[list-cumbria] Carlisle Patriot, 29 Nov 1823 - Prerogative Court - HODGSON v. CLEMITSON

[Petra Mitchinson]

Saturday 29 Nov 1823   (p. 3, col. 2)

 

PREROGATIVE COURT, Nov. 19. 

  

HODGSON v. CLEMITSON. 

 

This was a testamentary cause, the written evidence in which was of considerable bulk. On the 5th instant, the cause was opened by
Dr. ADAMS at some length, followed by Dr. LUSHINGTON, on behalf of Mr. HODGSON. On the 8th, Dr. JENNER and Dr. DODSON were heard for
Mr. CLEMITSON. 

 

The party deceased, the Rev. Thomas DALTON, was Rector of Northwood, in the Isle of Wight, and died on the 13th of May, 1822.* He
was a Bachelor in Divinity, of the age of 88 years; and left behind him forty-nine persons, his great nephews and nieces, being the
sons and daughters of his nephews and nieces in the first degree. By his will, dated 29th of August, 1821, he left to each of these
forty-nine individuals a legacy of £100, excepting only three of them, namely, Mr. John HODGSON, Mr. Peter CLEMITSON (parties in
this cause), and a grand nephew, to whom deceased had already given £120. Mr. HODGSON and Mr. CLEMITSON he nominated his executors
and joint residuary legatees. The property amounts to about £10,000. The deceased was a man of eccentric habits, but of strong mind.
For upwards of a twelvemonth preceding his death, deceased had been in a declining way; and towards the latter part of his life, it
seems, his eye-sight had become extremely defective, though on the degree of its deficiency the witnesses were by no means agreed;
some considering him capable of seeing sufficiently well to write and sign his name, and in other respects to be competent to give
operation to a testamentary paper of the kind propounded in this cause by Mr. HODGSON, as a codicil to the will of August, 1821; it
being proved by his domestics that he rode out on horseback to Newport and Cowes, unattended; walked about his grounds, conversed
with vigour, and even wrote out his own washing bills, down to within three months of his death: while others deposed very
confidently to his utter inability (arising from a degree of dimness approaching to blindness) to see even whether the paper so to
be executed was blank, or already written on. The testamentary paper, purporting to be a codicil to the will of August, 1821, and
propounded as such by Mr. HODGSON, was the exhibit No. 2, and was in this form—(certain obliterations and erasures in the original
being represented by blanks): 

 

"No. 2. On consideration that my nephew Peter has already partaken largely of my property, I do hereby annul that part of my will
.   .   .   which unites him with my nephew, John HODGSON, and the joint bequest of the residue; and I give all   .   .   .   .   my
property to J. HODGSON solely; my niece, his wife, shall have choice of my plate and linen; and if I should survive him, the whole
with the office of executor, shall devolve on her in trust for her daughter Evince. 

 

"J. HODGSON would not prepare this for me, but it is my wish to have it so." 

 

Endorsed thus on the back— 

 

"Let this be observed, March 21, Thomas DALTON, 1822. THOMAS DALTON." 

 

The body was admitted to be the hand-writing of the deceased, and although the indorsement appeared to be written at a different
time, all the witnesses believed it likewise to be his hand-writing. This paper Mr. HODGSON's allegation stated to have been
discovered in the deceased's bureau on the day after his death, by the Rev. Mr. PATTINSON, deceased's confidential friend and
curate, who had lived with him for 30 years. It was opposed by Mr. CLEMITSON (the party implied by the words "my nephew Peter,") who
brought in several letters addressed to him in the years 1818, 1819, 1820, and 1821, by deceased, all of which were couched in
affectionate language; and contained no recognition of the codicil. Mr. CLEMITSON's witnesses proved also, that deceased had for
some time past spoken on all occasions of Mr. CLEMITSON in terms of commendation, as a man of business and strict integrity. Annexed
to the affidavit of Scripts, given in by Mr. HODGSON, was a will of 1818, in which the deceased, acting under a false impression of
some misconduct of his nephew CLEMITSON, which impression the evidence proved to have explained away, had made much the same
testamentary disposition in favour of his nephew HODGSON, and in exclusion of CLEMITSON, as the codicil proposed to do; being in
these words—"This is my will—I give all my property to my nephew HODGSON, whom I appoint sole executor, and if I survive him, to his
wife in trust for his children equally, except that, if possible, let the Brunstock estate be purchased for his daughter my
god-child. My nephew Peter has been ungrateful to me, and I wish thus to mark it: let him remember my bureau;" endorsed, "For sake
of quiet, let this be secret till after my death." 

 

*   *   *   *   But it was proved that on that occasion Mr. HODGSON had effected a reconciliation between Mr. CLEMITSON and the
deceased; and had even prepared the subsequent will of August, 1821, by which himself and Mr. CLEMITSON were equally benefited. We
have no room for the conflicting details of this case, which were moreover very numerous. This case was argued by Dr. ADAMS and Dr.
LUSHINGTON, who supported the codicil. 

 

Dr. JENNER and Dr. DODSON were of opinion that its validity was by no means established. 

 

Sir John NICHOLL, in a sentence which minutely analysed the evidence, and occupied upwards of two hours in the delivery, pronounced
against the codicil, chiefly on the ground that where there is a prior regularly executed will, the legal presumption in its favour
is so strong, that a party setting up a subsequent paper, is bound to establish it on extremely clear evidence, and here the
evidence did not satisfy his (Sir John NICHOLL's) mind that the deceased knew the effect of the indorsement on the paper propounded
at the period of its date, inasmuch as he could not see to read the body of the paper, but as no fraud had been practised in
obtaining it, he rejected the application to condemn the party proponent in costs.—Obs. 

 

                                 * A native of Brunstock, near Carlisle. 

 

 

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