The Sydney Morning Herald 25 Sept 1872 page 2

LAW.

SUPREME COURT.-Tuesday

SITTINGS IN BANCO.

BEFORE Sir ALFRED STEPHEN, C.J., Mr. Justice HARGRAVE, and Mr. Justice FAUCETT.

ECCLESIASTICAL JURISDICTION

GORDON V. TOWNSEND.- APPEAL

This was an appeal from a decree of the Primary Judge (Mr. Justice Hargrave), made in the Ecclesiastical jurisdiction. By the effect of this decree, probate of the alleged last will and testament of the late Mr. Thomas Scott Townsend was granted to Mr. Lewis Gordon. A caveat which had been entered by Mr. Townsend's widow was dismissed, and all costs were to be paid by Mrs. Townsend. His Honor's decree was at some length published in the Herald of the 27th June last.

Mr. Gordon and Mr. Salomons appeared in support of the appeal, and Dr. Paterson appeared in support of the  Primary Judge's decree.

The state of facts out of which the suit arose were very singular. The late Mr. T. S. Townsend was a licensed surveyor, formerly resident in Sydney, and about twenty years ago held a high position in his profession. In 1853 he was married to the lady now surviving him; he having prior to the wedding, executed an ante-nuptial settlement upon her. Some months after Mr. Townsend's marriage, symptoms of a strange sort of monomania began to manifest themselves in him. lt would seem that the unfortunate gentleman was of a nervous and excitable temperament, and that he was at first much disturbed in his mind in consequence of there not appearing a prospect of his becoming a father. Afterwards he began, most unjustly as it was admitted on both sides, to suspect his wife's fidelity and this suspicion grew in his mind until it developed into a settled mania which haunted him night and day. He became moody and reserved, accused his wife of encouraging the advances of persons with whom she had not the slightest acquaintance; declared that in consequence of her conduct all his friends had "cut" him, and in fact appeared quite unable to shake off the morbid delusion which clung to him, notwithstanding its complete groundlessness. Ultimately he abruptly quitted his wife and went to Victoria. Before leaving however, and by way of making provision for her, he executed a second settlement, dated in May 1854, by which he rescinded the former deed and settled £300 per annum upon Mrs. Townsend. On that annuity she has since maintained herself.

The will now set up was dated July 8th, 1854 and it was never revoked. Mr. Townsend, after residing some time in Victoria, returned to this colony, and soon after embarked for England, where, in August 20, 1869, he died. By his will no provision whatever was made for his wife and a son now surviving him; but with the exception of a legacy of £600 to Mr. Lewis Gordon (the plaintlff in the suit), all his real and personal estate, comprising considerable property in New South Wales and Victoria, was bequeathed to his sister, Mrs Harbridge. Mr. Gordon, Mr. R. H. Harbridge (husband of deceased's sister), and a Mr. Williams, were appointed trustees and executors. Mr. Williams, however, having renounced the trusts, and Mr. Harbridge being resident in England, probate was applied for by the remaining executor Mr. L. Gordon.

A caveat was entered by Mrs. Townsend upon the grounds, firstly, that the testator was not, at the time he executed the alleged will, of sound disposing mind, memory, and understanding; and, secondly, that the document in question was not the last will and testament of deceased. Upon this, according to tho usual practice, a statement was made on the part of the plaintiff (Gordon) which had the effect of initiating a testamentary suit. The statement, after reciting the will, set forth (among other things) that the testator had been of sound disposing mind, and in no wise incompetent to make a will; that the will in question had not been revoked; that prior to the execution of the will Mr. and Mrs. Townsend had been estranged from each other and had lived separate ever since; and that by the deed of settlement previously mentioned a competent provision had been made for Mrs. Townsend and the issue of the marriage, which provision they had since uninterruptedly enjoyed.

The evidence taken in the suit was not at great length, and may be thus summarised:The plaintiff, Mr. Lewis Gordon, deposed that he had known deceased intimately for fifteen years; he was of a nervous and irritable temperament; he was in good health and sound mind when he executed the trust deed and will, and seemed to understand what he was about; he suspected his wife and accused her of infidelity. For the defendant the first witness was the late Dr. Nathan, who related that he had known deceased many years before 1851; he laboured under great excitement and monomania; he appeared to be sane on some subjects, but not as to his wife's chastity, and he (witness) had considered Mrs. Townsend's position a most painful one. Dr. McFarland stated that he knew deceased prior to 1853, and remembered having three interviews with him in 1857; he then seemed excited, and generally of unsound mind; in 1858, however, he appeared   to be labouring under an hallucination about his wife. Mrs. Frances Emily Townsend stated that she was the widow of the late Mr. Townsend; that they were married in 1853; they were at first on the best terms with each other; after some months he complained of ill health, and said he felt as if come dreadful calamity had befallen him; he said people "cut" him, and that he had done nothing to deserve it. He accused his wife of encouraging a Captain Boulton, who was a perfect stranger to her ; he said she had made him the "laughing-stock" of Sydney; he left her and went to Melbourne; by Dr. Nathan's advice, she did not attempt  to accompany him; a son was born to her and was still living; she wrote repeatedly to her husband, and forwarded the child's likeness, but received no answer. He made a settlement upon her from which she derived an income of £300 per annun, and she had enjoyed the advantage of it since 1854. 

Certain depositions taken at the Police Court were put in evidence, and from them it appeared that there had been an encounter in the street between Captain Boulton and Mr. Townsend, when irritated by an insulting stare which Mr. Townsend fixed upon Mrs. Boulton, an explanation was demanded;   Mr. Townsend then accused Captain Boulton of gross impropriety of conduct, and a fracas ensued. Captain Boulton not only denied all the charges, but swore positively that he would not know Mrs. Townsend if she were then before him. Mr. Thomas Rutledge was the last witness. He stated that he had known deceased some time; considered him incompetent to transact his affairs, and believed him to be insane about his wife. In reply, Mr, Gordon was recalled, and stated that he considered deceased to have been a strictly honourable man, and always capable of managing his business; he (Gordon) had acted for him in this colony under a power of attorney authorising him to receive rents, &c. There were also put in evidence two documents, which had been found by Mr. Gordon in a parcel left for him by the deceased gentleman, endorsed with a direction that it was not to be openod until after Mr. Townsend's death. They had apparently been written shortly before his departure for England in 1857, and certainly formed convincing proof of the state of the unhappy gentleman's mind upon the subject which had haunted him so long. The first, which was addressed to Mr. Gordon, was a rambling incoherent denunciation of Mrs. Townsend's conduct. It stated that she had been offered half her husband's fortune to leave him and return to her friends before he became an idiot; but that nothing short of his madness would satisfy her. Also, that as she had stated that she would accept nothing which did not come from her husband's heart, she might rest satisfied that the provision he had made for her did come voluntarily, and in the hope that it would bring to her the peace of mind it afforded the donor. Then it went on to affirm that after crowning acts of wickedness came a concerted attempt to ruin her husband, which had been successful as far as professional hopes and ambitions were concerned; that greater cunning could not have been devised to carry out the ruin of any man, but that the Almighty had interposed just as the weapon had been loaded and the finger upon the trigger. Further, that had a commission been issued, and the case had come before the Court, not one penny would have gone to Mrs. Townsend or her child, whereas, as it then was, she had sufficient to live upon respectably; and that it was wonderful how soon every inquiry as to her husband's sanity had been stopped. There was much more disjointed and unconnected matter of the same kind, mixed up with purely fanciful quotations from Scripture, and gross accusations of his wife, his medical advisor, and nearest friends, recommending them in one portion to study reports of the case of the Mannings (an infamous couple who were hanged some years ago in England) in the newspapers, or the abridged account in the Newgate Calendar, for the next matter they took in hand. The whole document showed the most utter incapacity to follow out a rational train of thought. The second paper, which was addressed to another person, was of much the same description. 

The suit, it was stated, was a friendly one, having been instituted to determine by whom the estate was to be administered. His Honor had, however, chosen to take a  strong view of the case, and made an adjudication against the caveator, with costs. The grounds taken upon the present appeal were, firstly, that the evidence showed that at the time Mr. Townsend executed the will he was labouring under a monomania which was likely to disturb his mind and to affect the disposal of his property; secondly, that the evidence did not show that Mr. Townsend's mind was even free from such monomania, but that, on the contrary, he must be taken to have been labouring under such influence or delusion, and could not be held to have been of a sound disposing mind and understanding; and thirdly, that under the whole evidence, Mr. Gordon was not entitled to probate. Judgement was reversed.