Mr. Meeson's Will

by H. Rider Haggard

This closed the plaintiff’s case, and the Attorney-General at once proceeded to call his witnesses, reserving his remarks till the conclusion of the evidence. He had only two witnesses, Mr. Todd, the lawyer who drew and attested the will of Nov. 10, and his clerk, who also attested it, and their examination did not take long. In cross-examination, however, both these witnesses admitted that the testator was in a great state of passion when he executed the will, and gave details of the lively scene that then occurred.

Then the Attorney-General rose to address the Court for the defendants. He said there were two questions before the Court, reserving, for the present, the question as to the admissibility of the evidence of Augusta Smithers; and those were—first, did the tattoo marks upon the lady’s neck constitute a will at all? and secondly, supposing that they did, was it proved to the satisfaction of the Court that these undated marks were duly executed by a sane and uninfluenced man, in the presence of the witnesses, as required by the statute. He maintained, in the first place, that these marks were no will within the meaning of the statute; but, feeling that he was not on very sound ground on this point, quickly passed on to the other aspects of the case. With much force and ability he dwelt upon the strangeness of the whole story, and how it rested solely upon the evidence of one witness, Augusta Smithers. It was only if the Court accepted her evidence as it stood that it could come to the conclusion that the will was executed at all, or, indeed, that the two attesting witnesses were on the island at all. Considering the relations which existed between this witness and the plaintiff, was the Court prepared to accept her evidence in this unreserved way? Was it prepared to decide that this will, in favour of a man with whom the testator had violently quarrelled, and had disinherited in consequence of that quarrel, was not, if indeed it was executed at all, extorted by this lady from a weak and dying, and possibly a deranged, man? and with this question the learned gentleman sat down.

He was followed briefly by the Solicitor-General and Mr. Fiddlestick; but though they talked fluently enough, addressing themselves to various minor points, they had nothing fresh of interest to adduce, and finishing at half-past three, James rose to reply on the whole case on behalf of the plaintiff.

There was a moment’s pause while he was arranging his notes, and then, just as he was about to begin, the Judge said quietly, “Thank you, Mr. Short, I do not think that I need trouble you,” and James sat down with a gasp, for he knew that the cause was won.

Then his Lordship began, and, after giving a masterly summary of the whole case, concluded as follows:—“Such are the details of the most remarkable probate cause that I ever remember to have had brought to my notice, either during my career at the Bar or on the Bench. It will be obvious, as the learned Attorney-General has said, that the whole case really lies between two points. Is the document on the back of Augusta Smithers a sufficient will to carry the property? and, if so, is the unsupported story of that lady as to the execution of the document to be believed? Now, what does the law understand by the term ‘Will’? Surely it understands some writing that expresses the wish or will of a person as to the disposition of his property after his decease? This writing must be executed with certain formalities; but if it is so executed by a person not labouring under any mental or other disability it is indefeasible, except by the subsequent execution of a fresh testamentary document, or by its destruction or attempted destruction, animo revocandi, or by marriage. Subject to these formalities required by the law, the form of the document—provided that its meaning is clear—is immaterial. Now, do the tattoo marks on the back of this lady constitute such a document, and do they convey the true last will or wish of the testator? That is the first point that I have to decide, and I decide it in the affirmative. It is true that it is not usual for testamentary documents to be tattooed upon the skin of a human being; but, because it is not usual, it does not follow that a tattooed document is not a valid one. The ninth section of the Statute of 1 Vic., cap. 26, specifies that no will shall be valid unless it shall be in writing; but cannot this tattooing be considered as writing within the meaning of the Act? I am clearly of opinion that it can, if only on the ground that the material used was ink—a natural ink, it is true, that of the cuttle-fish, but still ink; for I may remark that the natural product of the cuttle-fish was at one time largely used in this country for that very purpose. Further, in reference to this part of the case, it must be borne in mind that the testator was no eccentric being, who from whim or perversity chose this extraordinary method of signifying his wishes as to the disposal of his property. He was a man placed in about as terrible a position as it is possible to conceive. He was, if we are to believe the story of Miss Smithers, most sincerely anxious to revoke a disposition of his property which he now, standing face to face with the greatest issue of this life, recognised to be unjust, and which was certainly contrary to the promptings of nature as experienced by most men. And yet in this terrible strait in which he found himself, and notwithstanding the earnest desire which grew more intense as his vital forces ebbed, he could find absolutely no means of carrying out his wish. At length, however, this plan of tattooing his will upon the living flesh on a younger and stronger person is presented to him, and he eagerly avails himself of it; and the tattooing is duly carried out in his presence and at his desire, and as duly signed and witnessed. Can it be seriously argued that a document so executed does not fulfil the bare requirements of the law? I think that it cannot, and am of opinion that such a document is as much a valid will as though it had been engrossed upon the skin of a sheep, and duly signed and witnessed in the Temple.

“And now I will come to the second point. Is the evidence of Miss Smithers to be believed? First, let us see where it is corroborated. It is clear, from the testimony of Lady Holmhurst, that when on board the ill-fated Kangaroo, Miss Smithers had no tattoo marks upon her shoulders. It is equally clear from the unshaken testimony of Mrs. Thomas, that when she was rescued by the American whaler, her back was marked with tattooing, then in the healing stage—with tattooing which could not possibly have been inflicted by herself or by the child, who was her sole living companion. It is also proved that there was seen upon the island by Mrs. Thomas the dead body of a man, which she was informed was that of Mr. Meeson, and which she here in court identified by means of a photograph. Also, this same witness produced a shell which she picked up in one of the huts, said to be the shell used by the sailors to drink the rum that led to their destruction; and she swore that she saw a sailor’s hat lying on the shore. Now, all this is corroborative evidence, and of a sort not to be despised. Indeed, as to one point, that of the approximate date of the execution of the tattooing, it is to my mind final. Still, there does remain an enormous amount that must be accepted or not, according as to whether or no credence can be placed in the unsupported testimony of Miss Smithers, for we cannot call on a child so young as the present Lord Holmhurst, to bear witness in a Court of Justice. If Miss Smithers, for instance, is not speaking the truth when she declares that the signature of the testator was tattooed upon her under his immediate direction, or that it was tattooed in the presence of the two sailors, Butt and Jones, whose signatures were also tattooed in the presence of the testator and of each other—no will at all was executed, and the plaintiff’s case collapses, utterly, since, from the very nature of the facts, evidence as to handwriting would, of course, be useless. Now, I approach the decision of this point after anxious thought and some hesitation. It is not a light thing to set aside a formally executed document such as the will of Nov. 10, upon which the defendants rely, and to entirely alter the devolution of a vast amount of property upon the unsupported testimony of a single witness. It seems to me, however, that there are two tests which the Court can more or less set up as standards, wherewith to measure the truth of the matter. The first of these is the accepted probability of the action of an individual under any given set of circumstances, as drawn from our common knowledge of human nature; and the second, the behaviour and tone of the witness, both in the box and in the course of circumstances that led to her appearance there. I will take the last of those two first, and I may as well state, without further delay, that I am convinced of the truth of the story told by Miss Smithers. It would to my mind be impossible for any man, whose intelligence had been trained by years of experience in this and other courts, and whose daily duty it is to discriminate as to the credibility of testimony, to disbelieve the history so circumstantially detailed in the box by Miss Smithers (Sensation). I watched her demeanour both under examination and cross-examination very closely indeed, and I am convinced that she was telling the absolute truth so far as she knew it.

“And now to come to the second point. It has been suggested, as throwing doubt upon Miss Smithers’ story, that the existence of an engagement to marry, between her and the plaintiff, may have prompted her to concoct a monstrous fraud for his benefit; and this is suggested although at the time of the execution of the tattooing no such engagement did, as a matter of fact, exist, or was within measurable distance of the parties. It did not exist, said the Attorney-General; but the disposing mind existed: in other words, that she was then ‘in love’—if, notwithstanding Mr. Attorney’s difficulty in defining it, I may use the term with the plaintiff. This may or may not have been the case. There are some things which it is quite beyond the power of any Judge or Jury to decide, and one of them certainly is—at what exact period of her acquaintance with a future husband a young lady’s regard turns into a warmer feeling? But supposing that the Attorney-General is right, and that although she at that moment clearly had no prospect of marrying him, since she had left England to seek her fortune at the Antipodes, the plaintiff was looked upon by this lady with that kind of regard which is supposed to precede the matrimonial contract, the circumstance, in my mind, tells rather in his favour than against him. For in passing I may remark that this young lady has done a thing which is, in its way, little short of heroic; the more so because it has a ludicrous side. She has submitted to an operation which must not only have been painful, but which is and always will be a blot upon her beauty. I am inclined to agree with the Attorney-General when he says that she did not make the sacrifice without a motive, which may have sprung from a keen sense of justice, and of gratitude to the plaintiff for his interference on her behalf, or from a warmer feeling. In either case there is nothing discreditable about it—rather the reverse, in fact; and, taken by itself, there is certainly nothing here to cause me to disbelieve the evidence of Miss Smithers.

“One question only seems to me to remain. Is there anything to show that the testator was not, at the time of the execution of the will, of a sound and disposing mind? and is there anything in his conduct or history to render the hypothesis of his having executed his will so improbable that the Court should take the improbability into account? As to the first point, I can find nothing. Miss Smithers expressly swore that it was not the case; nor was her statement shaken by a very searching cross-examination. She admitted, indeed, that shortly before death he wandered in his mind, and thought that he was surrounded by the shades of authors waiting to be revenged upon him. But it is no uncommon thing for the mind thus to fail at the last, and it is not extraordinary that this dying man should conjure before his brain the shapes of those with some of whom he appears to have dealt harshly during his life. Nor do I consider it in any way impossible that when he felt his end approaching he should have wished to reverse the sentence of his anger, and restore his nephew, whose only offence had been a somewhat indiscreet use of the language of truth, the inheritance to vast wealth of which he had deprived him. Such a course strikes me as being a most natural and proper one, and perfectly in accordance with the first principles of human nature. The whole tale is undoubtedly of a wild and romantic order, and once again illustrates the saying that ‘truth is stranger than fiction.’ But I have no choice but to accept the fact that the deceased did, by means of tattooing, carried out by his order, legally execute his true last will in favour of his next-of-kin, Eustace H. Meeson, upon the shoulders of Augusta Smithers, on or about the 22nd day of December, 1885. This being so, I pronounce for the will propounded by the plaintiff, and there will be a grant as prayed.”

“With costs, my Lord?” asked James, rising.

“No, I am not inclined to go that length. This litigation has arisen through the testator’s own act, and the estate must bear the burden.”