THIS IS NEW INFORMATION JUST DISCOVERED AND HAS NOT YET BEEN EDITED
South Australian Register [Adelaide, SA:1839-1900] Wednesday 24 June 1857, page 3.
LAW AND CRIMINAL COURTS
SUPREME COURT - CIVIL SITTINGS
Tuesday June 23
[Before His Honour, Mr C. Mann]
LUBASCH V JAENSCHC
ontinued from the preceding day. Dr. HUBB, acted as interpreter.
The Attorney-General stated that the case for the plaintiff was concluded.
Mr. GWYNNE submitted that it was incumbent on the plaintiff to call the second attesting witness to the will, and quoted authorities in support of his view. The question was discussed, and decided by His Honor against the view taken by Mr. GWYNNE. Mr. GWYNNE then addressed the Jury. He referred to the facts elcited by the evidence on the part of the plaintiff, and commented at some length on the circumstances that, though none of the married daughters were present by the bedside of their dying parent till after the will was made, there were two persons,, LIEBELT and his wife, who were constantly there. Then the after conduct of LIEBELT, in obtaining possession of the will, and the nature of his evidence, as contrasted with that given by the plaintiff, taken in connection with the circumstance of LIEBELT's son being engaged to the plaintiff, sufficiently indicated his designs. With regard to the assumption on the part of the plaintiff, that the testator had made an equitable distribution of his property, he contended that two-thirds of the whole would fall to the share of the plaintiff under the will. The property was estimated at nearly £3,000, of which only £800 was demised to four of his married daughters, and only a small portion of his real property to the other married daughter, leaving the whole or the residue to the plaintiff. He should call evidence to show that the deceased was in a state of stupor when the will was made, and that the particulars were drawn from him by dictation of LIEBELT during such stupor. The will itself contained prima facie evidence that it had not been prepared in the manner stated by the evidence of the plaintiff.
It could not have been written at the dictation of the testator, because its formalities evidently showed that it had been copied from the printed form to which reference had been made; and it was also evident, on inspection of the document, that the name of the plaintiff was inserted after the will was drawn. It was very extraordinary that though frequent reference had been made to the Pastor, by whom the will was drawn up, he had not been called to give evidence on a matter of so much importance. It was his intention to do this, as also to call the boy GUSTE, who was present when the will was made. He should likewise call Dr. CHALMERS, who attended the deceased the day after the will was made, who would state to the Jury that the patient was in a state approaching coma, and that the intellect must have been in a morbid state of inactivity the day before, resulting from the disease with which he was affected. If this was established, it would follow that the deceased was not in a condition to make a will, because the sworn testimony which had been given showed that he was in the same state of mind on the evening previous to Dr. CHALMERS's professional visit as on that occasion. This had been proved even by the evidence on behalf of the plaintiff, which showed that no change had taken place with regard the mental condition or the testator from the time that the tailor bled him in the foot till he was visited professionally by Dr. CHALMERS. The learned gentleman, after some further remarks, called the following witnesses:—
Carl Friedrich Adolf STREMPEL, Lutheran clergyman—and Resided at Hahndorf. He had known the deceased, Gottfried LUBASCH, and saw him on the Friday preceding his death, about 2 o'clock in the afternoon. He attended at the request of Miss LUBASCH to impart spiritual instruction to her father. Found him very .... He could not speak at any length. Put questions to him in such a manner as that they could be answered with a simple affirmative or negative. He, however, used other expressions besides yes and no. Witness remembered his saying, "Sir, you find me in great illness." Considered him in a fit state to receive spiritual consolation. Had never made a statement to the contrary. Always considered him in possession of his reasoning faculties, but thought his memory was failing him from the errors he committed. He suggested that a medical man should be sent for, and as there was no one disposed to go to Mount Barker for Dr. CHALMERS, witness went for the German doctor, but did not find him at home. Was sent for again in the evening to attend LUBASCH, and arrived at his house a little before 10 o'clock. The de ceased was lying on the sofa, and Mr. LIEBELT was near him.
Was told, in answer to his enquiries, that he was sent for in order to draw np the testator's will. Did not remember whether it was LUBASCH or LIEBELT who in formed him of this, for both of them spoke to him. Was asked if, in case of necessity, he could draw up a will. Replied that he had once been present when a will was made, and had seen a form, which could be used on that occasion. The form was sent for and obtained, from which he drew up the will produced, the English portion of which was a verbatim copy of the form, with the exception of the names. There were not blanks left for the .names. Witness conversed first with LUBASCH respecting the conditions of the will, which he wrote down, and afterwards made the will in accordance with such instructions. Asked LUBASCH who was to be the heir. He answered "My youngest daughter." LIEBELT was sittting by the sofa at the time. Did not put the question nor receive the answer through him. LUBASCH seemed to understand what occurred. It was not at that time that witness observed there was a failing in LUBASCH's memory. It occurred afterwards, when he was reading to the deceased the English part of the will. He asked the deceased to whom he intended to will the £100 remaining of the £900, after paying the £300 to each of his four daughters. The testator answered I have five daughters.
Witness did not wish to suggest a name, but asked LUBASCH generally to whom he referred. Before he had answered LIEBELT said, "You will not forget your dear Maria Elizabeth." LUBASCH then named her as the person to whom the amount .should be devised. Witness then made enquiries respecting the payment of the £900, when LUBASCH directed that £100 should be paid to the four sisters at the death of the deceased, and £500 at the death of his wife. It was afterwards suggested that the £400 should be paid a year after his death, to which the testator and the heir assented. LUBASCH afterwards directed witness to make provision in the will for the demise of the interest upon the £500 to his widow, at 5 per cent.; and of the cottage and two acres of land to Mrs. WIETH.
Witness
7 will in accordance with those instructions, and read it over to Lubasch before he signed it. Liebelt frr queutly joined in the conversation. He assisud Lnbasch to tic up. Whilst witness was drawing, up the will, Lubascli was leaning with his head over a chair, but witness did not know whether he was dozing or not. Remembered on one occaskw Liebelt explained to witness the meaning of the instruction given by Lubasch. Did not think it was the intention of the testator that the £100 should remain with his youngest daughter, became he had pre viously said he intended the whole of it for his other daughters. He, therefore, put the question to him again on that subject, oil which Liebelt interposed by saying, ' He knew that he intended it for his youngest daughter, because he had before spoken to him about it.' By the Attorney-General— Would not have drawn up tit will if he thought the testator was not in a fit stale
8 to make it.
Andrew Chalmers, M.D..— Was practising at Mount Barker, and knew Gottfried LUBASCH eight years previous to. his death. Was called in on the Saturday morning before his death. He was suffering from inflammation of the lungs. He was sinking when he first saw him. His lungs were hepatizsed, and his lips purple, indicating that the blood was not properly oxygenized, on account of the lungs not properly performing their functions. The carbonized state of the blood would produce a morbid drowsiness of the brain. This he found to be the case on questioning the patient. His mind was wandering, and his language incoherent. Inferred from the state of the deceased that he must have been wandering in his mind for at least 12 hours, and most likely for 24 hours previously. The plaintiff and her mother were present. The plaintiff said her father was much worse the night before. This he should have inferred from his knowledge of the plaintiff's general state of health.
By tbc Attorney-General: Saw the deceased about a month before. He was asthmatic. The disease of which be died was pneumonia. There is a great dis tinction between this and consumption. The latter disease is caused by the formation of tubercies in the lungs. All diseases of the lungs, which cause the de carboniization of the blood, affect the mind. Could not tell the precise stage when the disease began to affect on the mind. Medical science was sometimes at fault in prognosticating the termination of a disease. Did not believe, from what he had learned, by his own experience and from reading, that the deceased could have been in a state to give clear directions respecting any particular subject 12 hours previous to his visit to him. Did not know that his experience had exhausted his subject. Would have examined the patient more particularly le specting tho state of his mind had he known that he would have been examined upon the subject.
By Mr. Gwynne: Hepatization was a term to express the solidification of the cells of the lungs.
Dr. Gosie examined: Hepatization varied very much as to the time when it took place after the commencement of diseases of the lungs. If hepatization was at all general, the mental functions would be proportionally impaired. In examining a patient the state of the mind would guide him to a considerable extent as to the state or the disease itself. As soon as the blood arrived at a certain state of impurity the mind would not be able to perform its functions.
By the Attorney-General: Regarded the brain as the organ by which the mind manifested itself. If a person answered questions with a simple yes or no his mind might be affected, but not if he carried on a conversation intelligently. Doctors were not in fallible any more than lawyers. They sometimes differed.
Christian GUSTE, a lad apparently about 14 years of age, deposed to his having been in the employ of LUBASCH some Years before his death.. He remembered his dying. He was taken ill on a Tuesday. Knew LIEBELT and saw him at the house of LUBASCH on the Friday. He arrived between 7 and 8 o'clock in the evening, and advised LUBASCH to have his testament made to avoid future quarrels. LUBASCH was lying on a sofa, and LIEBELT sat near him. LUBASCH, in reply to his suggestion respecting his will, said, ' Yes we.can.' LIEBELT advised that some one should be sent for for that purpose. Witness was sent by LIEBELT and the plaintiff to the pastor. Heard LUBASCH speak but very little before he left the house. Pastor STREMPEL went to LUBASCH. Did not remember who was the first who spoke. Was sent to the schoolmaster for a form of a testament, which he obtained and took back with him. When he returned there were LIEBELT, the Pastor, BRETOG, LUBASCH, his wife, and the plaintiff present. LIEBELT was sItting near LUBASCH. Afterwards saw LUBASCH sitting on a stool; and a table was near the sofa, on which Pastor STREMPEL was writing. Heard the Pastor ask LUBASCH how he wished the will to be made. LUBASCH did not reply ; but LIEBELT said the youngest daughter was to pay out £900. These were the first words he heard in reference to the will. Afterwards he heard LUBASCH say every one of his children was to have £200. LIEBELT sat near the sofa during the whole time that the will was being prepared. Did not see that LUBASCH was sleeping, because he leaned his head forward. He took some time to reply to the questions put to him, because he was rather weak. LIEBELT put many questions to LUBASCH. LUBASCH raised his head a little when be answered the questions put to him. Could not say that any person touched him at such times. Heard the Pastor ask LUBASCH who was to be heir to the property. He replied, 'Ann'. Maria Lubasch said, "No, no". The Pastor asked the question a second time, when LUBASCH replied, "Maria Elizabeth". He was then hanging over the chair. LIEBELT was near him, but did not speak. Some portion of the will had then been written. During the making of the will, LUBASCH said every one of his daughters was to have £200 each; to which LIEBELT remarked "You told me this two years ago,"
By the Attorney-General — Was now in the service of Gottlieb JAENSCH, and was previously in the employ of Christian JAENSCH, the defendant. The Pastor arrived at the house of the testator between 9 and 10 o'clock.
Lachlan MacFARLANE, farmer — Resided at MountBarker, about two miles and a half or three miles from the residence of the late Mr. LUBASCH. . Married his daughter. Was: first informed of the illness of the deceased on the Saturday afternoon about 3 o'clock, from Dr. CHALMERS, whom he met accidentally. Was leading a horse to the paddock at the time. Took the horse back, and, as soon as convenient, went to see LUBASCH. He appeared to be asleep when he arrived, but in five minutes after wards he roused up and knew witness. He held out his hand to him, but did not speak. Saw the plaintiff there, and had a little conversation with her. Did not know that LUBASCH had made his will till after his death. Was on his way to town a day or two after the funeral, when Christian JAENSCH told him of this. The deceased never spoke to witness in his life about the disposal of his property.
By the Attorney-General — Did not remain very long at the house of the deceased on the Saturday. Did not remember when he saw him previously.
By Mr. GWYNNE - He was then in his usual health.
Christian JAENSCH, one of the defendants, married one of the daughters of the lat Mr LUBASCH. Lived bout three and a half or four miles from the residence of LIEBELT, and about 300 yards from that of the deceased. Was not aware of his previous illness. Remembered the plaintiff being at witness's shop on the Friday morning previous to the death of deceased. Witnesses's wife was present. The plaintiff did not tell her that her father was ill. Did not not ??? know of his illness till James YEATES informed him of his death. The deceased left property, consisting of houses, land, and various goods. Was appointed one of the executors pending that trial. Estimated the property at 2,430 pound. [???]
By the Attorney-General — Would give that amount the amount for it. Was married nearly five years ago.
Pastor Strernpel, recalled by His Honor — Had not minutely examined the will, but, as far as he could judge, it was in the same state as when he drew it up.
By Mr. Andrews — On examining the document found that one of the sheets had been separated into two half sheets. No alteration had been made in the writing to the best of his knowledge.
Gottlieb LIEBELT — Had been married to one of the daughters of the late Mr LUBASCH 10 years. Saw the deceased the Saturday before the commencement of his last illness. He said he was getting old and did not know how to manage his farm; that he had been waiting ever so long for the marriage of his daughter Maria Elizabeth, and would like her to take the farm, and pay out to the other children £800. He said he had been talking to LIEBELT about it, who said plainly he would not have it. He said he wished all his daughters to have an equal share, except Mrs. WIETH, whom be could not give so much as the others. He also said if the youngest daughter took the farm, he would like her to have £100 more than the others. The farm was worth about £1,000, and the deceased had a section and a block of 15 acres about a mile from the farm; also £300 out at interest. Heard nothing of his illness till his wife had returned from church on the day of his death.
Guilliam THIELE — Lived at Grunthal, and had been married to one of Mr. LUBASCH's daughters 16 or 17 years. Saw the deceased frequently previous to his death. Had a talk with him in April, 1856. He complained that he was getting old, and asked witness to give him advice respecting his affairs. Advised him to give over his farm to Maria. LUBASCH said LIEBELT did not like to take the farm on the terms he wished to give it to him. He said he would allow LIEBELT to have the farm on his marrying Maria, and £100 more than either of the other daughters. First heard of the illness of LUBASCH late on the Friday evening previous to his death.
This concluded the evidence for the defence.
The Attorney-General called the following witnesses, to show the state of the deceased's mind on the Saturday before his death.
Johann Gottfried DOLLING — Knew the deceased 20 years previous to his death. Saw him 11 hours before he died. Shook bands with him, and remarked to him, "We only met on Tuesday, and you have been taken suddenly ill". LUBASCH replied, "After you left me, I was passing by Mr. SCHULTZE's public-house, and he asked me to go in. I went in, and said I was not in a state to drink. SCHULTZE replied that he did not ask me in to drink, but that Mrs. SCHULTZE would make me a cup of coffee". He then went on to state that he 'remained to tea ; and a good deal more conversation passed between witness and LUBASCH, which he could not recollect. Remained about an hour and a half. LUBASCH made his statements with perfect composure. This was between 6 and 9 o'clock in the evening.
By Mr. Gwynne — Knew Gottlieb LIEBELT, Remembered being with him on the Monday after the death of LUBASCH. Did not tell him that he was at the house of the deceased, and was disgusted with the manner of the deceased's wife and daughter. Did not say to him there is a will made, and he [the deceased] was not fit to make it, and if you let it stand you are quite foolish. Remembered telling LIEBELT that there was a will made, and he would tell him the contents as far as he knew. Told him he had learned there was £300 left to each of the daughters, and an acre to the widow, and that he did not think it fair that so little was left to her. Did not remember meeting THIELE on the Monday, at HUNTs public-house. Did not remember saying to him on that day that it was not LUBASCH who made the will, but LIEBELT. Heard such a report, but was convinced that it was not true.
Mr. Gwynne proposed to call evidence in to contradict this; but His Honor ruled that it could not then be admitted. He then addressed the Jury on the evidence for the defence, as tending to show that the deceased was not in the full possession of his faculties at the time when he made his will. He contended that this was proved by the evidence of the Pastor, showing that LUBASCH had even forgotten how many daughters he had. and that he was sinking into a state of stupor, as shown by the same evidence, and confirmed by the testimony of Dr. CHALMERS, and the medical opinion of Dr. GOSSE. He referred to the influence which LIEBELT and his wife had over the deceased, and the care taken to keep from the knowledge of his married daughters the facts of his illness and the making of the wilL It was shown by the evidence that there was a undue distribution of the property, which he argued had been proved to have been brought about by LIEBELT at a time when the testator, being in a dying state, was not in the full possession of his faculties.
The Attorney-General, in his address to the Jury, commented on the manner in which the evidence given by the witnesses for the plaintiff was elicited as com pared with that drawn from the witness GUSTE. The former had made their statements voluntarily, but the latter had done so only in accordance with what had been suggested to him. Then the evidence of the two medical gentlemen was in strong contrast with each other. It was held as a general principle that in proportion to the skill and intelligence of a .person was his reluctance to speak positively upon any difficult question of enquiry. He was disposed to give to Dr. GOSSE a greater amount of credit for his attainments in medical science than to Dr. CHALMERS ; and Dr Gosse had stated truly that he would infer what was the slate of the lungs by having first ascertained the condition of the patient's mind. And yet Dr. CHALMERS had ventured to speak with so much confidence upon the previous state of the mind of the deceased from his conjectures respecting the condition of the blood. He did not wish to say anything to disparagement of Dr. CHALMERS, of whom he knew nothing; but when they heard a medical man coming forward and giving opinions which were in direct opposition to the testimony of five witnesses who had spoken as to the state of mind under which the testator made his will, he had a right to ask what were the antecedents, what the knowledge, experience, education, and skill which he possessed to entitle him to come into that Court and pronounce with so much authority an opinion, the effect of which was to brand with perjury the five or six gentlemen whose evidence was in direct opposition to that opinion.
The learned Attorney then proceeded to comment upon the credibility of the witnesses and upon their evidence at some length. He argued that the circumstance of LIEBELT having himself suggested that Pastor STREMPEL should be called in to draw up the will was an evidence that there was no design on his part to act in any way but such as was consistent with strict integrity. The respected Pastor of the Lutheran congregation, of which all the parties were members, would be the last person whom any one having sinister designs would have recommended for such a purpose. The value of the property left by the testator had, he believed, been over estimated by the witnesses for the defence; but even if this were not the case, unless it could be shown that the distribution of the property bad been made with such manifest injustice, as to induce a doubt respecting the soundness of the testator's intellect at the time the will was made, no inference whatever could be arrived at as tending to invalidate the will. Every person on making his will had an undisputed right to bequeath his property in whatever manner he pleased, and he felt assured that the Jury would not return a verdict, the effect of which would be to set aside a will made under the cir circumstances detailed by the evidence, and which was supported by so many collateral circumstances, particularly when by so doing they would convict five or six respectable witnesses of conspiracy and perjury.
His Honor summed up the evidence at great length, during which he called attention to the very many particulars elicited during this trial, and their bearing upon the question at issue. He directed them to weigh the evidence with special reference to the state of mind of the testator at the time be made his will, with regard to his knowledge of his family, his property, and the manner in which he was disposing of that property, and to give their verdict accordingly.
The Jury retired, and in five minutes returned into Court with a verdict declaratory of the validity of the will.
The Court was adjourned to 10 o'clock the next morning.
South Australian Register [Adelaide, SA: 1839-1900] Sat 11 July 1857, page 3, IN EQUITY.
LUBASCH V JAENSCH
Mr GWYNNE, on behalf of the defendants, applied that they might be allowed costs arising out of the late action. The case was brought to try the validity of a will, and the result was beneficial to all parties. His clients might have been the plaintiffs, for it was not an adverse action, the parties all belonging to the same family.
The Attorney-General did not admit this, but was not prepared to argue the point.
The Court declined to make the order.
Adelaide Times [SA:1848-1858] Wed 24 June 1857, Page 3, Law & Police Courts
Supreme Court - Civil Side
[continued from yesterday's Times]
LUBASCH v. JAENSCH
Andrew CHALMERS M.D., stated that he was practising at Mount Barker,. Had known Gootfried [sic] LUBASCH eight years previous to his death. Was called in on the Saturday morning before his death, and found him suffering from inflammation of the lungs. Deceased was sinking at the time, and was under the influence of a morbid drowsiness go the brain; his mind was wandering and his language incoherent. He must have been in that state for at least twelve hours, and most likely for twenty-four hours previously.
Much additional evidence was offered, which did not materially differ from that which had already been adduced.
The Jury returned a verdict for the plaintiff, thus affirming the validity of the will.
