The Moordaff Will Case

In the Probate Division of the High Court of Justice, on Friday, the further hearing of the case of Burgoyne v. Moordaff was continued before the right honourable the president Sir James Hannen and a special jury. The case had reference to the testamentary dispositions of the late Miss Sarah MOORDAFF, formerly of Seaton, Cumberland, who died at the advanced age of 84, possessed of property amounting to about £10,000. The plaintiff, the Rev John BURGOYNE, propounded the will dated the 28th of October, 1880, probate being opposed by defendant, the niece of the testatrix, on the ground that the will was not duly executed and that it had been obtained by undue influence.

Mr Willis, Q.C., and Mr Bayford were counsel for the plaintiff; Sir Hardinge Gifford, Q.C., Mr Inderwick, Q.C., and Mr Middleton appearing for the defendant.

Further evidence was called in support of the will by a number of witnesses who spoke as to the soundness of the deceased’s mind at the time of its execution, one, the Rev Mr PINNEGAR, a Wesleyan Minister, to which sect the testatrix belonged, stated that he always considered her a strong-minded woman, and certainly was not a person likely to be influence by anybody.

It was elicited in cross-examination that Mr Fletcher, against whom a charge of undue influence was made, was constantly in the company of the deceased, and managed most of her business affairs.

This concluded the evidence for the plaintiff.

Sir Hardinge Giffard briefly opened the case for the defence. He said the case for the jury to determine was whether the will in question was really the will of the testatrix or in fact the will of those around her. He should not, however, at that stage of the case enter into a long detailed statement of the evidence he proposed to call, nor would he waste any time then in combating his learned friend’s aspect of the case. He was of opinion that it would be best for the jury first to hear from the mouths of the witnesses what they had got to say before he addressed the Court on the subject. The evidence would show that Miss Martha MOORDAFF was in direct conflict with Mr Fletcher, and it would be for them to arrive at a verdict for the one or the other.

The evidence given by Miss Moordaff, on the last occasion was here read, the defendant herself being too indisposed to attend.


The evidence in effect stated that the defendant was a niece to the testatrix. Her aunt was not in the habit of making presents – being in fact of rather a niggardly disposition. The testatrix inherited some jewellery upon the decease of her sisters, which she valued very highly. The watch produced had belonged to one of the deceased’s sister’s. In the spring of 1880 the Fletchers went to live with her aunt, Jane STODDART at the time being a servant to the testatrix. Fletcher soon afterwards gave witness to understand that things were disappearing from the house, and that neighbours had seen them go. In consequence of this witness advised her aunt to get rid of Jane Stoddart, and she left. Witness kept her aunt’s account of household expenditure. The various entries of £1 against which a "x" was placed represented the monies paid to Fletcher as wages. She had never known her aunt to take meals with her servant. Jane Fletcher was very rough to her mistress, the deceased.

Cross-examined: - Her aunt always said she should make some provision for her favourite pony. She intimated that she wished her house always to be kept in the same repair after her death as it was in at that time, and that no children or lodgers should be allowed to reside in it.

To the Judge: She received a substantial benefit under the will of her aunt, Miss Pearson.

The Rev R HAYTHORNTHWAITE, vicar of Cleator Moor, said Seaton was in the adjoining parish to his own. He was very intimate with members of the Moordaff family resident at Workington. He made the acquaintance of the testatrix at the house of her brother, in 1872. She was never very strong from the first time he knew her till the time of her decease. Of late years she became noticeably weaker in health. This change he first noticed towards the end of 1877. About that time she had a dispute with a clergyman in the neighbouring parish. She did a very foolish thing by causing the railings which surrounded her sister’s grave to be removed without first obtaining the sanction of the minister. There was considerable bother about it which ended in litigation. Miss Moordaff lost her case and declared her intention of rather going to prison than yielding. This had a manifest effect upon her mind. In the spring of 1879 the testatrix sent for him and asked him to make a will for her. He said that he did not care to do it, remarking that it was not part of his duty to ask people whether they had settled their affairs. She replied that her cousin, who was a clergyman, frequently made wills, and she considered his wills were easier to understand than those which were drawn up by a solicitor, and begged him on that account to make her will. Witness declined for some considerable time to take it in hand and advised her to go to a solicitor named THOMPSON, at Workington. Witness ultimately drew up a will by which the deceased left her house and residue to Jane Stoddart, the remainder to the children of William MOORDAFF. She then wanted him to execute a codicil, the object of which was to leave Jane Stoddart something additional. He declined to do it, and she then went to Mr Thompson.

After some further evidence had been given, the further hearing was adjourned till Saturday morning.

The case for the defendant was continued on Saturday.

Miss Sarah PATERSON spoke generally as to the good terms Martha was on with the deceased. Witness had spoken about Jane beating the old lady, and of Miss Moordaff’s crying in consequence. Witness rented a portion of a house from Miss Martha, who used the remaining portion of the house when she visited her aunt. Witness used frequently to go into the house of deceased. On one occasion the testatrix expressed a wish to visit her niece Miss Martha and take tea with her. Jane would not let her go saying that it was raining. The weather was beautifully fine. Jane Fletcher opened a letter to the deceased from Miss Martha, and read things to her mistress which were not in the letter. This was discovered by the old lady asking witness to read the letter over to her afterwards.

Mrs Dorothy BURTON, wife of William Burton, joiner and cabinetmaker, of Seaton, said she knew the deceased as well as Jane Fletcher. The latter had in witness’s presence frequently acted with great unkindness towards her mistress.

Mrs Sarah MARSTON said she formerly kept a restaurant at Cockermouth. In September, 1880, Miss Moordaff, Mr Fletcher, Jane Fletcher, and Mr BACON called at her place and ordered tea. She had never seen any of the party before. They went into the public-room when the old lady, in the hearing of a number of men – it being market day – called out for a night commode. Witness persuaded her to leave the room and go to the back of the premises, Jane accompanying her.

Mrs Francis ROBINSON, wife of Wilson Robinson, a farmer, said she was at Mrs Marston’s on the occasion referred to. She saw the old lady in the room, and heard last witness say "Certainly not." Witness did not know what had called forth the remark.

Benjamin CLARK, an ironmonger’s apprentice, said he was in the room at the time the deceased called for the night commode. Her request caused considerable laughter in the room.

Mrs KIRBY said she lived next door to Mrs Marston and recollected the carriage being outside. She was standing at the side of a passage leading from the back parlour of Mrs Marstons house and saw Jane hurrying Miss Moordaff along. Jane said to the deceased "Come up you old bitch," and witness said to Jane "Shame on you to speak so to an old lady." Jane replied "It does not matter, the old lady does not know what I say."

Cross-examined – Jane might have said "the old lady takes no notice of what I say."

Rebecca JOHNSTON, a butcher at Keswick, deposed to being in the company of last witness, and to hearing the conversation deposed to by her.

Mary Ann DOCKRAY said she was formerly in the service of Miss Marston and had frequently seen the testatrix, who was uniformly kind to her mistress.

John MOORDAFF, nephew of the testatrix, deposed that in October, 1882, he saw his aunt in the presence of Fletcher who informed him about certain alterations in her will. His aunt simply made such monosyllabic observations as "Oh" and "Ah" to everything addressed to her. Fletcher said it was the desire of his aunt to leave him (Fletcher) half the residue of her property, but that he had declined, saying that it would not look well. The deceased subsequently gave instructions to Mr Milburn to draw up her will, which eventuated in the one propounded. His aunt expressed relief after the will was signed. She made witness a present of £50.

Cross-examined: To a qualified extent he believed his aunt quite competent to make the will. He wrote down the instructions at the dictation of Fletcher, and when he read the script over his aunt ………

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…….course, a common occurrence that those about old persons have opportunities of showing them kindness which often makes a great impression on them, and that it frequently causes quite a natural disappointment on the part of relations who had not the same opportunities during the last years of months of showing affection which they probably would have shown if they had had the opportunity, but such disappointment, however natural, does not in the least affect the validity of the instrument. Undue influence consists in this: In the first place, first the possession of the power: and, secondly, the exercise of the power to control the will of the testator, and to make the testator do something either actually contrary to his intent, or something which he had not the power to resist, or that he is as it were an instrument in the hands of the person exercising the influence upon him. It must be the will, the intention, of the testator, and not the intention or the will of the person exercising undue influence which is carried into effect, through the feebleness and incapacity of asserting a will of his own on the part of the testator. The learned judge, having at length reviewed the evidence, concluded by saying: The question is whether upon the whole view of the case is the impression made on our mind as to the condition of this lady’s capacity on the 28th October, 1880, about six weeks before she died. As I have already mentioned to you, she died of senile debility. If you come to the conclusion that she was not in that state of mind to understand the nature of the action she was doing, and of the claims of her relatives and servants and others on her, then you will say so by your verdict. On the other had, if you come to the conclusion that she did understand what she was doing, and that the document was simply the spontaneous outcome of her untrammelled mind, then you will give effect to the impression by a verdict according.

The jury, after an absence of about four hours, were sent for into Court by the learned judge.

His Lordship: Well, gentlemen, have you agreed?

The Foreman: No my Lord; we are seven to five.

His Lordship: Stop, gentlemen, we never enquire into the secrets of the jury box. You say you have not agreed?

The Foreman: No, my lord.

His Lordship: Is there a possibility of your agreeing?

The Foreman: Not the slightest.

His Lordship: That being so, and as you have been so many hours in consultation, I discharge you. I regret that you have been unable to come to a finding, the more so because there had already been one trial in which the jury also were unable to agree. In these circumstances, what is to become of the estate is a consideration. Well, it is one which I had better not enter.