COURT OF PROBATE.
June 7.
[Before Sir J. P. WILDE.]
IN THE GOODS OF GEALE, deceased.
Probate and Administration Act—Evidence of assent to a will by a deaf, dumb, and illiterate testator.
The court will not grant probate of the will of a deaf, dumb, and illiterate testator until it has evidence laid before it of the signs by which the testator signified that he understood and assented to the provisions of the will, and is satisfied on that evidence of his understanding and assenting to them.
John Geale, late of Yateley, in the county of Hants, yeoman, was deaf and dumb and could not read or write. He died on the 25th January, 1864, leaving a will which he had executed by mark, dated the 4th July, 1861. The will was as follows:
This is the last will and testament of me, John Geale, of Yateley, in the county of Hants, yeoman, I devise and bequeath all the real and personal estate whatsoever to which I may be entitled or over which I may have any disposing power at the time of my death, unto my wife, Martha Geale, absolutely, but if my said wife shall die in my lifetime, then I devise and bequeath all the same real and personal estate unto my said wife’s daughter, Eliza, the wife of William Wigg, of No. 52, Carlton-street, Camden Town, in the county of Middlesex, absolutely, and if my said wife and the said Eliza Wigg shall both die in my lifetime, then I devise and bequeath all the same real and personal estate unto the said William Wigg absolutely, and if all of them, my said wife, and the said William Wigg, and Eliza, his wife, shall die in my lifetime, then I devise and bequeath all the said real and personal estate to such children or child of the said William Wigg, and Eliza, his wife, as shall be living at my decease, and shall then have attained or shall thereafter attain the age of twenty-one years, to be equally divided between them, if more than one, and I appoint my said wife, or if she shall die in my lifetime, then the said William Wigg, and if both he and my said wife shall die before me, then the said Eliza Wigg, executrix or executor of this my will. In witness, &c.
Spinks, Dr., moved for probate of this will on affidavits of Martha Geale, the widow of the deceased, and of the two attesting witnesses, R. T. Dunning, a wine merchant, and Issac Hilton, parish clerk. These affidavits were to the effect that the deceased was a shrewd, intelligent man, and had considerable mechanical skill and ingenuity; that all the deponents had known him intimately for thirty years and upwards, and they were in the habit of conversing with him by signs which were well understood by him, and by all of them; that the deceased had, in August, 1853, made a will by which he devised and bequeathed all his real and personal estate to his wife, absolutely; that in June, 1861, he, by signs, told his wife to take that will to Mr. Shepherd, a solicitor, and to instruct him to prepare a fresh will to the effect of the will above set out; that Mr Shepherd accordingly drew out the will of July, 1861, and sent it to the deceased; that on the 4th July, 1861, the attesting witnesses were sent for, and the deceased then, by signs, told them that he was about to make his will, and wished them to attest it; that he produced the will, and informed them by signs of his intended disposition of his property; that Dunning read over the will, and having satisfied himself that it was in accordance with the instructions, explained the contents and effect of it by signs, and the deceased then by signs signified his assent. He cited In the Goods of Owston, 31 L. J. P. M. & A. 177.
Sir J. P. WILDE.—In that case probate was refused on motion, because it did not appear on affidavits whether the deaf and dumb alphabet had been used, or what were the signs by which the deceased had signified his knowledge of the contents of the will, and his assent to it. There is the same objection to these affidavits.
Spinks, Dr. —The deaf and dumb alphabet was not used in this case. The affidavits, however, show that the deceased understood and approved the contents of the will.
Sir J. P. WILDE. —I shall decline to grant probate on motion upon the affidavits now before me. The deponents must state the nature of the signs used in their communication with the deceased.
Spinks, Dr., renewed the motion upon the following joint affidavit of the widow and the attesting witnesses:—
“The signs by which deceased informed us that the will was the instrument which was to deal with his property upon his death, and that his wife was to have all his property after his death in case she survived him, were in substance, so far as we are able to describe the same in writing, as follows, viz.:—
The said John Geale first pointed to the said will itself, then he pointed to himself, and then he laid the side of his head upon the palm of his right hand with his eyes closed, and then lowered his right hand towards the ground, the palm of the same hand being upwards. These latter signs were the usual signs by which he referred to his own death or the decease of some one else. He then touched his trousers pocket, (which was the usual sign by which he referred to his money,) then he looked all round and simultaneously raised his arms with a sweeping motion all round (which were the usual signs by which he referred to all his property or all things). He then pointed to his wife, and afterwards touched the ring finger of his left hand, and then placed his right hand across his left arm at the elbow, which latter signs were the usual signs by which he referred to his wife.
The signs by which the said testator informed us that his property was to go to his wife’s daughter in case his wife died in his lifetime, were in substance, and so far as we are able to describe them in writing, as follows:—
He first referred to his property as before, he then touched himself, and pointed to the ring finger of his left hand, and crossed his arm as before (which indicated his wife); he then laid the side of his head on the palm of his right hand (with his eyes closed), which indicated his wife’s death; he then again, after pointing to his wife’s daughter, who was present when the said will was executed, pointed to the ring finger of his left hand, and then placed his right hand across his left arm at the elbow as before. He then put his forefinger to his mouth, and immediately touched his breast, and moved his arms in such a manner as to indicate a child, which were his usual signs for indicating his wife’s daughter. He always indicated a female by crossing his arm and a male person by crossing his wrist.
The signs by which the said testator informed us that his property was to go to William Wigg (his wife’s daughter’s husband), in case his wife’s daughter died in his lifetime, were in substance, and so far as we are able to explain the same, as follows:—
He repeated the signs indicating his property and his wife’s daughter, then laid the side of his head on the palm of his right hand with his eyes closed, and lowered his hand towards the ground as before, (which meant her death); he then again repeated the signs indicating his wife’s daughter, and crossed his left arm at the wrist with his right hand, which meant her husband, the said William Wigg. He also communicated to us by signs, that the said William Wigg resided in London. The said William Wigg is in the employ of and superintends the goods department of the North Western Railway Company at Camden Town.
The signs by which the said testator informed us that his property was to go to the children of his wife’s daughter and son in-law, in case they both died in his lifetime, were in substance, and so far as we are able to describe the same in writing, as follows, namely:—
He repeated the signs indicating the said William Wigg and his wife, and their death before him, and then placed his right hand open a short distance from the ground, and raised it by degrees, and as if by steps, which were his usual signs for pointing out their children, and then swept his hand round with a sweeping motion, which indicated that they were all to be brought in.
The said testator always took great notice of the said children, and was very fond of them. After the testator had in manner aforesaid expressed to us what he intended to do by his said will, the said R. T. Dunning, by means of the before-mentioned signs, and by other motions and signs by which we were accustomed to converse with him, informed the said testator what were the contents and effect of the said will.
Sir J. P. WILDE granted the motion.
[
The Justice of the Peace (1 October 1864)
vol.28, no. 40, p. 630]