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Judicial Committee of the Privy Council.

and it remained in force. The instructions for the will were given a short period before the judgment just mentioned, and the attorney who was employed was a solicitor not previously engaged on behalf of the deceased, but the solicitor of Mr. Prinsep.


"The commission not having been superseded, the legal presumption is against the validity of any testamentary instrument; and consequently the onus of proving the soundness of mind of the testator is imposed upon the party setting up the instrument. Some instances have occurred where the validity of a will has been pronounced for, notwithstanding that the testator was under the protection of a commission, as in the case of Cartwright v. Cartwright' (1 Phill. Eccles. Rep. 100). Under such circumstances, it is competent to the party setting up a testamentary instrument to maintain -1st, that the deceased was always of sound mind; 2ndly, that though he may have been formerly of unsound mind, he had entirely and completely recovered; or, 3rdly, that the will was made during a lucid interval. The main question for our decision in this case is soundness or unsoundness of mind at the periods of giving instructions for and of the execution of the will and codicil. To effect this object-to enable us to form a just estimate of the conduct of the deceased at various times -to satisfy ourselves whether particular actions are to be ascribed to peculiarities and eccentricities, or arose from a diseased state of mind-it will be necessary to commence our inquiry from a very early period. The learned judge next proceeded to examine in great detail the birth and origin of the deceased, his early history and education, his society and habits up to his mother's death, and held that as to the personal conduct of Mr. Dyce Sombre, it might be described as the most unrestrained sensual indulgence of every kind.

"The learned judge next applied himself to the character of the testator. He said-We think that we may safely conclude that the Asiatic origin and habits of the deceased would probably render him more prone to jealousy and suspicion than would be the case with respect to Englishmen; that circumstances would excite jealousy and all kinds of suspicion in the mind of the deceased which would produce no such effect upon an English gentleman of education, accustomed to good society; therefore, many actions of the deceased may be fairly attributed to and explained by these peculiarities of character. It may be conceded that in Mr. Dyce Sombre's case circumstances very slight in themselves, and ordinarily wholly inadequate, might create, and in a violent degree, jealousy and suspicion; but the invention of facts wholly without foundation, the belief of circumstances wholly improbable, if not absolutely impossible, even in a person of such a character, never can be accounted for by similar reasoning. The learned judge next adverted to the arrival of Mr. Dyce Sombre in England in 1838; his marriage to Miss Jervis, the daughter of Lord St. Vincent, in 1840; his removal to Hanover-lodge, when a commission was issued on the 1st of July, 1843, when he was found of unsound mind, and to have been so from the October preceding. The presumption of law is that the verdict of the jury was well founded, and that the deceased continued lunatic so long as the commission was not superseded. It is true that he may have partially recoveredmay have had lucid intervals; but the onus probandi must lie upon whomsoever asserts the affirmation of complete or partial recovery. Such would be the


presumption if this were the verdict of the jury alone; but on the present occasion the insanity at some period antecedent to the preparing and execution of the testamentary papers propounded is not denied, and moreover we are all clearly of opinion that the evidence now produced as to the year 1843 establishes beyond doubt that the deceased was then of unsound mind. The doctrine laid down by Lord Thurlow, in The Attorney-General v. Parnther' (3 Brown, 442), slightly modified by Lord Eldon (exparte Holyland,' 11 Ves. 11) strictly applies. We think that the best mode of arriving at the truth in this inquiry is to examine, in the first instance, the evidence 'by which the insanity in 1843 was established to the satisfaction of the jury, and to our own conviction; to ascertain in what particular delusion this insanity manifested itself; to trace the continuance or disappearance of such delusions; to inquire whether fresh delusions arose in the mind of the testator, and whether they were transient or continued to affect the mind of the deceased till the periods of the execution of the will and codicil."

The various facts of the case were then minutely stated and the evidence quoted in support of the allegation of the respondents, that the principal delusions of the testator still continued up to and at the time he made his will. As the details relating to Mr. Dyce Sombre's conduct are, in many respects, of a painful and disgusting nature, and as the litigation has been finally terminated, it is unnecessary for our present purpose to set them forth. shall, therefore, conclude with a general statement of the grounds on which the Judicial Committee decided against the validity of the will:


"We have examined the early history of Mr. Dyce Sombre; we have duly considered the weight to be ascribed to his Asiatic origin and habits; and, in endeavouring to ascertain the state of his mind, have allowed those causes to have the utmost influence which could be reasonably given to them. It is not improbable that from feelings peculiar to those of eastern birth, and fostered from early youth by prejudice and custom, the first seeds of insanity may have sprung, being called into life and activity by collision with European manners and observances. But, however this may be, most certain it is that in 1843 the deceased had become subject to mental derangement. In 1846 he remained in the same state, and the only question raised was, when did he recover. In 1847 there was some remission. Towards the end of 1848 the ablest physicians were divided in opinion, and strong certificates of sanity were sent to the Chancellor, who, however adhered to the medical men appointed by him to examine Mr. Dyce Sombre, and refused to supersede the commission in March, 1849. have endeavoured to form our judgment from what Mr. Dyce Sombre said and did rather than from what others might have thought of him. Great power of memory, considerable shrewdness and dexterity, aptitude to receive lessons, though not to learn successfully to practice them, were frequently displayed by the deceased; but we cannot trace any period during this long interval at which we could say that the deceased was relieved from all morbid impressions. On the contrary, throughout the interval, whenever we have had the means of examination, symptons of a diseased mind have shown themselves. We cannot aver that Mr. Dyce Sombre



Judicial Committee of the Privy Council.-Notes of the Week.


ever recovered; and it is not, and cannot be, denied that after proved and notorious insanity the burden of proving such recovery must rest on those who allege it. But, however this may be, in the year 1849, at the time of the preparation and execution of the will and codicil, there is abundant proof under his own hand that all the former delusions remained in full force and vigour. 'The Refutation' - this extraordinary production (continued the learned judge) proves that there still existed in viridi observantia the delusion as to Mrs. Dyce Sombre, the supposed Lord Ward, and on other matters. want no books of medical science, no legal authorities, to enable us to decide this case; there is no vexata questio as to partial insanity. The true description of this case is insanity showing itself in divers particulars, and, so far as appears, without any perfect intermission. We are of opinion that when Mr. Dyce Sombre executed this will, and when he executed this codicil, he was of unsound mind, and consequently, that the acts so done by him were null and void: therefore we shall advise her Majesty to affirm the judgment of the learned judge of the Prerogative Court, pronouncing against the validity of these instruments."

There then remained the important question of the costs of the suit, which, it has been estimated, cannot be less than £20,000. Upon this part of the judgment of the Prerogative Court, the learned judge said:

"We are of opinion that at the time the testamentary instruments were propounded, it was fit that their validity should be submitted to investigation and decision. Important dispositions of this will are in favour of persons who could do nothing to protect their own interest; in favour of poor persons in India, dependents and pensioners of the testator, or of his benefactress, the Begum, and the great bulk of the property is directed to the establishment of charitable institutions for the benefit of the natives of India, of which the East India Company were to be the trustees. If, therefore, there was any reasonable doubt as to the insanity of the deceased at the time these instruments were made, the East India Company would scarcely have performed their duty if they had not taken the necessary steps to have that doubt removed by the adjudication of the proper tribunal. Is it possible to deny that there were grave doubts as to the testamentary capacity of the deceased at the period when the will and codicil were made? Men of the greatest eminence in the medical profession, gentlemen who had been in the habit of associating with him, had declared the strongest opinions as to his sanity. The solicitors who had prepared the instruments, and had taken all the precautions which it was in their power to take, to guard against imposition, were entirely satisfied that the testator was perfectly competent to dispose of his property. In this case there is not the slightest pretence for saying that the appellants have had anything whatever to do with the inception or preparation of these instruments. It is true that for the purpose of this suit the East India Company are admitted to be entirely identified with Mr. Prinsep; and Messrs. Desborough and Young, who prepared the will and codicil, were Mr. Prinsep's solicitors, and were by him introduced to the deceased. But having so introduced them, Mr. Prinsep takes no further part in the matter; all the communications of the solicitor take place with Mr.

Dyce Sombre himself, either personally or by letter; the instructions are in his own handwriting. Mr. Prinsep was neither party nor privy to the will; he knew nothing of its contents, and he refused to be acquainted with them. It is said that Mr. Prinsep was guilty of misconduct during the time that attempts were made to supersede the commission, but we feel bound to say that we find no sufficient evidence to this effect. We do not find any letters written by Mr. Prinsep of the same character with those of Lord and Lady Combermere, nor any evidence fixing him with the misconduct with which he is charged. Besides, the material question for the present purpose is, had Mr. Prinsep such a knowledge of the real state of the testator's mind, when those instructions were executed, as to make it unfit that he should propound them for probate ? We are clearly of opinion that he had not. Although we much regret the expense, and although we are of opinion that the evidence under the commission, in August, 1843, establishes a manifest case of lunacy, we feel bound to remember that that was not the opinion of Sir C. Trevelyan, who had known Mr. Dyce Sombre in India, and that such was not the opinion of Baron Solaroli, who is one of the parties to whom costs are awarded in this judgment, and who insisted, in October, 1843, on the sanity of his brother-in-law, Mr. Prinsep, after his return from India, did not renew his acquaintance with the deceased till the summer of 1844, nearly twelve months after the date of the commission, and after reports in favour of his sanity had been made by foreign physicians of the highest authority. This judgment, so far as it awards costs against Mr. Prinsep and the East India Company, cannot be maintained. A much more doubtful question is, whether we can give them costs out of the estate. Very great expense has been incurred in this case. There are two distinct parties asserting the validity of these documents; there are three parties opposing them. The case is in many respects very peculiar. Though the commission of lunacy was never superseded, he was treated under it in a manner in which no other lunatic in our experience was treated. He was intrusted with the whole income of his large property, after making a provision for his wife; and the circumstances were such as in our opinion to make it essential to the purposes of justice that the validity of these papers should be submitted judicial decision. We have decided to advise her Majesty to vary the decree below with respect to costs; to give no costs against the appellants, but to allow them out of the estate one set of costs only between Mr. Prinsep and the East India Company, including the costs of the appeal. With respect to the respondents, they will each have their own costs out of their share of the property."




D. D. Keane, Esq., and A. K. Stephenson, Esq., both of the Norfolk circuit, have been appointed revising barristers, in the room of M. Prendergast, Esq., Q. C., now judge of the City of London Sheriffs' Court and John Worlledge, Esq., now Judge of the Suffolk County Court (Circuit No. 33). Mr. Keane was called to the bar 12th June, 1835, and Mr. Stephenson, 27th January, 1852.

Orders in Council.-Sittings of Sheriff's Court, Middlesex- Recent Decisions.

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Ir is declared by her Majesty in Council that the jurisdiction of the court of record in the city of Worcester, called "The Court of Pleas of the City of Worcester," be excluded in all causes whereof the county court holden in the said city hath cognizance, in which the debt or damage sought to be recovered shall not exceed £20; and in all actions of ejectment between landlord and tenant, wherein the annual rent of the premises of which possession is sought to be recovered shall not exceed £50.

Whereof the mayor, aldermen, and citizens of the city of Worcester for the time being, and all other persons whom it may concern, are to take notice and govern themselves accordingly.-From the London Gazette of 29th July.



It is ordered by her Majesty in Council that, within one month after such order shall have been made and published in the London Gazette, all the provisions of the "Summary Procedure on Bills of Exchange Act, 1855," shall extend and apply to the court of record holden in the city of Worcester, called "The Court of Pleas of the City of Worcester," except in any causes whereof the county court holden in the said city hath cognizance.

And it was further ordered that all the powers or duties exercisable by the court or a judge, under any of the sections of the said act hereby applied to the Court of Pleas of the City of Worcester, shall, as regards matters and proceedings in the said court, be exercisable and exercised by the judge of the said court, and that all the powers or duties exercisable by the masters of the said courts, or any three of them, under the first section of the said act, shall, as regards matters and proceedings in the said court of pleas, be exercisable and exercised by the registrar of the said court. From the Londou Gazette of 29th July.



It is ordered by her Majesty in council, that, within one month after such order shall have been published in the London Gazette, all the provisions of the "Common Law Procedure Act, 1852," and of the said "Common Law Procedure Act, 1854," and the rules made and to be made in pursuance of the said acts, shall extend and apply to the court of record holden in the city of Worcester, called "the Court of Pleas of the city of Worcester," except in any causes whereof the county court holden in the said city hath cognizance.

And it was further ordered, that all the powers or duties exercisable by the court or a judge under the said "Common Law Procedure Act, 1852, and 1854," hereby applied to the court of pleas of the city of Worcester, shall, as regards matters and proceedings, therein be exercisable and exercised by the judge of the said court, that all the powers or duties exercisable by a master under the said acts shall, as regards matters and proceedings in the said court, be exercisable and exercised by the registrar of the said court, and that the powers or duties exercisable by a sheriff under the said acts, shall as regards matters and proceedings in the said court, be exercisable and exercised within the jurisdiction of the said court by the serjeant-at-mace, of the said city of Worcester. From the London Gazette of 29th July.


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Court of Chancery.

(Coram Lord Chancellor and Lords Justices.)

Horne v. Barton. August 2, 1856.


Held, that before a decree, made in the year 1825, and under which a settlement was made carrying out the trusts of the testator's will, could be reheard, for the purpose of rectifying such settlement, the petitioners must establish their right under the will. The petition was accordingly directed to stand over, in order to a bill being filed. THIS was a petition to rehear a decree made by Sir William Grant, M.R., in 1825. It appeared that the testator had devised his real estates to trustees upon certain trusts therein specified and directed them to make and execute a settlement accordingly.


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A suit was afterwards instituted to carry out the trusts of the will, and by the decree now sought to be reheard a reference was directed to the Master to approve of a settlement. It was now contended that this settlement was not in conformity with the trusts of the will, and it was sought to be rectified. [Cur. ad. vult.

The Court said that the decree could not be reheard until the petitioners had established their right under the will, and the petition was accordingly ordered to stand over for a bill to be filed for that purpose.

Lord Chancellor.


Upon a petition by an infant under the 18 & 19 Vict. c. 43, s. 1, to approve of settlement upon


Recent Decisions: Master of the Rolls; V. C. Kindersley; V. C. Wood.

her marriage, held, reversing the decision of Vice Chancellor Stuart, that such reference will not be directed to extend to inquire as to the propriety of the marriage,-such petition under the act not constituting the infant a ward of court.

THIS was an appeal from an order of the ViceChancellor Stuart (July 19th last), on a petition under the 18 & 19 Vic. c. 43, s. 1*, to approve of a settlement upon the marriage of an infant, who was entitled on the death of her father, the tenant for life, to upwards of £15,000 consols, besides a sum of money on attaining the age of twenty-one years, so far as the reference to chambers to inquire whether the proposed marriage (which it appeared was with the father's consent) was a fit and proper one, having regard to the character and fortune of the intended husband, upon the ground (as the Vice-Chancellor held) that the effect of the order would be to make the infant a ward of court.

Malins and Roxburgh in support.

The Lord-Chancellor said the construction contended for by Mr. Malins, that an infant applying under the act did not thereby become a ward of court, was correct, and that this court could not prevent any marriage taking place without its consent, although it should be satisfied of the propriety of the settlement. The order of the Vice-Chancellor would therefore be varied in that respect.

Master of the Rolls.

Kell v. Charman. July 26, 1856.


A testator, who was a jeweller, gave to his son
William "the sum of i. x. x.,'
" and to his son
Robert Charles "the sum of o. x. x.": Held, that
the evidence of his shopman was admissible to shew
that there wese private trade marks, and meant
respectively £100 and £200.

A TESTATOR, who was a jeweller, gave his son
William "the sum of i. x. x.," to his son Robert
Charles "the sum of o.x.x.," and to his two daughters
other legacies, about which there was no question.

The Master of the Rolls admitted the evidence of the testator's shopman, showing that these letters were the testator's private trade marks, and meant respectively £100 and £200.

Lloyd, Palmer, Shapter, and Baggallay for the respective parties.

* Which enacts that "it shall be lawful for every infant, upon or in contemplation of his or her marriage, with the sanction of the Court of Chancery, to make a valid and binding settlement, or contract for a settlement of all or any part of his or her property, or property over which he or she has any power of appointment, whether real or personal, and whether in possession, reversion, remainder or expectancy; and every conveyance, appointment, and assignment of such real or personal estate, or contract to make a conveyance, appointment, or assignment thereof, executed by such infant, with the approbation of the said court, for the purpose of giving effect to such settlement, shall be as valid and effectual as if the person executing the same were of the full age of twenty-one years; the sanction of the Court of Chancery to any such settlement or contract for a sottlement may be given, upon petition presented by the infadt or his or her guardian, in a summary way, without the institution of a suit; and if there be no guardian, the Court may require a guardian to be appointed or not, as it shall think fit (s. 3).

Vice-Chancellor Kindersley.

Gay v. Picco. August 4, 1856.


The defendant contracted to perform on a musical instrument for B. and P., who afterwards, without his consent or being made a party, assigned their contract to the plaintiff for certain considerations. An injunction was refused with costs to restrain the defendant from performing on his

own account.

Denney appeared in support of this motion for an injunction to restrain the defendant, who was a blind pipe-player, from performing in public or private on his own account. It appeared that the plaintiff had in 1855 obtained an assignment of a contract, under which the defendant agreed to perform for Gaetano Bagurelli and Antonio Poletti, for the considerations therein mentioned, and that he had fitted up a house for the defendant in Hart-street, Bloomsbury, which, however, he left in June last with Poletti, and had since performed on his own account.

Selwyn and G. M. Giffard for the defendant. The Vice-Chancellor said the question was whether a man who had agreed to render his services to one person could be bound by a transfer of such services from his employer to another person. The original contract was with the defendant, to provide for his care and maintenance, and that his brother should accompany him. The assignment was with the consent, not of Picco, but of Poletti, who obliged himself that the defendant should perform for the benefit of the plaintiff and of himself, and follow him wherever he should think expedient to go. There was no contract between the plaintiff and the defendant-he was neither a party, nor was his consent asked to the contract made. The defendant, however, also swore that he had never been informed of it, and looked upon the plaintiff as the treasurer only of the concern. The injunction would, therefore, be refused, with costs.

Vice-Chancellor Wood.


A mortgagee, who was in receipt of the rents of the mortgaged property, died, having appointed executors, to whom she gave and devised her real and personal estate in trust for sale, but omitting to devise her trust or mortgage estates. Her heirat-law was in New Zealand. A vesting order was made of the legal estate in the trustees in their petition under the 13 & 14 Vict. c. 60, s. 9. Selwyn and Fordham appeared in support of this petition under the 13 & 14 Vict. c. 60, s. 9,* for an order to vest in the petitioners, the executors of a mortgagee, the legal estate in a mortgaged estate, upon her heir-at-law being in New Zealand. It appeared that the testatrix had been in receipt of the rents of the mortgaged property, but had omitted by her will to devise her trust or mortgage estates, although she had given and devised all her real and personal estate to them upon trust for sale.

The Vice-Chancellor made the order as asked. * Which enacts that "when any person solely seised or possessed of any lands upon any trust shall be out of the jurisdiction of the Court of Chancery or cannot be found, it shall be lawful for the said court to make an order vesting such lands in such person or persons in such manner and for such estate as the said court shall direct."

The Legal Observer,




THE SETTLED ESTATES ACT. THE object of this statute is to empower the Court of Chancery to authorise leases and sales of settled estates, where such leases and sales shall be deemed proper and consistent with a due regard to the interests of all parties entitled under the settlement, will, or other instrument by virtue of which any hereditaments are limited in trust by way of succession.

The following conditions are to be observed in the execution of the act, with regard to granting leases:—

First, every such lease shall be made to take effect in possession at or within one year next after the making thereof, and shall be for a term of years not exceeding for an agricultural or occupation lease twenty-one years, for a mining lease, or a lease of water, water mills, wayleaves, waterleaves, or other rights or easements, forty years, and for a building lease ninety-nine years, or where the court shall be satisfied that it is the usual custom of the district and beneficial to the inheritance to grant building leases for longer terms, then for such term as the court shall direct.

Secondly, on every such lease shall be reserved the best rent, or reservation in the nature of rent, either uniform or not, that can be reasonably obtained, to be made payable half-yearly or oftener, without taking any fine or other benefit in the nature of a fine.

Thirdly, where the lease is of any earth, coal, stone, or mineral, a certain portion of the whole rent or payment reserved shall be from time to time set aside and invested as hereinafter mentioned, namely, when and so long as the person for the time being entitled to the receipt of such rent is a person who by reason of his estate, or by virtue of any declaration in the settlement, is entitled to work such earth, coal, stone, or mineral for his own benefit, one fourth part of such rent, and otherwise three fourth parts thereof; and in every such lease sufficient provision shall be made to ensure such application of the aforesaid portion of the rent, by the appointment of trustees or otherwise, as the court shall deem expedient.

Fourthly, no such lease shall authorise the felling of any trees, except so far as shall be necessary for the purpose of clearing the ground for any buildings, excavations, or other works authorised by the lease.

Fifthly, every such lease shall be by deed, and the lessee shall execute a counterpart thereof; VOL. LII. No. 1,484.

and every such lease shall contain a condition for re-entry on nonpayment of the rent for a period not less than twenty-eight days after it becomes due.

The leases may be required to contain such special covenants as the court shall deem expedient.

The court may itself determine the form of particular leases, or vest the power in trustees.

Tenants for life may grant leases for twentyone years, provided the best rent be reserved that can reasonably be obtained, without fine or other benefit in the nature of a fine.

On these applications, evidence is to be produced to enable the court to determine the conditions on which leases may be authorised.

The court may also authorise the sale of the whole or part of settled estates or of timber. Such sales to be conducted and confirmed according to the rules and practice of the court. Minerals may be excepted from the sale.

The mode of proceeding to exercise the powers conferred by the act is to be by And the court petition, in a summary way. may make general rules and orders for the regulation of the practice, which rules and orders are to be laid before Parliament.

Consents to the application are required from the following parties:

Where there is a tenant in tail under the settlement in existence, and of full age, then the parties to concur or consent shall be such tenant in tail, or if there is more than one such tenant in tail then the first of such tenants in tail, and all persons in existence having any beneficial estate or interest under or by virtue of the settlement prior to the estate of such tenant in tail, and all trustees having any estate or interest on behalf of any unborn child prior to the estate of such tenant in tail. And in every other case the parties to concur or consent shall be all the persons in existence having any beneficial estate or interest under or by virtue of the settlement, and also all trustees having any estate or interest on behalf of any unborn child.

The petition may be granted without consent, saving the rights of non-consenting parties; but notice of the application is to be served on all the trustees, and inserted in such newspapers as the court may direct.


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