05 & 12 Jul 1837 Prerogative Court/Tyson v Crosthwaite - Cumberland and Westmorland Newspaper Transcriptions

05 & 12 Jul 1837 Prerogative Court/Tyson v Crosthwaite

The deceased in this case was Mr. Thomas CROSTHWAITE, of Bootle, Cumberland, who
died the 12th of January, 1835, a widower, leaving no issue. He had a brother,
John CROSTHWAITE, who had a family, and who, with three children of a deceased
sister, William TYSON, James TYSON, and Esther ROLFE, were his next of kin. He
left a small freehold property at Bootle and personal property to the amount of
900L. In a letter from the deceased to his nephew, William TYSON, dated 6th of
March, 1826, he mentioned that he had appointed him executor to his will, and
inquired which was the safest mode of keeping it. In another letter, dated 12th
of April, 1827, to the same, the deceased stated, that he had sent his will to
Mr. HOBSON, a solicitor at Whitehaven, sealed in an envelope, superscribed
"Thomas CROSTHWAITE's will, 2d of January, 1826;" and he refers to a letter from
Mr. HOBSON in reply, promising to take care of the will till the testator's
death. A third letter, dated in September, 1827, mentions some legacies
bequeathed by the will. A fourth letter, dated 15th of October, 1830, mentions
that Mr. HOBSON had made a codicil to the will; that having done so, he sealed
them and took them with him. On the death of the testator, these instruments
were not found in the possession of Mr. HOBSON, and are not forthcoming. On the
part of Mr. William TYSON, the four letters referred to were propounded as part
of the will of the deceased. Mr. HOBSON, who was examined as a witness in the
case, deposed that he originally resided at Whitehaven, and subsequently at
Bootle; that he received a will from the deceased in "1826" sealed up; that he
afterwards took it to the deceased in order to make a codicil thereto, giving
50L. to his nephew, John CROSTHWAITE; what became of the will and codicil he
could not say; there was a blank in his memory; he might have taken them into
his possession or he might not; he had forgotten the making of the codicil; he
never parted with them that he remembered; at the deceased's death he was still
under the impression that they were in his possession, and he searched for them,
and if the deceased gave them to him, they must have been lost, mislaid, or
pilfered in a way he could not account for. Mr. MACKNIGHT, a surgeon of Bootle,
had attested the execution of three wills of the deceased, one in 1826, another
in 1827, and a third in 1828.

Dr. LUSHINGTON (with whom was Dr. NICHOLL), for Mr. W. TYSON, in support of the
prayer that the Court would give probate to the four letters so far as they were
of testamentary character, argued that this Court is always anxious to give
effect to the intentions of the deceased; that where a will is lost, it would
therefore decree probate of whatever part of its contents could be recovered;
that it was clear that the deceased executed a will of the tenour mentioned in
those letters in 1826, and there was no evidence of its having been revoked or
destroyed by him. The Court was asked to decree probate of nothing but of what
the deceased said he had done. The legacies were specific; there was no bequest
of the residue.

Dr. ADDAMS, for Mr. CROSTHWAITE, contended for an intestacy. The case now set up
was different from that laid in the allegation, which the Court had admitted,
with an intimation that if Mr. TYSON persevered, he did it at the risk of costs.
No reliance could be placed at the recollection of Mr. HOBSON; the will might
have been taken from him by the deceased, or revoked by the will of 1828.

Dr. NICHOLL replied.

Sir H. JENNER wished, previous to delivering his sentence, to look into some
letters which had been deposited in the registry. His present impression was,
that unless they referred to the will, he must pronounce against the case set
up. Mr. TYSON had been led into error (if error it was) by the testator himself;
and the learned Judge had therefore no design to condemn him in the costs. He
should give his opinion on Tuesday.

12 July

Sir HERBERT JENNER gave sentence in this case, the argument in which was
reported in our paper of the 5th inst. It was a question as to four letters
written by the deceased in the cause, Mr. Thomas CROSTHWAITE, of Bootle, in
Cumberland, who died in January, 1835, to Mr. William TYSON, his nephew, and who
had been declared sole executor of a will dated January 2, 1826; which will not
being forthcoming, these papers were propounded as containing some of the
bequests. The learned judge, after detailing the circumstances of the case,
observed, that there could be no doubt that Mr. TYSON had been named by the
deceased executor of his will, and that he had left him a considerable part of
his property; nor was there any reason to suppose that his regard for Mr. TYSON
had in any degree diminished, or that he withdrew his confidence from him. But
still it did appear that the deceased did not communicate to Mr. TYSON all his
testamentary acts, for according to the evidence of Mr. MACKRIGHT, two other
wills had been executed by him subsequent to that of 1826, one in 1827 and
another in 1828. It was true that the will of 1826 had been revived by the
codicil of 1830, which revoked the subsequent wills, but it showed that there
was some degree of reserve about the deceased which should render the Court the
more cautious in pronouncing for the contents of a paper not forthcoming. The
difficulty was to account for the disappearance of the will of 1826 and the
codicil of 1830. The deceased said that he gave them to Mr. HOBSON, who sealed
them up and took them away. But the Court had nothing to rely upon but the
expressions of the deceased, for Mr. HOBSON's memory as to this point was an
entire blank; he had drawn the will without making any charge for it, and he
concluded that as the papers were not in his possession, they had been restored
to the deceased. The reliance to be placed upon the character and statements of
the deceased in his correspondence was not sufficient to found a judicial
conviction. But even supposed the Court was to conclude that the papers were
taken away by Mr. HOBSON and never returned to the deceased, still it was
difficult to ascertain their contents; for the letters of 1827 might refer to
the will mentioned by Dr. MACKRIGHT. He (the learned judge) had examined other
letters of the deceased deposited in the Registry, in the hope that they might
throw a light on the case, but without success. Mr. HOBSON, in 1833, removed
from Whitehaven to Bootle, in the deceased's neighbourhood, and this would have
afforded the deceased opportunities of referring to his will if it had been in
his custody, and had he done so Mr. HOBSON could hardly have forgotten it. Nor
did the deceased, from October 1830, ever once allude in his letters to the will
being in the possession of Mr. HOBSON. The Court could not help thinking that
the will might still be in existence, and perhaps be here** produced; but Mr.
TYSON had failed in establishing his case and he (the learned judge) must
pronounce against the validity of the papers. He, however, thought that Mr.
TYSON was perfectly justified, even after seeing the affidavit of Mr. HOBSON,
(whose evidence was not very satisfactory,) in the course he had taken; he had
been led into error, if error it was, by the deceased, and the Court decreed Mr.
CROSTHWAITE's and Mr. TYSON's costs to be paid out of the estate.