A Lament for Lost Footnotes in Legal History

Keynote address by Professor Rosalind Croucher* on 12 December 2011 at the 30th annual conference of the Australian and New Zealand law and history society—”Public Law: Private Lives”

Introduction

Thank you for inviting here to the 30^th anniversary conference of the Australian and New Zealand Legal History Society. It is a marvellous group, and one, as Professor Andrew Buck recalled in introducing me tonight, that we have been associated with for most of that time.

A ‘lament’ as an after-dinner presentation may seem a little odd. But, in such company as this—an eminent group of legal history devotees, and with a conference theme of ‘Public Law; Private Lives’ I think it is really rather fitting. Perhaps I should abandon the alliteration of the title and turn it into a celebration, rather than a lament, in rescuing a collection of stories and anecdotes that have accompanied my own particular research journey. This has largely been through the archives and libraries of property law, as my doctoral research was on property law, or more specifically testamentary freedom, as a story of conflicted and necessarily balanced ideas—the idea of family and that of property. How many times in our research and writing journeys have we had to cut out the ‘good bits’, or at least relegated them to footnotes?

Some of this is about learning our writing craft—learning when our argument or narrative needs significant pruning or telescoping. Some of it is because of the exigencies of word-lengths or publishers’ demands. But the end result is the same. Much is relegated to footnotes or even cut completely.

I remember well a seminal moment in writing my first big thesis—my undergraduate history honours thesis. It was a biography of Sir Nicholas Throckmorton (1515–1571), a Renaissance diplomat. He served under several Tudor monarchs, was tried for treason twice—and got off both times. A remarkable fellow. There was a period in the story where a lot was happening, but it was somewhat peripheral to the narrative I was constructing as my thesis. This was the formula I devised: ‘Meanwhile in Scotland, Mary’s reign proceeded by calamities’, followed by a colon and a list of six events, each with a footnote.

Tonight I thought I would give you a collection of some of the stories that, for the most part, I don’t get to talk about, except in the odd precious footnote which is special for me—and perhaps when a handful of readers might read, when I’ve been able to tease out the stories in journal articles. I have chosen five of them.

Footnote One—‘Behind this case there lies quite a story’

The case, Wintle v Nye [1959] 1 WLR 284, was a landmark one in relation to challenging wills. It was a House of Lords decision that set the benchmark for wills in favour of ‘strangers’—non–family members—who benefit under wills. The basic rule of capacity is that you have to know what you are doing, namely that you are making a will, and have a basic, but not necessarily detailed, understanding of your assets and the claims that might be made on your ‘bounty’. The testator must also have ‘known and approved’ of the will when signing it. But apart from that the law is pretty embracing of testamentary quirkiness. But when things look odd the court may require to be convinced that the testator knew what he or she was really doing. Particularly when the person who prepares the will takes a benefit under it. While strangers can benefit, as Viscount Simonds stated, the fact ‘creates a suspicion that must be removed by the person propounding the will’.  It is a leading case for illustrating to students of succession the way the onus of proof works in probate cases.

Behind this case, however, there lies quite a story.[1] And this is the first of my footnotes.

Frederick Nye, the defendant, was a solicitor. His client was Kitty Wells, and he prepared her will making himself residuary beneficiary of her estate. Wintle, the plaintiff, was Lieutenant-Colonel Alfred D Wintle, of the First Royal Dragoons; and he was Kitty’s cousin. 

Kitty was quite potty.  Somewhat anticipating Rowan Atkinson’s portrayal of Mr Bean, she wrote herself letters every day. She was also a letter-hoarder. She kept all the letters anyone wrote to her and put these in her handbag. As one handbag became full, she put it under her bed and bought a new one. Then all the bags under the bed went into a cupboard.  And so on.

Kitty never read a newspaper. She did not understand the value of money and was no conversationalist, preferring silence. Her cousin Col Wintle described her as ‘a jellyfish’.

When Kitty died in 1947, the residue of her £115,000 estate amounted to £44,000. Wintle was aghast that Nye was to get this much. He believed that his sister, Marjorie, had been defrauded. He protested to the Law Society and to Nye, whom he called ‘a cad, a liar and thief and embezzler’, but to no avail.

What to do? Plan A was to draw maximum publicity to Nye’s dastardly deeds. He lured Nye to a meeting, pretending to be an old friend whom he had not seen for a while. Wintle forced Nye to remove his trousers (‘de-bagging’ him) and to pose for a number of photographs wearing a newspaper hat. Having turned Nye out into the street, still trouserless, Wintle retreated to his club. There he displayed Nye’s trousers in the trophy room.

Not surprisingly, Wintle was arrested and eventually sentenced to six months in prison for the assault. His plan to attract publicity succeeded, but Kitty’s will remained intact. He needed another plan.

Plan B was to attack the will itself. But Wintle had no standing. You can’t lay into any old will, you have to have an ‘interest’—as beneficiary under an earlier will, or as next of kin for example. Wintle managed to get a beneficiary to assign his interest to him, thereby ticking off the standing requirement.

He then began his suit against the will, with his sister Marjorie. At first instance he lost—before judge and jury. Although Marjorie’s costs were paid from the estate, Wintle’s were not. Barnard J remarked that ‘he had had his fun and now must pay for it’. In these proceedings Wintle used very senior counsel (Phillimore QC and Scarman QC), but on appeal he decided to go solo. While seeming to fare better before the appeal court, he lost again, 2:1, apparently in reluctance to overturn a jury decision. He was, however, granted leave to appeal.

It was in the House of Lords, Wintle said, that he was finally dealing with his ‘intellectual equals’. He appeared before the Lords in person, where, for six days solid, he and his batman, Cedric Mays, conducted the case with military precision. He and Mays prepared all the appeal books themselves, typing them, binding them (having done a quick study of bookbinding)—they even added an index. Wintle was the first non-lawyer to achieve a unanimous judgment in his favour in the House of Lords. He even succeeded in having Nye’s costs denied. The barristers of Lincoln’s Inn, in the presence of HRH the Princess Margaret, drank a toast in his honour and sent a jeroboam of champagne to his home. Nye was later struck off the roll of solicitors.

Col Wintle was quite a character—he fought in both world wars, stood for parliament, wrote his autobiography, The Last Englishman, which was published posthumously and became a television series. It is quite a story, none of which is relevant, really, to the point of the case as legal precedent.

Let me end this footnote with some of Wintle’s recorded remarks:

• ‘No true gentleman would ever unfurl one’—referring to his umbrella
• ‘This umbrella was stolen from Col. A.D. Wintle’—the note left in his permanently-furled umbrella
• ‘No true gentleman would ever leave home without one’—of his monocle
• ‘Guy Fawkes was the last man to enter Parliament with good intentions. You need another like me to carry on his good work.’

Footnote Two—‘The judge had been committed to a lunatic asylum’

The case this time is Gordon v Townsend (1872),[2] an illustration of how strong the presumption of capacity is with respect to testators—as Wintle v Nye had also demonstrated in its own way, the emphasis in that case being on knowledge and approval, not on capacity. These were the days before Testator’s Family Maintenance legislation allowed a court to override a will and, if a wife were badly done by in her late husband’s last will, her only recourse was to challenge his capacity with respect to it, seeking to take under an earlier, more favourable will, or to gain something for her children and herself through an intestacy.

In this case, the testator, Townsend, was suffering delusions as to his wife’s fidelity. He left her, and although in a deed of separation he made provision for her and his son, he excluded both from his will in favour of his sister and her children. Hargrave J as Primary Judge found in favour of the will—the deed was generous; it was rational; where was the delusion?[3]

Hargrave J’s decision was overturned on appeal—a decision from which he, as the third judge on that appellate bench, dissented (a quirk of Supreme Court appeals at the time).[4] Both Stephen CJ and Faucett J had no doubt that the testator believed, and believed wrongly, that his wife was unfaithful to him. She was ‘cruelly aspersed’[5] by the ‘monstrous’ allegations[6] of her husband. Indeed, she had a ‘duty’ to protect not only her own interests but those of her son, ‘whom the disputed document in effect disinherits’.[7] They also held that the testator’s false beliefs were the product of an insane delusion leading to the exclusion of the wife and son from the will and, therefore, that the will should be refused probate.[8] 

The footnote has two parts: first, the story of Hargrave J; second, his relationship with the Chief Justice, Sir Alfred Stephen.

Having published, in 1842, a notable treatise on the Thelluson Act; with practical observations upon trusts for accumulation (what every good trusts lawyer of old would have had in his kit bag!), John Fletcher Hargrave married his cousin, Ann, in September the following year. As Dr John M Bennett’s entry in the Australian Dictionary of Biography tells us, Hargrave failed to gain office as a police magistrate—‘despite strong testimonials’—and in 1851 he retired from the Bar, evidently because unremitting study ‘unhinged his mind’. This led to Ann’s actions in having her husband committed to an asylum—a new one, at Colney Hatch, Middlesex—an action for which, evidently, he never forgave her.

In 1857, Hargrave arrived in Sydney—without Ann. His rapid rise in the colony caused some consternation. He became a foundation judge of the District Court on 21 January 1859, then Solicitor-General, Attorney-General and then judge of the Supreme Court on 22 June 1865—a rapid rise which caused such a frisson among the Bar that they boycotted his swearing-in.[9] He was primary judge in equity and lunacy and then the first divorce judge in 1873.

Well, when Hargrave J heard challenges to wills on the basis that the testator lacked capacity—ie were lunatics—he had a grand old time. He could finally get his own back on Ann. Hargrave J’s approach in Gordon v Townsend was typical.

In the appeal, the judgment of Stephen CJ, in particular, was expressed in often emotive terms, sympathising with the ‘wronged and innocent’ woman and child, and ‘entirely dissenting’ from Hargrave J ‘on every one of the points taken by him’.[10] That Stephen CJ and Hargrave J took diverging views in the case was not an isolated instance of such disagreement—they were apparently legendary.[11] Stephen later recounted doggerel about Hargrave J circulating at the time: ‘No matter what the case may be I differ from the Chief’;[12] and later stated that: ‘[Hargrave J] rarely, if ever, failed to express a different opinion judicially from my own, whatever the question’.[13] Stephen attributed his retirement from the Bench in 1873 partly to the fact he was ‘harassed by repeated anxieties’ over Hargrave J.[14] 

After Hargrave J had died in February 1885, and more than twenty years after Gordon v Townsend was decided, Sir Alfred Stephen (as he was now) was still fuming over the ‘wild injustice’ of the ‘iniquitous’ judgments of Hargrave J in that case,[15] in his unpublished manuscript, ‘A Trio of Judges’. Stephen attributed Hargrave’s actions to mental derangement. Sir Alfred considered that Ann Hargrave’s having had her husband committed earlier in his life, led both to Hargrave’s extreme suspicion of all medical certificates imputing lunacy to anyone and also to a hatred of all women for the sake of his wife. Both issues, of course, came together in a case such as Gordon v Townsend concerning the testamentary capacity of a deceased husband brought by the widow on the basis of the alleged unsoundness of mind of the testator.[16] Excellentqualifications to sit on lunacy matters? Insanity eventually did overwhelm him, and he died on 23 February 1885, poor soul, from an ‘effusion on the brain’.[17] At least his son did well: Lawrence Hargrave, inventor of the box kite and an aeronautical pioneer.[18]

Footnote Three—‘It was a clever and strategic political compromise’

Late in the 19^th century, legislation was introduced to overcome the rigidity of the rules in relation to wills, namely that testators could leave their property to whomever they liked. In particular, widows and children could be excluded. This was changed with the introduction of ‘testator’s family maintenance’ legislation. It represented a significant shift in the laws of inheritance, as it enabled a court to override a will, in limited circumstances, in favour of the widow and children of a deceased testator.

The principal feature of such legislation is the discretion of the court to make provision for certain people who are regarded as having been left without adequate provision for their ‘proper maintenance, education or advancement in life’. This is the model that has been replicated throughout Australia, in the UK and in parts of Canada. It is a modest incursion into the principle of ‘testamentary freedom’ on which succession law in the common law is based, and is in contrast to the idea of fixed shares or ‘forced shares’ of the European, civil law, model.

The footnote: the discretionary model was a clever, and strategic political compromise. The story behind it is a good illustration of the often idiosyncratic—and quirky—nature of law reform. To tell this story we have to imagine ourselves in New Zealand, in the 1890s, just a few years after the death of Hargrave J.

Victoria was on the throne, and in the sixth decade of her almost 64-year reign. . It was a reflective decade, when Oscar Wilde wrote The Picture of Dorian Gray, Thomas Hardy, Tess of the d’Urbervilles, and Joseph Conrad, The Heart of Darkness. The 1890s were known as the ‘Mauve Decade’, because William Henry Perkin’s aniline dye allowed the widespread use of that colour in fashion. It was also a time of agitation for change, particularly by women. The 1890s women liked mauve so much that violet became one of the suffrage movement’s signature colours—green, white and violet—or ‘G’, ‘W’, ‘V’, for ‘Give Women Votes’. The suffragists saw the vote as the first step in a campaign of undoing ‘the old Blackstone code’,[19] including, as a natural principal target, the property rights, or lack thereof, of married women, the laws regarding guardianship of children, and the lack of equality in divorce. 

Testamentary freedom in turn came under scrutiny. Through a woman’s eyes, testamentary freedom came to be seen as a power that could be used not to bestow, but to take away—a power possessed by a husband and exercisable over his wife and children. Such a characterisation paved the way for the change in the law which began in New Zealand with the passage of the Testator’s Family Maintenance Act of 1900.

Robert Stout, its initial proponent, was married to Anna Stout—and Anna was a leader in the NZ Women’s movement. That can be a story all of its own.[20] But the particular footnote here is about the discretionary form of the legislation.

The first form of the Bill in 1896 was of the Scottish kind—based on fixed shares—and called, appropriately, ‘Limitation of the Power of Disposition by Will Bill’.[21] Its proponent was the Scottish migrant, Robert Stout. However the idea of reintroducing a fixed shares approach—based on the ‘widow and bairns’ parts’—went over like the proverbial lead balloon. Some other form had to be found. And Robert McNab—who took over the campaign after Stout left politics to become Chief Justice—found a handy precedent upon which he based his 1898 ‘Testator’s Family Provision out of Estate Bill’. The discretionary model had appeal—it reflected the mood of the times.

Under the Native Land Court Act 1894 the Native Land Court[22] was given certain powers to override the wills of Maori testators to provide a ‘successor’ a part or the whole of the land devised, ‘if it shall further appear on inquiry that such successor has not, without the land so devised, sufficient land for his support’.[23]

The court was thus able to override a devise of land to provide sufficient land for the support of the testator’s ‘successor’, which was defined in s 2 of the Act to mean ‘the person who, on the death of any Native, is, according to Native custom, or, if there be no Native custom applicable to any particular case, then according to the law of New Zealand, entitled to the interest of such Native in any land or personal property’. This principle formed the basis of the discretionary model of the Testator’s Family Maintenance Act.[24]

Now we get to the footnote within the footnote—the background for the introduction of s 46 in the Native Land Court Act. Apparently a number of Maori wills of doubtful authenticity had been produced to the Native Land Court as evidence of the title of certain persons. It was said that there was ‘quite a trade’ in the making of wills and that it had become ‘a fine art’.[25] In the interests of protecting native lands and controlling exploitation of it through uncontrolled private dealings—including via wills—the Native Land Court was given much greater powers in the 1894 Act than it had had previously, following upon a thorough review of the problems by the Native Affairs Committee in 1891.[26] One such power was the power in s 46 to override a devise of land to overcome ‘the fabrication of spurious wills’.[27]

The discretionary form of the provision was particularly apt, as it meant that no allegation of fabrication need be brought. The question was simply whether the ‘successor’ had been insufficiently provided for. Ingenious and brilliant—given the difficulty of proving that a will was indeed spurious, it avoided the issue entirely. The focus was rather on the propriety of what was done in the will; hence the issue of supposed fabrication was irrelevant. A broad objective of both provisions however was the same, namely the protection of ‘weaker’ groups, whether they be seen as women, children or ‘natives’, and this itself perhaps provides a sufficient basis to justify the borrowing.

Footnote Four—‘The Act was backdated’

The Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) commenced on 18 September 1916. This was the NSW version of the NZ legislation introduced in 1900. But—and this is the footnote—the Act was made retrospective to 7 October 1915, the day of the first introduction of the Testator’s Family Maintenance and Guardianship of Infants Bill of 1915 into the Legislative Council.[28]

This extraordinary action was taken to catch the estate of a former Member of the Legislative Assembly, John Norton, who had died on 9 April 1916 and the estate of the bookmaker, Francis O’Neill, who died on 26 March 1916. The amendment was successful and John Norton’s widow and son and O’Neill’s widow were among the first applicants under the new Act. The reason why the Act was backdated on behalf of the Nortons was not just a case of having friends in high places—although this is certainly a key aspect. It was also the extraordinary nature of Norton himself and the notoriety of his conduct towards his wife. The O’Neill case was a fortuitous inclusion in making the case for backdating—it was not just about Ada Norton.

Norton, ‘the most flamboyant example of the larrikin-demagogue that Australia has known’,[29] left an estate valued for Probate at £106,000, with an annual net income of £15,000.[30] His assets, included a chain of newspapers and a huge collection of Napoleonic memorabilia, including more than 80 statutes and hundreds of pictures and relics of Napoleon. Apparently he had come to identify himself with the French emperor,[31] even to the extent of calling his mansion ‘St Helena’, after the island of Napoleon’s last exile. His will had completely excluded his wife and his son, Ezra, in favour of his daughter, Joan, the only child Norton recognised as his own.

The details of Norton’s stormy marriage were common knowledge. His own scandal-mongering newspaper, Truth, reported fully the divorce proceedings, initiated by Ada shortly before her husband’s death.[32] The judge called him ‘the very refinement of brutal cruelty’[33] and an ‘habitual drunkard of the worst type’.[34] The divorce proceedings filled 11 days with witness after witness telling in graphic detail of Norton’s brutal conduct, all of which was published verbatim in the Truth. But Norton also had a softer side—on the one hand ‘a scoundrel’, and on the other, ‘a philanthropist’[35]—and his death pages and pages of ‘beautiful and eloquent tributes’.[36] The funeral also drew a large crowd, including hundreds of women.[37] Ada Norton, meanwhile, was left without means—and she had powerful friends.[38]

Mrs Norton was fortunate in her connections, fortunate that her husband’s estate had not yet been distributed and that the will had already proceeded through most stages. Mrs O’Neill was to find similar support when her bookmaker husband excluded her from his will,[39] leaving his estate to two women during their lives, legacies to an illegitimate child and his sister, and the residue of the estate to his legitimate daughter and the children of one of his sisters.[40]

However, the fact that the Act would be backdated essentially to cover these cases caused considerable consternation.[41] But, having decided to pass the TFM Act, some saw the backdating of it as but a small addition to the application of it. As Sir Joseph Carruthers commented: ‘we need not strain at the gnat after swallowing the camel’.[42]

There was also a certain irony that Norton had himself opposed the Bill at earlier attempts to pass it. As he said in objecting to the Bill of 1907:

I might have had good reasons for a particular distribution of my property, though I am dead and gone and silent in the grave. What I did might have been in the best interests of the family and of society; yet I am to be declared incompetent to do that, and a judge, who knows nothing of the circumstances, is to decide the matter on an ex parte statement, and have power to step into my shoes and devise my property. A more outrageous proposition was never heard of.[43]

RIP, John Norton. On 20 November 1916, Simpson CJ in Eq, acting under the jurisdiction newly given him under the Testator’s Family Maintenance Act, stepped into John Norton’s shoes and, not liking their fit, awarded Ada the sum of £1,308 and a weekly payment of £25 since the date of her application until the further order of the court, and Ezra the sum of £3 a week for his maintenance and education.[44] The order made in Julia O’Neill’s favour meanwhile was the first case of an order under the Act.[45]

In January 1941, Ezra Norton launched the Daily Mirror and, in October 1958, he replaced the Sydney Truth with the Sunday Mirror.

Footnote Five—‘He was a second son’

I thought I would conclude with an illustration that would appeal to Professor Andrew Buck, as a fine legal historian and aficionado of property law. Up until the middle of the 19^th century, the inheritance rules in relation to real estate favoured its preservation—the unpartitioned descent to the heir—in the system known as ‘primogeniture’. The integrity of land was also preserved by the rules in relation to the administration of estates, namely that the burden of secured debts, such as a mortgage, was to be borne by the general estate (and not the land itself). So the heir got the land without the debt. In 1854 the rule changed, so that land and personal property would be treated alike,[46] and secured property became the first source for the discharge of such debts, in the Real Estate Charges Act 1854.[47] This Act is known as ‘Locke King’s Act’ after its initiator, Peter John Locke King (1811–85). It is part of succession law teaching about the ‘administration of estates’.

The footnote: Peter John Locke King was a second son.

If the burden of mortgages fell primarily on the personal estate, the ones affected by such burdens would not be the eldest son, who was likely to inherit the real estate under the rules of primogeniture or settlements that mimicked them, but rather other family members, including second sons. In 1854 Locke King wrote a book about it, Injustice of the Law of Succession to the Real Property of Intestates.

Peter John Locke King was the second son of Peter King, the seventh Baron King, and, according to the Dictionary of National Biography,Locke King ‘supported an alteration in the law of primogeniture for many sessions’. In this he can be seen to advancing, if not his own interests, then the case for second, and other, sons—and daughters.

So, hang on to your footnotes … they’re special!

Create a file, next to the file of referees’ comments—good and bad—about your articles, and use it to store your treasures. Hang on to your footnotes. They are special.