sourced from ancestry.com.
CONTENTS
Thomas Bready Probate –
Administration granted to Ellen Cooke 18 March 1875
00028-p0000-000149-0480-00000 see 0480 here
Thomas Bready Probate –
Administration granted to Ellen Cooke 18 March 1875
(This is not a duplicate these are separate/ additional files)
00028-p0002-000033-0680-00000 see 0680 here
Thomas Bready Will –
Administration granted to Ellen Cooke 18 March 1875
(note this is the will not the probate)
07591-p0002-000018-0600-00000 see 0600 here
Thomas Bready Probate-
Administration granted to Mary J Simons 2 Mar. 1876
(note this is probate now granted to Mary Jane Simons after Ellen Cooke’s passing).
00028-p0000-000173-0040-00000 see 0040 here
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two things to know:
land titles and inheritance law.
Victorian land holdings can be divided into two categories. This is from slv website)
Land under ‘general law’ – > 1837-1862
Land alienated by the Crown between 1837 and 2 October 1862. A general law title consisted of a chain of title deeds all of which had to be in place to enable a property to be transferred. General law land is also known as NUA ‘Not under the Act’ land or ‘Old law’ land.
Land under the ‘Torrens system’ ->1862 onwards
The Torrens system was introduced in 1862 and simplified land transactions. Land was subject to registration under the Transfer of Land Act and land ownership was transferred through registration of title instead of using deeds.
Victorian land records are held at a number of repositories depending on the type of record and its age. The main two agencies that hold land records in Victoria are Land Victoria and the Public Record Office Victoria PROV.
For pre-Torrens system land sales records, the Memorial Books (1837 onwards), which recorded evidence of land sales (conveyances, mortgages, etc.), are available at PROV.
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——–
PLAINTIFFS:
Ellen Cooke wife of John Sturgeon Cooke of Amherst in the Colony of Victoria Miner (daughter of deceased)
Mary Jane Simons the wife of Nicholas Simons of Percydale in the Colony of Victoria Miner (daughter of deceased)
William Cuddy – Proctor for Ellen Cooke (Plaintiff)
84 Chancery Lane in the City of Melbourne
and on the same team:
John Seymour Wright of 84 Chancery Lane in the City of Melbourne in the Colony of Victoria Law Clerk
Mr Fullerton – counsel
Mr Brown, Mr Fullerton’s clerk (SOURCE 00028-p0000-000149-0480-00046)
Caveator /DEFENDENT:
Thomas Bready (Jnr) of Talbot -labourer- son of the Deceased
Thomas Miller Esq Proctor for Thomas Bready the Caveator / Defendent of 64 Little Collins St East in the City of Melbourne
and on the same team:
James Colgan of 64 Little Collins St East in the City of Melbourne and Colony of Victoria Clerk to Mr Thomas Miller, Proctor for Thomas Bready the caveator
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OTHER PEOPLE OF NOTE in alphabetical order
bio here: Sir Thomas à Beckett (1836–1919)
R. G. De B. Griffith, ‘à Beckett, Sir Thomas (1836–1919)’, Australian Dictionary of Biography, National Centre of Biography, Australian National University, https://adb.anu.edu.au/biography/a-beckett-sir-thomas-2860/text4073, published first in hardcopy 1969, accessed online 11 January 2026. This article was published in hardcopy in Australian Dictionary of Biography, Volume 3, (Melbourne University Press), 1969
https://adb.anu.edu.au/biography/a-beckett-sir-thomas-2860
source: SON of thomas turner.
B
BERRY, JOHN
John Berry of Amherst in the Colony of Victoria – witness to signing and on #teamellen
SOURCE 00028-p0000-000149-0480-00063
BLISS, Mr.
Mr Bliss instructing Mary Jane Simon’s legal team to sell property – (a real estate agent?)
SOURCE 00028-p0000-000149-0480-00039
BRADLEY, JOHN
John Bradley of Percydale in the Colony of Victoria Storekeeper
(a sureity?)
SOURCE 00028-p0000-000149-0480-00061
BUCHAN, Mr.
Mr Buchan the Mortgageee of Thos. Bready’s interest to whom he called on me relative to the advisability of bringing the Property under the Transfer of land statute conferring with him thereon
SOURCE 00028-p0000-000149-0480-00041
What does this mean, the mortgagee of Thomas Bready’s interest? (Bready Jnr?) any connection to Thomas Rowe mortgagee of webb? ie Thomas’ legal rep?
C
CASEY, ELLEN Mrs.
Ellen Casey of McCrae St Sandhurst in the Colony of Victoria wife of Edward Casey of the same place Licensed Victualler
(Ellen Casey was running a school on Myers flats)
she is on team Bready Jnr.
SOURCE 00028-p0000-000149-0480-00110
CROKER, Mr. E.
SOURCE 00028-p0000-000149-0480-00042
D
DAWS, MARY Mrs.
Mary Daws of King Street in the city of Melbourne and the colony of Victoria wife of Michael Daws of the same place a licensed Victualler. Significance is that she knew of Michael Walsh.
SOURCE 00028-p0000-000149-0480-00112
DYNAN, PATRICK
Patrick Dynan of Myers Creek near Sandhurst in Colony of Victoria Farmer
SOURCE 00028-p0000-000149-0480-00099
E
F
FERGIE, HENRY PENKETH
Henry Penketh Fergie of Number Eighty Four of Chancery Lane in the City of Melbourne in the Colony of Victoria Acting Public
-I think acting for Mary Jane Simons see 00028-p0000-000149-0480-00087
FERGIS, M.
M Fergis as agent for Mortgagee Thomas Rowe
SOURCE 00028-p0000-000149-0480-00039
FOWLER, JAMES
a James Fowler was in the employ of Mr Kingston law stationer of number 76 Chancery Lane 1855 but left about thirteen years ago and that he believed the said James Fowler was now somewhere about Melbourne.
SOURCE 00028-p0000-000149-0480-00117
(significance: Fowler lodged a duplicate of the will at the office of the Registar General of the Colony of Victoria 29.12.1855, presumably done by someone acting for Bridget Bready, and in doing so at the time signed that the said memorial contains a just and true account of the several particulars therein set forth)
00028-p0000-000149-0480-00117
G
GIBBS, Mr
a colleague of a Mr Wisewould and a Mr Holroyd, who were consulted in relation to the land title by Plaintiff’s team.
SOURCE 00028-p0000-000149-0480-00040
GILL, DANIEL
deceased surgeon and witness to will
controversial as to whether he was a real person/ resident of the area at the time. all to undermine him as a genuine witness.
I John Seymour Wright of 84 Chancery Lane in the City of Melbourne in the Colony of Victoria Law Clerk make oath and say
That I have searched at the office of the Register General and found the registration of the death of Daniel Gill, Surgeon, one of the attending witnesses to the will of Thomas Bready, late of Bendigo deceased, and that the said Daniel Gill departs this life on the fifth day of May one thousand, eight hundred and sixty one being then an inmate of the Benevolent Asylum at Melbourne and aged about fifty five years.
That I have searched the records of the Benevolent Asylum at Melbourne aforesaid and find it there recorded that Daniel Gill a surgeon by profession, was admitted to the institution on the recommendation of John Hodgson formerly major of Melbourne and since deceased on the eleventh day of august one thousand eight hundred and fifty nine. That he was a national of England and arrived in this Colony in the year one thousand eight hundred and thirty nine, and that he was a member of the Church of England. That the said Daniel Gill departed his life on the fifth day of May one thousand eight hundred and seventy one aged fifty five years.
Sworn at Melbourne in the colony of Victoria this first day of October one thousand eight hundred and seventy four
Before me…a commissioner of the supreme court of the colony of Victoria for taking affidavits SOURCE 00028-p0000-000149-0480-00074
NB NB refers to death date as 1861 in one part and 1871 in another part of same document.
H
HACKETT, GEORGE
George Hackett is a miner and resided and still resides at the City of Sandhurst and that I paid him for his Railway expenses to and from that city to Melbourne and for four days attendance in town for the sum of Five Pounds
SOURCE 00028-p0000-000149-0480-00020
HAEKETH, GEORGE
Letter to Mr George Haeketh in reply to his returning Statuary Declaration of Mr Nankwill and paid postage
SOURCE 00028-p0000-000149-0480-00042
HOBART, Mrs. (No first name)
The tenant residing in 80 webb st on 19 Aug 1874
SOURCE. 00028-p0000-000149-0480-00108
HOLROYD, Mr
a colleague of a Mr Wisewould who were consulted in relation to the land title by Plaintiff’s team. (and a Mr Gibbs)
SOURCE 00028-p0000-000149-0480-00040
I
J
K
KELLY, THADDEUS
Thaddeus Kelly of Mundy Street Sandhurst in the Colony of Victoria Miner
SOURCE 00028-p0000-000149-0480-00122
L
M
McCLELLAND, JOHN
John McClelland of Sandhurst in the colony of Victoria Merchant: managed a store for Messrs. Francis Brothers on Myers Flat near Sandhurst. Relevant because Bready Snr ‘used to deal at the store’. ie, have dealings with? as in regular customer? and so McClelland saw him basically daily.
part of team Bready Jrn
00028-p0000-000149-0480-00079
MINTER, JOHN M
Bridget Bready advertises intention to apply for probate in The Argus for Bready’s will dated 3rd Sept. via her attorney and proctor JOHN M. MINTER source: PUBLIC NOTICES (1855, November 14). The Argus (Melbourne, Vic. : 1848 – 1957), p. 7. (Not mentioned in any wills and probate papers but another figure in it all)
[[–full name John Marsh Minter, solicitor, Sandhurst. Died 09 Jul 1860 aged 38 at his residence Bridge St Bendigo.
See source here:Family Notices (1860, July 10). Bendigo Advertiser (Vic. : 1855 – 1918), p. 2. Retrieved September 5, 2025, from http://nla.gov.au/nla.news-article87944975
also his wife dies: Family Notices (1866, April 2). Bendigo Advertiser (Vic. : 1855 – 1918), p. 2. Retrieved September 5, 2025, from http://nla.gov.au/nla.news-article87959733]]
N
NANKWILL, Mr.
Letter to Mr George Haeketh in reply to his returning Statuary Declaration of Mr Nankwill and paid postage
SOURCE 00028-p0000-000149-0480-00042
NUGENT
That a man named Nugent came for me to my house at my father’s request and on my arrival at the said Thomas Bready’s residence which was about one hundred yards from mine he was speechless and died within ten minutes after I had arrived at his house.
00028-p0000-000149-0480-00057
O
P
Q
R
ROWE, Thomas
Mr Thomas Rowe of Fitzroy. Mortgagee to 80 Webb St. and money loaner to Bridget for repairs.
SOURCE Affadavit of Thomas Bready. dated 2 Sept 1874 FILE 00028-p0000-000149-0480-00077
-In Sept 1855 following Bready’s death, Bridget gave the original copy of Bready’s will to Rowe, which he would only return to Bridget when house improvement cash advance and mortgage were paid in full. SOURCE Affadavit of Mrs Cook FILE 07591-p0002-000018-0600-00002
His agent is M. Fergis.
SOURCE 00028-p0000-000149-0480-00039
S
SHAW, Robert Shaw of Amherst in the colony of Victoria, Farmer
(a sureity?)
SOURCE 00028-p0000-000149-0480-00066 and 00028-p0000-000173-0040-00000 and 00028-p0000-000173-0040-00005
T
U
V
W
WALSH, MICHAEL
Michael Walsh then of Bendigo – Miner, witness to will, now unable to be located
WISEWOULD, Mr
a colleague of a Mr Gibbs and a Mr Holroyd, who were consulted in relation to the land title by Plaintiff’s team.
SOURCE 00028-p0000-000149-0480-00040
WRIGHT, JOHN SEYMOUR (team ellen)
John Seymour Wright of Number 84 Chancery Lane in the City of Melbourne in the Colony of Victoria Clerk Managing Clerk to William Cuddy of the same place Gentleman Proctor
X
Y
Z
MYSTERY FIGURE:
16th June, 1875
Having received opinion from Mr Holroyd Long Letter to Messrs Wisewould Gibbs as to requisitions on Title to Land sold to Vartheth/Varketh/Parketh
SOURCE 00028-p0000-000149-0480-00040
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QUESTIONS
Is an administrator the same as an executor.-NO
-the executor of the will is someone who has been nominated by the person before dying and recognised by the courts
-administrator is been someone who has stepped in after the fact and been recognised and appointed to administer the will by the courts.
-if you don’t leave a formally recognised will someone can step in and apply to be administrator
-It’s important to Thomas Jnr that he gets in as soon as possible after Bridget’s death to apply to be the administrator of his late father’s estate. He wants to beat his sisters to the punch to be the one in charge of ADMINISTRATION. (it’s not “probate” to be applied for, because the will itself is the subject of dispute)
-Why dispute the will: Thomas Jnrs gamble is that he’s relying on the heir-at-law legistration which would have been active in 1855 when he turned 21.
If he HAD disputed the will at this time in his life, the heir-at-large rule would have been active. where as the oldest son he inherits everything totally of his father’s as a default – IF he were to successfully argue no will was left by his father.
-Given the heir-at-large rule is no longer law, even if he could prove there was no genuine will, he is hoping this old law will be retrospectively honoured by the courts.
-If a will is produced (which it will be) he pivots and argues he never knew of it’s existence and it’s not legitimate.
-In the case of a will being proven legitimate, in current laws, by applying to be the administrator of the will, the land title for webb street comes directly into his legal possession – I’m pretty sure this is how it works- and he would need to be sued by his sisters if they wanted to claim their third each.
The Surity
-to set up this fighting position the court requires Thomas has someone who can proove sufficient wealth to put up an bond (or a guarantee) as “Surity” meaning if Thomas WAS sued for not administering the will properly, mismanaged the funds and/or (for instance) disappeared with the proceeds of the will, then the Surity would stand to cover the expenses for the other sisters and provide financial recourse.
question: How well off was the surity, that they could afford to back Thomas? How much could they afford to lose. It’s hard to believe that Thomas ever intended to redistribute the assets amongst his sisters.
smaller questions.
Why doesnt Ellen sign court paperwork to accept probate is granted to her? Her husband does it for her from Talbot (it’s not like it involved travelling into city). Is that normal.
Consent of John Sturgeon Cooke that probate be granted to Ellen Cooke. This has been done in Talbot and then witnessed by John Berry.
00028-p0000-000149-0480-00064
Why did Mary Jane Simmons need her husbands consent to become the administrator instead of her signing off for it herself. Again, is this just normal.
What is with the emphasis on how many rooms and whether the residence was a store or shanty in myers flat? Was this to do with a tax status, or was this more about unpicking the veracity of witnesses?
-that there were only two apartments in the place
00028-p0000-000149-0480-00099
Patrick Dynan of Myers Creek near Sandhurst in Colony of Victoria Farmer
consisted of two apartments and was not a store.
-John McClelland of Sandhurst in the colony of Victoria Merchant
00028-p0000-000149-0480-00079
-That my father kept a shanty where drink was sold without a licence on Myers Flat aforesaid up to the time of his death and the place so kept by my father as aforesaid was built by him with my assistance and contained only two apartments and not three, and it was not a store.
00028-p0000-000149-0480-00055
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In or around SEPT 1855
-In Sept 1855 following Bready’s death, Bridget gives the original copy of Bready’s will to Rowe, which he would only return to Bridget when the ‘house improvement loan’ (worth: …) and mortgage (worth:) were paid in full. SOURCE Affadavit of Mrs Cook FILE 07591-p0002-000018-0600-00002
Rowe and Bridget ALSO organised a written ‘deed’ to be put together to show the agreement in writing as far as the mortgage and loan, but this was never registered anywhere (normally something like this would have presumably been made duplicates of and the original lodged with the register generals office – thats me speculating).
source about the fact there was a deed written up 00028-p0000-000149-0480-00077
Was Rowe saving a bit of money by not bothering to formally lodge the deed, and holding on to the original will was his own more real sense of insurance. Or maybe Bridget handed over her husband’s original will as part of the personal agreement.
A deed is a formal, legally binding document used to transfer rights, obligations, or property interests from one party to another. Unlike an ordinary contract, a deed does not require “consideration” (a bargained-for exchange) to be legally valid, making it a strong promise or commitment.
14 NOV 1855
Bridget Bready advertises intention to apply for probate in The Argus for Bready’s will dated 3rd Sept. via her attorney and proctor JOHN M. MINTER source: PUBLIC NOTICES (1855, November 14). The Argus (Melbourne, Vic. : 1848 – 1957), p. 7.
-presumably after 14 days notice that’s when Bridget would have been expected to lodge her formal application for probate – which never happened.
nb bridget would have lost her other son at some point around this time – need to find out how he died.
was it around nov 1855? [Henry Edward born 1848, Melbourne, dies aged 7]
-no probate is ever formally applied for or legally granted on the Bready Snr estate. (also, cannot locate death certificate for Henry Edward Bready, but need to double check that)
Legally, Henry’s death is not recorded on any government file AND the will remains ‘unproved’. Neither of these bureaucratic technicalities have any day to day impact. Henry would have had a Catholic funeral and is buried in his father’s plot.
Bridget continues living on the goldfields (presumably) and in 1857 builds a three bedroom house in Myers Flat. SOURCE Thomas Bready, Affidavit in support of Application for Probate, FILE 00028-p0000-000149-0480-00056
She remarries Matthew Richard Logan in 1863
source: ‘Brigit Mealy’. (1863). Online extract of marriage cert for Brigit Mealy (1863) (Registration number 1436 / 1863). Births Deaths Marriages, Victoria
All this time she keeps her agreement with Rowe (and borrows additional monies from him in 1869 according to Thomas Jnr. source: 00028-p0000-000149-0480-00077
Webb St continues to be rented for the rest of Bridget’s life, and the rent continues to pay off the mortgage. The personal home improvement loan continues to be outstanding and/or gradually paid off. Thomas Rowe continues to hold the original will, and a duplicate of it is made for formal lodgement with the Registar General. (I’m presuming normally the original would be lodged, a little unusual that just the duplicate is).
-As a result –
because the will remains unproved, it has no legal validity.
-Bridget and Rowe’s actions in managing Thomas Bready’s estate’s assets, loaning monies based off these assets and any estate liabilities are independent of the court system and can be theoretically disputed at any time.
29 DEC 1855
-lodgement of a duplicate of the will at the office of the Registar General of the Colony of Victoria 29.12.1855
00028-p0000-000149-0480-00117
-It was lodged by James Fowler of 76 Chauncery Lane Melb, a law clerk with an affadavit saying it was true to the original (my words). Who employed James Fowler?
A: Mr Hingston (or Kingston) a law stationer at the same address. Who instructed this? Rowe or Minter? mystery!
00028-p0000-000149-0480-00117
21 Jan 1860: Thomas comes of legal age, turns 21.
SOURCE where thomas signs off on when he turns 21: Affadavit of Thomas Bready 19.08.1874 FILE 00028-p0000-000149-0480-00108
This will mean something later on.
Significance is that the old heir-at-law rule is still in effect at this time and the will remains unproved.
a) IF no will on the estate, and Bready died intestate, Thomas Jnr should inherit the estate exclusively as sole heir-at-law
b) IF there is a will, but it is not recognised as valid, then he should inherit the estate as sole heir-at-law as default.
c) In the year xxxxx the heir at law becomes the stuff of history. cite sources and any articles I have about the passing of this law.
1869
Bridget takes out an additional loan, a new amount of £25 against the house:
according to Thomas:
Bridget, Thomas Jnr and Mary Jane sign a document for Rowe “to secure the repayment of the sum of £60 ” that Bridget has loaned from Thomas Rowe.
-Thomas is also “induced” to sign a document by Bridget saying she had “proved the will” (ie, she had obtained probate from the courts to administer the will)
AND
that she was further loaning another £25 pounds.
[total loan amount owing at that point in time: £75]
question – rowe would have been canny enough to know whether bridget was a formal executor of the will or not, surely. Is he getting her to sign off that she’s the executor to protect himself? Or is Bridget claiming she’s executor to protect her leverage to get more money out of Thomas? Who is kidding who?
What’s the current mortgage outstanding? which is getting paid off by tenants. (between this year, 1869 and 1874 the initial mortgage is completely paid shy exactly £1 – do the maths – how much was the rent and how much was the house? etc)
Age of thomas at this time: Age of mary jane:
source: 00028-p0000-000149-0480-00077
-already thomas’ story will be contradictory – did he know his father left a will? apparently YES according to this which he advises 2nd Sept 1874
00028-p0000-000149-0480-00077
but apparently NO at other times. Did he ever see the will himself? ‘no’ – source 00028-p0000-000149-0480-00095
28 April 1874 –
Bridget dies, aged 50, as Mrs Bridget Logan.
Spouse at time of death, Richard Matthew Logan.
SOURCE Affadavit of Thomas Bready 12.08.1874 FILE 00028-p0002-000033-0680-00002
Not sure where Bridget & Matthew Logan were based at this time.
Note the house at Webb St is presumably an asset on paper but has never actually brought in any active income for Bridget except in the forms of cash loans against the value of the house. And presumably this money has just gone back into maintenance for Webb St.
Thomas Rowe is recovering all the rent from the original mortgage and loan for improvements to the house.
-there’s never any discussion about Bridget’s own will, presumably she didn’t have one. Even if she did, the thomas bready estate would not have been legally considered in her possession ANYWAY with the will never being proved to date.
the legal dispute starts:
three months after Bridgets death, FIRST SHOT FIRED by thomas jnr: not by discussions with family but under the cover of newsprint in the form of a small public notice in The Age, missed completely by the sisters.
-context: the value of webb st has increased by a factor of what?.
Thomas has presumably done some research and/or started asking about the paperwork side of things when it comes to what happens with Webb St, and he’s clearly come to realise thomas’ snr’s estate is open to dispute.
>Thos jnr starts legal proceedings to state that his father died without a will (intestate) and that he should be granted role of administrator of his late father’s estate
here it is in detail:
23 July 1874
Thomas Bready Jnr instructs his proctor Mr Thomas Miller to place notice in The Age for the date of 23rd:
“Notice is hereby given that after the expiration of fourteen days from the publication hereof application will be made to the supreme court in its probate jurisdiction that Administration of the Estate of Thomas Bready late of Bendigo in the Colony of Victoria stonemason deceased intestate may be granted to Thomas Bready of Talbot in the Colony of Victoria the son and one of the next of kin of the said deceased. Dated this 22nd day of July A.S. 1874 Thomas Miller no.64 Little Collins St East Melbourne Proctor for the said Thomas Bready”
00028-p0000-000149-0480-00114 and also referenced 00028-p0000-000149-0480-00093
–the application gets to be lodged after: Wednesday, 12 August 1874 (I guess you could request an ajournment or a caveat to put a halt on proceedings).
-neither Ellen Cook or Mary Jane respond to this newspaper ad. They would be entirely unaware. Maybe they had a sense that something like this would happen.
Wednesday 12 August 1874 – tomorrow, thomas can lodge his application Today, he puts together his supporting affadavit to the application:
That as the only son he believes he is entitled to administration of his father’s estate 00028-p0000-000149-0480-00104 & seeks to obtain it formally 00028-p0000-000149-0480-00118
with emphasis on himself as the only son, you can see he’s trying a heir-at-large angle.
Now that 14 days have passed since Thomas jnr’s published notice,
Thursday 13 Aug 1874
A’Beckett applies for thomas jnr to be administrator of the estate in supreme court.
Thomas Bready Jnr’s team argues:
–his father died without any will (his legal team have searched and no will of his father’s is found in the office of the Register General of the Colony of Victoria (where wills are deposited) – ). (did they find the lodgement of a duplicate of the will at the office of the Registar General of the Colony of Victoria 29.12.1855 and decided the duplicate did not ‘count’? or did they not find any original OR any duplicate in their searches? cause they are totally searching in the right place)
(earliest source of the duplicate known to have being lodged: 00028-p0000-000149-0480-00117)
-he advertised his intentions to be the administer on 23 July 1874
-nobody (ie Ellen or Mary Jane) lodged any caveat to dispute his application.
-thus he’s fine to go ahead and be the administer of the estate as far as proceedings go
source 00028-p0000-000149-0480-00114
and so: (same day)
Mr A Beckett for #teamthosjnr applies to the Supreme Court requesting Thomas Bready Jnr be granted administration for the estate.
(as per Affidavit James Colgan 00028-p0000-000149-0480-00093)
Thomas Jnr is “renewing” (re-reregistering) his application from this date, 13 aug, for the administration application to be re-submitted on Thursday 20 August.
What’s not shown in any of these documents, but what I think has happened, is that just as in modern days [If the original advertisement for probate needs updating or the application is incomplete, you must re-advertise] I think in these circumstances the registrar or Justice Molesworth advises that the application needs more evidence/is incomplete, and thus grants thomas an extra week for the application to be RENEWED (in modern legalese, to be re-registered) and for the sisters to also be served personally – it’s also possible the registrar /Molesworth doesn’t consider the published ad to be sufficient notice, and this is now ensuring that the sisters get served notice personally.
still the same day:
BOMB DROP: Thomas serves his sisters in regional vic. this is the first they know about it. – he is serving them his re-registration of his application today 13 Aug with one week’s notice – until 20 Aug – when it will be looked at in court.
Thomas Bready Jnr personally serves his sisters, in Perydale and Amherst seperately , the following notice. how fucking AWFUL. they would have had no idea and just assumed they were to divide Webb St by thirds.
“Take notice that an application… for administration of intestate on behalf of Thomas Bready…will be renewed on Thursday the 20th day of August instant at Eleven o Clock in the forenoon at the Supreme Court house Latrobe street East Melbourne in the Colony of Victoria to his honour Mr Justice Molesworeth Dated this 14th day of August AD1874
To Mrs Ellen Cooke Amherst and
To Mrs Mary Jane Simons Percydale
Thomas Miller Proctor for the said Thomas Bready”
-this is documented with the courts the following day on 14 Aug 1874.
00028-p0000-000149-0480-00107
Friday 14- Saturday 15 August 1874: THOS. APPLICATION ADJOURNED and the sisters get served notice that the application is being re-registered.
Team Thos Jnr needs an extra affidavit for the application of administration (see below, james colgan puts it together) so the courts give them another 2 weeks– this is now bringing us to 29 august- and team sis are also advised of this by being served personally (again) over this weekend.
-whats the extra affadavit? it’s the one put together by James Colgan three days later on the Tues 18th [SOURCE 00028-p0000-000149-0480-00113] where he advises
-he listed the ad for application in the age,
-that there’s no will registered for the estate [thus the argument thomas died intestate] and that
-there’s no caveat that has been placed on the administration of the estate.
SO – the application is ADJOURNED AGAIN and #teamthosjnr crosses their ts and dots their i’s as far as establishing the application being advertised, no will being in existence, and no caveat on the application.
Ellen and Mary get personally served NEW notices to advise them of this adjournment on these two days.
00028-p0000-000149-0480-00094
–An adjournment is the formal postponement of a court case, meeting, or hearing to a later date, allowing parties time to prepare for the next steps or address unforeseen issues.
19 Aug 1874 -two things happen on this day – ten days before Thomas’ adjournment finishes:
-teamsisters lawyer up, advise there is a will and show Thos Jnr’s notice of application to WILLIAM CUDDY’s offices (ie Mary Jane shows the application that shes been served to Mr Fergie, in Cuddy’s offices)
Source: 00028-p0000-000149-0480-00087
and for team thos jnr: dang, A DUPLICATE (not original) OF THE WILL IS FOUND.
SOURCE: Mr Fowler (teamthosjr) identifies the lodgement of a duplicate of the will at the office of the Registar General of the Colony of Victoria 29.12.1855)
00028-p0000-000149-0480-00117
Now it’s in Thomas Jnr’s interests to discredit the will, so that with an invalid will, thos jnr can still argue he should to be appointed administrator (because no executor named) and if he can discredit the will he has the opportunity to argue to the court that he should be recognised not only as the administrator but also the sole inheritor using the heir at large argument.
The other more cynical possibility (and surely the more realistic of the two) is that he is appointed the administrator and is told to split the estate between himself and his sisters, and he just takes possession of the assets for himself and lets his sisters try and sue him. This is where the surity person would be left vulnerable if thos jnr sells webb st, grabs the money and runs. And what if the surity person just ups and runs as well? You’re screwed.
20 August, the following day: another 2 weeks is granted to the sisters to put together their case on the understanding they don’t lodge any caveats in the meantime:
[on the twentieth day of August last Mr Fullerton (team sis) appeared for the said Mary Jane Simons and Ellen Cooke and applied to the Honourable Court that the matter should stand over for a fortnight the undertaking that no caveat would be entered by the said Mary Jane Simons and Ellen Cooke in the meantime. ]
-SOURCE 00028-p0000-000149-0480-00094,
2 Sept 1874 (one fortnight later)
Thomas Bready Jnr shows up with a law clerk to Thomas Rowe (either his home or workplace, who knows) to retrieve all the original documentation he recalls signing with Bridget and Mary Jane back from 1869 re: loans and how Bridget had (deceptively) signed off that the Thomas Snr’s will had been proved.
He doesn’t think these deeds (informal written arrangements) were ever registered anywhere. (So I guess is arguing that it’s all bullshit and how can Rowe argue there are monies owing on the house or a will when he can’t produce any of the paperwork).
00028-p0000-000149-0480-00077
According to Thomas Rowe, there’s still an outstanding amount on Webb St from his loans and initial mortgage of £76 that the rent is still gradually paying off.
00028-p0000-000149-0480-00077
3 Sept 1874 – – ANOTHER AJOURNMENT IS PUT IN PLACE BY TEAM ELLEN
– a fortnight has passed now, team sisters require another 2 weeks to put together their case.
-[That upon the matter of the said application coming out again on the third day of September last Mr Fullerton applied to this Honourable Court for a further adjournment and it was again adjourned until the first day of October.] source paragraph 5 on 00028-p0000-000149-0480-00095
1 October 1874 team sis finds that GILL is dead. There goes your key witness.
John Seymour Wright Law Clerk (Proctor for Ellen Cooke) locates registration of death of Daniel Gill, surgeon 5 May 1861 and other info about him, so obviously he can’t be called upon as witness of will.
00028-p0000-000149-0480-00074
on the same day:::::::
team ellen’s version:
THOMAS JNR IS ASKED to withdraw his claim to administration of the WILL AND HE AGREES TO WITHDRAW (but doesnt) given the sisters have committed to not place a caveat on thomas jnr’s application the next best thing they can do legally is have their lawyers ask his lawyers to voluntarily withdraw the application. —a modern day comparison would be to have someone renounce probate or an renounce an application for grant of representation, and file a Notice of Discontinuance with the Supreme Court of Victoria’s Probate Office.
source 00028-p0000-000149-0480-00090
fun fact, the new law courts are being built in this year onwards cnr william and lonsdale st. the law library being referenced to where these conversations are being had are on latrobe/russell st buildings.
source: Our history: 1874-1884: The new law courts
Cuddy (team ellen) is present in the library at the supreme court on Thursday 1st Oct 1874 with council for the said Ellen Cooke Council for Thomas Bready and James Colgan Clerk to Thomas Miller Proctor for the Caveator (ie team thos jnr) when it was arranged the notice for administration by Thomas Bready should be withdrawn,
[[ie, given the above and the below bits, here’s my summary: hey thos jnr please withdraw your application because Ellen has filed an affadavit indicating that your father DID have a will, plus a duplicate of the will has been found registered, so it’s useless trying to argue your father died intestate. You’re not going to win this, you wont be granted administrator, and you’re costing everyone money]]
… and it was on this distinct understanding the then pending application was with the council of the parties withdrawn. – ie that Thomas Jnr wouldn’t go ahead with administration process AND his team would withdraw the application process.
-Cuddy (team ellen) testifies this 15 March 1875
00028-p0000-000149-0480-00090
team jnr’s version:
colgan’s (Team thos jnr) version of the same meeting: that everyone tried to pursuade Thomas Jnr to drop it, [[because Ellen has done an affadavit to say there is a will, and a duplicate has been found registered]] to which Thos Jnr doubles down and says he’d never seen a copy of the will, sure he finally saw a copy late in the day for himself, but he didn’t agree to drop the dispute, he just asked that the matter stand for some time.
“That I attended at this Honourable Court on the first day of October last and whilst waiting in court for the said application to be called on Mr A’Beckett informed me that he had seen an affidavit made by Ellen Cooke and which had been filed and that in the face of the said affidavit it would be useless to make the application for administration as of an intestate and advised that the application should be withdrawn“
00028-p0000-000149-0480-00095
(this is the affadavit ellen originally gets lodged which advises there was a will).
-“That I accordingly had an interview with Mr Cuddy and Mr Fullerton in the library of this Honourable Court in presence of Mr A’Beckett -abeckett is thos jnr’s barrister and fullerton is for team ellen]] when it was arranged that the application of Thomas Bready should be withdrawn and a conversation then took place between us as to the best thing that could be done in the matter and after some time it was suggested by Mr Cuddy that
00028-p0000-000149-0480-00095
The arrangement mentioned in the first paragraph of Mr Cuddy’s affidavit sworn herein on the 15th day of March instant would be the best
–what’s that paragraph? here it is: [[[ “the notice for administration by Thomas Bready should be withdrawn and that for the purpose of saving expenses Ellen Cooke his sister should first apply for administration with the will annexed in default of her other sister Mary Jane Simons the wife of Nicholas Simons in default of her that Thomas Bready the son of the Testator should apply for administration and finally in default of him the said Thomas Bready taking out administration the curator was to do so as to avoid any further litigation and it was on this distinct understanding the then pending application was with the council of the parties withdrawn”.
00028-p0000-000149-0480-00091]]]]
and I then told him I should require to see the said Thomas Bready about the matter before finally agreeing.”
source00028-p0000-000149-0480-00095
OK TO SUMMARISE ABOVE
Colgan, team Thos Jnr, after a LONG DISCUSSION “after some time” in the supreme court library takes Cuddy’s suggestion from team ellen that:
-Thos Jnr withdraws his notice/application for the administration since
-that Thos Jnr’s application claiming his father died without a will just wont stand up in court.
-everyone’s legal advisors are basically on the same page that his father did NOT die intestate (ie without leaving a will). – that’s INCLUDING Thos Jnr’s own lawyers.
-that to save expenses not only should he withdraw his application but he should also just allow Ellen to apply for administration and let her manage and distribute Bready Snr’s estate to ensure the deceased’s wishes are followed – legal term: she applies for the application with “the will annexed”
(that if Ellen can’t do it, the next option is Mary Jane, and then Thos Jnr as the third option, and in the last resort, a curator to step in and do it, to avoid litigation).
(which is basically like the government or state trustees stepping forward and administering the will)
(AI: A “curator,” in this context (often referred to as a “Curator of Deceased Estates” or the “Public Trustee” in some jurisdictions), can be granted the authority to administer the will (known as “letters of administration with the will annexed”)
to continue with the day’s events:
-That I immediately consulted the said Thomas Bready who was sitting in Court and mentioned the circumstances to him and he requested me to let him see the original will which I did.
-that upon seeing the will he declined to agree to the arrangement suggested and informed me that he would like to have the matter stand over for a time and I told Mr Cuddy the result of my interview with the said Thomas Bready.
-That although the said Mary Jane Simons and Ellen Cooke were aware that the application for administration of the estate of the said Thomas Bready deceased was being made on the twentieth day of August last the said Thomas Bready informs me that the first day of October last was the first time he ever saw the original will and which I verily believe was only filed in this Honourable Court on that day.
source00028-p0000-000149-0480-00095
team ellen’s version continued:
00028-p0000-000149-0480-00088
That on the advice of Council for the caveator referred to …(ellen’s) affidavit mentioned being communicated to me I informed the said Mr Colgan I would consult with counsel on behalf of applicant on some considerable time after and after I had seen the said James Colgan read the affidavit of the said Ellen Cooke to the said Thomas Bready the arrangement
((referred to in the seventh paragraph of the said affidavit was made, ie that Bready Jnr’s application would be withdrawn, and then Fullerton and A’ Beckett were then in deep conversation about the best thing that could be done in the matter))
and I verily believe the said Thomas Bready was cognisant of and had instructed the said James Colgan and his counsel through him to make same. (ie thomas bready jnr was on board with this and instructed them to withdraw his application)
The first intonation I had that the said arrangement would not be carried out on the part of the caveator was in a casual conversation with his Proctor Mr Thomas Miller several days after the advertisement on behalf of Mrs Cooke had been inserted and within a few days of the time her application would have been made
So Thomas has his legal team asking him to seriously reconsider his actions, he probably agrees to it on the day, with that look on your face when you’re not happy with what you’re basically being told to do,
-team sisters go away thinking team thos jnr are now going to lodge his withdrawl of his application and so the very next day, Ellen lodges her own.
So….
2 Oct 1874
Ellen Cooke advises the original will, which she’s sighted, is filed in the office of the Master of Equity AND NOW SHE IS APPLYING TO BE ADMINISTRATOR.
she’s unaware that thos jnr is going to now fuck all of the court’s time around by still keeping his own application on file.
Ellen’s formal affadavit on bready snr:
“That he made his will dated the third day of September in the year of Our Lord one thousand eight hundred and fifty five which I believe is unrevoked and which will signed with his proper handwriting and usual signature is filed in the office of the Master in Equity and has been already identified by me
-outlines assets/liabities of her fathers estate
-that after deducting all liabilities from the assets of the said deceased there will be a balance of three hundred and fifteen pounds representing the value of the Real and personal estate of the said deceased.
-That will was executed in the presence of Michael Walsh then of Bendigo aforesaid but whose present whereabouts I am unable to discover and in the presence of Daniel Gill since deceased
00028-p0000-000149-0480-00053
-That I am seeking to obtain letters of administration with will annexed with Thomas Bready late of Bendigo in the colony of Victoria stone mason deceased
00028-p0000-000149-0480-00068>>00028-p0000-000149-0480-00070
ELLEN’S AD FOR PROBATE IS PUBLISHED. This is now the third ad published for bready’s estate probate – Bridgets, Thomases, and now hers.
3 oct 1874 – an add is published on this day. probably took several bus days to organise to get published.
After having Thomas Jnr agree to withdraw his application, Ellen Cooke accordingly produced to obtain Administration with the Will annexed and and placed ad 3 Oct 1874
00028-p0000-000149-0480-00091
5th and 6th October 1874 –
Consent of John Sturgeon Cooke that probate be granted to Ellen Cooke. This has been done in Talbot and then witnessed by John Berry.
00028-p0000-000149-0480-00064
-I think John Cooke has signed it because Ellen has not been able to sign for herself? or does he do that legally for her?
in the meantime, Cuddy has a casual conversation with Mr Miller about the case and Mr Miller obviously says something that gives him pause. It might have just been a throw away comment or instead of agreeing to something he might have just shrugged and said they are still examining all options or something:
Cuddy: The first intonation I had that the said arrangement (ie bready withdrawing his admin) would not be carried out on the part of the caveator was in a casual conversation with his Proctor Mr Thomas Miller several days after the advertisement on behalf of Mrs Cooke had been inserted and within a few days of the time her application would have been made
00028-p0000-000149-0480-00088
16 October 1874 —nobody is expecting this but Cuddy did get a nuanced forewarning::::team thos jnr does the jerk move and CAVEAT IS PLACED ON THE WILL —
00028-p0000-000149-0480-00085
-Thomas Bready Jnr has now placed a hold on ellen’s application so he can dispute the validity of the will.
00028-p0000-000149-0480-00085
team ellen lawyers discover the caveat on: 29 Oct. [two weeks later]
00028-p0000-000149-0480-00072
according to google AI: A caveat is a formal notice or warning, particularly in property law, that alerts others to a claim or interest / It essentially acts as a “freeze” on the property, preventing certain dealings or registrations on the title until the claim is resolved or withdrawn.
“Let nothing be done in the will of Thomas Bready late of Bendigo in the Colony of Victoria stonemason deceased without notice to Thomas Miller Proctor for Thomas Bready”
00028-p0000-000149-0480-00085
meanwhile TEAM BRO starts weaponising with affadavits.
while ellen’s team go about organising surity for her as part of her application to administer.
19 October 1874
First affadavit is from Patrick Dynan of Myers Creek near Sandhurst in Colony of Victoria Farmer
-spent night(s) helping watch Bready Snr to prevent him from injury to himself or others
-that Bready has delirium tremens for up to 6 weeks before death and ‘not of sound mind for some considerable time prior to and up to the time of his death’
that I never knew any doctor of the name of Gill living on Myers Flat
-that there were only two apartments in the place
00028-p0000-000149-0480-00099
21 October 1874
Ellen is backed by storekeeper John Bradley in Avon as a surity for the will.–this is just usual process of the day.
John Bradley of Percydale in the Colony of Victoria Storekeeper
00028-p0000-000149-0480-00061
24th October 1874
Ellen is backed by Robert Shaw of Amherst in the colony of Victoria, Farmer – -usual process.
00028-p0000-000149-0480-00066
29 October 1874
John Seymour Wright Law Clerk (Proctor for Ellen Cooke)
That I have searched in the Office of the Register General of this colony and find that no other will of the said testator sae and except the one already filed in this Honourable Court has been there deposited.
That I have this (29th October) day searched in the proper office of the Honourable Court and found that a caveat has been lodged in this matter.
00028-p0000-000149-0480-00072
>>>Me: A caveat is a formal notice or warning, often lodged against a property title, to protect someone’s interest in that property. It acts as a “freeze” on the property, preventing registration of any dealings (like sales or mortgages) that conflict with the caveator’s claim, until the issue is resolved
—–up to here going through this all———-
29 Oct 1874
“DRAFT” RULE NISI Draft has been written above it. – team thos jr drops the bomb. to freeze ellen’s application and force her to argue against thomas’ dodgy “there is no will” case.
A rule nisi, also known as a rule to show cause, is a provisional court order that requires a respondent (I’m presuming ELLEN) to demonstrate why a proposed order (THOMAS STUPID original application) should not be made final. Essentially, it’s a temporary order granted in the absence of the respondent, (ellen) giving them (ellen) a chance to present evidence or arguments against the order becoming permanent. If the respondent (ellen) fails to satisfy the court, the rule nisi typically becomes absolute, meaning it turns into a final, binding order. –
“on Thursday 12th day of November next at 11 O’ Clock in the forenoon of the Supreme Court House La Trobe Street Melbourne”
—or not even, is it just a jury formality and it’s the jury who decide???-
00028-p0000-000149-0480-00006
29 October 1874 (unknown to team ellen that this has been prepared)
John McClelland of Sandhurst in the colony of Victoria Merchant: managed a store for Messrs. Francis Brothers on Myers Flat near Sandhurst. Relevant because Bready Snr used to deal at the store. ie, have dealings with? and so McClelland saw him basically daily.
consisted of two apartments and was not a store.
-That the said Thomas Brady deceased used to deal at the store of the said Messrs. Francis Brothers and I saw him almost daily up to the day of his death.
-four or five months prior to the death of the said Thomas Bready I considered from his manner and behaviour that he was of unsound mind
-That there was no doctor of the name of Gill residing on Myers Flat in 1855 but I knew one of that name residing at Maldon in 1854 and I did not know if any person named Gill residing on Myers Flat
-00028-p0000-000149-0480-00079
-Knew Michael Welsh was a miner in the area in 1855 (but I guess not willing to say he was working on Myers Flat? so therefore was around but not at that specific time? thus could not have been the witness?)
That to the best of my knowledge and belief the said Michael Welsh was working on Myers Flat aforesaid in the year 1858
-00028-p0000-000149-0480-00080
29 October 1874 (unknown to team ellen that this has been prepared)
Ellen Casey of McCrae St Sandhurst swears affadavit for Thomas Jnr confirming she taught the girls who used to complain of their father suffering delirium tremens some time before/up to time of death
00028-p0000-000149-0480-00110
29 October 1874 (unknown to team ellen that this has been prepared)
can anyone pinpoint Welsh in 1855? so far it’s not great, so thats good for Thomas Jnr’s argument? but nobody can NOT point that he was there at the time?
Thaddeus Kelly of Mundy Street Sandhurst: (for Thomas Jnr)
I knew and became well acquainted with Michael Welsh a miner in 1857
That to the best of my knowledge and believe the said Micheal Welsh resided on Myers Flat aforesaid for about two years after I became acquainted with him.
(1857,58,59)
00028-p0000-000149-0480-00122
4 November 1874
4 nov – is Thomas Jnr turns up with his affadavit saying its impossible his father was of sound mind—- after the order nisi had been obtained….having been made on 29 Oct – – 00028-p0000-000149-0480-00091….
the ‘unsound mind’ pivot argument is all news to ellen cooke. she’s discovering all of this by being served the affadavit.
00028-p0000-000149-0480-00091….
Her lawyers are scrambling with “the distance of Melbourne the circumstances (of Ellen) and her sister’s illness together with the shortness of time for enquiry I was unable on the first hearing to supply the court with the additional evidence produced on the last (missing date)
00028-p0000-000149-0480-00091
Thomas signs affadavit:
-that he was there up to 10 days before Snr died (and he has to explain that he was told to leave by his mother which is why he wasnt there when his father did die)
-That my father kept a shanty where drink was sold without a licence on Myers Flat aforesaid up to the time of his death and the place so kept by my father as aforesaid was built by him with my assistance and contained only two apartments and not three, and it was not a store.
00028-p0000-000149-0480-00055
-it is impossible that my father the said Thomas Bready deceased could have made a will on the third day of september one thousand eight hundred and fifty five, without my knowledge as I was not away from him for ten minutes at any one time for some five or six weeks before and up to within ten days of his death.
-I never knew a doctor of the name of Gill living or being on Myers Flat, aforesaid in this year one thousand eight hundred and fifty five nor at any other time and no doctor of that name ever prescribed for my father
-That Welsh could never have signed the will as a witness because he KNEW him at the time, could locate him to the area at the time, and he would have said something:
That I knew and was well acquainted with Michael Welsh, one of the witnesses to the alleged will of my father the said Thomas Bready deceased and I worked as a mate with him in 1855 and for a short period in 1856 on Myers Flat aforesaid, and the said Michael Welsh did not leave Bendigo now called Sandhurst in 1855 as I know he was working as a mate with two men named Pallas and Dillon on Myers Flat aforesaid in 1857 and Pallas brought a three roomed house from my late mother which she had built in the latter end of 1856 or the beginning of 1857 and the said Pallas and Michael Welsh went to live in the said house.
00028-p0000-000149-0480-00056
4 November 1874
team thos bro affadavit has been lodged – “would be disputed on the ground of the Testators incapability” —
-as far as team ellen are concerned, team thomas have VIOLATED their agreement from the library discussion by placing the caveat.
00028-p0000-000149-0480-00091
— affadavit saying its impossible his father was of sound mind—- after the order nisi had been obtained….having been made on 29 Oct – – 00028-p0000-000149-0480-00091
Ellen gets sister Mary Jane to testify that Daniel Gill was not a fictitious character and did exist and can’t be located and has since been died.
4 November 1874
Mary Jane Simons affadavit: establishes that she knew Daniel Gill
I was acquainted with one Daniel Gill a surgeon by profession,
Daniel Gill left the neighbourhood of Sailors Gully and as I have been informed and verily believed the same to between he came to Melbourne, and became an inmate of the Benevolent Asylum, in which institution have informed he died some time in the year one thousand eight hundred and seventy one
00028-p0000-000149-0480-00059
SAT 7 November 1874
James Colgan
clerk for #teamthomasjnr
-establishes that he has searched and found the death certificate for Bready Snr.
00028-p0000-000149-0480-00102
That affidavits of John McClelland, Patrick Dynan Thaddeus Kelly, Ellen Casey and Thomas Bready in support of the case of the said Thomas Bready were duly filed in this Honourable Court and notice of such filing given to Mr Cuddy on Saturday the seventh day of November instant as required by the rules of this Honourable Court.
00028-p0000-000149-0480-00083
SUN 8 November 1874
MON 9 NOV 1874
Public holiday: Prince of Wales Birthday.
SOURCE:
Anon (1874) The Illustrated Australian annual and family almanac for … Melbourne: McCarron, Bird & Co. p50
http://handle.slv.vic.gov.au/10381/248216
WED 11 November 1874
postponement for thomas’ rule nisi hearing::::
the return of the order nisi herein at the request of the said Mr Cuddy was by consent postponed until Thursday 26th Nov
00028-p0000-000149-0480-00083
meanwhile team Jnr are collecting more evidence for their argument:
wed 11 November 1874
I Mary Daws of King Street in the city of Melbourne
-on team BreadyJnr
-trying to help solve the mystery of Michael Welsh
I knew Michael Welsh on Myers Flat near Sandhurst in the Colony of Victoria in the year one thousand eight hundred and fifty six
-That the said Michael Welsh went from this Colony to New Zealand and returned from that place in the year one thousand eight hundred and sixty seven and he came to live at my place
-That the day after the said Michael Welsh came to live at my place he went into the Melbourne Hospital where he died in the year one thousand eight hundred and sixty-seven
-That I never knew any Dr Gill living on Myers Flat aforesaid while I was residing there.
00028-p0000-000149-0480-00112
wed 11 November 1874
consent to proof of ponement of rule nisi, team ellen and team thomas jrn sign it.
12 thu
13 fri
14 sat
15 sun
16 mon
17 tues
18 wed
19 thu
FRI 20 November 1874
Now a call for witness:
James McClelland of Sandhurst is ordered to be a witness
Praeipe for summons to witness
a written request, addressed to a court, for a writ to be produced, specifying what the contents of the writ should be. / instructing that a given action be taken, or demanding a reason for failure to take the given action.
A subpoena is a legal document issued by a court that compels a person to appear in court to give evidence or produce documents, or both.
SAT 21 NOV
-Mr Cuddy caused to be served at the office of the said Thomas Miller a notice stating that he required to cross examine John McClelland, Thomas Bready, Patrick Dynan, Thaddeus Kelly and Ellen Casey on the return of the order nisi wherein
00028-p0000-000149-0480-00083
sun 22
MON 23 NOV – public holiday for government offices and legal
RE-public holiday on Mon 23 Nov.: ‘The Proclamation of the New Constitution’ – a public hol and law offices closed. SOURCE:
Anon (1874) The Illustrated Australian annual and family almanac for … Melbourne: McCarron, Bird & Co. p50
http://handle.slv.vic.gov.au/10381/248216
Thu 26 November 1874
affadavit from I James Colgan as part of team ThomasJnr
-basically that they were kind of screwed by team ellen and could not produce witnesses on time (ie today nov 26) as part of their defence. because team ellen only advised they wanted to cross examine John McClelland, Thomas Bready, Patrick Dynan, Thaddeus Kelly and Ellen Casey on the return of the order nisi wherein on 21 November, that 23 was a public holiday, and that they cannot have been organised to all be in melbourne between 24 nov and 26 nov.
“it would then have been too late as John McClelland, Thaddeus Kelly, and Ellen Casey reside at Sandhurst. Thomas Bready at Talbot, and Patrick Dynan who is a most material witness on behalf of the said Thomas Bready resides at Myers Creek about thirteen miles out of Sandhurst and they could not have attended in Melbourne on the return of the order Nisi herein today.”
00028-p0000-000149-0480-00083
30 NOV 1874
Public holiday: St Andrews Day (gov offices open, legal offices & banks closed
SOURCE:
Anon (1874) The Illustrated Australian annual and family almanac for … Melbourne: McCarron, Bird & Co. p50
http://handle.slv.vic.gov.au/10381/248216
1 Dec 1874 Finding of Jury on Rule Nisi. – – jury determine that the matter needs to stand for judgement
WITNESSES APPEAR AND GIVE EVIDENCE IN PERSON TO JUDGE
viva voce
Viva voce evidence refers to oral testimony given by a witness in court, as opposed to written evidence like affidavits. It’s essentially the witness speaking directly to the judge or jury, and is often considered a more reliable form of evidence because it allows for immediate assessment of the witness’s demeanor and credibility
—–upon debate of the matter and hearing the Affidavits of Ellen Cooke, Patrick Dynan, Ellen Casey and James Colgan, sworn and filed herein read and the viva voce evidence given by and on behalf of their parties and what was alleged by Counselor both sides This Court Did Order …this matter should stand for judgement …be tried and heard by and before his Honourable Justice Molesworth and a Jury of four Special Jurors at the Supreme Court House Melbourne on Friday the twelfth day of February
00028-p0000-000149-0480-00001
1 Dec 1874 receipt for jurers
00028-p0000-000149-0480-00009
17 Dec
Ellen will later testify that the whole brief to defend the rule nisi was put together from this date onwards. Not sure why she had to sign off to testify this! maybe to claim back court costs. dated 21 Feb 1875. I guess to demonstrate she had less than 1 month to put together her case after thinking her brother was dropping the caveat.
00028-p0000-000149-0480-00017
24 December 1874
Order – order for the case to go to the supreme court with witnesses and 4 jury on 12th Feb. 1875 & hearing of the affidavits of Ellen Cooke, Patrick Dynan, Ellen Casey and James Colgan sworn and filed herein read and the vice voce evidence given by and on behalf of the parties
00028-p0000-000149-0480-00026
31 Dec 1874- order to sheriff (to round up the jurors?)
00028-p0000-000149-0480-00010
6 Feb 1875 court summons for trial
((A subpoena ad testificandum is a court summons to appear and give oral testimony for use at a hearing or trial. ))
…to show cause why probate or Letters of Administration with this will annexed of the above named deceased should not be granted to Ellen Cooke
00028-p0000-000149-0480-00124
10 Feb 1875
Praeceipe for Mil of Subpoena ad test on behalf of Ellen Cooke
Thu 11 Feb 1875
this suit was specially fixed by His Honour Mr Justice Molesworth to be heard on the Twelfth day of February one thousand eight hundred and seventy five and that it came on for hearing on that day and occupied the whole thereof, that the hearing of the suit was resumed on the following day the thirteenth day of February and occupied the court until half past two o clock in the afternoon when the Jury returned a verdict for the Plaintiff Ellen Cooke and his honour adjoined the court until Monday the fifteenth day of February for judgement.
team ellen pays for witness: from John Seymour Wright affadavit:
I paid Henry Penketh Fergie with his subpoena the sum of one pound one shilling and a further sum of one pound one shilling for a second days attendance at the Court on the thirteenth day of February one thousand eight hundred and seventy five
presumably around this time other witnesses are being heard at supreme court including Hackett the miner who is in melbs for four days
00028-p0000-000149-0480-00020
also during this day:
in my judgement it was absolutely necessary to have a consultation with Counsel and Witnesses on the Plaintiffs case, that such consultation was held on Thursday the eleventh day of February One thousand eight hundred and seventy five and was attended by the said William Cuddy myself the plaintiff and her witnesses and
00028-p0000-000149-0480-00021
That such consultation occupied close upon three hours and that I have paid to Mr Fullerton and clerk a fee of two pounds four shillings and six pence for such consultation.
12 Feb 1875 at the supreme court: will is UPHELD
…but Molesworth hasn’t given “judgement yet” – as per 00028-p0000-000149-0480-00023 – – so I suppose it’s not quite set in stone yet
Afterwards on the twelfth day of February One thousand eight hundred and seventy five aforesaid before his Honour Mr Justice Molesworth judge of the Supreme Court of the said Colony in its Probate Jurisdiction came the parties within mentioned, with their respective Proctors and Council, within mentioned and a Jury of four duly summoned also came who being sworn to the matter and application in question – between the parties upon their oath say that We Find for the Plaintiff and uphold the said Will.
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12 Feb 1875 List of Special Jurors to Try Issues of Fact and other matters by Juries of Four Special Jurors
….which they did and they upheld the original will as per….17 feb
15 Feb 1875
team ellen account of things:
That the said William Cuddy and myself were in attendance on both the days on which the suit occupied the court and that all the plaintiffs witnesses were also in attendance on both those days.
-… Mr Fullerton duly attended the court on Monday the fifteenth day of February one thousand eight hundred and seventy five but his Honour did not deliver his judgement on that day. (why not? – because of the caveat?)
-That I paid Mr Fullerton and clerk a fee of one pound three shillings and six pence to settle the order and the finding of the jury in this suit.
–That his Honour Mr Justice Molesworth not having for several weeks delivered the judgement I caused to be delivered to Mr Fullerton a brief to apply for judgment and paid him and clerk therewith the sum of two pounds and four shillings and six pence (I think for it to be rescheduled to 18 March- check)
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17 Feb 1875
Finding of Jury on Rule Nisi – – that the court decides a jury of four are to hear the case on 12 Feb and that they upheld the will as being legit/ so that’s it, right?????
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the Council learned for the application and Caveats and the Rule Nisi in this matter being read and upon debate of the matter and hearing of the affidavits of Ellen Cooke, Patrick Dynan, Ellen Casey and James Colgan sworn and filed herein read and the vice voce evidence given by and on behalf of the parties and what was alleged by Council on both sides, This Court did order that this matter should stand for judgement and this matter standing for judgement this day in the presence of council learned for the Applicant and Caveator. This court doth orders that the Matter and Application be tried and heard by and before his Honour Mr Justice Molesworth and a Jury of Four special jurors at the Supreme Court House Melbourne on Friday the twelfth day of February one thousand eight hundred and seventy …Afterwards on the twelfth day of February one thousand eight hundred and seventy five aforesaid before His Honour Mr Justice Molesworth, judge of the Supreme Court of the said Colony in its Probate Jurisdiction came the parties within mentioned with their respective proctors Counsel within mentioned and a Jury of from duly summoned also came who being sworn to by the matter and application in question between the parties upon their oath say that we find for the Plaintiff and uphold the said Will.
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21 Feb 1875
Cooke v Bready / Affidavit of John Seymour Wright to support Brief.
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this is from team ellen saying that there’s been many meetings to discuss evidence to be presented at trial???? and that the whole brief was put together after 17 Dec. why is this needed? —to justify costs perhaps which they later claim from thomas jnr
11 March 1875
affadavit of John Seymour Wright ::::
That Mr Fullerton made such application (a brief to apply for judgment?) accordingly on Thursday 11 March’ the eleventh day of March one thousand eight hundred and seventy five 1875 when his Honour Mr Justice Molesworth suggested that and the proceeding was new notice should be given to the Caveator to attend on Thursday the eighteenth day of March when he would deliver his judgement on the issue found by the Jury and heard the applications for administration.
-That I delivered to Mr Fullerton a further Brief to attend on that day (the eighteenth day of March) to hear the judgement and apply for administration and paid him and clerk therewith a fee of two pounds four shillings and six pence
-That I paid Mr Fullerton and clerk a fee of one pound three shillings and six pence to settle the decree order herein
–That I delivered a brief to Mr Fullerton on the original application for Letters of Administration having received no notice from the defendants proctor that a Caveat has been lodged and having no knowledge that the same has been done until I made the usual search in the morning on which the application
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Was to be made and that I paid Mr Fullerton and Clerk therewith two pounds four shillings and six pence.
-That I paid to the proper officer at the Office of the Master in Equity the sum of one pound seven shillings and six pence being the amount payable for duty on the Estate of the late Thomas Bready deceased.
-That I have been paid in money by William Cuddy the Proctor for the said Plaintiff the sum of one pound ten shillings for clerks fee herein
15 March 1875
Notice
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notice for team ellen —-how i make sense of this is, now that rule nisi has been agreed in ellen’s favour, now it’s jnr’s opportunity to present his argument to dispute the will.
Take Notice that this Honourable Court will be moved before his Honour Mr Justice Molesworth on Thursday the Fifteenth of March instance or as soon there after as Counsel takes to heard by Council on behalf of the claimant Mrs Ellen Cooke in support of the said Will for as the order of the Court according to the finding of the Jury herein pursuant to the provisions of the administration Act 1872 and take also notice that the affidavit of Mr William Cuddy filed herein on the fifteenth day of March instant a copy of which is herewith that is intended to be used on behalf of the claimant the said Ellen Cooke on the said matters Dated 15 March
15 March 1875
Affadavit of W Cuddy
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Cuddy is present in the library at the supreme court on Thursday 1st Oct 1874 with council for the said Ellen Cooke Council for Thomas Bready and James Colgan Clerk to Thomas Miller Proctor for the Caveator when it was arranged the notice for administration by Thomas Bready should be withdrawn, ie, please don’t contest the will for the sake of saving expenses and save any further litigation… and it was on this distinct understanding the then pending application was with the council of the parties withdrawn. – ie that Thomas Jnr wouldn’t contest the will.
-Cuddy later testifies this 15 March 1875
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15 March 1875
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After having Thomas Jnr agree to not contest the will, Ellen Cooke accordingly produced to obtain Administration with the Will annexed and and placed ad 3 Oct 1874 and **on search being made (when was the search done? ) ** it was found the said Thomas Bready had entered a Caveat through his Proctor Mr Thomas Miller in violation of the said arrangement and agreement**. (a gentlemans agreement in the library of the supreme court 1 oct)
that the first ellen found out of this was on 4 nov – this is when Thomas Jnr turns up with his affadavit saying its impossible his father was of sound mind—- after the order nisi had been obtained….having been made on 29 Oct – – 00028-p0000-000149-0480-00091
That the first intonation For the said Ellen Cooke has the said Will would be disputed on the ground of the Testators incapability was the affidavit of the caveat or sworn herein on the fourth day of November last after the order nisi had been obtained the same having been made on the twenty ninth day of October returnable on the eighth day of November last.
That owing to the loss? of time the distance from Melbourne the circumstances of the said Ellen Cooke and as her sister illness together with the shortage of time for enquiry I was unable on the first hearing to supply the court with the additional evidence produced on — last
–that Mary Jane has been sick with illness and Ellen Cooke had her own stuff to deal with?
15 March 1875
and now a new Notice: for team ellen to defend the will now that they have seen additional evidence from team jnr.
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Take Notice that this Honourable Court will be moved before his Honour Mr Justice Molesworth on Thursday the Fifteenth of March instance or as soon there after as Counsel takes to heard by Council on behalf of the claimant Mrs Ellen Cooke in support of the said Will for as the order of the Court according to the finding of the Jury herein pursuant to the provisions of the Administration Act 1872 and take also notice that the affidavit of Mr William Cuddy filed herein on the fifteenth day of March instant a copy of which is herewith that is intended to be used on behalf of the claimant the said Ellen Cooke on the said matters Dated 15 March
– interesting Ellen wont be there in person – but they live way way out of Melbourne to do the travel presumably the distance is the main reason.
15 March 1875
team jnr takes fire and reminds everyone they first advertised thomas jnr’s intentions on 23 july last year
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18 march 1875
his Honour Mr Justice Molesworth suggested that and the proceeding was new notice should be given to the Caveator to attend on Thursday the eighteenth day of March when he would deliver his judgement on the issue found by the Jury and heard the applications for administration.
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18 march 1875
team ellen:
I delivered a brief to Mr Fullerton on the original application for Letters of Administration having received no notice from the defendants proctor that a Caveat has been lodged ((that was done on 16 October 1874
00028-p0000-000149-0480-00085)) and having no knowledge that the same has been done until I made the usual search in the morning on which the application was to be made and that I paid Mr Fullerton and Clerk therewith two pounds four shillings and six pence. ((that was on the date of 29th October, see that date))
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18 MARCH 1875: administration of the estate awarded to Ellen Cooke.
Be it known to all men by these presents that on Thursday the Eighteenth day of March in the year of our Lord One Thousand eight hundred and seventy five, with the will annexed, Administration of all and singular the Estate goods chattels and effects of Thomas Bready formerly of Sandhurst in the Colony of Victoria Stonemason deceased who departed this life on the twenty seventh day of September one thousand eight hundred and fifty five was and is hereby committed to Ellen Cooke the wife of John Sturgeon Cook the Daughter of the deceased SOURCE Letters of Administration FILE 00028-p0002-000033-0680-00004
20 April 1875
document asking for all the jobs to be taxed accordingly by master of equity as instructed by ellen.
Affidavit of Mary Jane Simons assigning Cuddy “[To the Master in Equity]”
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April 28th (1875)
–from team william cuddy legal journal of costs–
special letter to Mrs Cooke pointing out to her what should be done in order to complete the sale of her late Father’s property
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Attending at the Registrar Generals office searching for death of Henry Bready but was unable to find any record thereof.
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-why are we searching for Henry Bready’s death cert? apparently the prospective buyers have already requested this as part of sealing the property deal for webb street.
3 sept 1875
Affadavit of Henry Penketh Fergie:
-he basically confirms he’s sighted the will (a copy of it at least)
I have, within the last week, seen a paper writing which purports to be a Will of the late Thomas Bready deceased and which original Will is deposited with Deeds on Mortgage to Mr Thomas Rowe of the town of Fitzroy near the City of Melbourne. Gentleman as Mortgage of certain lands mentioned in such Will
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QUESTION _ where do the deeds on mortgage live now? at PROV? Land Data? How many mortgages did Thomas Rowe own on people’s properties around Fitz????
3 Dec 1875 : ELLEN COOK DIES, with estate unadministered.
In Feb of 1876 Mary Jane advises that Ellen Cook died on 3 Dec 1875 “leaving the said estate of the said Thomas Bready unadministered”
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5 DEC 1875 official date of death for Ellen Cook, aged 31.
19 Dec 1875
Cooke v Bready / Affidavit of Increase
i think this is where team ellen recounts all the costs they have spent on witnesses etc not realising the first rule nisi was compromised and maybe this is them explaining their costs which the court will eventually make team thomas jnr pay for. ///or given that Ellen died 5 Dec this might be them wrapping up all the costs associated with her own estate etc. and who owes who.
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affadavit goes on to justify and list various costs and lists critical witnesses for team ellen:
That I issued a subpoena attest on behalf of the Plaintiff Ellen Cooke and served copies thereof on the said Ellen Cooke, Mary Jane Simons, George Hackett, Thomas Rowe, and Henry Penketh Fergie who were in my judgement and belief material and absolutely necessary Witnesses for the said Plaintiff Ellen Cooke in this suit.
-document goes on to say how they paid all these various costs without realising the caveat had been placed. in other words they were paying for something that was about to get completely disputed and they were thinking they were paying for the whole process that was now done and dusted.
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21 FEB 1876 – Mary Jane advises that Ellen Cook died on 3 Dec 1875
Mary Jane signs document and right on end page it’s written: how the letters of administration were granted to ellen cook on 18 March 1875 “who departed this life on the third day of December last leaving the said estate of the said Thomas Bready unadministered”
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23 April 1877
Affadavit of John Seymour Wright verifying consent of Mary Jane Simons
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what I’m up to:
Mrs Mary Jane Simons
The Administratrix of the Estate of the Late Thomas Bready deceased
Costs
William Cuddy
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burrows & co 