the seal until he signed it, which old Mr. Nicholas said he would never do; Mr. Nicholas was lying on the sofa on his left side when the paper was signed; he might have seen the will, but it was impossible for him to tell what was in it as they never read it to him; Mr. Brodie was in the room when he refused to sign it.

Cross examined by the Solicitor-General - She knew Mr. Wheatley well enough; he had frequently provided her with a lodging at night, but it was well known to the people at Bothwell that it was all through false swearing; he was the district constable at Bothwell, and on these occasions her lodging was in the watch-house; she might have told Mr. Wheatley that when under the influence of liquor her head was a little wrong, but all she meant by that was, that she was subject to fits which was very well known to the people at Bothwell.

Nathaniel Simpson Quick - Said that he was schoolmaster at Bothwell, and intimately acquainted with the late Mr. Nicholas; he had at the dictation of Mrs. Nicholas and Mr. Nicholas written Mr. Nicholas’s will; the first time he went to Mr. Nicholas’s for that purposes a paper was put into his hands which he could not read; it was produced to him by Mrs. Nicholas, who told him it was a copy of the old gentleman’s will; at that time the old gentleman was very will, and Mrs. Nicholas assisted him in reading it; Mr. Nicholas heard her read it, and witness took it to his own house and copied it and brought it back to them, but they were dissatisfied with it; by that will Mr. Edward Nicholas had just ten pounds left to him and he got instructions to make it fifty; these instructions were given in the old man’s presence, and they observed, that they wished the will to be so made that the eldest son could not break it; the old lady said this, observing that her son and her daughter-in-law were very litigious and would try anything; old Mr. Nicholas was at this time in his bed, I believe awake; he said very little, he said that his eldest son had been a great deal of trouble to him, and he did not mean to leave him more than the sum he had mentioned.

Mr. Stephen. - Pray, Sir, you not made a statement of these matters to Mr. Crombie who sits besides me; witness said that he had, and in reply to another question from Mr. Stephen said, that he believed there was no difference between that statement and that which he had given in Court to-day; I remember Mr. Brodie and Mr. Thomson being present when the will was signed by the witnesses who alone signed it; the witnesses all put their names first; I never saw the deceased sign it; none of the witnesses could have seen him sign it; what I understand by sealing is that the will was not sealed up.

The witness was cross examined at considerable length by the Attorney-General; the words signed, sealed, and delivered were written in before witness put his signature to it; the date was written in the room; I signed my name as a witness, but I did not see the will signed, sealed, or delivered; I am not aware that I signed my name to these falsehoods; I did not exactly understand the language in which I wrote at the time.

The Rev. Mr. Garrett - knew the deceased, Mr. Nicholas; had heard him speak of his eldest son always in terms which indicated on his part a high respect for his intellect; he remembered on one, and but on one occasion, hearing him speak of his extravagance.

The Chief Justice said, he thought the evidence of heirship was yesterday incorrectly received. He would not, however, at present, give any decisive opinion on that point.

A witness of the name of Edwards, formerly an assigned servant to Mr. Nicholas, the deceased, and at present in the plaintiff’s service, was examined - he stated, that on one occasion, on his way with his late master from the Nante to Jericho, his master told him that he was most desirous of providing for his son Edward.

This was the plaintiff’s case - The Chief Justice intimated his opinion that on this evidence the plaintiff must be nonsuited.

Mr. Stephen said, that the parties had come here at a great expense, and whatever might be his own opinion , he respectfully declined being nonsuited.

The Attorney General addressed the jury for the defendant. He said, that with respect to the admission to which his learned friend adverted, he could assure the jury it was not from any apprehension on his part of the weakness of his client’s case that he felt himself called upon in this instance to require from the plaintiff strict proof of all that by law could be required from him. Under any circumstances, an attempt on the part of a son to upset the will of his father was not to be regarded with feelings of a very favourable description, but when, as in this case, it was insinuated on the other side not indeed that the defendant or his mother had actually committed forgery, but that they had presented another person to commit it, he thought the jury would be of opinion that he was justified in interposing every obstacle to that progress of that son who could seek by such imputations to blast the character of his own mother and his brother the defendant. If, therefore, the plaintiff in this cause was not the favourite son of his mother - if, as was alleged by Mr. Stephen, her hatred of him was so intense, and indeed he must do his friend the justice to say that his witness came quite up to the mark - if they did not altogether over shoot it - in describing the extent and variety of that hatred - if that animosity was not limited to him or his wife, but reached to his very children, at least on this occasion the plaintiff was not behind with her, since he charged both her and his brother with fabricating his father's name to a will! Mr. Stephen, however, would not - such was his extreme delicacy - mention the name of the supposed delinquent, and, in that respect, his act of insinuation strongly reminded him (the Attorney-General) of a story he remembered to have heard which, as it was in point, he would tell the jury. A gentleman having asserted that a person of his acquaintance - not unknown to many of those with whom he was then conversing - a man holding a high office in the administration, had been guilty of certain offences which he specified with all possible minuteness, concluded by saying that he would not think it right to abuse the name and friendship of the Chancellor of the Exchequer, by informing them distinctly whom he meant by the delinquent.

After some further observations from the Attorney-General, the jury, having heard the testimony of Mr. Brodie, without the slightest hesitation, returned a verdict for the defendant, when the Attorney-General, in reference to the departure of Mr. Stephen for Sydney, said:- I believe, gentlemen, it is the observation of Doctor Johnson, that “to do anything for the last time is far from agreeable: - and the consciousness that this is the last occasion upon which, on this side of the island, you will have the opportunity of hearing the advocacy of my friend, Mr. Stephen, must be to you, I venture to think, a circumstance deeply to be lamented. To me who have long known and appreciated his practice as an advocate - his vast and varied talents - the zeal, tempered by gentlemanlike habits, which he invariably brings to the discussion of every cause in which he is engaged - the services that he has rendered to that profession here, of which, he is the distinguished ornament - all these combined, make me deeply regret that we should so speedily be deprived of his presence - a regret which I know is participated in by the profession, and which is only mitigated by the conviction that higher rewards have at length deservedly awaited him. I could have wished that a better cause had graced his departure, though, I know full well that it would be dangerous in the extreme to the public interests were an advocate to be confounded with the cause which has been intrusted to him.

The Chief Justice, after the verdict was delivered, said, that he most cordially concurred in the sentiments expressed by the Attorney-General, and was desirous of adding, that he most sincerely acknowledged the assistance which, during his long and extensive practice at the Bar, he had derived from Mr. Stephen, and it was his earnest hope, that in the new sphere of action to which he was about to repair, every happiness and distinction should await him.

Mr. Stephen evidently under feelings of very considerable emotion, expressed his deep sense of the kindness of His Honor - he had to thank him for many acts of courtesy, and on this the last occasion upon which he had to appear before him he was not prepared for that which, however, neither time nor circumstances could ever make him forget.

[1] On Stephen’s departure, see also Hobart Town Courier, 19 April 1839, and see its issue of 15 February 1839. See also Tasmanian, 7 June 1839. AOT SC 139/3, p. 171 gives the case as George Nicholas v. doe on demise of Edward Nicholas.