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and there was therefore a necessity to be vigilant
and jealous in examining the evidence in support
of the will. On the questions
left
to
the jury
they could have found for
the will and vali–
dated the gifts to relatives and charities while de–
feating the entitlement of Mr. Nye to the residue.
The jury, after being repeatedly told that it was for
them to decide whether they believed Mr. Nye, came
to the conclusion that Miss Wells did know of and
approved of the contents of the will and codicil,
including what was given to Mr. Nye.
It was not within the Court's competence to set
aside their verdict. Though the case had certain
features which could not fail to cause concern, his
Lordship had reached the conclusion that they were
not warranted in displacing the verdicts of the jury.
Lord Justice Sellers, in a dissenting judgment,
said that he would allow the appeal, disturbing as
it was to contemplate that this dispute fell to be
determined 10 years after the testatrix's death.
The main issue raised on the appeal was funda–
mentally a question of law. The question was
whether, having stated the law and the issues accur–
ately and clearly, the Judge had complied with the
approach to the investigation which the law re–
quired. Whether it was regarded as a whole or
analysed in detail the summing-up provided and
encouraged in the minds of the jury a benevolent
and sympathetic consideration of Mr. Nye's evidence
and in no way led the jury to a critical or hostile
approach to what he said in his evidence and to what
he would appear to have done. In a trial of the
present character there was an extraordinary burden
of investigation.
The approach to the evidence which was
challenged should be suspicious and critical. The approach
should be an unreadiness but not an unwillingness to believe
it after close scrutiny and careful consideration.
The summing-up, far from applying the approach
required by law leaned throughout strongly in
favour of Mr. Nye, with scarcely a word of criticism
or possible distrust for the jury's consideration! It
was a striking and unusual feature that neither in
respect of the will which was said to be discussed
over many months nor in respect of the later codicil
was there any independent evidence to support
Mr. Nye's version except the signature of the testa–
trix to the two documents. There was no document
of a testamentary character in the handwriting of
the testatrix. There was no supporting witness to
show the testatrix's knowledge of the extent of her
estate or the size of her residue or her wish to benefit
Mr. Nye substantially or at all.
There were some points in Mr. Nye's version
where one might have expected a corroborative
document; for instance,
one might have expected him
to have asked the testatrix to sign a statement to the effect
that she did not wish to comply with his suggestion that
there should be an independent solicitor.
It was sufficient
to recognise that his evidence on all material matters
stood alone, unsupported, uncorroborated.
But that really was not the sting of the matter.
In December Mr. Nye said that his discretion was
to be exercised " if funds permit " and in June, 1948,
" if I thought it could be done." In those words
the writer gave some evidence, perhaps the nearest
evidence of the mind of the testatrix. Mr. Nye had
drawn up the figures which he said were put before
the testatrix showing an estate of £50,000. He had
been managing the estate for her and knew the
properties and their revenue. He must have known
that on any reasonable view there could be no doubt
of the sufficiency of the revenue for this relatively
small purpose. If he did not know how could the
testatrix know ? Those two matters called for careful
review by the Judge to the jury and by the jury
themselves. Properly and fully considered they might
well have produced a different result.
There had also been some misunderstanding over
the position of Miss Marjorie Wintle, and it seemed
to have been left somewhat obscure at the trial.
Miss Marjorie was Colonel Wintle's sister and was
an obvious person to receive benefit from the testa–
trix. It was true that the jury could not put Marjorie
back into the will, but his Lordship did not under–
stand, in view of the arangements which had been
made, that Marjorie would get nothing if the will
were not established. He would have allowed the
appeal and ordered a new trial, unless the parties
otherwise agreed.
Their Lordships dismissed the appeal with costs
but granted Colonel Wintle leave to appeal to the
House of Lords.
(In re Wells, deed. :
Wintle
v.
Nye
The Times,
jyth December, 1957.)
A successful plaintiff, who is deprived of costs, cannot
obtain them on appeal, as costs are in the discretion of
the trial judge.
The Judicature Act, 1925, provides by section
31 (i) : " No appeal shall lie .
.
.
Qi)
without the
leave of the court or judge making the order, from
an order of the High Court or any judge thereof
... as to costs only which by law are left to the
discretion of the court." The plaintiff company
brought an action against the defendant, a former
employee, to recover £1,253, said to be a debt due
on a running account. The defendant alleged that
repayment of the debt was to be contingent on the
receipt by him of a sum claimed in respect of certain
expropriated assets abroad, and counter-claimed a
sum of £1,083 said to be due to him as arrears of a