The Gazette 1958-61

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