ÆäÀÌÁö À̹ÌÁö
PDF
ePub

answered the questions put to them, both on the first and second commissions. For these reasons, I am disposed to excuse some want of clearness in recollection and in expression, and when they do make any statement which is material and relevant, to accept it. This evidence consists partly of affidavits and partly of oral examination; two of those who made affidavits were not called on the commission, but their evidence is not of much importance. I may say, on this branch of the case, that I have derived most assistance from the evidence of the witnesses Elizabeth Coope Wellington, James Brown, and Mary Ann Holland. Some of the other witnesses add, however, some small details. The evidence, I think, shows that, from a period extending from about or shortly after 1830 to about or shortly after 1840, the testator lived with his parents, and that James Spencer Osmand also lived with the old surgeon and his wife, or constantly or frequently visited them, and that he was treated as a son, both by James Osmand and his wife. Indeed, Mary Ann Holland expressly says, in the first commission, he called them father and mother, and this statement is not the result of any leading by counsel. This witness was too ill to be effectually examined on the second commission, and it was objected that her evidence on the first occasion should not be regarded. I cannot agree with this contention, and think that I should take her evidence into consideration, though I put it no higher than if she had made an affidavit to the same effect. These witnesses and the other witnesses also gave evidence of the public reputation that James Spencer Osmand was a son of the old surgeon. If this class of evidence is admissible, it would make claimant's case on this branch much stronger, but I ruled that it was inadmissible, except so far as the statements involved (as, I think, they sometimes did) family reputation. Public reputation is, in my opinion, evidence of marriage, and from this, in some instances, legitimacy may follow, but I cannot find that evidence of this kind is admissible as direct proof of legitimacy or illegitimacy. I have not taken as proof the statements of the witnesses to the effect that James Spencer Osmand was the son of James Osmand. On the whole, I have come to the conclusion that, having regard to the fact that James Spencer Osmand was born after the marriage of testator's parents, that he bore the name of Osmand, that he lived at or constantly

CUSSEN, J.

1906

Re OSMAND; BENNETT

v.

Booty.

CUSSEN, J.

1906

Re OSMAND; BENNETT

v.

BOOTY.

visited the house, that he was treated as a son by both the old surgeon and his wife, and that Mrs. Moule, in her affidavit filed in this case, swears to the fact, I should conclude, in the absence of evidence to the contrary, that he was the son of James and Elizabeth Osmand, and the brother of the testator. In coming to this conclusion, I have recognized that the onus is, so far as this point is concerned, on the claimant's executors, but I am also entitled to take notice of the fact that the opponent has not put in any evidence as to who James Spencer Osmand was, if not the son of the surgeon, and that he only puts alternatively the view suggested by Mrs. Booty as to James Spencer Osmand being an illegitimate son of Elizabeth Osmand born after her marriage. Counsel on Mrs. Moule's behalf sought to strengthen their case on this point by seeking to give in evidence declarations made by Mrs. Georgina Osmand, contending that it was not necessary to prove aliunde that Mrs. Georgina Osmand was of the family of the testator, and that it was enough to prove that she was the wife, and afterwards widow, of James Spencer Osmand, and cited the case of Monkton v. Attorney-General (a), a considered decision of Lord Chancellor Brougham. I am at present not prepared, having regard to what was said by Lord Cottenham when that case (under the name of Robson v. Attorney-General) (b) went to the House of Lords, and to the way the rule has been expressed in other cases, to assent to that decision: See Lyell v. Kennedy (c); Doe v. Randall (d); Attorney-General v. Kohler (e); the Berkley Peerage Case (f); Procurator-General v. Williams (g); and Smith v. Tebbitt (h). The rule, as I understand it, is that declarations of deceased relatives of the family concerning which inquiries are being made are admissible as to the state of the family in pedigree cases, not that the declarations of deceased persons, who are proved to be connected with someone else who they say is a member of the family being inquired about, are admissible as evidence. In my limited experience, the people who are likely to give you inaccurate and false information as to the state of

[blocks in formation]

1906

Re OSMAND; BENNETT

v.

BOOTY.

the family are just the very persons who would claim relationship. CUSSEN, J. The fact that applying the rule will in some cases render declarations of little or no use-e.g., where the declarant is the person whose relationship is sought to be proved-seems to be no reason for extending a rule which already admits hearsay, sometimes to a perilous degree. I should, of course, hesitate long before declining to follow what seems to be the only express decision on the point, but, notwithstanding that the case is cited without disapproval in several leading text-books on evidence (see particularly Wills on Evidence, p. 158, et seq.), I should hesitate still longer before I followed it. In the present case it is sufficient for me to say that I have disregarded the evidence as to the declarations of Mrs. Osmand and Mrs. Moule in arriving at the conclusion above expressed.

Having arrived aliunde at the prima facie conclusion that James Spencer Osmand was the son of the old surgeon and his wife, the declarations of his wife and daughter, made ante litem motam, would, of course, be evidence, and so far as they go they support Mrs. Moule's claim, but I have not relied upon them to any great extent, though the statement that Mrs. Georgina Osmand referred to testator as Mrs. Moule's "Uncle William " is of some importance. It was contended for C. E. Osmand that I should not come to the primâ facie conclusion above expressed, because no certificate of baptism of James Spencer Osmand was found, although searched for in many parishes in Devon. I think this circumstance not of much weight, as in the year 1809 the practice of registration was not so well settled or understood as it is now, and also because it does not appear where Mrs. Elizabeth Osmand was living when James Spencer Osmand was born; the fact that no certificate of baptism was produced rather goes to show that she was not in Devon. In the next place, counsel for the opponent contended that against the evidence of the ancient witnesses I should place the continued declarations of the testator that he never had a brother. These declarations, coupled with the fact that testator (although he in 1881 knew of the existence of Mrs. Georgina Osmand, and possibly of her children) made the will in the terms in which he did, have caused me considerable anxiety, and it is because of the importance of the matter that I have been at some pains in the earlier part of

[blocks in formation]

CUSSEN, J.

1906

Re OSMAND; BENNETT

บ.

BOOTY.

this judgment to set out a history in chronological order of the testator's orders and statements. His declarations are of two kinds (1) oral to Dr. Bennett, Mr. James Osmand, and Mr. Ebblewhite, that he never had a brother; and (2) by means of the memorial in the Plympton Church, in which he is described as the "only son," which probably means "at any time," but may mean "at the time of erection." The original memorial tablet, and the petition for the grant of arms, on the latter of which he is described as the "only surviving child," are, I think, of little importance. In weighing these declarations, it must be remembered that testator had become a very wealthy man, that he was anxious to have a grant of arms, and to find a distinguished pedigree, and that possibly he was not desirous of being associated with a family that had fallen so low in the world as that of James Spencer Osmand. He seems to have had a strong dislike to James Spencer Osmand; he got very angry when Mr. Ebblewhite mentioned him, and did not wish to speak of him. He never mentioned him to Dr. Bennett or to Miss Booty. It is very remarkable, however, that though in Victoria and in London he asserted that he never had a brother, when he was down at Ridgway, where people were likely to know the facts, his behaviour was very different. When Mr. Phillips, the father of the witness Ann Phillips, asked him on his last visit about his brother, he simply said, "These are family matters," and turned the conversation to business. To Mr. Hicks he spoke of a brother as being in the navy, and as doing something that went amiss with him, and going abroad. At first one would be apt to think that perhaps Mr. Hicks had made a mistake, but when testator's remarkable description to the witness James Osmand of his mother with his two sisters is borne in mind, and his assumed ignorance to Mr. Ebblewhite of the person who he heard was about at the time of his mother's funeral," I am inclined to think that testator did not want people who already did not know to learn anything of the existence of James Spencer Osmand, and he did not want people who did know of the existence of James Spencer Osmand to pursue any inquiries about him, and that probably in this matter he thought he was justified in departing from his ordinary strict regard for truth. So far as Mr. Ebblewhite was concerned, his idea was that nothing so modern as James

[ocr errors]

1906

Re OSMAND; BENNETT

V.

BOOTY.

Spencer Osmand should be troubled about; it was ancestors during CUSSEN, J. and before the reign of George III. with which he was concerned. Taking his statements as a whole, at Devon and elsewhere, his mental attitude seems to me to amount to this-"There was a person named James Spencer Osmand brought up and known as my brother, but if I can help it his name will not crop up, or his identity be discussed in my presence, and I will give no information about him likely to lead to his being traced." I admit that this mental attitude is quite consistent with the view that James Spencer Osmand, though the child of his mother born during wedlock, was not the child of his father, but it is also consistent with the view that he had had some violent personal quarrel with James Spencer, or had some intense personal dislike to him, so that, to use popular language, he (testator)" would not own him.” In the latter case testator's statements would, on the whole, support Mrs. Moule's claim; in the former case different considerations would be applicable with reference to the possibility of illegitimizing in this way the child of a married woman born in wedlock. In any event, I do not think testator's statements, taken as a whole and read fairly, mean that there was no such person as James Spencer Osmand brought up as the son of James and Elizabeth Osmand, and if any such meaning can be extracted from them, it does not, to my mind, disturb the conclusion arrived at from the ancient local witnesses. I may add that testator's statement to Mr. Hicks, and his visit to Mrs. Georgina Osmand, and calling her Georgie, and being referred to by her as Mrs. Moule's "Uncle William," tend to support Mrs. Moule's claim. If the testator gave Mrs. Georgina Osmand money this would be an additional fact, though of small weight, but I am inclined to think that Miss Booty is right, and that it was her mother, and not the testator, who helped the widow of James Spencer Osmand.

With regard to testator's will, it is certainly remarkable that, in the view that he hated James Spencer Osmand, a will should be made in which his descendants might either take all, or at least a share. But testator almost certainly knew when he made his will that James Spencer Osmand and Georgina, his widow, were dead; he may have thought there were no descendants. He intended altering his will shortly, and making specific provisions for his

« ÀÌÀü°è¼Ó »