William Quekett on the death of Dr Farington
from My Sayings and Doings (Kegan, Paul & Trench 1888) pages 165-170
Mr Quekett is requested to accept this as a memorial of the sense entertained by all of us of the warm and friendly aid he gave the author's seventh son, Robert - the late Rector of St. George's - for many years, when the advance and decline of life and bodily infirmity no longer permitted him to perform the sacred dutiers of his sacred station.
|A will of 1822,
revoked by a pencil-writing without date.—Probate of the former, at
first, refused, but afterwards, on circumstances afforind a presumption
that the pencil-writing was made after 1838, granted.
IN THE GOODS OF THE REV. ROB. FARINGTON, D.D., DEC.—Motion.—The deceased rector of Saint George in the East, died 18th September, 1841, having made a will dated, 6 June 1822, by which he gave his whole property to his nephew, Captain Wm. Farington, with directions that he should give such a proportion of it as he supposed he (the deceased) would give, to his niece, Mrs. Frances Coxe. This paper was signed, but not witnessed, and the following words formed the concluding paragraph: "This is a sketch of what I design to do respecting my property; but should I be prevented from making a more minute and formal disposal of it, I sign this as my last will and testament." After diligent search amongst the deceased's papers and advertisements in various newspapers, no more formal will could be discovered, and no paper of a testamentary nature was found besides the before-mentioned will, and two scripts, which were in a pocket book of the deceased. One of these scripts was an unfinished sketch or draft of the heading of a will. The other was written on the two sides of a small scrap of paper, forming apparently a portion of the outer sheet of a letter, the wafer seal remaining on it. This paper is signed, but without date. The writing, which is in pencil, is to this effect: "I do hereby revoke ["cancel", interlined] the draft of a will which I made in 1822, and is in some of my drawers, and I leave all my property of every description to be divided equally ["exclusively", interlined] between my nephew, Capt. Wm. Farington, R.N., and my niece, Esther Frances Coxe, for her sole and exclusive right and disposal. R. Farington." Capt F., the sole executor named in the will, stated that he had "reason to believe" that this paper was written about the beginning of 1841, and Mrs Coxe, who is named in it with him as universal legatee, did not propound the paper, and consented to probate of the will of 1822 to Capt F. The personal property was between £20,000 and £25,000.
DEC. 6. MOTION
Sir J. Dodson, Q.A., moved for probate of the will of 1822 to Capt F., the sole executor.
SIR H. JENNER.—There is no doubt that, if no other testamentary paper of subsequent date had been found, the paper of the 6th June, 1822, which contains a complete disposition of the property, and is signed by the deceased, would have been entitled to probate as his last will and testament. But it appears that another paper was found in the deceased's pocket book, without date, but signed by the deceased, which purports to revoke or cancel the will of 1822, which, as he says, was to be found in some of his drawers. In this paper there is an equal division of the property between Capt. Farington and Mrs Coxe, instead of leaving it to the option of the former what proportion of the property Mrs Coxe should have. Now this paper is very fairly written, considering that it is written with a pencil; it has no date, but it may possibly be a good and valid disposition of the property, and a revocation of the paper of 1822. Now it is stated by Capt. Farington that he has some reason to believe that this paper was written some time in the present year (1841); but there is no reason assigned, and nothing before the Court to bear out that averment. The paper may have been written after 1838, but possibly it may have been written before. The will is dated in 1822; sixteen years is a long time before the new Act came into operation, and he died three or four years only after it took effect. The property is large, and although, it is true, Mrs Coxe and her husband consent to probate of the former paper passing, and do not propound the other paper, I do not see that the Court has any authority to make a will for the party. Why should I pronounce that the will of 1822 is the will of the deceased, and that the paper by which it purports to be revoked and cancelled is not the will of the deceased? This paper is found in a pocket book—it is not stated for what year it was; that may be some guide to the Court. I am not prepared at the instance of a party, to make a will for the deceased. If there is any reason why it is probable that the paper was written in 1841, it should be stated to the Court. Under the circumstances I reject the motion.
Dec 16. Further affidavit
On the By-Day, Sir John Dodson renewed the motion Dec 16 upon a further affidavit by Capt. Farington, setting forth a variety of circumstances upon which he founded his belief that the deceased had written the paper in pencil in 1840 or 1841, and stating that the book in which the paper was found was a mere case, without a calendar, and contained papers of recent dates. Mr. and Mrs. Coxe now appeared by a Proctor, and declined to propound the paper, consenting to probate of the paper of 1822.
SIR H. JENNER.—When this case came before the Court on the former occasion, as Capt. Farington prayed probate, contrary to the interest of another party, of a paper described as a "sketch", which the paper found in the pocket book purported to revoke, the Court looked into the affidavit to see the grounds upon which it was supposed that the paper revoking the will of 1822 had been written in 1841, but there was a total blank. The pocket book is now produced, and turns out to be a mere case, without a calendar, containing papers of all dates, and furnishing no information as to the date when the pencil-writing was made.
But Capt Farington's affidavit now sets forth various circumstances, not very strong, certainly, but sufficient to satisfy the Court that it was written after 1838. He states that the deceased had always entertained great regard and esteem for him, and had given him reason to believe that the whole property was to be his, as by the will of 1822; that the deceased paid a visit to the Isle of Wight in 1840, at which period he manifested great but unreasonable irritability and displeasure against him (Capt. F.) although they had before been upon the best possible terms. Under these circumstances, it is not improbable that the paper may have been written at this time, and there is nothing to shew it was written before 1838. Under the circumstances, I am of opinion that probate of the will of 1822 should pass to Capt. Farington.
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