West Briton and Cornwall Advertiser.

WILL CAUSE - Doe dem. VINGOE and ANOTHER v. NICHOLLS -

Counsel for, Mr. COCKBURN and Mr. M. SMITH;

Attorneys, Messrs. HICHENS and SON.

Counsel for defendant Mr. CROWDER and Mr. BALL;

Attorneys, Messrs. JOHN, RODD and DARKE.

 This was an action brought to try the right to some property which had been left by a person named WILLIAM VINGOE, who died on the 16th of March, 1845; and which property was now in possession of RICHARD NICHOLLS, the defendant. The testator was one of a numerous family, and left behind him, two brothers names STEPHEN and ISRAEL, and six sisters all of whom were married. Stephen, the eldest brother was heir-at-law to the whole of the property which was the subject of inquiry. WILLIAM had acquired some property by means of a dairy, and died worth about £1,500.

At a certain period of his life, he became occasionally out of his mind and the question the jury had to try was as to the validity of either or both of two wills made by him in 1842 and 1843 respectively. In the course of 1842, the testator had been living with the defendant Nicholls, and with a person named LAWRY who was identified in interest with Nicholls, both these
parties having married daughters of GRACE NICHOLLS, a sister of testator. During the time, the testator was at Lawry's, he became out of his mind; and in June, 1843, his relations agreed to place him under the care of his brother Israel, who kept a shop in St. Just. At this place, (as stated for the plaintiff) in two or three weeks he recovered wonderfully, and he was removed to apartments in the same village, to the house of a person named MATTHEWS, free from all control or superintendence, except that a son of Israel's went there by night, to sleep with him. In this state he continued up to the time when he made the will of September 1843, by which his property was left to Israel Vingoe for the benefit of all his brothers and sisters. On the part of the defence, it was alleged that at the time of this will of the 1st of September, the testator was insane; the defendant claiming under a will made in December, 1842, by which the bulk of the property was given to Nicholls and Lawry, the persons with whom he was then living. Under these circumstances, the question was whether either, or both of these wills had been made at lucid intervals of insanity. But supposing the jury should find both wills bad, then the plaintiff fell back on the heirship-in-law of the eldest brother, Stephen Vingoe.

Mr. Cockburn having stated the case, proceeded to call witnesses.

SARAH BLIGHT, one of the six sisters of testator, stated that Richard Nicholls was the son of her married sister Grace; and a daughter of the same Grace Nicholls married William Lawry. About twelve years back the testator had a kind of seizure at Buryan Church-town. In June 1842 she went to see him at Lawry's in Gulval, and found him very bad - quite out of his mind. While they were at dinner, he took off the veal pie, and threw some out of the window and put some in his pocket. Saw him on another occasion while he was living at Lawry's, and also on several occasions in Penzance; he did not appear at all sound in mind. In the course of the year, 1842, - it might have been in June, Richard Nicholls came to witness and said "Aunt Sarah, why don't you get Uncle Billy to make a settlement?" Witness replied, "What would you have me to do? He is not fit to make any settlement." He was bad from Christmas 1841 up to June 1843, when he was removed to Israel's. Saw him in July 1843 at St. Just; he was then a good deal better. Saw him a great many times between the time of the veal-pie and July 1845. Before he went to Lawry's he lived on his place at Escalls, in Sennen, and on one occasion he wondered away and went to Probus, and used not to talk fitly; witness was told that he milked the cows and threw the raw milk to the pigs (laughter).

WILLIAM RICHARDS, schoolmaster of Penzance; in 1843 lived at St. Just; and was in the habit of going almost every morning to Israel Vingoe's, with whom he dealt for milk and butter. Saw William Vingoe several times while he was staying at Israel's, and also afterwards, when he was at Matthews's. Had opportunities of observing the state of his mind; it improved between June 1843, when he came to Israel's, and September. When he was first brought there from Escalls, he had a light, frivolous, laughing and infantile manner. After he had been residing there about a month he came to converse rationally and, as time went on, he appeared to improve in that respect. One morning, in the latter part of August, witness was at Israel's for milk, and saw William there; he asked witness if he was in the habit of making wills. Witness replied, yes, and should feel happy in doing the same for him. A few days after that, he asked witness to make a will for him. Witness got a sheet of paper and wrote down in pencil, from testator's dictation, the way in which he wished to dispose of his property. This took place in the kitchen at Israel Vingoe's, Israel's wife and his son, young Israel, where there; but neither of them at all interfered with the conversation. The instructions which witness received were entirely from testator; witness suggested nothing. Witness, previous to that occasion, knew nothing of testator's property, nor of his brothers and sisters. The testator appeared to be in the perfect possession of his faculties. Witness read over to him what he had written, and then took it away, and drew up a will in accordance therewith. On the morning when the will was executed, (the 1st of September, 1843, as appeared from the will itself) witness was at Israel's as usual to get milk. William was in the kitchen, and asked him if he had done that job for him. Witness answered that he had. Israel's wife, Israel junior, and some younger branches of the family were present. William told witness to fetch it and he did so. William then said, the kitchen was not a place to transact business in; they had better go upstairs. While witness had been out to fetch the will, Mr. HAWKINS, surgeon, had come in. Witness remarked to testator that it would be necessary to have two persons to attest the will, and perhaps the doctor would condescend to be one. He seemed to approve of that suggestion; and the three went up-stairs. Witness then unfolded the document and read it over. The testator paid the greatest apparent attention; and as witness went on reading, said, several times, "yes," - "that's it," - and so on, indicating his approbation as witness went on from one passage to another of the will. After the will had been read over, the testator executed it in the presence of witness and Mr. Hawkins. Had no doubt whatever that, at that time, the testator was in full possession of his faculties, and thoroughly understood the nature of the provisions in the will. (This witness underwent a long and searching cross-examination, in the course of which he admitted that he had, on one occasion, gone to Nicholls, the defendant, to pump him for information in order, if possible, to mar Nicholls's cause.) He swore that he had not written a word of the instructions before he went to testator with a paper for that purpose, in Israel's kitchen. Would not swear that on the morning when testator asked witness about making the will, he (witness) had not opened the conversation by asking if he (William) had made any settlement. The will was signed upstairs on a chest; testator knelt down to make his mark. -

There was a great deal of discussion on cross-examination on the fact of the name "Benjamin Hawkins" being written at the top of one of the pages of the paper of instructions. For the defence, it was sought to have inferred a previous arrangement of the way in which the will should be made and attested. The witness, however, swore that the name was not there at the time he took down the instructions, and that he had no previous communication whatever about Mr. Hawkins's signing the will.

BENJAMIN LAVERS HAWKINS, surgeon, at St. Just, were he had resided fourteen years, was at Israel Vingoe's house one morning, to see one of his children that had dislocated its arm. William Richards, the last witness, asked him if he would witness Mr. William Vingoe's will. Was then in the kitchen; the only other persons present were the late Mr. Vingoe, Richards, and the little child. (Witness afterwards corrected himself, and said Israel and his wife were present). This witness confirmed the evidence of Richards as to the circumstances under which the will was read and attested, and added that the testator appeared capable of transacting any business. Saw William Vingoe within a week after he came to Israel's; he was then quite melancholy, but after a time, being kept quiet, he gradually recovered. Conversed with him several times after that; he appeared to have got his faculties, but with the least excitement he was gone again. Saw him most days just before he made his will; he appeared to have his faculties about him.

ISRAEL VINGOE, jun., son of Israel Vingoe, and nephew of testator, stated that at the time William Vingoe came to his father's house, he was poorly in his mind; he remained there about a fortnight or three weeks, when apartments were taken for him at Peter Matthews's. He was at that time improved. No person lived with him at Matthews's but witness slept with him. William did buy and cook his provisions himself, and managed all his own concerns. He remained in Matthews's house until he had a seizure, a short time before his death, when he was taken back to witness's father's. Witness slept with his uncle William all the time he was at Matthews's; he had not dirty habits, and did not soil his bed during that time, but he had done so when he first came to St. Just, and it then "busied" two or three men to look after him. He got wild two or three times a week, for an hour or two at a time. He had no wild fits after he got to Matthews's, until he got qualms shortly before his death.

PETER MATTHEWS, a miner, in 1843 occupied a house in St.Just. In June that year, William Vingoe came to occupy part of that house and left in October. Witness used to talk with him about his worldly affairs, and asked him how he got his property; he said by keeping a dairy; he also said that he had an estate called Escalls in Sennen. Witness asked him who he was going to give his property to, and if he would give him (witness) a small part of it. He answered, no; he should give it to his brothers. From what witness observed in occasional conversations with him, he appeared to be in his right mind and capable of managing his business and understanding what he was about. Had been in his bedroom once or twice and seen him and young Israel in bed together; never saw or knew of his having dirty habits. Witness's wife had died lately. William Vingoe knew everything he had got in the house as well as anybody, and nobody could get anything from him; he would lock and unlock the door, and kept the key.

JOHN HOSKIN, farmer of St. Just, had known William Vingoe upwards of forty years. In August 1843, met William Vingoe in St.Just and walked and conversed with him for about three parts of a mile. He said he was come off from Lawry's and had gone to live with his brother Israel and that he was going to Lawry's to get back some household goods and writings that he had left there, and some money that he had lent to Lawry. He said he meant to live and die with his brother Israel, and what little he had to leave he should give to Israel. During that time he appeared to be in his full senses. Saw him afterwards in September, and again in December; he appeared to be as sound as he had been in August.

RICHARD GRENFELL, miner living at St. Just, married a daughter of CHRISTIAN PERROW, who was a sister of William Vingoe. A short time after William had been at Israel's, Richard NICHOLLS came there and asked for the family, and how the old man (William) was. William answered that he was come very well. Nicholls said to him "Uncle, you are got an old man; I think you had better make some settlement." The old man said, "What have my settlement got to do with you? I have already made it to my brother."

MARY BOYNS, a grocer in St. Just; had known William Vingoe for twenty years before his death. After he came to St. Just in 1843, he was in the habit of coming frequently to her shop to purchase things sometimes alone and sometimes with one or other of Israel's children. He bought his goods much the same as any other customer, and appeared to understand well what he was about. He had served his apprenticeship in youth with witness's uncle; and, when he called at witness's house, would often talk with her mother about old times. He appeared to be in full possession of his senses.

Mr. Crowder addressed the jury for the defence, in support of the will of December 1842, by which the bulk of the property was given to Nicholls and Lawry, with whom the testator had lived for a considerable time. The evidence he would adduce, would, he was satisfied, set aside the will of September 1843 as a nullity, and establish the will of December, 1842, superseding the heirship-at-law of Stephen Vingoe. The following witnesses were then called:

After listening to a careful review of the evidence, the jury returned a verdict for plaintiffs.