At length, however, this plan of tattooing his
will upon the living flesh on a younger and stronger person is
presented to him, and he eagerly avails himself of it; and the
tattooing is duly carried out in his presence and at his desire, and as
duly signed and witnessed. Can it be seriously argued that a document
so executed does not fulfil the bare requirements of the law? I think
that it cannot, and am of opinion that such a document is as much a
valid will as though it had been engrossed upon the skin of a sheep,
and duly signed and witnessed in the Temple.
“And now I will come to the second point. Is the evidence of Miss
Smithers to be believed? First, let us see where it is corroborated. It
is clear, from the testimony of Lady Holmhurst, that when on board the
ill-fated Kangaroo, Miss Smithers had no tattoo marks upon her
shoulders. It is equally clear from the unshaken testimony of Mrs.
Thomas, that when she was rescued by the American whaler, her back was
marked with tattooing, then in the healing stage—with tattooing which
could not possibly have been inflicted by herself or by the child, who
was her sole living companion. It is also proved that there was seen
upon the island by Mrs. Thomas the dead body of a man, which she was
informed was that of Mr. Meeson, and which she here in court identified
by means of a photograph. Also, this same witness produced a shell
which she picked up in one of the huts, said to be the shell used by
the sailors to drink the rum that led to their destruction; and she
swore that she saw a sailor’s hat lying on the shore. Now, all this is
corroborative evidence, and of a sort not to be despised. Indeed, as to
one point, that of the approximate date of the execution of the
tattooing, it is to my mind final. Still, there does remain an enormous
amount that must be accepted or not, according as to whether or no
credence can be placed in the unsupported testimony of Miss Smithers,
for we cannot call on a child so young as the present Lord Holmhurst,
to bear witness in a Court of Justice. If Miss Smithers, for instance,
is not speaking the truth when she declares that the signature of the
testator was tattooed upon her under his immediate direction, or that
it was tattooed in the presence of the two sailors, Butt and Jones,
whose signatures were also tattooed in the presence of the testator and
of each other—no will at all was executed, and the plaintiff’s case
collapses, utterly, since, from the very nature of the facts, evidence
as to handwriting would, of course, be useless. Now, I approach the
decision of this point after anxious thought and some hesitation. It is
not a light thing to set aside a formally executed document such as the
will of Nov. 10, upon which the defendants rely, and to entirely alter
the devolution of a vast amount of property upon the unsupported
testimony of a single witness. It seems to me, however, that there are
two tests which the Court can more or less set up as standards,
Public-domain text, read in full here on John Shaqi.
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