GRANT AS PRAYED.
Accordingly, Augusta was sworn, and Eustace observed that when she
removed her veil to kiss the Book the sight of her sweet face produced
no small effect upon the crowded court.
Then James began his examination in chief, and, following the lines
which he had laid down in his opening speech, led her slowly, whilst
allowing her to tell her own story as much as possible, to the time of
the tattooing of the will on Kerguelen Land. All along, the history had
evidently interested everybody in the court—not excepting the
Judge—intensely; but now the excitement rose to boiling point.
“Well,” said James, “tell his Lordship exactly how it came to pass that
the will of Mr. Meeson was tattooed upon your shoulders.”
In quiet but dramatic language Augusta accordingly narrated every
detail, from the time when Meeson confided to her his remorse at having
disinherited his nephew up to the execution of the will at her
suggestion by the sailor upon her own shoulders.
“And now, Miss Smithers,” said James, when she had done, “I am very
sorry to have to do so; but I must ask you to exhibit the document to
the Court.”
Poor Augusta coloured and her eyes filled with tears, as she slowly
undid the dust-cloak which hid her shoulders (for, of course, she had
come in low dress). The Judge, looking up sharply, observed her natural
distress.
“If you prefer it, Miss Smithers,” said his Lordship, courteously, “I
will order the court to be cleared of every-one except those who are
actually engaged in the case.”
At these ominous words a shudder of disgust passed through the
densely-packed ranks. It would indeed, they felt, after all their
striving, be hard if they were deprived of the sight of the will; and
they stared at her despairingly, to see what she would answer.
“I thank your Lordship,” she said, with a little bow; “but there would
still be so many left that I do not think that it would greatly matter.
I hope that everybody will understand my position, and extend their
consideration to me.”
“Very well,” said the Judge, and without further ado she took off the
cloak, and the silk handkerchief beneath it, and stood before the court
dressed in a low black dress.
“I am afraid that I must ask you to come up here,” said his Lordship.
Accordingly she walked round, mounted the bench, and then turned her
back to the Judge, in order that he might examine what was written on
it. This he did very carefully with the aid of a magnifying glass,
referring now and again to the photographic copy which Doctor Probate
had filed in the Registry.
“Thank you,” he said presently, “that will do. I am afraid that the
learned counsel below will wish to have an opportunity of inspection.”
So Augusta had to descend and slowly walk along the ranks, stopping
before every learned leader to be carefully examined, while hundreds of
eager eyes in the background were fixed upon her unfortunate neck.
However, at last it came to an end.
“That will do, Miss Smithers,” said the Judge, for whose consideration
she felt deeply grateful; “you can put on your cloak again now.”
Accordingly she did so and re-entered the box.
“The document which you have just shown the Court, Miss Smithers,” said
James, “is the one which was executed upon you in Kerguelen Land on or
about the 22nd day of December last year?”
“It is.”
“It was, I understand, executed in the presence of the testator and the
two attesting witnesses, all three being present together, and the
signature of each being tattooed in the presence of the other?”
“It was.”
“Was the testator, so far as you could judge, at the time of the
dictation and execution of the will, of sound mind, memory, and
understanding?”
“Most certainly he was.”
“Did you, beyond the suggestions of which you have already given
evidence, in any way unduly influence the testator’s mind, so as to
induce him to make this will?”
“I did not.”
“And to those facts you swear?”
“I do.”
Then he passed on to the history of the death of the two sailors who
had attested the will, and to the account of Augusta’s ultimate rescue,
finally closing his examination-in-chief just as the clock struck four,
whereon the Court adjourned till the following day.
As may be imagined, though things had gone fairly well so far, nobody
concerned of our party passed an over-comfortable night. The strain was
too great to admit of it; and really they were all glad to find
themselves in the court—which was, if possible, even more crowded on
the following morning—filled with the hope that that day might see the
matter decided one way or the other.
As soon as the Judge had come in, Augusta resumed her place in the
witness-box, and the Attorney-General rose to cross-examine her.
“You told the Court, Miss Smithers, at the conclusion of your evidence,
that you are now engaged to be married to Mr. Meeson, the plaintiff.
Now, I am sorry to have to put a personal question to you, but I must
ask you—Were you at the time of the tattooing of the will, in love with
Mr. Meeson?”
This was a home-thrust, and poor Augusta coloured up beneath it;
however, her native wit came to her aid.
“If you will define, Sir, what being in love is, I will do my best to
answer your question,” she said. Whereat the audience, including his
Lordship, smiled.
The Attorney-General looked puzzled, as well he might; for there are
some things which are beyond the learning of even an Attorney-General.
“Well,” he said, “were you matrimonially inclined towards Mr. Meeson?”
“Surely, Mr. Attorney-General,” said the Judge, “the one thing does not
necessarily include the other?”
“I bow to your Lordship’s experience,” said Mr. Attorney, tartly.
“Perhaps I had better put my question in this way—Had you, at any time,
any prospect of becoming engaged to Mr. Meeson?”
“None whatever.”
“Did you submit to this tattooing, which must have been painful, with a
view of becoming engaged to the plaintiff?”
“Certainly not. I may point out,” she added, with hesitation, “that
such a disfigurement is not likely to add to anybody’s attractions.”
“Please answer my questions, Miss Smithers, and do not comment on them.
How did you come, then, to submit yourself to such a disagreeable
operation?”
“I submitted to it because I thought it right to do so, there being no
other apparent means at hand of attaining the late Mr. Meeson’s end.
Also”—and she paused.
“Also what?”
“Also I had a regard for Mr. Eustace Meeson, and I knew that he had
lost his inheritance through a quarrel about myself.”
“Ah! now we are coming to it. Then you were tattooed out of regard for
the plaintiff, and not purely in the interests of justice?”
“Yes; I suppose so.”
“Well, Mr. Attorney,” interposed the Judge, “and what if she was?”
“My object, my Lord, was to show that this young lady was not the
purely impassive medium in this matter that my learned friend, Mr.
Short, would lead the Court to believe. She was acting from motive.”
“Most people do,” said the Judge drily. “But it does not follow that
the motive was an improper one.”
Then the learned gentleman continued his cross-examination, directing
all the ingenuity of his practised mind to trying to prove by Augusta’s
admissions, first, that the testator was acting under the undue
influence of herself; and secondly, that when the will was executed he
was _non compos mentis_. To this end he dwelt at great length on every
detail of the events between the tattooing of the will and the death of
the testator on the following day, making as much as was possible out
of the fact that he died in a fit of mania. But do what he would, he
could not shake her evidence upon any material point, and when at last
he sat down James Short felt that his case had not received any serious
blow.
Then a few more questions having been asked in cross-examination by
various other counsel, James rose to re-examine, and, with the object
of rebutting the presumption of the testator’s mental unsoundness, made
Augusta repeat all the details of the confession that the late
publisher had made to her as regards his methods of trading. It was
beautiful to see the fury and horror portrayed upon the countenance of
the choleric Mr. Addison and the cadaverous Mr. Roscoe, when they saw
the most cherished secrets of the customs of the trade, as practised at
Meeson’s, thus paraded in the open light of day, while a dozen
swift-pencilled reporters took every detail down.
Then at last Augusta was told to stand down, which she did thankfully
enough, and Mrs. Thomas, the wife of Captain Thomas, was called. She
proved the finding of Augusta on the island, and that she had seen the
hat of one of the sailors, and the rum-cask two-thirds empty, and also
produced the shell out of which the men had drunk the rum (which shell
the Judge had called Augusta to identify). What was most important,
however, was that she gave the most distinct evidence that she had
herself seen the late Mr. Meeson interred, and identified the body as
that of the late publisher by picking out his photograph from among a
bundle of a dozen that were handed to her. Also she swore that when
Augusta came aboard the whaler the tattoo marks on her back were not
healed.
No cross-examination of the witness worth the name having been
attempted, James called a clerk from the office of the late owners of
the R.M.S. Kangaroo, who produced the roll of the ship, on which the
names of the two sailors, Johnnie Butt and Bill Jones, duly appeared.
This closed the plaintiff’s case, and the Attorney-General at once
proceeded to call his witnesses, reserving his remarks till the
conclusion of the evidence. He had only two witnesses, Mr. Todd, the
lawyer who drew and attested the will of Nov. 10, and his clerk, who
also attested it, and their examination did not take long. In
cross-examination, however, both these witnesses admitted that the
testator was in a great state of passion when he executed the will, and
gave details of the lively scene that then occurred.
Then the Attorney-General rose to address the Court for the defendants.
He said there were two questions before the Court, reserving, for the
present, the question as to the admissibility of the evidence of
Augusta Smithers; and those were—first, did the tattoo marks upon the
lady’s neck constitute a will at all? and secondly, supposing that they
did, was it proved to the satisfaction of the Court that these undated
marks were duly executed by a sane and uninfluenced man, in the
presence of the witnesses, as required by the statute. He maintained,
in the first place, that these marks were no will within the meaning of
the statute; but, feeling that he was not on very sound ground on this
point, quickly passed on to the other aspects of the case. With much
force and ability he dwelt upon the strangeness of the whole story, and
how it rested solely upon the evidence of one witness, Augusta
Smithers. It was only if the Court accepted her evidence as it stood
that it could come to the conclusion that the will was executed at all,
or, indeed, that the two attesting witnesses were on the island at all.
Considering the relations which existed between this witness and the
plaintiff, was the Court prepared to accept her evidence in this
unreserved way? Was it prepared to decide that this will, in favour of
a man with whom the testator had violently quarrelled, and had
disinherited in consequence of that quarrel, was not, if indeed it was
executed at all, extorted by this lady from a weak and dying, and
possibly a deranged, man? and with this question the learned gentleman
sat down.
He was followed briefly by the Solicitor-General and Mr. Fiddlestick;
but though they talked fluently enough, addressing themselves to
various minor points, they had nothing fresh of interest to adduce, and
finishing at half-past three, James rose to reply on the whole case on
behalf of the plaintiff.
There was a moment’s pause while he was arranging his notes, and then,
just as he was about to begin, the Judge said quietly, “Thank you, Mr.
Short, I do not think that I need trouble you,” and James sat down with
a gasp, for he knew that the cause was won.
Then his Lordship began, and, after giving a masterly summary of the
whole case, concluded as follows:—“Such are the details of the most
remarkable probate cause that I ever remember to have had brought to my
notice, either during my career at the Bar or on the Bench. It will be
obvious, as the learned Attorney-General has said, that the whole case
really lies between two points. Is the document on the back of Augusta
Smithers a sufficient will to carry the property? and, if so, is the
unsupported story of that lady as to the execution of the document to
be believed? Now, what does the law understand by the term ‘Will’?
Surely it understands some writing that expresses the wish or will of a
person as to the disposition of his property after his decease? This
writing must be executed with certain formalities; but if it is so
executed by a person not labouring under any mental or other disability
it is indefeasible, except by the subsequent execution of a fresh
testamentary document, or by its destruction or attempted destruction,
_animo revocandi_, or by marriage. Subject to these formalities
required by the law, the form of the document—provided that its meaning
is clear—is immaterial. Now, do the tattoo marks on the back of this
lady constitute such a document, and do they convey the true last will
or wish of the testator? That is the first point that I have to decide,
and I decide it in the affirmative. It is true that it is not usual for
testamentary documents to be tattooed upon the skin of a human being;
but, because it is not usual, it does not follow that a tattooed
document is not a valid one. The ninth section of the Statute of 1
Vic., cap. 26, specifies that no will shall be valid unless it shall be
in writing; but cannot this tattooing be considered as writing within
the meaning of the Act? I am clearly of opinion that it can, if only on
the ground that the material used was ink—a natural ink, it is true,
that of the cuttle-fish, but still ink; for I may remark that the
natural product of the cuttle-fish was at one time largely used in this
country for that very purpose. Further, in reference to this part of
the case, it must be borne in mind that the testator was no eccentric
being, who from whim or perversity chose this extraordinary method of
signifying his wishes as to the disposal of his property. He was a man
placed in about as terrible a position as it is possible to conceive.
He was, if we are to believe the story of Miss Smithers, most sincerely
anxious to revoke a disposition of his property which he now, standing
face to face with the greatest issue of this life, recognised to be
unjust, and which was certainly contrary to the promptings of nature as
experienced by most men. And yet in this terrible strait in which he
found himself, and notwithstanding the earnest desire which grew more
intense as his vital forces ebbed, he could find absolutely no means of
carrying out his wish. At length, however, this plan of tattooing his
will upon the living flesh on a younger and stronger person is
presented to him, and he eagerly avails himself of it; and the
tattooing is duly carried out in his presence and at his desire, and as
duly signed and witnessed. Can it be seriously argued that a document
so executed does not fulfil the bare requirements of the law? I think
that it cannot, and am of opinion that such a document is as much a
valid will as though it had been engrossed upon the skin of a sheep,
and duly signed and witnessed in the Temple.
“And now I will come to the second point. Is the evidence of Miss
Smithers to be believed? First, let us see where it is corroborated. It
is clear, from the testimony of Lady Holmhurst, that when on board the
ill-fated Kangaroo, Miss Smithers had no tattoo marks upon her
shoulders. It is equally clear from the unshaken testimony of Mrs.
Thomas, that when she was rescued by the American whaler, her back was
marked with tattooing, then in the healing stage—with tattooing which
could not possibly have been inflicted by herself or by the child, who
was her sole living companion. It is also proved that there was seen
upon the island by Mrs. Thomas the dead body of a man, which she was
informed was that of Mr. Meeson, and which she here in court identified
by means of a photograph. Also, this same witness produced a shell
which she picked up in one of the huts, said to be the shell used by
the sailors to drink the rum that led to their destruction; and she
swore that she saw a sailor’s hat lying on the shore. Now, all this is
corroborative evidence, and of a sort not to be despised. Indeed, as to
one point, that of the approximate date of the execution of the
tattooing, it is to my mind final. Still, there does remain an enormous
amount that must be accepted or not, according as to whether or no
credence can be placed in the unsupported testimony of Miss Smithers,
for we cannot call on a child so young as the present Lord Holmhurst,
to bear witness in a Court of Justice. If Miss Smithers, for instance,
is not speaking the truth when she declares that the signature of the
testator was tattooed upon her under his immediate direction, or that
it was tattooed in the presence of the two sailors, Butt and Jones,
whose signatures were also tattooed in the presence of the testator and
of each other—no will at all was executed, and the plaintiff’s case
collapses, utterly, since, from the very nature of the facts, evidence
as to handwriting would, of course, be useless. Now, I approach the
decision of this point after anxious thought and some hesitation. It is
not a light thing to set aside a formally executed document such as the
will of Nov. 10, upon which the defendants rely, and to entirely alter
the devolution of a vast amount of property upon the unsupported
testimony of a single witness. It seems to me, however, that there are
two tests which the Court can more or less set up as standards,
wherewith to measure the truth of the matter. The first of these is the
accepted probability of the action of an individual under any given set
of circumstances, as drawn from our common knowledge of human nature;
and the second, the behaviour and tone of the witness, both in the box
and in the course of circumstances that led to her appearance there. I
will take the last of those two first, and I may as well state, without
further delay, that I am convinced of the truth of the story told by
Miss Smithers. It would to my mind be impossible for any man, whose
intelligence had been trained by years of experience in this and other
courts, and whose daily duty it is to discriminate as to the
credibility of testimony, to disbelieve the history so circumstantially
detailed in the box by Miss Smithers (Sensation). I watched her
demeanour both under examination and cross-examination very closely
indeed, and I am convinced that she was telling the absolute truth so
far as she knew it.
“And now to come to the second point. It has been suggested, as
throwing doubt upon Miss Smithers’ story, that the existence of an
engagement to marry, between her and the plaintiff, may have prompted
her to concoct a monstrous fraud for his benefit; and this is suggested
although at the time of the execution of the tattooing no such
engagement did, as a matter of fact, exist, or was within measurable
distance of the parties. It did not exist, said the Attorney-General;
but the disposing mind existed: in other words, that she was then ‘in
love’—if, notwithstanding Mr. Attorney’s difficulty in defining it, I
may use the term with the plaintiff. This may or may not have been the
case. There are some things which it is quite beyond the power of any
Judge or Jury to decide, and one of them certainly is—at what exact
period of her acquaintance with a future husband a young lady’s regard
turns into a warmer feeling? But supposing that the Attorney-General is
right, and that although she at that moment clearly had no prospect of
marrying him, since she had left England to seek her fortune at the
Antipodes, the plaintiff was looked upon by this lady with that kind of
regard which is supposed to precede the matrimonial contract, the
circumstance, in my mind, tells rather in his favour than against him.
For in passing I may remark that this young lady has done a thing which
is, in its way, little short of heroic; the more so because it has a
ludicrous side. She has submitted to an operation which must not only
have been painful, but which is and always will be a blot upon her
beauty. I am inclined to agree with the Attorney-General when he says
that she did not make the sacrifice without a motive, which may have
sprung from a keen sense of justice, and of gratitude to the plaintiff
for his interference on her behalf, or from a warmer feeling. In either
case there is nothing discreditable about it—rather the reverse, in
fact; and, taken by itself, there is certainly nothing here to cause me
to disbelieve the evidence of Miss Smithers.
“One question only seems to me to remain. Is there anything to show
that the testator was not, at the time of the execution of the will, of
a sound and disposing mind? and is there anything in his conduct or
history to render the hypothesis of his having executed his will so
improbable that the Court should take the improbability into account?
As to the first point, I can find nothing. Miss Smithers expressly
swore that it was not the case; nor was her statement shaken by a very
searching cross-examination. She admitted, indeed, that shortly before
death he wandered in his mind, and thought that he was surrounded by
the shades of authors waiting to be revenged upon him. But it is no
uncommon thing for the mind thus to fail at the last, and it is not
extraordinary that this dying man should conjure before his brain the
shapes of those with some of whom he appears to have dealt harshly
during his life. Nor do I consider it in any way impossible that when
he felt his end approaching he should have wished to reverse the
sentence of his anger, and restore his nephew, whose only offence had
been a somewhat indiscreet use of the language of truth, the
inheritance to vast wealth of which he had deprived him. Such a course
strikes me as being a most natural and proper one, and perfectly in
accordance with the first principles of human nature. The whole tale is
undoubtedly of a wild and romantic order, and once again illustrates
the saying that ‘truth is stranger than fiction.’ But I have no choice
but to accept the fact that the deceased did, by means of tattooing,
carried out by his order, legally execute his true last will in favour
of his next-of-kin, Eustace H. Meeson, upon the shoulders of Augusta
Smithers, on or about the 22nd day of December, 1885. This being so, I
pronounce for the will propounded by the plaintiff, and there will be a
grant as prayed.”
“With costs, my Lord?” asked James, rising.
“No, I am not inclined to go that length. This litigation has arisen
through the testator’s own act, and the estate must bear the burden.”
“If your Lordship pleases,” said James, and sat down.
“Mr. Short,” said the Judge, clearing his throat, “I do not often speak
in such a sense, but I do feel called upon to compliment you upon the
way in which you have, single-handed, conducted this case—in some ways
one of the strangest and most important that has ever come before
me—having for your opponents so formidable an array of learned
gentlemen. The performance would have been creditable to anybody of
greater experience and longer years; as it is, I believe it to be
unprecedented.”
James turned colour, bowed, and sat down, knowing that he was a made
man, and that it would be his own fault if his future career at the Bar
was not now one of almost unexampled prosperity.