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Divorce Court for a twelvemonth, adding that when he was in any doubt as to the practice of the Court or otherwise, on his communicating with him, he would be glad to give him his assistance. Sir Montague Smith having kindly assented to the proposal, Lord Penzance submitted it to Mr. Gladstone, who declined to sanction it, and informed Lord Penzance that he should expect him to resign. Lord Penzance thereupon inquired what pension would be assigned to him were he to resign; he having two and a half years longer to serve for his full pension. Mr. Gladstone's reply was, that on sending in his resignation the amount of the pension to be awarded to him would be taken into consideration. Lord Penzance's rejoinder was, that this being so, he should not send in his resignation, and being unable to appear in his Court in the ensuing term, on the reassembling of Parliament he would place the matter before the House of Commons for its consideration. In the result, Mr. Gladstone consented to a warrant being handed to Lord Penzance, securing to him the full pension of £3500 a year, in return for which he handed to the Treasury an instrument of resignation. The above facts were personally communicated by Lord Penzance to Dr. Spinks immediately after his retirement from the Bench, with an expression of deep regret that, owing to Mr. Gladstone's refusal to sanction his arrangement with Sir Montague Smith, he should have been prevented, on being restored to health, from resuming his seat in the Old Courts. Dr. Spinks told me, recenti facto, of Lord Penzance having made the above communication to him, and Lady Penzance confirms its accuracy.
I have felt it to be due to Lord Penzance's memory to refer to the circumstances attending his resignation, as after his recovery, observations were made to his lordship's prejudice at the Bar, that there was no reason why he should not have arranged to remain on the Bench for a sufficient length of time to entitle him to his full pension.
The following extract taken from the Law Journal contains a faithful contemporary expression of the opinion of the legal profession and of the public of the services that Lord Penzance had rendered to his country during the ten years that he had presided in the Probate and Divorce Courts, and of the loss that they sustained by his retirement from these Courts :
“We have so often expressed our opinion of Lord Penzance's success as a judge, that we do not deem it incumbent on us to enter upon any general retrospect of his lordship's career. It is sufficient to say that Lord Penzance, following Sir Cresswell Cresswell, has completed the edifice, of which his learned predecessor did more than lay the foundations, and that, thanks to the genius of these two men, there is now a Court which, in its principles, practice, and mode of business, is an example worthy of the highest admiration. The public had very properly an extraordinary confidence in Lord Pen
The adjustment of matrimonial suits or testamentary controversies is not the less arduous, because they are of the class of quarrels which evoke the most powerful and corrupt instincts of human nature, yet Lord Penzance very rarely encountered a suitor who had not sublime faith in his lordship's discretion and fairness.
“But if the public has lost a trusted friend, the Bar has suffered in no small degree. If anything could render a disagreeable class of business less noxious to the better feelings of practitioners, it was the courtesy, dignity, and patience of his lordship. On the unruffled surface of that Court it was impossible to detect even a ripple of acrimony between the Bench and the Bar; and how business was facilitated and the Bar assisted by that state of things every one who has encountered tempestuous judges can appreciate. It is wearisome to retire from the discharge of useful duties at an early age by compulsion of ill health, but we hope that his lordship will derive some comfort in his misfortune, from the respect and
admiration with which the whole community, learned and unlearned, takes leave of him.”—7 Law Journal, Legal News, 743
The remarks of the daily Press, without exception, in announcing Lord Penzance's retirement, were full of expressions of admiration of the manner in which he discharged his judicial duties, and of regret at the cause which was supposed by the outer world to have necessitated his permanent retirement from the Bench.
In his reported judgments in the Court of Probate there will be found luminous and exhaustive disquisitions on various points of testamentary law. The first case tried before him-Lister v. Smith—was a remarkable one. The question raised in it was whether a duly executed codicil, testamentary on the face of it, proved by parol evidence to have been executed by the deceased as a sham codicil, without any intention that it should affect the dispositions of his property after death, was entitled to probate. The codicil was executed under the following circumstances :
A member of the testator's family occupied one of his houses, which he was desirous that she should give up. This she had refused to do. He had left to the daughter of this woman a bequest in his will. By a codicil to it he revoked it. He executed the codicil in the presence of his brother, to whom he gave it, with express directions not to part with it, and that it was to operate in no event to revoke any of the bequests in his will, but merely to be used for the purpose of frightening the mother into giving up the house. The jury having found on cogent evidence that the codicil was executed as a sham and a pretence, and never seriously intended a paper of testamentary operation, Lord Penzance refused to grant probate of it, on the ground that there was an absence of the animus testandi in the testator at the time of its execution, the presence of which was essential to entitle a testamentary paper to probate.
Another remarkable case decided by Lord Penzance was that of Smath v. Tebbitt, in which it was shown that a Mrs. Thwaytes, the widow of a tea-merchant in the City, died on April 8, 1866, leaving a fortune of about £ 500,000. By her last will, dated March 2, 1866, she bequeathed legacies amounting to £45,000 to children of her sister, Mrs. Tebbitt, who was her sole next of kin, and the rest of her property to strangers in blood. The validity of the will was disputed by Mrs. Tebbitt on the ground, that from 1833 up to the time of her death in 1866, she laboured under numerous insane delusions such as constituted her mind generally unsound. Some of her delusions being—that she was the Third Person of the Trinity ; that the Creator could not do without her; that she was above God seven degrees; that she sent the cholera and the influenza throughout Creation, and that it had to go through her first; that she had power over all creation ; that the Tebbitt family were doomed to everlasting perdition ; and that she had had a revelation from heaven to cut off her sister, Mrs. Tebbitt, root and branch. She also had her drawing-room in her London house in Upper Hyde Park Gardens decorated and furnished by Messrs. Gillow, at the expense of £15,000, to be used for no other occasion than for the Judgment Day, in the middle of which she was to sit on an ottoman to judge the world.
In support of the will it was submitted, that as her delusions merely related to religious subjects they ought not to invalidate the will.
Upon this Lord Penzance, having remarked that some of her ideas were that she was the Bride of Christ—that she was born anew in some mysterious sense, beyond a merely spiritual regeneration-proceeded : “I can conceive it just possible for these ideas to have been bred in a mind not very highly educated or robust, acted upon by an excitable, nervous, enthusiastic temperament. But will anything we know of the natural and healthy working of the human mind
extend to the conception of a false identity, such as that involved in her being one of the Holy Trinity, or the Virgin Mary? Or, still further, to her assumption of the Divine attributes in the preposterous expectation that she should sit in judgment on the rest of mankind-culminating, as it did, in the puerile bathos of the London drawing-room, with its velvet and silk, as the scene of her future glory? Religious and fanatical enthusiasm will account for much, but did it ever stretch so far and stoop so low?”
The defendants having proved that these delusions had existed from 1833 to 1864, but having given no evidence of their existence between the last date and the date of the will, Lord Penzance held that a diseased state of mind once proved to have established itself, would be presumed to be continued, and that the burthen of showing that health had been restored fell upon the plaintiffs, who had asserted it, but had produced no sufficient proof for that purpose ; and, not being satisfied that the deceased was of sound mind when she executed the will, his lordship pronounced against it.
In Charter v. Charter, Lord Penzance held that where a testator appointed as his executor and devisee his son Forster Charter, having no son of that name living at the date of the will, but two sons named William Forster Charter and Charles Charter, the Court being satisfied that the name Forster Charter was inserted in mistake, parol evidence of the circumstances under which the testator wrote the will, and of the position of parties about him, and also on consideration of the contents of the will itself which of the two sons the testator intended to designate as his executor, was admissible, and that upon this evidence it was Charles Charter who was denoted by the will.
From this decision there was an appeal to the House of Lords (7 L.R. Eng. & Ir. Appeals, 364), when Lords Chelmsford and Hatherley held that a partial designation of a Christian name could not be said to occasion any doubt