Part 4

This brief narrative may serve as an introduction to the explanation of one remarkable peculiarity in the practical working of a deed of gift of real estate. Personal property may of course be sold, and the sale completed by delivery of the goods or other chattels to the purchaser; but actual possession of land is no clue to the ownership thereof, the title being evidenced by deeds in the general way, the exceptions being those cases in which land has descended to the heir in consequence of the intestacy of the former owner; and also those cases in which long-continued possession has given an impregnable title to a person who was originally a mere trespasser, or at the most a tenant whose landlord has been lost sight of. When the freehold estate above mentioned was given away and the gift was evidenced by deed and actual possession, the donor lost the power of again giving it away either by deed or by his will. But he might have sold the property if he could have found a purchaser willing to complete without actual possession of the title-deeds; which, however, he might afterwards have recovered from the holder thereof; the reason for this being, that where there are two inconsistent titles, both derived from the same person, but one depending upon an actual sale and payment by the purchaser of the price agreed upon, while the other rests upon no better foundation than a mere voluntary act on the part of the donor, the title of the purchaser will prevail, because of the valuable consideration which he has paid; while the other person has paid nothing. On the other hand, if the donee, before he is dispossessed or his title superseded by a conveyance for value, were to sell the property, and if the sale were completed and the purchase-money paid, the donor would have lost his right to sell. Having placed the donee in a position to make a good title to the property, he must take the consequences of his own folly. We once had the pleasure of saving for the benefit of the vendor the value of an estate which he had previously given away; greatly to the astonishment of the donee, who supposed himself to be safely possessed of the whole estate.

It will be understood that our remarks have no application to marriage settlements or similar documents in which extensive though limited powers of appointment are generally reserved to the settler, the power extending over the whole estate or a specified part thereof; while the persons to be the beneficiaries are strictly defined; and powers are also given to him to direct the payment of portions to his younger children, and to charge them upon the estate which is comprised in the settlement. This is the legitimate way in which a landed proprietor can provide for his family; and the only serious objection which has ever been made thereto is that it has a tendency to perpetuate the descent of the estates, instead of their distribution and subdivision into smaller properties. But these documents are beyond the scope of this paper. What we strongly object to are voluntary deeds of gift, which are generally made for the purpose of avoiding the payment of legacy and succession duty, but lead too frequently to disastrous consequences. They are beneficial to the legal profession, often leading to costly and harassing litigation; but to the intended recipients of the bounty of the donor, and sometimes to the donor himself, they are in a corresponding degree injurious.

Attention may here be called to the provisions of the Customs and Inland Revenue Act, 1881, on the subject of voluntary gifts of personal property made for the purpose of avoiding the payment of the duties accruing due on the death of the owner of personal estate. By this Act, duty is payable at the like rates as the ordinary probate duty on voluntary gifts which may have been made by any person dying after 1st June 1881, whether such gift may have been made in contemplation of approaching death or otherwise, if the donor has not lived three calendar months afterwards; or by voluntarily causing property to be transferred to or vested in himself and some other person jointly, so as to give such other person benefit of survivorship; or by deed or other instrument not taking effect as a will, whereby an interest is reserved to the donor for life, or whereby he may have reserved to himself the right, by the exercise of any power, to reclaim the absolute interest in such property. This enactment removes the last argument in favour of deeds of gift, for they do not now have the effect of avoiding the payment of probate duty; and in any event, since 19th May 1853, succession duty has always been payable in respect of the benefit acquired by the successor by reason of the decease of his predecessor in title. The case of a voluntary settlement in respect of which the stamp duty has been paid is provided for by a direction that on production of such deed duly stamped, the stamp duty thereon may be returned. Personal estate includes leasehold property.

With respect to wills, the position is very different. Every man who has any property of any kind ought to make a will, especially if he desires his property to be distributed in any way different from the mode prescribed by law in case of his intestacy. Many cases occur in which the neglect to make a will is not only foolish but positively wrong. A husband has a duty to perform towards his wife which cannot be omitted without culpability; and the same may be said of the duty of a parent to his children. As to the former, there is a danger which is often unsuspected by the owner of real estate. The law provides that on the death of such a person intestate, leaving a widow, she shall be entitled to dower out of such estate; that is to say, one-third of the rents thereof during the remainder of her life; but this right to dower is subject to any disposition which the owner of the estate may have made thereof, or any charges which he may have created thereon. In England, there is no inalienable share of property which the widow and children can claim, even as against the devisee, as is the case in Scotland. But there is a power to bar the right of the widow to her dower by means of a declaration to that effect in the conveyance to a purchaser, or in any deed subsequently executed by him relating to the property. It must be observed that the declaration in bar of dower is not necessary for the purpose of creating charges upon the estate, because dower is expressly made subject to such charges. But if the declaration has been inserted in the conveyance—without the knowledge of the purchaser—his widow will have no claim to any provision out of such estate unless it shall be made for her by the will of her husband, who, in ignorance of the necessity for making a will, dies intestate, thus leaving his widow dependent upon his heir-at-law; in numerous cases, a distant relative, who is not disposed to acknowledge that the widow of his predecessor has any claim upon him.

Again, as to his children, the possessor of real estate ought not to forget that in the case of freehold property it will descend upon his eldest son as heir-at-law; thus leaving his younger sons and his daughters unprovided for except as to their respective shares of his personal estate, which may be of small value, or even insufficient for the payment of his debts. If the property should be copyhold, it would descend to the customary heir, who might be the eldest son, the youngest son, or all the sons as tenants in common in equal undivided shares; but in any event, the daughters would remain unprovided for.

FOOTNOTES:

[1] It should be understood that this series of articles deals mainly with English as apart from Scotch law.

A DEAD SHOT.

AN INCIDENT IN 1801.

The following singular story is perhaps worth putting on record because the narrative is strictly true.

In the year 1801, a fine old Jacobean house, known as Chatford House, situated on the borders of Devon and Somerset, was in the occupation of a Mr Edward Leggett, a wealthy farmer, and his two sons. The house, like many of its class, had originally been built so that its ground-plan formed the letter [Illustration: E], a centre, with projecting doorway, and two wings; but one wing had been taken down altogether, as well as a portion of the other, so that the ground-plan became thereby altered and took this form, [Illustration: E with the top bar removed], the centre doorway remaining untouched. This should be remembered, in order to understand the circumstances of the principal incident of the narrative. Over the projecting doorway was a room which went by the name of the ‘Oratory,’ probably on account of its large projecting bay window, which gave it somewhat of an ecclesiastical appearance, and from this window a view could be obtained on all sides. The small part of the wing which was left standing was used as storerooms, and access from the outside was gained by a small door, which had been injudiciously opened in the corner, or angle, when the alterations were made.

Mr Leggett possessed a large quantity of very fine old massive silver-plate, which was placed in one of the storerooms, strongly secured and locked, in the remains of the wing referred to. It was supposed that he had also a considerable sum of money locked up with the plate, as banking was not so common in remote country-places in those days.

Now it happened that, on the 23d of April 1801, Mr Leggett and his two sons had to attend a neighbouring cattle fair, and had proposed to sleep in the town, instead of returning home the same night; but, a good customer having arranged to complete a purchase early the next morning, Mr Leggett’s eldest son, George, came back to Chatford very late and went quietly to bed; but the worry of the fair, and anxiety about to-morrow’s purchase, prevented him sleeping. His bedroom was at the end of the house, close to the store wing, and just above the little door in the angle already mentioned. Whilst restlessly tossing about from side to side, young Leggett heard the house clock strike two, and just after became aware of a peculiar grating noise, apparently under his window. To jump up and cautiously and silently open the casement was the work of a minute. It was a cloudy moonlight night, just light enough to show objects imperfectly, but enough for George Leggett to observe the figures of two men close to the little door in the angle immediately below, on which they were apparently operating with some cutting tool, which had produced the grating noise he had heard. George, who was a young man of great intelligence, quick judgment, and ready resource, instantly comprehending the situation, took his measures accordingly. He happened to be a member of the county yeomanry cavalry; and catching up his carabine and some ball cartridges, he silently left his room, and proceeding down the corridor—loading his carabine as he went along—soon reached the ‘Oratory’ room over the porch, whence he could see straight down on to the little door, which was then right in front of him. Silently opening the casement, he made a careful survey of the position, which a passing ray of moonlight enabled him to take in at a glance.

At the little white-painted door were the two men, whose dark figures were well thrown up by so light a background. One was stooping or kneeling, and the other was standing close behind him, their backs, of course, being turned towards their observer. Putting his carabine on full-cock and laying it carefully on the window-sill, after a deliberate aim, Leggett pressed the trigger. A loud shriek and a stifled cry followed, then all was still. Leggett stood intently watching the spot for several moments; but profound silence prevailed—not a sound was heard, not a movement was perceptible. The only other man in the house was the groom, who was quickly roused; and lanterns having been procured, he and Leggett repaired to the spot, and were not a little staggered to find both burglars lying dead. The hand of one of them still grasped a very large steel centre-bit, with which he had been operating on the door. Subsequent surgical investigation showed that the bullet had struck the back of the first man, passing through his heart, and had then entered the head of the man who was stooping or kneeling in front of him, just behind the ear, lodging in the brain. The bodies were at once removed in-doors; and at the inquest, held the next day, the following particulars were elicited:

By the side of the dead men was found a leather travelling portmanteau, containing a highly finished and elaborate set of housebreaking tools, together with a piece of candle and a preparation of phosphorus for obtaining a light, as it is needless to say that lucifer matches were unknown in 1801, their place being supplied by the old-fashioned flint and steel and tinder-box, articles not available for burglars’ use. Each man was armed with a brace of pocket pistols, loaded and primed; and one of them carried a formidable-looking dagger, fitted into the breast of his coat; clearly showing that these ruffians were prepared to offer a desperate resistance, if interrupted or molested. They were both well dressed, and had quite the appearance of gentlemen. Each possessed a good watch and seals, and carried a well-filled purse. One only had a pocket-book, containing many papers, chiefly relating to money matters and betting transactions; but only one letter, which, however, proved of immense importance in throwing light on the lives and characters of the deceased burglars, and in telling the story of the attempted robbery. The letter was directed to ‘Mr John Bellamy,’ at an address in Shoreditch, London, and was dated from Roxburn, the name of a large neighbouring farm, and bore the initials ‘J. P.,’ which, with the writing, were at once recognised at the inquest as those of ‘James Palmer,’ the managing bailiff at Roxburn Farm, a clever and unscrupulous fellow, without any regard for truth or principle, well known in those parts, but a man whom nobody liked and everybody distrusted. This communication was in these few but significant words: ‘The 23d will do best; coast clear, no fear, all straight.—J. P.’

This letter, with the tools and a full report of the whole case, was at once sent to Bow Street, London, and an investigation made by the ‘Bow Street runners’—the detectives of those days—for there were then no regular ‘police,’ as we now understand the term. On searching the premises in Shoreditch, indicated in the letter, where John Bellamy lived, it was discovered that the supposed John Bellamy was no other than ‘Jack Rolfe,’ one of the most successful professional burglars of that day; and the authorities hesitated not to express their satisfaction that his career had been so cleverly cut short.

An immense quantity of stolen property, of almost every description, was found at Rolfe’s lodgings in Shoreditch; and what was more important—as regards the present narrative at least—a correspondence extending over three or four years between Mr James Palmer of Roxburn Farm and the arch-burglar John Bellamy, alias Jack Rolfe himself, by which it appeared that this robbery had been planned and arranged by Palmer, who had supplied Rolfe with the fullest information as to Mr Leggett’s plate and money, as well as a neatly drawn plan of the premises, which was found amongst the papers. Palmer had also arranged the date of the robbery for the 23d of April, as he had discovered that Mr Leggett and his two sons intended to sleep out that night. Nor was this all; for only a few weeks previously, the rascal had had the effrontery to invite Rolfe to pay him a visit at Roxburn, under colour of his being a personal friend, which invitation Rolfe had readily accepted; and one of the witnesses at the inquest well remembered his coming, and at once recognised him in one of the dead men—he of the centre-bit. Rolfe was described as a quiet, pleasant, and rather gentlemanly man.

Not far from Mr Leggett’s gate, a light cart and pony were found tethered early in the morning of the attempted robbery. The cart had been hired from a neighbouring market-town to convey the thieves to the scene of operations, and to bring them back with—as they fondly anticipated—a sackful of rich plunder. They had been staying a day or two at this inn as commercial travellers, calling themselves brothers, and giving the name of Sutton.

On the evidence afforded by the correspondence found in Shoreditch, Palmer was apprehended; and further investigation brought out the fact that the notorious Jack Rolfe was not only his friend, correspondent, and accomplice, but his own brother also, Rolfe being merely an ‘alias’ for his real name of Palmer. The two men were very much alike both in face and figure; and it came out in evidence that they belonged to a family of burglars and sharpers. One brother had been transported for life for robbery and violence; another was then in prison for fraud and theft; James had just been apprehended; and John had been shot dead whilst plying his trade. James appeared to have been the only member who had held a respectable position—that of manager of Roxburn Farm, and he could not keep away from dishonest practices. It was also further discovered that Palmer had been an accomplice in two or three mysterious burglaries which had been perpetrated in the neighbourhood during the two or three previous years, in which the thieves had displayed an accurate knowledge—even to minute details—of the premises attacked, the habits of the inmates, and the drawers or closets where valuables were kept. All this was due to the planning and arranging of the brother James, who could at his leisure quietly take his measures on the spot; which were then carefully communicated to his brother John, who ultimately became the willing executant. Palmer was shortly after brought to trial, convicted, and sentenced to fourteen years’ transportation.

The verdict of the coroner’s jury was ‘justifiable homicide;’ for in those days of desperate and well-armed burglars, the shooting of one or two of these gentry, whilst in the act of plying their nefarious calling, was considered not only a clever but a meritorious action.

THE EVIDENCE OF THE SENSES.

The senses are the witnesses which bring in evidence from the outer world, without which that world would for us have no existence at all; but the mind sits aloft on the judgment-seat and forms its conclusions from the evidence laid before it; and these conclusions are for the most part wonderfully correct; for, though the testimony of one sense alone might lead the mind to form an erroneous opinion, this can be rectified by discovering what one or more of the other senses have to say on the same subject. When, however—as sometimes happens under peculiar circumstances—the evidence of one sense only is available, the mind may very readily arrive at a false conclusion. As an instance of this may be cited what is often observed by surgeons in cases of hip-joint disease. The patient, usually a child, complains of severe pain in the knee, which, however, has not, so far as can be ascertained, been injured in any way. Very likely, the pain is severe enough to prevent sleep at night, so that there can be no doubt about its existence, and it may perhaps have been almost continuous for some time past. Now, in such a case the surgeon will have a shrewd suspicion of what is really amiss, and very often will at once proceed to examine the hip. This he will do, too, in spite of assurances on the part of the parents that the patient always complains of the knee and of that joint only. He does not doubt that the pain feels as if it was in the knee, but he strongly suspects, nevertheless, that the disease is in the hip; and this often proves to be the case. This is an instance of what is called ‘referred sensation.’ The nerve which conveys sensation from the knee also sends a branch to the hip-joint, and it is this anatomical fact which explains the phenomenon. It might be expected that even if the pain was not felt solely in the hip, it would at least be always felt there as well as in the knee. This, however, though sometimes the case, is by no means always so. In this instance, the patient comes not unnaturally to the conclusion that where he feels the pain, there the cause of the pain must of necessity be situated. He would be quite ready to declare that there was nothing the matter with his hip, for he cannot see into the joint and discover the disease there. He has, in fact, to depend upon the evidence of one sense only, and the conclusion based upon the evidence of the single sensation of pain, is false.

Another instance in which the testimony of one sense alone may lead to a false conclusion as to the whereabouts of the cause of a pain is found in what often takes place after the amputation of a limb. Most people are aware that after part of a limb has been removed by the surgeon’s knife, the patient may still feel as though his arm or leg, as the case may be, was entire, may feel much pain in the foot when the leg has been amputated far above the ankle. Here, in recovering from the effects of the anæsthetic, were it not for the additional evidence of his eyesight, the patient might well doubt whether his limb had been removed at all. The amusing story, in Marryat’s _Jacob Faithful_, of the old sailor who, having two wooden legs, was accustomed at times to wrap them up in flannel on account of the rheumatic pains which he said he felt in them, is not so very extravagant after all. It is not, however, altogether correct, as it represents the man feeling these pains in his legs _long_ after they had been amputated. As a matter of fact, the false impression passes off before very long. The explanation given by physiologists is as follows: The severed nerve in the stump is irritated and gives rise to pain; and inasmuch as irritation to this nerve-trunk has hitherto been always caused by irritation of its ultimate filaments distributed to the foot and leg, the mind continues for some time to believe that the sensation still proceeds from thence.