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of the cuttle-fish, but still ink; for I may remark that the natural product of the cuttle-fish was at one time largely used in this country for that very purpose. Further, in reference to this part of the case, it must be borne in mind that the testator was no eccentric being, who from whim or perversity chose this extraordinary method of signifying his wishes as to the disposal of his property. He was a man placed in about as terrible a position as it is possible to conceive. He was, if we are to believe the story of Miss Smithers, most sincerely anxious to revoke a disposition of his property which he now, standing face to face with the greatest issue of this life, recognized to be unjust, and which was certainly contrary to the promptings of nature as experienced by most men. And yet in this terrible strait in which he found himself, and notwithstanding the earnest desire which grew more intense as his vital forces ebbed, he could find absolutely no means of carrying out his wish. At length, however, this plan of tattooing his will upon the living
, flesh of a younger and stronger person is presented to him, and he eagerly avails himself of it; and the tattooing is duly carried out in his presence and at his desire, and as duly signed and witnessed. Can it be seriously argued that a document so executed does not fulfil the bare requirements of the law? I think that it cannot, and am of opinion that such a document is as much a valid will as though it had been engrossed upon the skin of a sheep, and duly signed and witnessed in the Temple.
“And now I will come to the second point. Is the evidence of Miss Smithers to be believed ? First, let us see where it is corroborated. It is clear, from the testimony of Lady Holmhurst, that when on board the ill-fated Kangaroo, Miss Smithers had no tattoo marks upon her shoulders. It is equally clear from the unshaken testimony of Mrs. Thomas, that when she was rescued by the American whaler her back was marked with tattooing, then in the healing stage—with tattooing which could not possibly have been inflicted by herself or by the child, who was her sole living companion. It is also proved that there was seen upon the island by Mrs. Thomas the dead body of a man, which she was informed was that of Mr. Meeson, and which she here in court identified by means of a photograph. Also, this same witness produced a shell
. which she picked up in one of the huts, said to be the shell used by the sailors to drink the rum that led to their destruction; and she swore that she saw a sailor's hat lying on the shore. Now, all this is corrob
. orative evidence, and of a sort not to be despised. Indeed, as to one point, that of the approximate date of the execution of the tattooing, it is to my mind final. Still, there does remain an enormous amount that must be accepted or not, according as to whether or not credence can be placed in the unsupported testimony of Miss Smithers, for we cannot call on a child so young as the present Lord Holmhurst to bear witness in a court of justice. If Miss Smithers, for instance, is not speaking the truth when she declares that the signature of the testator was tattooed upon her back under his immediate direction, or that it was tattooed in the presence of the two sailors, Butt and Jones, whose signatures were also tattooed in the presence of the testator and of each other, no will at all was executed, and the plaintiff's case collapses utterly, since, from the very nature of the facts, evidence as to handwriting would, of course, be useless. Now, I approach the decision of this point after anxious thought and some hesitation. It is not a light thing to set aside a formally executed document such as the will of Nov. 10, upon which the defendants rely, and to entirely alter the devolution of a vast amount of property upon the unsupported testimony of a single witness. It seems to me, however, that there are two tests which the court can more or less set up as standards, wherewith to measure the truth of the matter. The first of these is the accepted probability of the action of an individual under any given set of circumstances, as drawn from our common knowledge of human nature; and second, the behavior and tone of the witness, both in the box and in the course of circumstances that led to her appearance there. I will take the last of those two first, and I may as well state, without further delay, that I am convinced of the truth of the story told by Miss Smithers. It would to my mind be impossible for any man, whose intelligence had been trained by years of experience in this and other courts, and whose daily duty it is to discriminate as to the credibility of testimony, to disbelieve the history so circumstantially detailed in the box by Miss Smithers. (Sensation.) I watched her demeanor both under examination and cross-examination very closely indeed, and I am convinced that she was telling the absolute truth so far as she knew it.
“And now to come to the second point. It has been suggested, as throwing doubt upon Miss Smithers's story, that the existence of an engagement to marry, between her and the plaintiff, may have prompted her to concoct a monstrous fraud for his benefit; and this is suggested although at the time of the execution of the tattooing no such engagement did, as a matter of fact, exist, or was within measureable distance of the parties. It did not exist, said the attorney-general; but the disposing mind existed: in other words, that she was then ‘in love'-if, notwithstanding Mr. Attorney's difficulty in defining it, I may use the term—with the plaintiff. This may or may not have been the case. There are some things which it is quite beyond the power of any judge or jury to decide, and one of them certainly is, at what exact period of her acquaintance with a future husband a young lady's regard turns into a warmer feeling? But supposing that the attorney-general is right, and that although she at that moment clearly had no prospect of marrying him, since she had left England to seek her fortune at the Antipodes, the plaintiff was looked upon by this lady with that kind of regard which is supposed to precede the matrimonial contract, the circumstance, in my mind, tells rather in his favor than
against him. For in passing I may remark that this young lady has done a thing which is, in its
little short of heroic; the more so, because it has a ludicrous side.
She has submitted to an operation which must not only have been painful, but which is and always will be a blot upon her beauty. I am inclined to agree with the attorney-general when he she did not make this sacrifice without a motive, which may have sprung from a keen sense of justice, and of gratitude to the plaintiff for his interference on her behalf, or from a warmer feeling. In either case, there is nothing discreditable about it-rather the reverse, in fact; and, taken by itself, there is certainly nothing here to cause me to disbelieve the evidence of Miss Smithers.
“One question only seems to me to remain. Is there anything to show that the testator was not, at the time of the execution of the will, of a sound and disposing mind? and is there anything in his conduct or history to render the hypothesis of his having exccuted this will so improbable that the court should take the improbability into account? As to the first point, I can find nothing. Miss Smithers expressly swore that it was not the case; nor was her statement shaken by a very searching cross-examination. She admitted, indeed, that shortly before death he wandered in his mind, and thought that he was surrounded by the shades of authors waiting to be revenged upon him. But it is no uncommon thing for the mind thus to fail at the last, and it is not extraordinary that this dying