22 January 1906
Interesting Chancery Action
At the Chancery Court of Lancashire today, before Vice Chancellor Leigh Clare, a summons was heard asking for the payment out of court of £351 in the matter of Sarah Allan, deceased.
Mr John Rutherford said there was a question as to whether the residuary legatee was a James Kelly, who had disappeared but under such circumstances that the court could not be asked to presume his death. Kelly was tried at the Liverpool Assizes some years ago for the murder of his wife, and was condemned to confinement in a criminal lunatic asylum. In 1888 he escaped from the asylum, he being then 27 years old. The rule appeared to be that when a man disappeared under such circumstances that it was not likely he would be again be heard of, the fact that he was not heard of did not amount to a presumption of his death. Mr. Sampson the applicant was a mortgagee of costs which had been incurred, a portion in reference to Kelly's defense on the murder charge. Kelly was illegitimate. The claim would nearly absorb the amount in court.
An affidavit read by Mr. Rutherford stated that it was believed that after escaping from the asylum Kelly went to South America and subsequently returned to Liverpool. He had succeeded in evading capture, and nothing had been heard of him since 1895.
Mr Cochrane, for the next of kin, contended that terms of the will precluded the payment out of court of the sum named.
The Vice-Chancellor said that in the class of cases to which Mr. Rutherford had referred him the court had gone as far in the matter of speculation as it was possible to go, and in the present case he had no hesitation in following those cases. He held that James Kelly, if he were now alive, could take the sum absolutely and that his mortgagee was entitled to take out of the money the amount due on mortgage; this point to be settled with the registrar.
Mr. Rutherford undertook to make further inquiries during the next fortnight.
The Vice Chancellor said that if they could satisfactorily ask him to assume that Kelly was dead in 1902 he would do so. He would not direct an account of what was due to Mr. Sampson unless there was somebody to represent Kelly.