Gender, Insanity and Moral Obligation: Widows and the Action for Testamentary Incapacity in Late-Colonial New South Wales Samuel Goldberg A thesis submitted in partial fulfilment of the requirements for the degree of Bachelor of Arts (Hons) Department of History University of Sydney 2020 Abstract The enactment of a Testator’s Family Maintenance Act in 1916 is rightly remembered as a signature achievement of New South Wales’ early feminists, providing protection against the destitution that a cruel will could inflict upon a testator’s family. Yet in the decades before its passage, a challenge to a husband’s testamentary capacity offered an alternative mechanism by which a widow could challenge a will. This thesis explores the stories of the widows who braved the action for testamentary incapacity, in order to recover its social and cultural significance. It identifies the courtroom as a site of dense cultural discourse, in which dominant tropes of gender, insanity and moral obligation structured the court’s consideration of a widow’s claim. It shows that widows played upon these tropes, deploying them in narratives of virtue and transgression to win substantive relief. The action for testamentary capacity thus offered hope for disinherited widows seeking to break the financial shackles posthumously imposed by their husbands. However, in demanding the sublimation of their lived experience to fit dominant cultural narratives, the action excluded women who were unable to perform the necessary identity, perpetuating the same inequality that widows came to court to address. 1 Contents Acknowledgments 3 Introduction 4 Chapter One – ‘Are we to have no consideration for the wife and son?’: Moral Considerations and Medical Evidence 17 Chapter Two – The Character of the Caveator: Narratives of Virtue 35 Chapter Three – The Behaviour of the Testator: Narratives of Transgression 60 Conclusion 79 Bibliography 83 2 Acknowledgments The Gadigal people on whose land this thesis was researched and written. These lands were never ceded. Grandma, who set me on this path, and Alan Dearn, who ensured I did not leave it. The knowledgeable and generous staff at the NSW State Archives in Kingswood, who showed me where to look, taught me to decipher handwriting and helped me when a word remained elusive. Alecia Simmonds, who kindly allowed me to read a manuscript of a chapter, now published, at the beginning of the year. Hollie Pich, Penny Russell and the Honours cohort, who created as stimulating and welcoming a pair of Honours seminars as I could have hoped for. Andres Rodriguez and the University of Sydney History Department, for the fun of the last few years, and for showing such understanding throughout the year that was. Eden Blair, Liam Thorne, Nicole Leong and Laura Pham, who were great Honours companions, despite our distance and my frequent disappearances. My supervisor Penny Russell, whose kindness and generosity were unwavering, and whose guidance and ideas helped this project to its destination. My wonderful friends, who kept me sane in a happy yet lonely year. Mum, Dad and Sapphire, in a year where we have spent much more time together than expected, and enjoyed it. Thanks for friendship, dinners and endless support. 3 INTRODUCTION On Tuesday 29 May, 1894, the smattering of individuals seated in a courtroom at 32 Elizabeth St, Sydney, rose in unison as three knocks fell on a heavy door at the back of the court to signal the arrival of Charles James Manning, the Probate Judge of the New South Wales Supreme Court. His entrance marked the beginning of the second day of the case of Quinlan v Connelly,1 a suit brought by Elizabeth Quinlan, a widowed Irish emigrant, praying to have the will of her deceased husband, Martin Quinlan, set aside. The judge entered silently, arranged the papers on his desk, and then looked up at the rather empty courtroom. A couple of journalists sat at the back of the room, ready to take down a concise summary of the events of the day for immediate publication. Five individuals – witnesses, for the purpose of the case – sat just in front of them, within earshot of the whispers of the solicitors, waiting to be called upon. In front of the solicitors was the table usually reserved for the barristers. It was cluttered with documents, yet only two barristers sat behind it – an unusually small number for the Probate Court.2 Montgomerie Hamilton sat on the judge’s left. Hamilton was counsel for Reverend William Henry Connelly, the executor to the will, and was one of the most senior barristers in New South Wales, having practised since his appointment to the London Bar on 15 May, 1878.3 Across from him was Alexander Gordon, counsel for the plaintiff, Elizabeth Quinlan. Gordon was slightly less senior, having been admitted in 1882 before practising extensively on the Northern Circuit in the district courts outside Sydney.4 Today it was Gordon’s turn to present his case, and so when Manning gave him a little nod, it was 1 ‘Quinlan v. Connelly,’ Daily Telegraph, 30 May 1894, 3; ‘The Quinlan Will Case,’ Evening News, 30 May 1894, 3; ‘The Quinlan Will Case,’ Barrier Miner, 30 May 1894, 2. 2 Compare, for example, McDonald v Watson (1872) 11 SCR 4, which involved 7 counsel, and Browne v M’Elhone (1894) 15 NSWR B&P 154, which involved 8 counsel in the appeal alone. 3 H. T. E. Holt, ‘Hamilton, Hugh Montgomerie (1854–1930),’ Australian Dictionary of Biography (Canberra: National Centre of Biography, 1983), http://adb.anu.edu.au/biography/hamilton-hugh-montgomerie-6538. 4 Martha Rutledge, ‘Gordon, Sir Alexander (1858–1942),’ Australian Dictionary of Biography (Canberra: National Centre of Biography, 1983), http://adb.anu.edu.au/biography/gordon-sir-alexander-7042. 4 with a stroke of anticipation that he received the words uttered by the barrister: ‘I call the plaintiff, Elizabeth Quinlan, to the stand’. It was time for a woman whose name had been frequently uttered, whose character had been impugned, and who had sat silently as her dead husband’s love for her was questioned, to have her voice heard for the first time in a court of law. Elizabeth cannot have been comfortable as she rose from her seat at the back of the courtroom and walked up to take her place in the witness box, half-way between the bar table and the bench at which Manning sat. She knew few people in the room. Most of the witnesses were the business acquaintances of her husband, people she may have glimpsed in the streets of her township, Silverton, in western New South Wales, but never met.5 The presence of a friend, Alfred West, was little comfort in a courtroom filled solely with men.6 Elizabeth’s claim before the court was, in theory, simple: that her husband had been of ‘unsound mind’ when he executed his will on 7 September, 1890, such that it should be disregarded, or ‘set aside’.7 In the absence of a prior will, Martin Quinlan would thus be declared to have died ‘intestate’, or without will, and Elizabeth would inherit upwards of a third of his estate under the default rules of intestacy.8 Elizabeth’s claim was necessitated by the cruelty of her husband’s will. Despite their four years of marriage, he had excluded her entirely.9 Her situation dramatised the 5 ‘A Barrier Will Case: The Quinlan Suit,’ Barrier Miner, 28 May 1894, 4. 6 ‘A Disputed Will: Application by the Widow,’ Australian Star, 29 May 1894, 6. 7 ‘A Disputed Will: Application by the Widow,’ Australian Star, 29 May 1894, 6; ‘A Barrier Will Case: The Quinlan Suit,’ Barrier Miner, 29 May 1894, 1; ‘Application in Probate: Suit for Revocation,’ Evening News, 28 May 1894, 6. 8 Roland Hastings and George Weir, Probate Law and Practice (2nd ed) (Sydney: Law Book Co. of Australasia, 1948), 193, 735-793. See further Wills, Probate and Administration Act 1898 (NSW) s 50, which amalgamated six statutes but made no change to the law as in force in 1894: Stefan Petrow, ‘A Statutory History of Wills in England and Australia,’ in Law of Succession, ed. G E Dal Pont and K F Mackie (Sydney: LexisNexis Butterworths, 2013), 687. 9 Last Will and Testament of Martin Quinlan, ‘Martin Quinlan Date of death 8 September 1890, Granted on 18 December 1890,’ probate packet, State Archives & Records Authority of New South Wales (SARNSW), NRS- 13660-3-[17/2375]-Series 3_21038; ‘A Barrier Will Case: The Quinlan Suit,’ Barrier Miner, 28 May 1894, 4; ‘A Disputed Will: Application by the Widow,’ Australian Star, 29 May 1894, 6. 5 consequences of the immense liberty – or ‘testamentary freedom’ – which the English common law, transposed to colonial New South Wales, afforded to a will-making individual.10 It was a freedom with a gendered operation; as Rosalind Atherton has noted, ‘through a woman’s eyes testamentary freedom came to be seen as a power that could be used against women; as a power not to bestow, but to take away’.11 The power would soon be checked. The passage of the Testator’s Family Maintenance and Guardianship of Infants Act in 1916 would be remembered as a signature achievement of Australia’s early feminists.12 Passed into law after two decades of persistent activism, it conferred on the Supreme Court the power to override a will which made inadequate provision for a spouse or child.13 The Act was notable for its focus on the substance of a will. In providing that a spouse or child was entitled to support on the sole ground that they had been left without ‘adequate provision’, the Act connected the scope of permissible judicial intervention to the substantive consequences of a will upon the testator’s immediate dependants.14 Qualifying the ability of a ‘testator’ (a will-maker) to disinherit his family, its passage, from a widow’s perspective, served as a ‘protection and a recognition of women’s rights in their position as widows’, providing a mechanism to enforce what had previously been a mere expectation of support.15 In so doing, it went a way towards rectifying the imbalance engendered by the demise of dower: the ancient entitlement in English law of a widow to a life interest in one- 10 Rosalind Atherton, ‘Expectation Without Right: Testamentary Freedom and the Position of Women in 19th Century New South Wales,’ University of New South Wales Law Journal 11, no.