In the Lancashire Chancery Court, sitting at St. George's Hall, yesterday before the Vice Chancellor of the County Palatine (Mr. Leigh Clare) a summons was called on for hearing asking for the payment out of court of a sum of £351, in the matter of Sarah Allan, deceased.
Mr. John Rutherford informed his Honor that there was a question in the case as to whether the residuary legatee as a James Kelly, who had disappeared but under such circumstances that the court could not be asked to presume his death. Some years ago Kelly was tried at the Liverpool Assizes for the murder of his wife and eventually condemned to confinement in a criminal lunatic asylum. From that asylum in 1888 he escaped; he was at that time 27 years of age. The rule would appear to be that when a man disappeared under such circumstances that it was not likely that he would be heard of again, the fact that he was not heard of, did not amount to a presumption of death. Mr. Sampson the applicant in the present matter, was a mortgagee for costs which had been incurred, a portion of them in connection with the administration of the will of Mrs. Allan and others in reference to Kelly's defence on the capital charge; the claim, said Mr. Rutherford, would nearly absorb the amount in court.
An affidavit which Mr. Rutherford proceeded to read, stated that it was believed that after his escape from the asylum Kelly went to South America and subsequently returned to Liverpool, but had succeeded in evading capture, and since 1895 nothing had been heard of him. Counsel passed on to argue from authorities which, he contended, constituted a precedent in such matters.
Mr. Cochrane who appeared for the next-of-kin submitted that it was very difficult to take the case as one of implication, having regard to the express gift in the will.
The Vice Chancellor in giving his decision held that James Kelly if he were alive could take the property absolutely and that his mortgage was entitled to take out of the money, what was the amount due on the mortgage.
