A REMARKABLE WILL VISE.

New Zealand Herald, Volume XVIII, Issue 6063, 23 April 1881, Page 7

A REMARKABLE WILL VISE.

Is tlie Chancery Division on Wednesday the Birchall case, which was one of a very peculiar .and important character, was brought to a ixmeliision, having occupied the attention of the Court since Saturday inclusive. It arose unon a summons of the widow of Thomas Birchall, claiming 'to be admitted a creditor against her husband's estates for above £45,000. The Vice-Chancellor delivered judgment, in the course oE which the history of the case was recited.. His lordship said it was a very extraordinary one, and involved points of much delicacy and difficulty in regard to the administration of justice and the principles of equity. The facts were of a very lamentable character. This was a claim brought by Mrs. Mary Birchall, a widow, against the estate of her late husband for £45,269, in respect to one-third of the residuary property, given by the will of her uncle, the late Rev. R. R. Rothwell, who died on the oth of April, 1563, at the age of SO years. She had been then about 30 years married to Mr. Thomas Birchall, solicitor and confidential agent to her said uncle. The will, which was a few months previously dated, was drawn out by Mr. Birchall in his on-n handwriting. It gave one-third of the residnary estate (amounting altogether to abont £150,000) to his niece Mary - Birchall, and the remaining two-thirds to be divided equally between brother and sister, and left the real estate of the testator to his eldest nephew, the Marquis de Rothwell. The will appointed Mr. Birchall as the sole executor. That gentleman was a solicitor of good standing, practising generally at Preston. He was Deputy-Clerk of the Peace for Lancashire, and had been a Colonel of Volunteers. In 1833 lie married Miss Rothwell, when a settlement, of £10,000 was made upon her, a sum equal to the fortnne given to her by her own immediate relations. Her uncle, the Rev. R. R. Rothwell, had such implicit confidence in Mr. Birchall that he made him his financial agent, managing his property and his investments, and even drawing cheques in his own name on Mr. Rothwell*s bankers. Soon after the death of the testator he drew out a residuary account, by which it appeared that his wife was left £45,000; and on announcing that, fact to her he congratulated her on the circumstance, remarking that she was then very rich. For those thirty years of their married life Mr. and Mrs. Birchall seemed to live very happily together, the wife never for One moment suspecting that her husband liad any other lady to engage his attentions. In the year following the death of Mr. Rothwell, Mr.- Birchall made a will leaving everything :to iiia wife. This document hft put intoiher hands, telling her to keep it carefully until his death. . He died suddenly on the 3rd May, IS7S, .whilst residing at another establishment, near Manchester, and in the companionship of a kept mistress, Miss Hindle, and two illegitimate children whom he had had by a former mistress, and whom the second had taken charge of. It then turned out that he had made a second will in 1575, byhvhich he revoked the one by which he left all his property to his wife ; giving her only £400 a-year for life, a life-interest in Broughton Towers, the house in which they had resided, and the furniture. His second mistress ;and his two illegitimate children were left Jill the rest of his property.' His' lordship observed it was monstrous that a man should be so forgetful of his duties as 'to sacrifice th'o" interests of his wife, through whom all his property came, and to ignore her claims altogether in favour of his mistress and illegitimate children. When this case was brought before him last J une he suggested a compromise, by which the ■wife' shonld receive £22,000, and Miss Hindle*and the two children the remainder of the residuary estate. Mrs. Birchall was willing to accept the compromise, and he was led to believe that | it would have been fairly carried out; but to his astonishment he found that on behalf of the illegitimate children the matter had been subsequently brought before the Court of Appeal, and that the Lords Justices, without going into the merits of the case, had summarily upset the compromise on the ground that the Vice-Chancellor had no ! power to enforce it against the wish of any i one of the parties concerned. It appeared that their lordships did not take more than ten minutes to decide the question, disposing of it by a technical objection. He deeply regretted that proceeding on the part of their lordships, believing that the compromise which ho proposed would have met the justice and difficulties of the case, and that it wouldhave satisfied all parties. He was constrained to the conclusion that Mrs. Birchall was not entitled to prove against the estate of her husband for the whole of the £45,260 which she claimed. He, however, felt himself fully justified; in awarding her the item of £5000, being a composite mortgage outstanding since the deaths both of Mr. Rothwell and Mr.' Birchall, together with the £12,000 London and North-Western stock, now worth upwards of £16,000, neither of which sums had ever been reduced into possession by Mr. Birchall. These two items, with the interest accruing since the death of Mr. Birchall, would amount to between £22,000 and £23,000, a sum nearly equivalent to that which he had suggested before as a fair compromise between the parties.—London Paper, February 19. :