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I knew that he had lost his inheritance through a quarrel about myself."
“Ah! now we are coming to it. Then you were tattooed out of regard for the plaintiff, and not purely in the interests of justice ?"
“Yes; I suppose so."
“Well, Mr. Attorney," interposed the judge, "and what if she was?" “My object, my lord, was to show that this
young lady was not the purely impassive medium in this matter that my learned friend, Mr. Short, would lead the court to believe. She was acting from motive."
“Most people do," said the judge, dryly. “But it does not follow that the motive was an improper one."
Then the learned gentleman continued his cross-examination, directing all the ingenuity of his practised mind to trying to prove by Augusta's admissions, first, that the testator was acting under the undue influence of herself; and, secondly, that when the will was executed he was non compos mentis. To this end he dwelt at great length on every detail of the events between the tattooing of the will and the death of the testator on the following day, making as much as was possible out of the fact that he died in a fit of mania. But, do what he would, he could not shake her evidence upon any material point, and when, at last, he sat down, James Short felt that his case had not received any serious blow.
Then, a few more questions having been asked in cross-examination by various other counsel, James rose
to re-examine, and, with the object of rebutting the presumption of the testator's mental unsoundness, made Augusta repeat all the details of the confession that the late publisher had made to her as regards his methods of trading. It was beautiful to see the fury and horror portrayed upon the countenances of the choleric Mr. Addison and the cadaverous Mr. Roscoe when they saw the most cherished secrets of the customs of the trade, as practised at Meeson's, thus paraded in the open light of day, while a dozen swiftpencilled reporters took every detail down.
Then, at last, Augusta was told to stand down, which she did thankfully enough, and Mrs. Thomas, the wife of Captain Thomas, was called. She proved the finding of Augusta on the island, and that she had seen the hat of one of the sailors, and the rum-cask two thirds empty, and also produced the shell out of which the men had drunk the rum (which shell the judge recalled Augusta to identify). What was most important, however, was that she gave the most distinct evidence that she had herself seen the late Mr. Meeson interred, and identified the body as that of the late publisher by picking out his photograph from among a bundle of a dozen that were handed to her. Also she swore that when Augusta came aboard the whaler the tattoo marks on her back were not healed.
No cross-examination of the witness worth the name having been attempted, James called a clerk from the office of the late owners of the R.M.S. Kangaroo, who produced the roll of the ship, on which the names of
the two sailors, Johnnie Butt and Bill Jones, duly appeared.
This closed the plaintiff's case, and the attorneygeneral at once proceeded to call his witnesses, reserving his remarks till the conclusion of the evidence. He had only two witnesses, Mr. Todd, the lawyer who drew and attested the will of Nov. 10, and his clerk, who also attested it, and their examination did not take long. In cross-examination, however, both these witnesses admitted that the testator was in a great state of passion when he executed the will, and gave details of the lively scene that then occurred.
Then the attorney-general rose to address the court for the defendants. He said there were two questions before the court, reserving, for the present, the question as to the admissibility of the evidence of Augusta Smithers; and those were—first, did the tattoo marks upon the lady's back constitute a will at all ? and, secondly, supposing that they did, was it proved to the satisfaction of the court that these undated marks were duly executed by a sane and uninfluenced man, in the presence of the witnesses, as required by the statute. He maintained, in the first place, that these marks were no will within the meaning of the statute; but, feeling that he was not on very sound ground on this point, quickly passed on to the other aspects of the case.
With much force and ability he dwelt upon the strangeness of the whole story, and how it rested solely upon the evidence of one witness, Augusta Smithers. It was only if the court accepted her evi
dence as it stood that it could come to the conclusion that the will was executed at all, or, indeed, that the two attesting witnesses were on the island at all. Considering the relations which existed between this witness and the plaintiff, was the court prepared to accept her evidence in this unreserved way? Was it prepared to decide that this will, in favor of a man with whom the testator had violently quarrelled, and had disinherited in consequence of that quarrel, was not, if indeed it was executed at all, extorted by this lady from a weak and dying, and possibly a deranged, man? And with this question the learned gentleman sat down.
He was followed briefly by the solicitor-general and Mr. Fiddlestick; but though they talked fluently enough, addressing themselves to various minor points, they had nothing fresh of interest to adduce, and, finishing at half-past three, James rose to reply on the whole case on behalf of the plaintiff.
There was a moment’s pause while he was arranging his notes, and then, just as he was about to begin, the judge said, quietly,“ Thank you, Mr. Short, I do not think that I need trouble you," and James sat down with a gasp,
for he knew that the cause was won. Then his lordship began, and, after giving a masterly summary of the whole case, concluded as follows: “Such are the details of the most remarkable probate cause that I ever remember to have had brought to my notice, either during my career at the bar or on the bench. It will be obvious, as the learned attorneygeneral has said, that the whole case really lies be
tween two points. Is the document on the back of Augusta Smithers à sufficient will to carry the property, and, if so, is the unsupported story of that lady as to the execution of the document to be believed ? Now, what does the law understand by the term Will’? Surely it understands some writing that expresses the wish or will of a person as to the disposition of his property after his decease? This writing must be executed with certain formalities; but if it is so executed by a person not laboring under any mental or other disability it is indefeasible, except by the subsequent execution of a fresh testamentary document, or by its destruction or attempted destruction, animo revocandi, or by marriage. Subject to these formalities required by the law, the form of the document-provided that its meaning is clear—is immaterial. Now, do the tattoo marks on the back of this lady constitute such a document, and do they convey the true last will or wish of the testator? This is the first point that I have to decide, and I decide it in the affirmative. It is true that it is not usual for testamentary documents to be tattooed upon the skin of a human being; but, because it is not usual, it does not follow that a tattooed document is not a valid one. The ninth section of the Statute of 1 Vic., cap. 26, specifies that no will shall be valid unless it shall be in writing; but cannot this tattooing be considered as writing within the meaning of the act? I am clearly of opinion that it can, if only on the ground that the material used was ink-a natural ink, it is true, that