Wills and Will Making/2

by Percy Hetherington Fitzgerald

Wills and Will Making.

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We continue our list of Will stories, commenced last week, with an eccentric justice in Norfolk, who died at the age of ninety, and required to be interred in his wedding shirt, his full suit and bag-wig, his silver buckles in his shoes, his cane in his hand, and black ribbons in his sleeve bands. Exactly a hundred years ago a widow Pratt died in George-street, Hanover-square, and left injunctions that her body was to be burned to ashes. Some testators, like Mr. Morgan, of Wales, have left thirty-one calves'-heads to the poor, to be given on his birthday; some have left money, to be given out annually on their own tombstones.

A Mr. Farstone, of Alton, having no relations, left his seven thousand pounds to the first man of his name who should wed a woman of the same name, and the money was to be paid down on the day of the marriage. Eccentric testators, however, are not likely to know that the courts look very sharply after their freaks, and are inclined if possible to revise such dispositions.

Readers of Boswell will recal that laborious lord of session (Lord Hailes), to whom Johnson used to send messages of turgid encomium. On his death, when he left an only daughter, no will could be found. This seemed a sad hardship, and though diligent search was made, it was unsuccessful. Miss Dalrymple was preparing to leave the house, and the heir-at-law about entering on the property which had come to him so unexpectedly, when some servants were sent over to another house of the late judge's in New-street, to put it in order. As they were closing the window-shutters, a paper dropped out from one of the panels, which proved to be the missing will. The surprise of this denouement, acting in two different directions, was excessive. But indeed the history of lost and found wills is one of the most exciting pages of romance. There are not a few families in the kingdom who owe success in some will litigation to the discovery by a dream of a missing paper, and instances have been so repeated, that, however the matter is to be explained, it is impossible to doubt their truth. Here is a well-authenticated one, told by the chief actor himself, a famous Liverpool preacher, to a friend of the writer's.

When the Liverpool preacher was a very obscure curate, he was taking a journey on horseback in very severe weather. He lost his way, and wandered about drenched, cold, and scarcely knowing what to do. Night came on, and he resolved to entrust the matter to his horse—dropping the reins on his neck. The horse soon brought him to a sort of lodge-gate, where he asked his way, and where he was invited to ride up to the great house, where he might perhaps find shelter. He did so, and was received in the kitchen with menial hospitality, and allowed to dry himself. During the evening, the butler mentioned to his master that there was a parson below, in a bad way indeed, and the master of the house politely sent down and asked him up. Further, he insisted on his staying to dinner and for the night. The clergyman consented, and went to bed in the conventional long chamber, and under the friendly shelter of the conventional four-poster; which, also true to the convention, he could not help likening to a catafalque. There he slept profoundly, while his weary and buffeted horse enjoyed his repose in a comfortable stable.

During the night the parson dreamed—dreamed that he was going over the house. He went up a stair with an oaken balustrade, and found himself entering an old picture-gallery, with portraits ranged down both sides. As he looked, one of them seemed to come out from the wall, and a paper dropped down, which, with the indistinctness of all dreams, seemed to leave the impression on him that it was of vast importance. This, he knew, without getting any information on the subject. Then, of course, at the most critical moment he awoke.

The bright cheery breakfast-table followed. The horse was ordered round, and while it was being saddled, the host asked the clergyman would he not like to see the house. The parson was shown over, and saw much that he admired. As they were coming down he expressed his pleasure. The host grew downcast, and said he as afraid he should enjoy it but a very short time, as there was an action for ejectment coming on at the next assizes, and through the loss of a certain family paper, they were almost sure to be defeated.

The parson's dream then suggested itself, and he asked abruptly.

"Have I seen the whole house? Is there no picture-gallery?"

"No," was the answer. "Seen the whole house?—Stay—we have pictures up-stairs, and there is a large room——"

They went up again. At a turn they came to a stair which the parson seemed to recognise. At the top of the stair they entered an old long room, with pictures down the sides; the curate then knew where he was. He walked straight to a particular picture, moved it out, and behind it was discovered a sort of recess filled with papers; among them was found the missing deed.

A very curious problem recurs periodically. We hear of two members of a family—husband and wife, father and daughter—perishing together in some great calamity. The property of one passing, by will, to the other, it is necessary to prove which died first. On this point, which perhaps no one can decide, depends the rights of different parties. Two of these instances, one in humble life, the other in a higher station, add to the instances of noble behaviour in face of death. The humbler one first.

In the year 1814, Taylor, a staff-sergeant of artillery, was coming home with his wife from Portugal in the transport Queen. They had at rived at Falmouth, but a storm coming on, drove the vessel on a rock, where she was fast going to pieces. The sergeant was on deck as the vessel was parting, and in a loud voice he was heard to offer two thousand pounds to any man who would save his wife. This appeal having no effect, he went down himself and was never seen again. This wealthy artilleryman was possessed of about four thousand pounds, which he had willed to his wife, and it depended on which of the two died first as to whether it should go to his relatives or to hers. The Roman law was urged, which in absence of evidence, assumed that the man was the stronger, and more likely to live longer—that a woman was more likely to exhaust herself by screaming, and that a man's figure was more buoyant. It was urged for the woman that she was robust and hearty, while the sergeant was invalided and in wretched health. But the court declined to make any presumption, and decreed that the proof of survivorship lay on the woman, and that both died together.

The other case is very touching. A vessel called the Dalhousie was coming home from Australia, with a Mr. and Mrs. Underwood and their three children on board. Husband and wife, by some strange presentiment, had each made wills in each other's favour. The ship foundered, and a solitary sailor, named Reed, was saved. This tar gave a sketch of the last scene in a simple fashion, yet, in the powerfully dramatic way that arises from simplicity. He described the family standing together, waiting quietly for the end. The vessel, he said, was nearly on her beam-ends. He was trying to get the boat clear, when he heard a scream from the mother—the little girl had been washed away. He looked round and saw them standing together. "They were all clasped together; the two boys had hold of their mother; the father's arms were round all. I don't believe it was a minute before a sea came and swept them all off. They seemed to go off all at once. I don't think they were separated. None of them ever came in sight again." It was decided here that this evidence was conclusive as to husband and wife dying together, and the doctrine now is that in such cases death is assumed to take place at the same moment.

The "books" are full of the strange risks and perils run by wills—craft of all shapes and sizes which are sent out upon the waves, from the huge vessel built on the most approved principles, by the best workmen, and of the best materials, warranted, its departed owner is assured, to stand any storm, to the little cockleshell boat rudely put together in a few minutes, and made of a few planks hurriedly nailed up; the latter very often arriving quite safe, while the former gets among the breakers, and goes to pieces on legal rocks and sandbanks. Let us read one of these voyages and shipwrecks.

 

MRS. KELLY'S WILL.

A good many years ago, there used to come up to Dublin a disreputable unmarried old gentleman, named Kelly. He had large estates in the county Roscommon, where his movements were watched with all the interest of expectation by a number of spendthrift relations. He was fond, however, of coming up to his house in Merrion-square, whence, though past seventy, he went forth to indulge in the lowest and most degraded shapes of dissipation. At night the disreputable old gentleman used to totter forth, leaving his fine town mansion, and make his way to some notorious haunt. In one of these excursions he lost a pocket-book containing five hundred pounds in notes, and was agreeably surprised and delighted at the honesty of a young girl who came to him with it one morning. This creature's character would bear even less investigation than perhaps that of the worst of her friends and companions, and, young as she was, she had acquired great notoriety. Her name was Sarah Birch. She proved to be a woman of strong intellect and singular purpose, and her life, thus beginning in the mire, was to be the strangest.

The old gentleman must have been a man of purpose and character in his way, for he had begun life with literally nothing, and ended it in possession of great wealth. He started, he told a friend, "with but one hundred pounds in the world, and of that he was robbed by his cousin;" and indeed the whole of this story gives us strange glimpses of the "old Ireland" lingering behind in the West.

In a short time the county of Roscommon was excited by learning that "old Kelly" had come down in true style, his postilions with white favours, this doubtful lady inside, and two more ladies of the same quality seated on the box. It was given out that he had married the lady seated inside, and a numerous party of relations was thrown into consternation by the announcement. Later on there was a ball given in the county-town, and the old gentleman had the hardihood to present himself with his new partner. The scene was long talked of, and it was remembered that the decorous ladies of the district, instead of requiring the intruder to be turned out, had themselves retired in disorder, and broken up the ball.

The relations did not know what to do, but they were no match for the strong-minded, determined woman. Her power was supreme, and strengthened every hour. She could do what she pleased with Kelly. The disreputable old gentleman seemed to grow more and more attached to her every day.

The relatives she was thus gradually depriving of all hope, were nearly driven frantic. They all seemed to be in a chronic state of bankruptcy; indeed the whole picture of the characters in this drama is most characteristic. One solicitor-relative owned that his circumstances "became embarrassed, and I was necessarily obliged to remain at home, almost constantly, but not of necessity. It was rather a retirement from public life." This exquisite description is given in all gravity and seriousness. The disreputable old gentleman wrote to an acquaintance, that he had seen in the papers "the severe beating my friend Mr. Gorman got, which I fancied was only a wetting. I am most anxious to hear, until," he adds, piously, "it be the will of the Almighty, he is recovered. I spoke to him when I saw him last to be guarded." The disreputable old gentleman was given credit for an illegitimate daughter, whom, under influences, he now altogether declined to acknowledge. This lady had married an Englishman, Mr. Yeatman, who, when the parties became inflamed against each other, was boldly impeached by Mrs. Kelly as a felon's son, and who himself was later convicted of crimes, "sentenced to transportation, and sent upon the seas." This pair lurked about the little country town, and laid plots to get at their wealthy relative. Once as he was riding, he was told that some one was waiting to see him on business, on the first-floor of some shop. But when he found himself face to face with them, he strode angrily down-stairs. They, however, swore lustily that he was affectionate, and became maudlin, bewailing the miserable bondage in which he was detained, and promising to do great things for them. When he got back to the house the old influence asserted iself. Later, this pair were said to have reappeared at Brighton, where the husband threatened serious charges, and required sixty thousand pounds as the price of silence. Then came a meeting in the street, and a charge of assault by the daughter against her own father, before the Brighton magistrates. The old man behaved with great intrepidity, refused to compromise, or to mind the usual intimations of its being "a painful case," and one which should be settled out of court.

All schemes failed. The old man, however, was growing more infirm and helpless, and the greedy relatives now begun to protest he was "weak," that he had been always known as "Mad Kelly," and that he was heard protesting he was in beggary, and would die of starvation. A sympathising friend took certainly what was a most original way of combating this delusion, and had a number of large joints of meat hung round the bed, which the friend said effectually quieted these apprehensions. But this success in treatment may be doubted, for the delusion of the patient related to future privation, and he might reasonably imagine, after the supply hung round him was exhausted, that destitution might still supervene. Perhaps it was through this symptom that a curious fancy came into Mrs. Kelly's head. The malignant relatives had gone so far as to state that no marriage ceremony had ever been performed, and that as soon as old Mr. Kelly departed, this question would be raised. To quiet these scruples, and to make assurance surer, they came up to town, and a mysterious second marriage was performed in St. Werbergh's Church. Some who came to make arrangements for this ceremony declared that they saw an old dotard sitting in an arm-chair, his head bent down, his body stooped, and apparently in stupid unconsciousness of what was going on about him. The scene in the church was dramatic, the bold, fearless woman standing beside this old dotard, whose head at the most critical part of the service wandered round absently, and had to be turned back by a friend, to face the clergyman.

The woman, meanwhile, had not forgotten her old tastes. She had taken a fancy to another solicitor, and had promised to marry him when old Kelly's demise, which must have been earnestly longed for by all parties, took place. To this gentleman she wrote with a strange mixture of affection, piety, and bad spelling.

"I always loved you. I beg you not to think me fictous or changeable . . . . . so long as the Lord pleases to spare me in this world."

At last, however, his time came for the disreputable old gentleman, and he died. Then was produced a will made a few days after the second marriage, which gave everything to Mrs. Kelly. She was mistress in title as she had before been in deed. But now began the struggle. The relatives mustered strongly. A cousin came forward to impeach the will as obtained by undue influence, and a speculative solicitor was found "to take it up." Then was illustrated what is called by good-natured courtesy "the glorious," but which should rather be termed the scandalous, uncertainty of the law. One learned judge, after interminable evidence had been taken under the old system of interrogatories, declared for the will. "The delegates" were appealed to, and reversed their brother's—a delegate himself—opinion. They then turned to the chancellor, and he reversed that of the delegates, and ordered a review of the whole matter, which, after a litigation of many years, ended in favour of the spirited, unconquerable, and unconquered Mrs. Kelly.

But before this result, there entered into the case what to the spectator is a bit of grotesque comedy, but what to the actors must have been a rather dismal piece of tragedy. The claimant was an elderly Miss Thewles, and amid the congratulations of her first success, a young and enterprising solicitor was encouraged by his friends to push his advances with the lady; and he prosecuted the matter with such spirit that his efforts were crowned with success. At this stage matters were considered to look very doubtful indeed, for the widow, and her best friends advised a compromise. She was quite willing, and a friend was entrusted with the negotiation, to whose credit she had first lodged a sum of no less than twenty thousand pounds. But she had now to deal with the new bridegroom, flushed with victory in the different fields of love and law, and he disdainfully declined not merely the sum offered, but even to treat at all upon the subject. The end was that he lost everything, was all but ruined, and went away to the colonies, leaving his elderly bride behind. But everybody in this case was to behave strangely. When the compromise failed, the ambassador turned round upon his patroness, and protested this twenty thousand pounds was a gift, that he was a donee, not a trustee, and an action had to be taken against him to make him disgorge; which action strangely, like everything else connected with this business, failed, and he was enabled to retain it.

The last act now begins. Thus successful, this strong-minded and intrepid woman settled herself down to enjoy her power and her wealth, which was now said to amount to about ten thousand pounds a year, with some quarter of a million in money. She had estates in various counties in Ireland; she had her town houses in London, Dublin, and Brighton. She superintended everything herself. She gradually found out, and gathered about her various English relations, for all of whom she proposed "doing something," establishing nephews in life, and pushing them forward. One of these, a young man named Strevans, she had made her agent over a portion of her property; but he was a wild debauched youth, and she was disheartened and scandalised by his excesses. Round her gathered strange creatures, vulture like, waiting for the day when they should all be taken care of, for she was known to have made her will—"shady" attorneys chiefly, who gave her their doubtful help in the management of her affairs. Among these birds of prey raged secret jealousies and hatreds, and between one of them named Campion and the wild Strevans was a special animosity, founded on the former's protection of his patroness's interest, which he affected to believe was seriously damaged by the young man's behaviour. Even the inferior beings who were dependent on her—the stewards and labourers—seem to have been a lawless and disreputable set.

It came to the month of April, 1856, and she was down at her Westmeath estate, giving large employment to women and men, and preparing to build yet another mansion-house there. With her was the nephew, and the attorney Campion, who came down occasionally to look over the accounts. His jealous eye had discovered that the young man had not duly accounted for all the moneys that passed through his hands; and some recent excesses, which had been talked of, had fairly disgusted her. Her will was made in a truly businesslike and satisfactory way, and its contents were pretty well known. Her estates she had divided fairly among her friends and relatives, taking care of every one in some shape. The nephew was given a small estate, and the attorney was provided for. She was determined to have these little defalcations ascertained: not from the sense of their loss, but, it would seem, as a matter of justice and fact, and intended using it as a lever to force her nephew to become steady, to marry, settle down, and accept an allowance from her in lieu of greater expectations.

The attorney went diligently through all the accounts, and on the last day of his stay was able to fix the loss at about three hundred pounds. She showed no displeasure, but the young man knew what her plans were. On the ninth of April they all three dined together at two o'clock, and after dinner the lawyer retired to finish his accounts. When the day was declining, towards five o'clock, Mrs. Kelly and her nephew walked down to look at the labourers. The house was on an elevated ground, whence all the fields sloped down. They walked towards the field, where there was a busy scene—a number of women and girls gathering up the stones and clearing the ground. This field was entered by a stile, and had a long wall running by one side of it. She directed these operations herself, and was talking to a girl named Bryan, when the last scene in Sarah Birch's most dramatic life set in.

Her nephew had walked away a little distance to speak to some of the workers, when attention was attracted to two very tall and masculine women, who had just got over the stile. They were dressed in long blue cloaks, with their faces muffled in crape, and came leisurely towards the mistress of the estate. The workers by whom they passed knew at once, by their stride and strange look, that they were men disguised in women's clothes. A sense as of some coming horror seemed to have paralysed all. The unfortunate lady noticed them the last, and spoke with agitation to her companion, who said,

"Don't be frightened—they are only coming to frighten the children."

As they came nearer, she caught the girl's ana, let it go again, and with a scream tried to fly.

The unhappy woman had taken a few hurried steps when her foot tripped, and she fell. It is shocking to relate, that what followed took place in presence of about a score of people—in full sight of the dwelling house on the hill. The ruffians came up to her, and as she lay at their feet, one discharged a pistol into her ear; the other fired down into her head. They then, as it was described, "went off at a slow trot across the field," passed out of it, and were never recognised again, in the dock or on the scaffold.

The pitiful nephew had seen all this; but he could not do more than shout "Aunt Jewel! what's this?" He made a hesitating attempt to come forward, more from instinct than anything else; but one of the murderer's now "leadless pistols" pointed at him, checked his course, and he turned and made off home by a circuitous route.

The attorney was busy over his accounts when he rushed in with the news. The former started up, but the young man cried:

"Don't go out or you'll be shot—they are in the field yet!"

"And you let her be shot!" said the other.

The attorney went down to the field where she lay. Hideous sights met him there, one man sobbing,

"Oh, sir, her head is off!"

What added to the strangely dramatic scene, was the man of law going down on his knees beside the body, lifting up his hands to Heaven, and swearing that he would never rest till he had revenged the murder. A sort of steward followed his example, and made a similar singular vow of vengeance. Strevans had now come down again, and the attorney, looking at him steadily as he rose from his knees, said, "This was well planned."

The nephew was arrested; and so was the attorney, much to his surprise. Suspicion, however, more directly pointed to the former, and certainly there were some strange incidents to justify that suspicion. The accounts were to be completed that day, and he knew the result was against him. It was believed that Mrs. Kelly was about to alter her will, and cut him off with a small sum in hand instead of a handsome provision in estates. There was some anxiety in him that she should come out on that fatal evening; and he was also said to be eager that the attorney should come also. It is but just to him to say, that these facts and suspicions were mainly founded on an information of his rival and enemy, couched in excited terms and reading more like a prosecutor's speech than a simple statement. It was also thought to be a bit of agrarian vengeance. The attorney, however, was soon released; no further evidence ever turned up; and the young man, after being duly called up, assize after assize, to renew his bail, was at last finally discharged. But the matter was not over yet. No one can rest under such an imputation, whether well or ill founded, and he was driven to try and clear himself in a court of law. The edifying spectacle then followed of this pair, from the witness-box, charging each other with the murder of their patroness, of both being cross-examined "severely" on that insinuation, and of both failing to persuade their jury. The attorney, now old and shattered, presented a piteous spectacle as he was subjected to this ordeal, with trembling head and hands and voice, and abundant maudlin tears.

The bulk of the property of this luckless woman passed to a doctor, who now enjoys it, and could afford to offer five hundred pounds reward for the discovery of the murderer. Such is the account of this curious career, which began so questionably and ended so dismally, and from which, without an affectation of being didactic, we may draw this moral, that the acquisition of wealth by any other than the regular slow and honourable means, brings with it but little enjoyment. The possessor is but a stranger in his own household, and invites the interested attention of sharks and harpies. This woman had to keep watch and ward over her property, to guard it against the very arts and attacks by which she herself had won it. In the end, it seemed safer to snatch it from her by bloody means. There is something piteous almost in this story of one who had fought a weary battle, from the slums upwards, against schemers, knaves, relations, and against law and lawyers, and in the end was only beaten by the savage agency of the pistol-bullet.