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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 no credence can be placed on 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 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 November 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 the second, the behaviour 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 demeanour 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' 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 measurable 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 merges 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 favour than against him. For, in passing, I may remark that this young lady has done a thing which is, in its way, 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 says that 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 executed 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 man should conjure before his brain the shapes of those with some of whom he appears to have dealt harshly during his life. Nor do I consider it in any way impossible that when he felt his end approaching he should have wished to reverse the sentence of his anger, and restore to his nephew, whose only offence had been a somewhat indiscreet use of the language of truth, the inheritance to vast wealth of which he had deprived him.
Such a course strikes me as being a most natural and proper one, and perfectly in accordance with the first principles of human nature. The whole tale is undoubtedly of a wild and romantic order, and once again illustrates the saying that 'truth is stranger than fiction. Still I have no choice but to accept the fact that the deceased did, by means of tattooing, carried out by his order, legally execute his true last will in favour of his next-of-kin, Eustace H. Meeson, upon the shoulders of Augusta Smithers, on
or about the 22nd day of December 1885. This being So, I revoke the probate that has been issued of the will of the roth of November; I pronounce for the will propounded by the plaintiff, and there will be a grant as prayed.”
“With costs, my Lord?” asked James, rising.
“No; I am not inclined to go that length. This litigation has arisen through the testator's own act, and the estate must bear the burden."
“If your Lordship pleases,” said James, and sat down.
“Mr. Short,” said the Judge, clearing his throat, “I do not often speak in such a sense, but I do feel called upon to compliment you upon the way in which you have, single-handed, conducted this case—in some ways one of the strangest and most important that has ever come before me—having for your opponents so formidable an array of learned gentlemen. The performance would have been creditable to anybody of greater experience and longer years; as it is, I believe it to be unprecedented.”
James turned colour, bowed, and sat down, knowing that he was a made man, and that it would now be his own fault if his future career at the Bar was not one of almost unexampled prosperity.