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of public policy be applied to limi- opinion, and differed from that tations of the present nature as
which had been expressed by the well as to limitations of another? four noble and learned Lords who He would conclude with this one had spoken, he should not give observation. He would pray their any reasons in detail for that differLordships to bear in mind, if they Had it come before him permitted this mischief now to be now, as it had to those noble introduced, what the bearing of it Lords, for the first time, he should is, and where it will stop. Men's undoubtedly have given his reaminds were prone to embrace pre- sons; but as this was an appeal cedents, and to invent new-fangled from himself, and as the grounds schemes without the aid of the on which he pronounced the decree law. If their Lordships decided were in print and before their this case according to the opinion Lordships, he did not think it neof the majority of the learned cessary to repeat what was there Judges, no man was wise enough stated. There were one or two to know, or to say, where the mis points, however, to which he would chief is to stop, or how far it would refer. In the course of the argugo. He would ask their Lord- ment, he felt that he had been ships to consider, if there were a wrong in using the word “condiconsiderable number, as there might tion;" assuming the justice of what be, and probably would be, of landed had been said, it was not, strictly proprietors, each attempting to speaking, a legal condition. But raise a dignity on his own private call it a contingent limitation, or a estate, embarrassing and entangling contingency, or give it what name the Crown, and embarrassing, and, you please, he thought it was to be perhaps, leading to mischief the governed by the same considerCrown's advisers, how the Crown ations; and nothing he had heard would deal with the circumstances, at the bar, or from the noble Lords and how the law would stand with who had spoken, had at all shaken respect to that which would be- him in the opinion that this was a come a public mischief. Their condition precedent. It was said Lordships ought to strike at this, that that could not have been the upon the ground, and upon the intention of the testator. In his ground alone, that it is necessary opinion it was not a question of for public policy. Upon these intention at all: whether a certain grounds he would advise their contingency operates as a condition Lordships, that upon the first point precedent, or as a condition subsethere is no condition precedent, quent, was something collateral to and no such words can be imported the intention and not dependent by law, as the learned Judges bad upon it. In deciding whether a advised their Lordships to import; condition was subsequent or preceand, upon the other point, that the dent, what they were to look at condition subsequent, if it be a was the way in which the contincondition, is illegal, and therefore gency was intended to operate ; void; and that consequently the and if it was something wbich was decision of the Court below must to happen one way or the other be reversed.
before that which was contingent The Lord Chancellor said that upon it could be decided, that was although he retained his original in the nature of things a condition
precedent. Now could there be Thellusson case, for he protested the least doubt that the testator that whatever practical inconvemeant that if Lord Alford, dying nience arose on grounds of public in the lifetime of his father, had policy as applicable to the proviso not at his death obtained the re here, he thought that policy was quired dukedom or marquisate, thwarted in a tenfold degree by Lord Alford's son at his death Thellusson's will. The Court should not have, and Lord Brown- said there was nothing in law to low's next should have, the estate? prevent it; but that it was conTo say that such a proviso shall trary to public policy was proved operate as a condition subsequent, by the fact in the very next year. if it were, in the nature of things, The Legislature interfered to prea condition precedent, seemed to vent anything of the sort happen. him confounding that which was ing in future. He had come, it the subject matter of intention, appeared from the opinion of the and that which was not, and could noble and learned Lord, to not be, the subject matter of in- wrong conclusion, though he was tention at all. When the Courts supported in that conclusion by have seen, or thought they saw, an the great majority of the Judges, intention in the testator which who also differed from their Lordwould be defeated by the use of ships' opinion. To that opinion the words in the way he had used he would most readily bow. He them, they have got over the use could only say he was glad that of words to carry into effect the the real rights of the parties had supposed intention.
In this case been correctly ascertained; and he nobody could doubt what the in- should rejoice, in one sense, as tention of the testator was; and if much as any of their Lordships, it was a lawful intention, it would that the attempts to make these be defeated by the course which extraordinary wills would be found their Lordships were about to take. not very easy to carry into effect. If he was right in thinking that He felt as much as any of their the condition in this case was a Lordships that it was exceedingly condition precedent, the other to be deprecated that parties should question substantially did not arise. be allowed to puzzle mankind, and He had stated his grounds for interfere with the ordinary enthinking that there was nothing in joyment of property by any conthe nature of the proviso which trivances or provisions out of the that House or any court of law ordinary course of limitations. could deal with as being void upon Decree reversed. grounds of public policy. He should not repeat those reasons. GLOUCESTER ASSIZES. The question of public policy was
August 8, 9, 10. one always difficult to deal with. He thought it would be a very
SMYTH V. SMYTH AND OTHERS. dangerous thing now to say, in de There was tried at the Gloucester ciding on a question of perpetuity, Assizes, on the 8th August, and that they should extend or narrow two following days, one of the most the period until practical inconve- singular cases of fraud and imposnience was felt. He wished their ture that has been recorded among Lordships had had to decide the the causes célèbres of this country.
was framed in the supposed to be the son of one nature of an action of ejectment, Provis, a carpenter, of Warmin by which the Plaintiff, calling him- ster, in whose house he had been self Sir Richard Hugh Smyth, brought up, and by whom, and by sought to establish his claim to whose family, he had always been the baronetcy and vast estates, treated as one of themselves. For valued at near 30,0001. a year, certain reasons, however, the formerly enjoyed by the family of claimant, as he arrived at an age Smyth. The baronetey had be- to comprehend such matters, suscome, or was presumed to have be- pected that Provis was not really come, extinct on the decease of his father, but that he was the son Sir John Smyth in 1849 ; but the of Sir Hugh Smyth, of Ashton estates had passed to his sister Hall, near Bristol, a baronet, of Florence, upon whose death in 1852 ancient family, and large estates. they had devolved upon her son, This gentleman had married in who, with others nominally inte 1797 a Miss Wilson, daughter of rested, was the defendant in the the Bishop of Bristol ; this lady action, and who was still under having died without children, Sir age. The plaintiff asserted him. Hugh married in 1822 a Miss self to be the son of Sir Hugh Elizabeth Howell. Sir Hugh Smyth, the elder brother of Sir
was supposed, without John, and consequently to have legitimate issue, in 1824; and bis been entitled to the immediate next brother, John, succeeded to succession, on the death of his his title and the greater part of father in 1824, to his title and
As time passed on, estates, which on his supposed de- many circumstances and many docease without issue had wrongfully cuments came to light which passed to his collateral heirs. proved to the claimant, in the
The extraordinary nature and most conclusive manner, that he extent of the claim, the interest was in truth the legitimate son of Sir ing and romantic circumstances Hugh Smyth by a first and hitherto which might be expected to be de- concealed marriage with Jane, tailed in its substantiation, the daughter of Count Vandenbergh, melancholy event which had at to whom he was secretly united in tended its first announcement, and Ireland in 1796. Although the the rumours that a wonderful claimant was in possession of dosystem of credulity, personation, cuments which placed these facts fraud, and forgery would be ex beyond doubt, his humble circumposed in rebutting the plaintiff's stances, and the difficulty of findcase, of course rendered the trial ing any one bold enough to take a matter of the greatest interest. up his cause, prevented his putting The Court was crowded by the forth his claim until 1849 ; when, members of families connected rendered desperate by delay, he with the Smyths, and by every went to Sir John Smyth, at Ashton person who could by any means Hall, and communicated to him obtain admission.
his relationship, and his claims. Mr. Bovill stated the case of As Sir John had been a party to the plaintiff. The claimant to this certain documents executed by Sir baronetcy and the large estates Hugh in his lifetime (which were which would pass with it, had been among those which had been dis
covered), in which the circum son of Sir Hugh Smyth, by Jade stances of the concealed marriage the daughter of Couut Vandesand the birth of the claimant were bergh, to whom he was married in acknowledged, it was useless for Ireland in the year 1796. At that him to deny the justice of the de- time there were no public registers mand, and he immediately acknow. in Ireland ; but the entry of this ledged the claimant as his nephew, marriage in a family Bible would and the rightful heir to his brother, be proved, and the signatures of in the most moving terms. The the witnesses would be shown to shock, however, of such a commu be the undoubted signatures of the nication was too much for the aged parties. The entry was in the baronet, now about to surrender following form :the title, revenues, and considera “I certify that Hugh Smyth, tion he had enjoyed for so many esq., son of Thomas Smyth, esq., years : he became unable to eat, of Stapleton, in the county of wandered about the house discon Gloucester, in England, by Jane solate, and the next morning was his wife, was this 19th day of Mar, found dead in his bed! This me 1796, married by me to Jane, the lancholy occurrence having re daughter of Count John Samuel moved the person who was most Vandenbergh, by Jane, the daughinterested in resisting the claiin, ter of Major Gookin and Hesther but who nevertheless readily ac his wife, of Court Macsherry, knowledged the plaintiff's rights, county of Cork, Ireland. and was willing to do him justice, “ VERNEY Lovett, D.D., Vicar the rightful heir, foreseeing a des
of Lismore. perate litigation with the next heirs, which he was in no condi
“Signed by JANE VANDENBERGI.
(Hugh SMITH. tion to maintain, refrained from putting forth his pretensions; and
CAROLINE BERNARD. travelled the country with his wife
JOHN S. VANDEN
Witnesses and children, obtaining a precarious living by giving lectures ;
ConsEna LOVETT." and he took no steps to enforce The signature of these parties his rights until 1851, when, after would be proved by the most unnegotiations with several legal exceptionable evidence. He should firms, he had at length found the also produce a brooch with the means of pursuing his claims be name of Jane Gookin upon it, and fore the tribunals of his country. also a portrait of his (the claim
This being the outline of the ant's) mother. The entry of the claimant's case, his counsel stated plaintiff's baptism, which was conthat the facts would be supported tained in the same family Bible, by a number of documents, the was as follows: signatures of which would be in “ Richard Hugh Smyth, son of contestably proved by family re- Hugh Smyth, esq., and Jane his liques, seals, rings, portraits, &c., wife, born September 2nd, 1797; and by verbal evidence, which would baptised September 10th, 1798, fully establish the claimant's right No. 1, Royal-crescent, Bath. to the title and estates of his fa
“ J. Symes, Clerk. ther. He should establish beyond “ CAROLINE BERNARD. all doubt that the plaintiff was the “ IsabELLA TAYNNE."
The following letter, in the hand- plaintiff's nurse. It was signed writing of Sir Hugh Smyth, ad. by Sir Hugh Smyth, the deceased dressed to his wife on the eve of baronet, in a trembling hand, and her delivery, had been disco- by Sir John Smyth, his brother, vered :
and other persons as witnesses.
All these signatures would be Stapleton, Feb. 2, 1797.
proved to be genuine. It was as “Dear Jane,- The bearer is my follows:old nurse, Lydia Reed, in whom I
“I, Sir Hugh Smyth, of Ashtonhave every confidence as to her park, in the county of Somerset, skill and attention to you. Dr. and of Rockley-house, in the Seaguin will attend you. I will county of Wilts, do declare that in endeavour to be over to-morrow, the month of May, 1796, I was and bring my mother with me. married, at Court Macsherry, in Till then God bless you, and that the county of Cork, in Ireland, by you may have a safe deliverance is the Rev. Verney Lovett, to Jane, the prayer
of your affectionate the only daughter of Count John husband,
Samuel Vandenbergh, by Jane, the “ Hugh SMYTH. only daughter of Major Gooking, “ To Mrs. Smyth, Warminster.” of Court Macsherry, and Hester,
his wife. Now, my wife, driven In the year 1814 a man named from Ireland by the troubles there, Grace, who was Sir Hugh's butler, came to Warminster, in the county represented to Sir Hugh that his of Wilis, on the 2nd day of Februson, who had gone abroad, was dead. ary, 1797, gave birth to a son, and The claimant's mother died in she died the same day. The boy giving him birth, and Sir Hugh was left to the care of my own kept his existence a secret, lest it nurse, Lydia Reed, who can at any should prove an obstacle to a mar time identify my son by marks riage he wished to contract with upon his right hand. The boy was Miss Wilson, a daughter of the baptized at No.1, Royal crescent, Bishop of Bristol. He was there. Bath, by the Rev. James Symes, fore placed with a carpenter at curate, by the names of Richard Warminster named Provis, and Hugh Smyth, son of Hugh Smyth was passed as his son; but not and Jane his wife. From circumwithstanding this apparent lowness stances of a family nature this boy of origin he was educated at Win was brought up in private, and chester School, and, as it was be- through the rascality of my butler lieved, at the expense of Sir Hugh Grace, under whose especial charge Sir Hugh's acknowledged wife my son was, he left England clan(Miss Wilson) having died child destinely in the year 1813, and I less, he married, in the year 1819, had been assured by Grace that my a Miss Howell. Circumstances son had died abroad, but at the having convinced Sir Hugh that death of Grace I became possessed the plaintiff was still alive, he in of doubts of my son's demise. the year 1822 executed a document Now, under the impression that my declaring the plaintiff to be his son had died, I made or executed son. This document was discovered a will in the year 1814. That will in the possession of a member of I now abrogate, annul, and sett the family of Lydia Reed, the asside by this my last will and tes