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Empire Newspaper 1872

The appeal

Empire (Sydney, NSW : 1850 - 1875) 20 December 1872 page 3


Supreme Court.-Thursday

Sittings in Banco

(Before their Honors the Chief .Justice Sir Alfred Stephen. C.B., Mr. Ju«tice Hargrave, and Mr Justice Faucett )

Important Equity appeals

Gordon vs Townsend

This was an appeal from a decree of the Primary Judge in Equity (Mr. Justice Hargrave) granting probate and sustaining the plaintiff's bill in this equity suit. The facts of the case. as revealed by the judgement of his Honor the Primary Judge, were fully reported in our columns some months ago. Last term, the judgment was appealed against, and their Honors. reserved judgment.

The Chief Justice said that the suit was instituted for the purpose of trying the validity of a will made by one Thomas Scott Townsend, the plaintiff being one of his executors, and the defendant, Frances Emily Emily Townsend, the deceased's widow. Mrs. Townsend is not litigating for herself alone, but represents her own interests and those of her son, the solo issue of the marriage, a youth of 18, whom the disputed document, disinherits. For the protection of those interests and in justification of her character, cruelly aspersed, she.alleges that the will propounded was not that of a sound or sane mind, but exclusively of unhappy delusions under which her husband has left his property to others. His Honor said it was not whether the delusions merely existed, scandalous and absurd as they wore, and, confessedly without foundation or excuse (?) except that of a disordered mind, and are such as the law will regard as proofs of insanity sufficient to defeat a will made under such a malady. It was due to his solemn sense of justice and to the defendant as a litigant to say that not merely had she a right to come here, but she had done no more than her duty; and in endeavouring to discharge it, she had been subjected to imputations which are utterly unwarranted. 

His Honor then minutely quoted the facts of the case as glven in the evidence adduced at the trial, from which it appeared that Miss F. E. Davis married. Townsend in April, 1853 at the age of 22, and that Townsend previously executed a deed of settlement of sundry bank and other shares on her from his fortune which was not inconsiderable. For some weeks he was much attached to his wife, but subsequently he being of an irritable, nervous and jealous temperament, he laboured under painful suspicions as to his sexual powers, upon which he sought medical advice. It should be mentioned that the lady before marriage lived in the country, and accordingly she scarcely knew any one in Sydney.. The delusion spoken of continued, notwithstanding Dr. Nathan's assurance to him of there being no grounds for suoh fears, and if Mrs Townsend proving a second encienta (she had one miscarriage, which, however, the unhappy husband refused to believe), Mr. Townsend became greatly excited and accused his wife of infidelity, naming persons, some of whom she never had seen. He was, says Dr. Nathan, almost violent when reasoned with, and declared his wife unchaste with several men, of which her brothers were privy to her disgrace, and he dwelt so much on these ideas that there was no doubt that he was a monomaniac. 

His Honor proceeded to show that Mr. Townsend, being a Government surveyor, obtained leave, in consequence of sickness, and in March 1851, proceeded to Melbourne, from whence he returned in March or April following, but not healed or improved. In April the boy was born, but the father never spoke to his wife or beheld the child: and Mrs. Townsend, seeing her husband at a friend's house, she endeavoured to address him, but he rushed past her. and they never met again. In after years, she made other efforts at recognition, and sent him, on two occasions, portraits of his son, but they never reached him, or her letters, or if they did he never acknowledged thelr receipt. His Honor then argued that the lady's character was irreproachable, and that the accusations were monstrous and so violently absurd that there was not the slightest pretence for such insinuations, but only on the supposition of deceased.

He then related how Mr. Townsend had accused one Captain Burlton of seducing his wife, and after calling him a liar and a coward on his stating that he did not know Mrs. Townsend and he concluded hy challenging Captain Burlton to a duel in the morning. All this happened in the presence of Mrs Burlton and an assembled crowd. On the next day Mr. Townsend was bound over to keep the peace, and Captain Burlton swore that he believed Mr Townsend was out of his senses. There was also several instances cited where Mr, Townsend accused his wife of staring at gentlemen in the street, and accused her of receiving them at his home during his absence. He mentioned one instance of delusion under deceased's own hand, where, deceased had given a bundle of papers to his friend Mr. Gordon, the plaintiff, and to Mr. Dunamure(?), his attorney, not to be opened until after his death, wherein he reinterated charges most infamous, which he thus meant should be uttered from the grave. Thus one Mr. Rutledge, who know him intimately for years, alleged that he was perfectly insane, not only on the subject of his wife, but on other subjects, and he had said so to many persons. 

His Honor then descanted on Mr. Townsend foolishly cutting up the deed of settlement, dated 8th July, 1864, which did not invalidate it, although the death of both the solicitors and the lapse of time would probably prove inquiry as to the exact provisions of that deed fruitless. In this deed he speaks of the child as his own, and used the expression "unhappy differences" and within a few days of its execution he made the impeached will, which no sane man would have penned if he thought the child his own. In July 1864, after executing the will and the separation, generously settling 300 pounds a-year on his wife, reserving only 200 pounds to himself, he sailed for England, and remained there till 1855, when he returned to the colony not improved in mental health.

In January, I867, M Macfarlane and another physician (at the instance of the Government, it was suggested) saw deceased, and certified that he was of unsound mind. In 1857 he again went to England, and as to his mode of life after that time, or the circumstances attending his death in August, 1869, there was no evidence. His Honor said he could find no evidence, although so stated in the judgment, that Mr. Townsend separated himself from his wife by Dr.Nathan's advice, or any other person. The act, wise or not, was the result solely (as the posthumous papers show of Mr. Townsend's own determination, founded on the delusions that haunted him. He held that the will was correct and commendable by which Mr. Townsend leaves all his property, except 500 pounds for Mr. Gordon, to his sister and her children, and he appoints Mr. Gordon and Mr. Allan Williams as his executors. There was undisputed evidence that Mr, Townsend was a clear-headed and prudent. man in business matters, but having regard to the said delusions and the obstinacy with which they were maintained they must have in a considerable degree unhinged and disturbed his mind. In the documents opened after testator's death, amongst other charges against his wife, he says she constantly reoeived messages through common beggars, that his attorneys and Mrs. Gordon betrayed him, and were eventually attempting to get a commission of lunacy against him, and he names several persons who could prove his wife’s infamy; also, accused his wife's brothers of being cognisant of it. Other portions of the paper his Honor refused to quote as too revolting and absurd. 

His Honor then reviewed the progress of the trial from its commencement to its termination, and then dwelt on the legal aspects of the case. In support of his view of the case, he cited numerous authorities in cases of of a similar character. Considering all the circumstances he was clearly of opinion that the will made by the deceased was invalid, and consequently that the primary judges decree for probate of it must be reversed. The plaintiff was perfectly justified in submitting the question of validity to the court as it was indeed his duty to do so. He may therefore reasonably claim to have his costs out of the estate, but as it seems that the suit was not a hostile one the parties have agreed on all questions of that oharacter.

Mr. Justice Hargrave then delivered judgment of a similar tenor to that given by him on his granting the decree herein, which dlssents from the chief Justice’s opinion,

Mr. Justice Fauoett's judgment concurred with the Chief Justice decision as to deceased's insanity and the invalidity of the will.

Linked toFrances Emily Davis; Thomas Scott Townshend

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