Page:The Green Bag (1889–1914), Volume 06.pdf/436

 Some Famous Litigants. had driven away for marrying, in 1831, against his will, to come and live with him and repair the mansion. The son did so, but soon afterwards died. In 1854, the father, eighty years old, made a will giving all his estate to Patience, the young widow. The heir-at-law, Captain Swinfen, filed a bill in chancery, invoking to his aid the old friend of the probate lawyers, " mental incapacity." Thesiger (who was afterwards Lord Chancellor Chelmsford) appeared for the widow, and Cockburn (afterwards Chief Justice) ap peared for the Captain. The evidence of the testator's being completely broken down by his son's death, was so strong that Thesiger advised her to let him compromise, but she positively refused. Next day, she was astounded by Thesiger's informing her that he had settled by accepting for her an annuity of £1,000; and out of court he marched. The Captain had a verdict, but the widow had possession. She refused to budge, and he obtained a rule nisi for an attachment; but this was quashed for insufficient proof of disobedience.' Another rule was taken out1 and she made affldavit stating all the facts. Thereupon Judge Crowder held that there was no implied authority in the rela tion of attorney and client, and consequently, that the compromise was invalid. The Captain then filed a supplementary bill for specific performance of the contract of compromise.3 There now appeared up on the scene a fresh actor in the person of Kennedy, a young lawyer from Birmingham. He presented the widow's case so well that Romilly, Master of the Rolls, decided, as had Judge Crowder, that counsel had no power to give estates away at his discretion. Captain Swinfen took an appeal,4 but the Lords Justices sustained Baron Romilly's 1See Swinfen v. Swinfen, L.J.R. 25 Com. PI. 303; 18 Com. Bench, 482. 2 See 26 Com. PI. 97; I Com. Bench, N. s., 364. 5 See Swinfen v. Swinfen, 27 L.J.K. Eq. 35.
 * See Swinfen v. Swinfen, 27 L. R. Eq. 69.

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decision; one of them, Sir James Bruce, making the excoriating remark that the Captain's appeal was only a pis alter. They gave the widow the costs. Then the Cap tain got a new trial of the issue devisavit vel non, at Stafford, in 1858. The judge summed up in his favor; but through Ken nedy's masterly skill, the jury rendered a verdict for the widow. Thereupon the Captain went to the Mas ter of the Rolls for a new trial." But this attempt failed; Kennedy citing (in support of his proposition that mental competency may co-exist with great physical imbecility) the case of the great Marlborough, who, stricken with paralysis, his mouth awry, un able to articulate, was yet competent to make a most important codicil before his death; also the case of Lord Chancellor Eldon, who made a will at the age of ninetythree, a month before he died; also of Sir Herbert J. Fust, who suffered from the very disease that afflicted testator Swinfen, namely chronic rheumatism and hydrocele; also of a recent judge (not named, of course) who, though struck with hydrocephalus, per formed his duties with transcendent ability to the very last. He also quoted Cicero's re mark in De Senectute, concerning blind Appius, that old folks remember everything except passing events. He appealed to Coxe's Life of Marlborough, that history contradicts the satirist: — "Down Marlboro's cheeks the tears of dotage flow." Ancillary to this, a suit was brought in the probate court for costs,2 wherein the court, Sir Charles Creswell, refused to order as to costs. She also gained a suit in 1860/ deciding that £190 was not an unreasonable sum for an executrix to leave at her bank er's.4 'See Swinfen v. Swinfen, 28 L.J.R. Eq., N. s., 849,— a leading case on senility as affecting testamentary incom petency; it is meagerly reported in 27 Beavan, 148. 2 See Swinfen v. Swinfen, 1 Swab. & Tr. 283. 'See Swinfen v. Swinfen, 29 Beavan, 211.
 * See also Swinfen v. Swinfen, I Foster & Fin. 5S4.