"My learned friend has said that the testator went away leaving his affairs to take care of themselves. Now, gentlemen, I ask you if this can fairly be said of a man whose affairs are, as they have been for years, in the hands of a highly capable, completely trustworthy agent who is better acquainted with them than the testator himself? Clearly it cannot.
"To conclude this part of the argument: I submit that the circumstances of the so-called disappearance of the testator present nothing out of the ordinary. The testator is a man of ample means, without any responsibilities to fetter his movements and has been in the constant habit of travelling, often into remote and distant regions. The mere fact that he has been absent somewhat longer than usual affords no ground whatever for the drastic proceeding of presuming his death and taking possession of his property.
"With reference to the human remains which have been mentioned in connection with the case I need say but little. The attempt to connect them with the testator has failed completely. You yourselves have Heard Doctor Summers state on oath that they cannot be identified as the remains of any particular person. That would seem to dispose of them effectually. I must remark upon a very singular point that has been raised by the learned counsel for the petitioner, which is this: "My learned friend points out that these remains were discovered near Eltham and near Woodford and that the testator was last seen alive at one of these two places. This he considers for some reason to be a highly significant fact. But I cannot agree with him. If the testator had been last seen alive at Woodford and the remains had been found at Woodford, or if he had disappeared from Eltham and the remains had been found at Eltham, that would have had some significance. But he can only have been last seen at one of the places, whereas the remains have been found at both places. Here again my learned friend seems to have proved too much."
"But I need not occupy your time further. I repeat that, in order to justify us in presuming the death of the testator, clear and positive evidence would be necessary. That no such evidence has been brought forward. Accordingly, seeing that the testator may return at any time and is entitled to find his property intact, I shall ask you for a verdict that will secure to him this measure of ordinary justice."
At the conclusion of Mr. Heath's speech the judge, as if awakening from a refreshing nap, opened his eyes; and uncommonly shrewd, intelligent eyes they were, when the expressive eyelids were duly tucked up out of the way. He commenced by reading over a part of the will and certain notes--which he appeared to have made in some miraculous fashion with his eyes shut--and then proceeded to review the evidence and the counsels' arguments for the instruction of the jury.