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Johann Gottfried LUBASCH

1st wife Caroline WOLF  -  2nd wife Anna Dorothea GREISER

 

Information re Johann Gottfried LUBASCH is divided into 3 distinct parts as follows:

Part 1  -  His life, marriages, families,  in-laws,  shearing employment of his daughters and his involvement in the Battle of Waterloo, 1815.

Part 2  -  His daughters, their marriages, their lives, their connections

Part 3  -  Maria Elisabeth LUBASCH the beneficiary of her father's will, contested 1857 in the Supreme Court by 3 brothers in law

Part 4  - His land, home, barn & property dealings including tracing all the Certificate of Titles for section 3812 from 1844-1990.

All articles related to section 3812, Hd Kuitpo

 

The above Parts includes photographs and images from the John MUELLER Photograhic Collection, unless indicated otherwise.

Return to the Index of:   articles related to section 3812

 

To return to the Index of:   articles related to section 3812


 

 

From John MUELLER Collection

3 brothers in law contest the validity of Gottfried LUBASCH’s Will, 1856

LUBASCH & LIEBELT 

Maria Elisabeth LUBASCH

5th child of Johann Gottfried LUBASCH & 2nd wife Anna Dorothea GREISER

1st husband  Johann Gottfried LIEBELT 

2nd husband Johann Wilhelm PAECH. [4th child of the 2nd wife, Johann Rosina RICHTER & Johann George PAECH Snr]

 

Summary

This part documents the newspaper reporting of Johann Gottlieb LUBASCH's 4 son in laws, taking his 21 year old, youngest daughter, Maria Elizabeth LUBASCH,  to court to contest the circumstances surrounding the writing of his Will.  This court action began on 1 November 1856, & concluded 10 July 1857 in the Supreme Court.  It also documents the practice of ‘blood letting’ by 3 generations of the LIEBELT family.

 

The Family Names that are Mentioned in this Article:

LUBASCH, LIEBELT, JÄNSCH, THIELE, GWYNN, STEINBORN, WITTWER GREISER, WOLF, GRIEGER, JACKSON, HEBERLE, PAECH, RICHTER, MACARTHUR, HABEL, KWASCHNICK, MAY, JAENSCHKE, STREMPEL, ALTMANN, BLUCHER, MANGELSDORF, STRENZ, WIETH, FAERHMANN, THIELE, HAEUSLER, SCHUBERT, SCHÜTZ, MACZKOWIAK, BOTTROF, MACFARLANE, BARR-SMITH, LINKLATER, WILLIAMS, JAENSCH, KLENKE, SCHACH, WELLINGTON, ANDREWS, GWYNNE, BOOTHBY, CHALMERS, BRETOG, YATES, NOOTNAGEL, GUST, MACFARLAN, JAENSCH, ATKINSON, YEATES, BUTLER, SCHUBERT, MEYER, STERNICKE, CWRR, BOOTHBY, DALY, INGLEBY, HATCHETT, HUBBE, DOLLING, 

Maria Elizabeth LUBASCH.  Photo from 'John MULLER Photo Collection'

This is: part 2.  This article documents the newspaper reporting of Johann Gottlieb LUBASCH's 4 son in laws, taking his 21 year old, youngest daughter, Maria Elizabeth LUBASCH,  to court to contest the circumstances surrounding the writing of his Will.  This court action began on 1 November 1856, & concluded 10 July 1857 in the Supreme Court.  It also documents the practice of ‘blood letting’ by 3 generations of the LIEBELT family. 

To view part 1:  Johann Gottfried LUBASCH part 1  This article provides information about  the life & employment of Gottfried LUBASCH, his 7 daughters, his 2 marriages, his involvement in the Battle of Waterloo, the land he acquired while being a publican, a postal contractor & an introduction to his sons in law, THIELE, JAENSCH, WIETH & LIEBELT X 2.

 

Aim of This Article

  • Explore the evidence as reported in the newspapers of the day regarding the contents of Johann Gottfried LUBASCH's last Will.
  • Link the identities involved with the family tree.
  • Document the medical involvement of Johann Christoph LIEBELT b1805 & the close relationship his wife Anna Dorothea WOLF b1808 had with J.G. LUBASCH & family.
  • Explore the land assets & transactions of J.G. LUBASCH & track the possibility that his last home is still standing.
  • Display the 'John MUELLER  Photographic Collection & Other Archival Material' connected to this 1st child of the  KUCHEL and KUCHEL marriage.
  • Through family tree analysis identify the individuals captured by the camera.
  • Through record and documentation research identify their early land acquisitions and possibly farm/home sites

This article will produce supporting evidence that Christoff and his father Christoph ‘Senior’ were 'blood letters' as documented by Alan Wittwer in the LFH pages.....

 

Table of Contents

1.  Author's Note

2.  LIEBELT Family History

Chapters on 1st, 2nd & 3rd sons.

3.  How is Maria Elizabeth LUBASCH related to the LIEBELTS & the Paechtown PAECH’s?

Maria Elizabeth LUBASCH 

1st husband: Johann Gottfried LIEBELT [3rd child of 3rd son]

 LUBASCH / LIEBELT children x 3

2nd husband: Johann Wilhelm PAECH [son of Johann George PAECH & RICHTER]

LUBASCH / PAECH children x 4

1st wife of Johann Wilhelm PAECH, Anna Kristina KWASCHNICK

KWASCHNICK / PAECH children x 2

4.  LIEBELT Family History

4.1   3rd son: Johann Christoph LIEBELT & Anna Dorothea WOLF

  • Parents lived with the 3rd son
  • The only LIEBELT to have more children after arrival in S.A.
  • ‘He also practised-blood letting on occasions.’
  • Anna Dorothea was also a cousin to Gottfried LUBASCH’s first wife.
  • Farmed Blakiston

4.2   3rd son’s 3rd son: Johann Gottfried LIEBELT & Maria Elisabeth LUBASCH

  • Gottfried born Nickern
  • Arrived on 
  • Married, Chalmers Free Presbyterian Church [now Scots Church] North Terrace 1859.

4.3   The LUBASCH family + marriages of daughters

5.  Gottlieb LUBASCH dies 65 years

5.1   Obituary 1856

  • Present at the meeting of WELLINGTON and BLUCHER at Waterloo
  • Continued the pursuit of the defeated French after that battle
  • Was in the disastrous retreat from Moscow

  6.  The Court Case begins

Death reported by Christian JAENSCH

23 days after Gottfried LUBASCH’s death, on October 1856, his son in law JAENSCH questions the Letters of Administration, probate & the validity of his Will.

Court action against 21 year old Maria Elizabeth LUBASCH

Maria’s sisters ages & the length of their marriages to JAENSCH, THIELE & WIETH

28 October 1856, South Australian newspapers begin reporting under ‘ECCLESIASTICAL’ 

Benjamin BOOTHBY, Judge.

The lawyers: Edward Castres GWYNN & Richard Bullock ANDREWS

Dr Andrew CHALMERS

7.  LUBASCH V JAENSCH

8.    Author’s Summary

 

1.  Author's Note

Maria Elizabeth LUBASCH is the author's half gggg Aunt, & her 1st husband [Johann Gottlieb LIEBELT] was my 1C4R.

Maria Elizabeth LUBASCH is John MUELLER's ggg Aunt and her 1st husband [Johann Gottlieb LIEBELT] and was his 1C4R, & her 2nd husband [Johann Wilhelm PAECH] was his half ggg Uncle.

Maria Elizabeth LUBASCH was 21 years of age, engaged to Johann Gottfried LIEBELT, and living with her mother in Hahndorf when her father died in October 1856.

23 days after Gottfried LUBASCH’s  death his sons in laws Johann Christian JÄNSCH & Johann Wilhelm THIELE took their dissatisfaction regarding the Will [made by their wives father] and commenced legal proceedings in the Adelaide Supreme Court. Maria's mother, Anna Dorothea GREISER, survived her husband Gottfried by 8 years and consequently lived to see her son in laws & daughters dispute her husband's Will which he dictated in German while she was with him in their Hahndorf home.      

The Attorney General, Edward Castres GWYNN, represented the plaintiff, Maria Elisabeth LUBASCH.      

The future Attorney General, Richard Bullock ANDREWS, represented the challengers.

 

2.  Liebelt Family History by Fairalie LIEBELT & Alan WITTWER

The 3 sons of Johann Christoph LIEBELT Snr & Anna Elisabeth STEINBORN

 

3.  How Maria Elizabeth LUBASCH is related to the LIEBELTS & PAECH’S?

Maria Elizabeth LUBASCH

6th child of Johann Gottfried LUBASCH & 2nd wife Anna Dorothea GREISER

Born: 10 September 1835

1st Marriage:  16 December 1859, Chalmers Free Presbyterian Church, Adelaide, South Australia, at 24 years

Widowed: 1866 at 31 years of age

3 children aged 6, 3, infant in 1866.

2nd Marriage: 1867,  11 months later

4 children aged 22, 20, 18, 14 years in 1890

Died: 15 April 1890 aged 54 years

Buried: Hahndorf Public Cemetery, Hahndorf

1st husband: Johann Gottfried LIEBELT

3rd son of the 3rd son: Johann Christoph LIEBELT  & Anna Dorothea WOLF 

LUBASCH / LIEBELT children

├── Auguste Bertha LIEBELT 1860 m GRIEGER

├── Maria Louise LIEBELT 1863 m JACKSON

└── Anna Louise LIEBELT 1866 m HEBERLE

2nd husband: Johann Wilhelm PAECH

4th child of Johann George PAECH [Kaysher] & 2nd wife Hannah Rosina RICHTER

  • Born: 29 August 1844
  • 2nd Marriage: 10 October 1867 St Paul’s Church, Hahndorf at 23 years of age to Maria 32 years.
  • Widowed:  1890, aged 46 years
  • Died: 19 September 1916 aged 72 years
  • Buried:

LUBASCH / PAECH children

├── Caroline Emma PAECH 1868-1951 m MACARTHUR

├── Friedrich Wilhelm PAECH 1870-1940 m HABEL

├── Anna PAECH 1872

└── Auguste Hermine Hulda PAECH 1876

1st wife of Johann Wilhelm PAECH, Anna Kristina KWASCHNICK  

Child of N KWASCHNICK of Karger, Brandenburg & Rosina.

Born

2 children aged ? & infant.

Died: 21 April 1865 aged 25 years

Married: 13 February 1863 St Paul Lutheran Chapel, Hahndorf at 23 years & Johann Wilhelm PAECH at 19 years.

 

KWASCHNICK / PAECH children 

├── Rosina

└──Gustav Heinrich 1864

 

4.  LIEBELT Family History

4.1     LIEBELT Family History ‘The third son’ Johann Christoph LIEBELT & Anna Dorothea WOLF

Page 116

“Johann Christoph LIEBELT was born on January 10, 1805.  At the time of emigration he was living in the village of Nickern, his occupation being given as “Schneider”, that is, a tailor.  He married Anna Dorothea, born WOLF.  Her birthday was January 29, 1808.  Three children emigrated from Germany with Christoph & Dorothea in 1838.  The family travelled on the “Zebra” and came to Hahndorf in early 1839.

It seems likely that Johann Christoph senior and his wife lived with Christoph and Dorothea in Hahndorf.  It also seems probable that Christoph occupied House allotment no. 29 [now 89], and land allotments 143f [pt246], 99b [182], 105 [195] and 52 [109].  These blocks were later vested in trustees for school purposes.  The Church School was later built on block 29 as were residences for the teachers.  The school building, probably hilt in the late 1850’s, still stands next to the Hahndorf Academy Museum & Gallery.  In 1843, Christoph had 3 acres of wheat and 1/2 acre of potatoes under cultivation as well as having 13 cattle & 2 pigs.

Two sons were born to Christoph & Dorothea in Australia. They were named Johann Gottlieb and Johann Christoph.  As far as we know they were the only children of the third Australian generation to be born here.

[Author: 2nd generation is defined as persons born in Australia with one or both parents born overseas. 3rd generation is defined as Australian born people whose parents were both born in Australia. Gottlieb & Christoph born in South Australia are 3rd generation Australians.]

To obtain adequate land to support his family Christoph left the town of Hahndorf in 1850, and took up land on the northern edge of the Blakiston area.  His early purchases were: 

  1. Section 4420 in the Hd of Macclesfield purchased for 175 pound on November 11, 1850, from Joseph & Hannah MAY from Mt Barker - this contained 80 acres.
  2. Section 4206 Hd of Onkaparinga & section 4419 Hd of Macclesfield as a land grant for 162 pound & 5 shillings on July 17, 1852.
  3. 65 acres of section 2801A Hd of Macclesfield bought from Samuel JAENSCHKE on March 26, 1853, for 400 pound.

Other lands were added over the years.  It appears that Christoph continued to work as a tailor in addition to farming.  He also practised-blood letting on occasions.”

[Author: This is well documented in this article, see the court case]

Christoph’s only daughter Louise was the first of his children to marry.  She went to live at Woodside for a few years before returning to live on “Blackwood Park” to the north of Christoph’s holding.  All of his sons became farmers on land in the Blakiston area.  By the time of Christoph’s death all except his youngest son had married.

Anna Dorothea passed away on May 31, 1864, and was buried by Pastor STREMPEL in the cemetery of St Michael’s Church, Hahndorf.  Her sister, Maria Elisabeth, the widow ZIPPEL, came to Australia in the late 1850’s with her family- one son, August was  married and eventually settled in the South East; a daughter Johanne Louise married the widower Carl Anton WUTTKE, later of Oakbank.  Anna Dorothea was also a cousin to Gottfried LUBASCH’s first wife.

On October 25, 1865, Christoph sold section 4420 to his daughter Johanne Louise and her husband Johann Carl Joseph ALTMANN.  Five days before his death, Christoph made gifts of his property to some of his children.  His son Christoph, received section 4262, August received section 2801A, Gottfried received the sections 4206 and 4419.  These sections were the bases of their farms for the remainder of their lives.  The other son Gottlieb was to buy the section from ALTMANN’s.  This meant that all of Christoph’s children were living in one small area.

Christoph died on February 21, 1866, and was buried alongside his wife.  A tombstone marks the spot to this day.  He was the last of the three LIEBELT brothers to die. 

4.2    LIEBELT Family History Johann Gottfried LIEBELT & Maria Elisabeth LUBASCH

Page 145

Little is known about the life of Johann Gottfried. He was born in Germany, probably in the village Nickern, in 1837.  He came to Hahndorf in 1839 and moved with the other members of his family to Blakiston in 1850.  He received sections 4206 [Hd of Onkaparinga] & 4419 [Hd of Macclesfield] from his farther.  There he farmed.

Gottfried was married in December 16, 1859 to Maria Elisabeth LUBASCH, the youngest surviving daughter of Gottfried LUBASCH and his second wife Anna Dorothea born GREISER.  She was born, probably at Rissen in Germany, on September 10, 1835.  Maria Elisabeth inherited from her father section 3812 [Hd of Kuitpo] less a few acres.  Gottfried and Elisabeth were married in Chalmers Free Presbyterian Church [now Scots Church] North Terrace.

Gottfried died suddenly on November 20, 1866; an inquest was held.  He was buried in the cemetery of St John’s Lutheran Church at Hahndorf. His land was left in trust for his three infant daughters.  The land was affected when the Nairne Railway was built-part was resumed for the railway.

Maria Elisabeth remarried; her second husband was the widower Johann Wilhelm PAECH, son of Johann George PAECH & his second wife Ann Rosina born RICHTER.  She and her husband lived for most of their married lives in Hahndorf.

ON April 15, 1890, Maria Elisabeth passed away at Hahndorf and was buried in the Hahndorf Public Cemetery where a tombstone marks her grave. [For further details on Maria Elisabeth see Appendix 111]

4.3    LIEBELT Family History ‘The LUBASCH Family’

Page 166-167

There was considerable intermarriage in the early generations between members of the LIEBELT & LUBASCH families.  It is therefore not out of place to give some details of the members of the LUBASCH family.

Johann Gottfried LUBASCH came from the village of Rissen.  He was a veteran of the Napoleonic wars and had take part in the Battle of Waterloo; in later years he became involved in debate with various English persons as to whether the Battle of Waterloo had been won before BLUCHER had arrived.  In fact, out of all the early Hahndorf settlers, LUBASCH would have been the most frequently mentioned in the press and in historical writings [excluding pastors].

LUBASCH married twice.  His first wife was a first cousin to Anna Dorothea born WOLF, the wife of Johan Christoph LIEBELT from Blakiston.  The second wife was Anna Dorothea born GREISER. Some details of the children now follow,

1st daughter: Johanne Louise LUBASCH [1820-1899]. She married Johann Gottlieb WIETH in Germany, remaining behind from the 1838 emigration.  In 1855 they came to Australia on the ‘La Rochell’.  Her father left her a cottage and two acres of land at the southern end of Hahndorf.  Her son in law J.F.W. FAEHRMANN lived nearby.  Among her children were:

├── Caroline Henrietta [Mrs Gottfried MANGELSDORF]  1820-1899 married Johann Gottlieb WIETH 1812-1881. ‘two of her children married into our family’

├── Johanne Pauline [Mrs Robert STRENZ] 1849-

├── Auguste Bertha Marie 1854-1856 1 year old

├── Gottlieb Oswald Edmund WIETH 1857-1930 married Marie Julia LEUNIG 1857-1926. 

└── Auguste Martha [Mrs J.F.W. FAEHRMANN] 1860-1927 married Johann Friedrich Wilhelm FAEHRMANN 1857-1935 

  • 2nd child of Johann Carl Friedrich FAEHRMANN & Johanna Eleonore LIEBELT 

Johanne Louise LUBASCH died at her daughter’s residence at Parkside on May 16, 1899, & was buried in the Hahndorf Cemetery. 

[Author: SAGHS microfiche, District of Mount Barker Deaths 1899 state differently to Alan WITTWER & Fairlie LIEBELTS account of her final days.   While Johanne Louise LUBASCH’s residence was normally Hahndorf, she died of dementia and senile decay at Parkside Asylum where she was admitted on 15 September 1888 and stayed until her death on 16 May 1899.]

Johann Gottlieb WIETH died on September 27 1881, & was the last person to be buried in the cemetery of St. Paul’s Lutheran Church, Hahndorf.

[Author: Gottlieb WIETH was the last person buried at St Paul’s Cemetery, Hahndorf.]

2nd daughter Eleanor’s Henriette LUBASCH [1821-1901].  Emigrated in 1838 as did the remainder of the children.  She married Johann Wilhelm THIELE in the very early days of settlement.  He was a son of Samuel THIELE & Anna Rosina born SCHULZ.  They lived at Grünthal until the 1880’s when they moved into Hahndorf.  Their children were:

├──  Johanne Louise [Mrs HAEUSLER] 1839-1901 

├──  Johanne Caroline [Mrs SCHUBERT] 1842-1901

├──  Johann Gottlob THIELE [1843-1926] married Johanna Luise Karoline PAECH [1846-1923]

  • 5th child of Johann George PAECH Snr & Hannah Rosina RICHTER.

├── Eleonore Henriette [Mrs SCHÜTZ] 1844-1886 married Carl August Friedrich Wilhelm SCHUTZ

├── Johann Wilhelm THIELE 1846-1925

├── Carl August THIELE 1847-1913 married Johanne Pauline MACZKOWIAK 1851-1901

├── Johanne Emilie Bertha 1849-1864

├── Johann Friedrich THIELE 1850-1925 married Auguste Pauline Lydia BOTTROF 1856-1916

├── Gustav THIELE 1852-1917 married Pauline Elisabeth LIEBELT 1860-1936

  • 6th child of Johann Christoph LIEBELT 1825-1910, [2nd son’s 2nd child] & Johanne Luise LIEBELT 1824-1898 [1st sons 1st child]. 

├── Hermann Reinhold THIELE 1854-1861 aged 7 years.

└── Johann Ferdenand THIELE 1856-1861 aged 4 years.

Eleanore Henrietta LUBASCH died at Hahndorf on December 29, 1901.

Johann Wilhelm THIELE who was born at Nickern in 1819 died at Hahndorf on April 5, 1909, aged almost 90.  Both are buried in the Hahndorf Cemetery.

Johanna Luise LUBASCH 6 April 1820 (BISA) Prussia-16 May 1899  Inherited the cottage and 2 acres of land at the Southern end of Hahndorf LFH page 166.

The children from the 2nd marriage

3rd daughter: Johanne Dorothea Louise [ca1824-1900].  She married Lachlan MacFarlane who was a son of Thomas MacFARLANE a grazier in Argyllshire, Scotland.  Lachlan was born in 1806 and was a relative of Duncan MacFARLANE one of the original owners of Hahndorf. He arrived in Sydney in 1840 travelling overland from there to Melbourne and then driving stock to Adelaide.  He and Louise were married on February 24, 1845.  Lachlan became a prosperous landholder in the Mt Barker district where he built the first buildings of the Oakfield Hotel. This was later sold to Mr. R.Barr-Smith who extended it to become his Hills mansion.  In turn it became the well known Mt Barker Rest Home.  Lachlan was for many years a district councillor and Justice of the Peace.  Among their children were Mesdames LINKLATER, N.A. & T. WILLIAMS, Laura Lachlana, Amelia, Christina Elisabeth, & Thomas Frederick.  Lachlan died on April 16, 1892.  Louise lived on until May 2, 1900.  Both are buried in the cemetery of St. James Church of England, Blakiston.

4th daughter: Johanne Caroline [1827-1902].  She married Johann Gottlieb LIEBELT.  See the history of the second son, his first son.

5th daughter: Johanne Dorothea [1833-1911].  Dorothea was born on April 29, 1933.  She married Christian JAENSCH, the son of Christian JAENSCH & Maria Elisabeth born KLENKE. Christian was born at Kay on May 22, 1827.  He was a farmer and butcher in Hahndorf, living on the corner of PIne Avenue and the Main Street.  Their children were Louise Hannah, JOhann Friedrich Wilhelm, JOhann August, Christian Wilhelm, Caroline Bertha, Louise Martha, Oswald Alfred, Anna Lydia.  Dorothea died on February 9, 1911; Christian died on October 11, 1917.  Both are buried in the Public Cemetery at Hahndorf.

6th daughter: Maria Elisabeth [1835-1890].  She married Johann Gottfried LIEBELT.  On his death she remarried Johann Wilhelm PAECH on October 10, 1867.  Wilhelm, a son of JOhann George PAECH and Anna Rosina born RICHTER was born on August 29, 1844.  They lived in the Hahndorf district where Wilhelm was a farmer.  Maria Elisabeth died on April 15, 1890.  After her death Wilhelm went to live at Tailem Bend. There were four children from their marriage - Friedrich Wilhelm, Emma Caroline [Mrs MacARTHUR], Auguste Hermine Hulda & Anna.  Wilhelm died on September 19, 1916, and is buried in the Hahndorf Cemetery.

7th daughter: Anna Elisabeth [ca1838-?]. Mentioned only in the listing of Pastor Iwan.  No trace of her in Australia.  Maria Elisabeth was always referred to as the youngest daughter of LUBASCH.

Soon after arrive in Hahndorf Gottfried opened a coffee shop on his block of land [where the present Four Square store stands]. This shop soon obtained a licence and became Hahndorf’s first hotel, trading under the name “German Arms”.  Gottfried ran the hotel for a number of years.  The hotel was sold and later rebuilt opposite.  In the First World War the game was changed to ‘Hotel Ambleside’.  Gottfried was also the mail contractor for the town.

In 1843 Gottfried had 3 acres of wheat and 1/4 acre of barley under cultivation, as well as growing 1/2 acre of potatoes.  He also possessed 90 sheep, 13 cattle, 2 ponies [for the mail cotract], 4 pigs & 4 goats.  He purchased the 80 acre section No 3812 in the Hd of Kuitpo.  This section was on the southern fringe of the town-part of it was severed and sold to J.G. SCHACH, another part was willed to his daughter Mrs WIETH.

Gottfried died in 1856, his wife in 1865.  Both are buried in the St Michael’s cemetery in Hahndorf.

5.    Gottlieb LUBASCH dies

Gottlieb LUBASCH dies on the first Sunday in October aged 65 years

Obituary: 1856, 5 October, Johann Gottlieb LUBASCH 

On the 5th October, at Hahndorf, after a short illness, Gottfried LUBASCH, aged 65 years 11 months and 22 days.  The deceased was one of the first settlers at Hahndorf, and was well known to all the earliest settlers in the District of Mount Barkers as an honest, industrious, and careful colonist, and was universally respected.  He was also an old veteran of the Blucher school, having been present at the meeting of WELLINGTON and BLUCHER at Waterloo, and was amongst those who continued the pursuit of the defeated French after that battle; he was also in the disastrous retreat from Moscow, and experienced great sufferings in that memorable campaign.  During the late war with Russia it was his constant practice to make repeated enquiries how the allies got on, and always expressed great satisfaction on hearing of any triumph the allies obtained over the Russians.  He was a great admirer of the English nation and army."

This obituary was duplicated  in the Adelaide Observer [SA : 1843-1904] 11 October 1856 page 5.

 

6.  The Court case begins

6.1  Death reported by Christian JAENSCH

  • SAGHS District of Mount Barker Deaths 1856-1879 microfiche:  Gottfried LUBASCH, 66 year old farmer, died from pneumonia, in Hahndorf where he usually lived,  and his death was reported by his son in law Christian JAENSCH of Hahndorf on the following day, 6 October 1856.

23 days after Gottfried LUBASCH’s death, on October 1856, his son in law JAENSCH questions the Letters of Administration, probate & the validity of his Will.

The husband of Gottfried’s 5th daughter instigate  court action against the youngest sister Maria Elizabeth LUBASCH, 21 years of age in 1856, and probably living her mother Anna Dorothea GREISER who was 57 years of age. Christian JAENSCH had married into the LUBASCH family on 15 April 1853. He now engages Mr Richard Bullock ANDREWS.

Maria’s sisters ages & length of marriages in 1856

  • Johanna Luise WIETH 36 years: married for 16 years had the 3rd of her 5 children, had not seen her father for 17 years, arrived South Australia 1855 on 'LaRochelle' . 

  • Johanna Eleanore Henriette THIELE 35 years: married for 17 years had all of their 10 children from 1842-1856, lived at Grünthal until moving back to Hahndorf in 1880's.

  • Johanna Dorothea Louisa McFARLAN 32 years: married for 11 years & had 7th of her 11 children.

  • Johanna Caroline LIEBELT 29 years: married for 9 years & had 4th of her 10 children.

  • Johanna Dorothea JAENSCH 23 years: married for 3 years, & just had her 3rd of 9 children.

  • Maria Elisabeth LUBASCH 21 years unmarried, probably living at home with her mother at 80 Main Rd, Hahndorf.

28 October 1856, South Australian newspapers begin reporting under ‘ECCLESIASTICAL’ 

SA Register [Adelaide, SA : 1839-1900]

1856:    Tuesday 28 October 1856

1857:    Thursday 9 April 1857, Wednesday 22 April 1857, Tuesday 23 June 1857, Wednesday 24 June 1857, Thursday 9 July 1857, Tuesday 29 September 1857

1865:    Friday 16 June 1865, Saturday 24 June 1865

1867:    Saturday 17 August 1867

Adelaide Observer [SA : 1843-1904]

1857:    Saturday 28 March 1857, Saturday 25 April 1857, Saturday 27 June 1857

Adelaide Times [SA : 1848-1858]

1857:    Monday 22 June 1857, Tuesday 23 June 1857, Wednesday 24 June 1857

SA Register 28 October 1856, page 3 & Adelaide Observer [SA : 1843-1904] 1 November 1856 page 3  ECCLESIASTICAL SIDE.  Re Gottfried LUBASCH, Deceased.  Mr ANDREWS moved herein for a fiat directing the letters of administration to Christian JAENSCH son in law of the deceased, and his daughter, the wife of Christian JAENSCH.  The Court directed the production of evidence as to an informal document in English and German, left by the deceased, and which it was thought might be set up as a Will.

Adelaide Observer [SA : 1843-1904] 28 March 1857 page 3. ECCLESIASTICAL.  In the Matter of the Will of Gottfried LUBASCH, deceased.  The Attorney-General obtained an order to show cause why probate should not be granted to Maria Elizabeth LUBASCH.  Mr ANDREWS consented to the matter being fixed for argument on the 2 April, or the earliest day the Court and counsel could devote to it.

SA Register [Adelaide, SA : 1839-1900] 9 April 1857 page 3  ECCLESIASTICAL SIDE. In the Matter of the Will of the late Gottfried LUBASCH.  The Attorney-General moved that the rule be made absolute that probate be granted to Maria Elizabeth LUBASCH.  It was arranged that the argument should stand over until the next sitting of the Court, Mr GWYNNE agreeing on the part of Christian JAENSCH that no exclusive right shall be set up to act in the interim.  Court adjourned until Tuesday 21 April.

SA Register [Adelaide, SA : 1839-1900] 22 April 1857, page 3 and Adelaide Observer [SA : 1843-1904] 25 April 1857 page 4. ECCLESIASTICAL SIDE.  In the Matter of the Will of the late Gottfried LUBASCH. The Attorney-General moved that the rule to show cause why probate should not be granted to Maria Elizabeth LUBASCH be made absolute.  Mr ANDREWS for Christian JAENSCH and Anna Dorotea, his wife, showed cause; but in the course of reading affidavits in support of his clients's claim His Honour said it was clear that the object was to question the validity of the will of the deceased, and that was a question which the Court would not decide on the affidavits filed.  He recommended the learned gentlemen to agree to an issue to be tried at the nee Civil Sittings. It was agreed to act on His Honor's suggestion; in the meantime, joint letters of administration, previously granted, to be enforced.   Court adjourned until Friday next.

 

Benjamin BOOTHBY, Judge.

INCOMPLETE

 

The lawyers: Edward Castres GWYNN & Richard Bullock ANDREWS

Edward Castres GWYNN born Sussex, England, died Glynde S.A. [1811-1888] for Maria Elisabeth LUBASCH the defendant.

Arrived in SA on ‘Lord Goderich’ 15 April 1838

South Australian Attorney-General 21 August 1857-1 September 1857, 10 days only.

Judge of the Supreme Court of SA 1859-1881.

Richard Bullock ANDREWS born Epping, Essex. [1823-188.] for Christian JAENSCH and Anna Dorotea [sic] the plaintiff.

Arrived 14 Dec 1852 on steamship ‘Sydney’

1853 appointed notary public

1857 elected to House of Assembly for Yatala

Attorney General of SA 1-30 September 1857

Queens Council 1865 and in 1870 became crown solicitor and public prosecutor. 

Politician and judge.., practice in Supreme Court of SA and Local Court at Mt Barker then set up an office in Adelaide.

Mr Andrews.  ‘At a house on the Nairne road, named “Andrewville”, the first lawyer in the area lived- Judge Andrews, a magistrate in the courts of South Australia. ‘Early Business in Mount Barker. SA.’]

Note:    The First Session of South Australia’s Parliament met for the first time on April 22 1857 under the leadership of the Hon BT Finnis.  This was the first day on which the people of South Australia had the right to exercise self government.  Parliament was opened at 1pm by Benjamin Boothby, Acting Chief Justice.  Edward Castres GWYNN was Attorney-General for 10 days from 21 August 1857-1 September 1857 & he was succeeded by Richard Bullock ANDREWS on 30 September 1857 until 9 May 1860.

The acting Chief Justice ?? Benjamin Boothby [1803-1868] Australian Dictionary of Biography.

 

Dr Andrew CHALMERS born 22 Nov 1820 in Neilson, Renfrewshire, Scotland, married Benjamina Horne McFARLANE 25 Dec 1850, Mt Barker.

He died 6 OCtober 1862 aged 41 years.

He studied medicine at Glasgow University and was the Surgeon Superintendent on the Princess Royal arriving in 1848.  

South Australian Friday 27 July 1849, he took over the medical practise of Dr INNESS in Mt Barker.  In Dec 1861 they moved to Adelaide and his practice was at 216 Rundle St.

 

7.  LUBASCH V JAENSCH before a Jury to decide whether a written Will was the true Will. 

1st Witness:  Anna Dorothea wife of Johann Christoff LIEBELT & 1st cousin of LUBASCH’s 1st wife.

2nd Witness :  Anna Dorothea LUBASCH, widow of Gootfried [sic] LUBASCH.

3rd Witness: Johann Christoff LIEBELT farmer, of Blakiston, husband of 1st witness.

4th Witness: Carl Friedrich Adolph STREMPEL Hahndorf, Lutheran Pastor.

5th Witness: Maria Elizabeth LUBASCH, plaintiff, youngest daughter of LUBASCH

6th Witness: Dr Andrew CHALMERS

6th Witness: BRETOG

 

The trial was reported in the

South Australian Register [Adelaide, SA:1839-1900], Law and Criminal Courts.

 

22 June 1857 LUBASCH V JAENSCH Adelaide Times [SA : 1848-1858], page 3

LUBASCH V. JAENSCH  22 June 1857

The Attorney-General for plaintiff; Mr Edward Castres GWYNNE

Mr Richard Bullock ANDREWS for defendant.

Dr MATTHEWS acted as interpreter

1st Witness:  Anna Dorothea wife of Johann Christoff LIEBELT & 1st cousin of LUBASCH’s 1st wife.

The Attorney-General, in opening the case, stated that the Jury would have to decide an issue which had been directed by his Honor the Acting Chief Justice, for the purpose of ascertaining whether a certain will, in writing, was the true will of one Gootfried [sic] LUBASCH, deceased. Having given an outline of the case he called Anna Dorothea, wife of Johann Christoff LIEBELT, who deposed that she knew Gootfried [sic] LUBASCH, of Hahndorf, deceased.  Saw him on the Friday before his death, about 2 o'clock in the day.  

The pastor, Mr STREMPEL, was there, speaking about religious matters.  Elizabeth, the plaintiff, and her mother, the wife of the deceased, were also there.  Deceased, during the conversation, wished witness's husband to come, saying that he had no will made out.  She then sent for him, and left about sunset.  At this time Gootfried [sic] LUBASCH was in the full possession of his faculties.  About the end of the previous April [last year] she went to see LUBASCH in consequence of having been sent for.  He asked her if her son would take care of his household and farm.  LUBASCH said Maria Elizabeth was the "heir", and the witness's son should take charge of the farm conditionally that he paid 900 pound down, 200 pound to each of four sisters and 100 pound to the fifth sister, Maria Elizabeth.  

Another provision he stated was that the eldest daughter should have a certain cottage and land.  He further said that the period when the 900 pound should be paid would be mentioned in his last will and testament.  About the middle of the following July LUBASCH spoke to witness again, saying that he could not get his affairs properly arranged, but that he was anxious to do it.  He said that he was always hindered from doing it by Mr MACFARLINE [sic].  He had repeatedly called on Mr MACFARLINE to go with him to Mr ANDREWS to make his will, but Mr MACFARLINE had invariably excused himself from going.  He had never seen Mr ANDREWS on the subject.

By Mr GWYNNE: On the Friday when she first mentioned having seen deceased, they were all in a front room, it was the same room and sofa where deceased died.  At the second interview she mentioned the pastor was not present, there were only Elizabeth and witness.  The pastor was in another room with Mrs LUBASCH, he had left the room in a few minutes before the conversation.  On this occasion LUBASCH spoke first, he asked her to go for her husband, saying that he had no testament written, and he would like his will to be drawn out.  She asked LUBASCH if her husband should stay all night.  He replied that her husband might do so, but he wanted him to assist in making out his will.  She and her husband often visited deceased.

There were 5 daughters of deceased, who lived at distances of from half a mile to two miles away from him. Mrs THIELE, Mrs LIEBELT, and Mrs MACFARLANE lived two miles away, and Mrs JEANSCH (sic) and Mrs WHIETH (sic) much nearer. Witness and her husband lived three miles off.  None of the 5 sisters were present during the interviews she had spoken of.  She often visited him during his illness.  During the interview there was no doctor present, and she did not know if one had been sent for.  In going home afterwards she passed Mrs JAENSCH's house, but did not call and tell her of the state of her father's health.

Did not tell it to any of the daughters.  Her son was not yet married to Miss LUBASCH. They were engaged before any of the conversations to which she had alluded took place.  Was not aware that the marriage depended on the result of that suit.  No day had been fixed for her marriage.  

She was not aware that LUBASCH had two or three small sections.  At the interview in April, Elizabeth came to fetch witness.  LUBASCH then wished her son to be present, in order to ascertain his intentions about the farm and his daughter.  Mrs LUBASCH and her daughter Elizabeth were present.  LUBASCH was in his usual health at that time, but he had been complaining.  Her son was 26 years of age; he often went to the LUBASCH's house, but she went there oftener.  

She did not do the courting for him.  She took no particular trouble in the settlement of the property.  Was not present when the will was made, nor did she see LUBASCH alive subsequently.  Did not see nor hear of any of the other daughters besides Elizabeth being there until after will was made.  Her husband had been brought up a tailor. By the Attorney-General -Had known LUBASCH from her childhood, She was a first cousin to his first wife.

2nd Witness :  Anna Dorothea LUBASCH, widow of Gootfried [sic] LUBASCH.

Anna Dorothea LUBASCH, widow of Gootfried (sic) LUBASCH, deceased, deposed that she remembered the Friday before he died. On that evening, Mr LIEBELT came in.  LUBASCH asked LIEBELT if his son was not with him.  LIEBELT answered no.  LUBASCH said the perhaps it was as well he was not there.  He then said to LIEBELT he ought to make testament, as there was none made.  Deceased further said he thought they should send for Pastor STREMPEL, and he sent a boy for him. The pastor came, and LUBASCH said it was his intention to make a will and he asked the pastor to do it for him.  The pastor said he would, and asked in what way he wanted it made. LUBASCH expressed a wish that after his daughter was married his son-in-law should take charge of the farm, and pay out of it 900 pound to the others.  The pastor asked LUBASCH the name of his first daughter and of the other daughters successively.  They were all taken down.

By the Attorney-General - The names of the daughters were put down in order that it might be mentioned how much each one should have.  Four of the daughters were to have each 200 pound.  The eldest were to have two acres of land and some houses, and the youngest daughter was to have the farm.  The money was to be paid by the daughter who took the farm.  It was arranged that 400 pound should be paid after her husband's death, and that 500 pound should remain, the interest of which was to go to witness.  LUBASCH was ill at the time, but spoke sensibly.

By Mr GWYNNE: LIEBELT came about an hour after sunset, on the Friday.  He bled LUBASCH the day before.  She did not send for a doctor until the Saturday.  When LIEBELT arrived, only herself and daughter were present. A person names Christian JUST (sic) was present when the will was made. The pastor was there the day before, but LUBASCH said nothing to him then abut the will.  LUBASCH took to his bed on Tuesday, five days previous to his death. He complained of his chest, and gradually got worse until he died. On the Saturday Dr CHALMERS was sent for, at LUBASCH's request. Deceased was never delirious before his death.  When he made the will, he was in the same state as when Dr CHALMERS saw him.  She never at any time thought he would die, but became alarmed when she saw he was falling asleep and dying away. LUBASCH requested LIEBELT to bleed him; he had done so before.  She did not give any notice to the five daughters of her husband's illness but thought they were well aware of it.  Her husband never made any request that his daughters should be present.  There was a person named James YATES whom LUBASCH had adopted as a servant. YATES left a short time before LUBASCH's death, and only saw him again on the morning of his death.  Did not know if LUBASCH had often expressed a wish to see YATES. None of the five daughters of the deceased saw him before he made a will.  Did not now why they did not call there. At the time her husband died, he had an 80 acre section and a block of 15 acres. He also had an interest in the German Arms public - house, and 300 pound out on mortgage. There was a debt of 80 pound for which they had no acknowledgement. Therefore only two or three pounds in the house at the time of death.  She had a box which was locked, but there was no money in it.  By the Attorney-General - The married daughters  very seldom called at their father's house, except Mrs THIELE, who called on the Saturday previous to the death "none" of them called for several weeks.   [Left sitting.]

NEXT DAY SAME NEWSPAPER

23 June 1857 LUBASCH V JAENSCH Adelaide Times [SA : 1848-1858], page 3

3rd Witness: Johann Christoff LIEBELT farmer, of Blakiston, husband of 1st witness.

LAW AND POLICE COURTS Supreme Court-Civil Setting (Continued from yesterday's Times). Johann Christoff LIEBELT, farmer, resided near Blakiston.  Was at the house of the deceased on the Friday previous to his death, when LUBASCH requested that the will should made out in the presence of Mr ANDREWS.  Represented the difficulty of finding Mr ANDREWS, as it was very dark and there was a doubt of his being at home.  Suggested that the Pastor should be sent for, which was done. On the Pastor's arriving, and after LUBASCH had described his illness, witness said to the Pastor, "You need not be surprised that LUBASCH has sent for you to write something." LUBASCH asked the Pastor if he could make out his will and he replied, "Yes, I have had some experience in those matters."  

He (the Pastor) then proceeded to write the will at the dictation of LUBASCH, which was as follows:-"That his four married daughters should have 200 pound each, and that his daughter Maria Elizabeth should pay them from the estate 400 pound, in twelve months after his death, and reserve 500 pound more for them, the interest to be paid to the mother during her life."  

The pastor then asked why was to be done with the ninth 100 pound, when deceased stated that he wished his daughter Maria Elizabeth to have 100 pound of the 500 pound;  also, that his daughter, Mrs WEITH, should have the two acres of land and the house standing thereon.  The pastor read the will over to him after it was completed, and asked if it was correct, when deceased replied, in German, "I understand it."  He then guided his hand to make his mark to the will.  Witness remained with deceased until the following morning.  He was quite sensible.

By Mr GWYNNE- The document produced was the will referred to.  Saw LUBASCH put his cross to it. The pastor said he would take it to the school master, and have it translated into English.  The pastor said he must take the will to town if Mr LUBASCH died.  Afterwards he obtained it from the pastor, and took it to Mr NOOTNAGEL in town to have it registered.  Bled LUBASCH in the foot on the Thursday, and took a coffee cup full of blood from him.  Bled him in the same place some three years ago.  LUBASCH personally directed the Pastor in writing out the will without any interference from him, except to ask him whether he alluded to the plaintiff when he referred to his fifth daughter.  

The interest on the 500 pound was to be 5 per cent., at Mr LUBASCH's request, without any suggestions. Did not inform LUBASCH's relations of his illness previous to the drawing out of the will. By the Advocate-General - Bled LUBASCH at his own request. Had practised blood-letting himself, and his father before him, in Germany. The Advocate-General-A proof, your Honour, of the transmission of instincts, (A. laugh)

4th Witness: Maria Elisabeth LUBASCH plaintiff

Maria Elisabeth LUBASCH, the plaintiff, remembered the Friday before her father's death.  He was quite conscious of what he was doing.  Dr CHALMERS called the next morning. By Mr GWYNNE:  Received the will the Thursday after her father's death.  She was present when her father died.  He was quite sensible when he made the will. This was continued from yesterday, The Attorney-General said the plaintiff's case was closed.

Mr GWYNNE address the Jury at some length.  He contended that it was a most unaccountable circumstance that the Pastor was not put in the witness box.  He (Mr GWYNNE) would do so without being in any way acquainted with the evidence he would give.  He would show that deceased was induced to sign the will while in a state of stupor.  It was a very suspicious circumstance that no doctor was called until after the will was obtained, excepting, perhaps, the tailor LIEBELT, who acted in that capacity, by bleeding deceased's foot.  In the will only 900 pound were bequeathed to four daughters, although, as he was instructed to state, the property left by the deceased was worth 3,000 pound Dr CHALMERS who was called to see the deceased on the Saturday would prove that owing to inflamation (sic) of the lungs, he was in a state of morbid stupor, and that he had been for twelve hours previously, which would include the time at which will was made.  

The learned counsel then commented on the evidence of the plaintiff's witnesses,  and concluded by saying that it was for the Jury to consider whether the will was the last true will and testament of deceased, or whether it was merely concocted by designing persons, at the time when he was incapable of taking a rational view of the matter. 

5th Witness: Carl Friedrich Adolph STREMPEL Hahndorf, Lutheran Pastor.

Carl Friederic Adolphe STREMPEL, a Luthern (sic) minister, stated that he resided at Hahndorf. Had known the deceased about a year.  Recollect his being ill in the month of October last.  It was on Friday, the third of October last, that the will was made.  Did not see him the previous day.  First saw him on the Friday, about 2 o'clock; he was then on the sofa.  He went there by request of Miss LUBASCH, in his professional character.  He found the deceased suffering very much, and he spoke very little.  Witness, therefore, spoke to him in such a manner that he could answer either yes or no.  

On first entering, Mr LUBASCH said to him "you find me in great illness".  Deceased was in a fit state of mind to receive spiritual consolation, and was in the full possession of his reasoning faculties, but his memory partially failed him. Later in the evening his mind appeared to fail him.  In the course of the afternoon witness went to a German Doctor, who lived close by, for assistance, but he was out.  LUBASCH would have preferred Dr CHALMERS, at Mount Barker, but witness considered it was too far.  Finding that none of the family would go for the doctor he went himself, but returned without being able to find him.  

During the evening he was about to leave the prayer-meeting, when the boy, Christian GUST, came to him, and said that LUBASCH was very bad. Witness called on him again aboout 10 o'clock. He found Mr LIEBELT there sitting on sofa next to the deceased. Mrs LIEBELT and Mrs LUBASCH were also there.  Witness asked for what purpose he was called, when, either Mr LUBASCH or Mr LIEBELT said it was for the purpose of making out a will.  They both spoke to him at once.  He thought that LIEBELT asked him if he could make out a will. Witness replied that he had been present once when a will was made, and he was acquainted with the necessary form.  He then sent Christian GUST to fetch a form of some other person's will.  The will produced was in his writing; it was verbatim of the form he had mentioned, except the names which were Gottfried LUBASCH and Maria Elizabeth LUBASCH.

24 June 1857 Adelaide Times [SA : 1848-1858] page 3.

6th Witness: Dr Andrew CHALMERS

LAW AND POLICE COURTS Supreme Court-Civil Side.  (Continued from yesterdays Times) LUBASCH v. JAENSCH.  

Andrew CHALMERS, M.D. stated that he was practising at Mount Barker.  Had known Gootfried (sic) LUBASCH eight years previous to his death.  Was called in on the Saturday morning before his death, and found him suffering from inflammation the lungs.  Deceased was sinking at the time, and was under the influence of a morbid drowsiness of the brain; his mind was wandering and his language incoherent.  He must have been in that state for at least twelve hours, and most likely for twenty four hours previously. Much additional evidence was offered, which did not materially differ from that which had already been adduced.  

 

…………………………………………………………………………………………………………………………………………………………………………………………………………………

 

NEW PAPER THE REGISTER

LUBASCH v JAENSCH as reported by the Register

1857 SA Australian Register [Adelaide, SA : 1839-1900] 23 June, page 2, 

LAW AND CRIMINAL COURTS Supreme Court - Civil Sittings, Monday June 22  before His Honour Mr. Charles MANN.  

LUBASCH v. JAENSCH. 

1st Witness: Anna Dorothea LIEBELT

This was an acting brought for the purpose of trying the validity of a will.  The Attorney-General for tho (sic) plaintiff; Mr GWYNNE and Mr ANDREWS for the defendant. Dr MATTHEWS acted as interpreter.

1st Witness: Anna Dorothea wife of Johann Christoff LIEBELT & 1st cousin of LUBASCH’s 1st wife.

The Attorney-General stated the case to the Jury, and called Anna Dorothea LIEBELT, wife of Johann Christoff LIEBELT, who deposed to having seen Gottlieb LUBASCH, the plaintiff's father, on the Friday previous to his death, which occurred in October, 1856.  Pastor STREMPEL was present with the plaintiff, and the wife of the deceased.  Remained there till nearly sunset. The deceased wish to see witness's husband respecting the making of his will.  Went for her husband, and sent him to the deceased.  

The deceased was very sensible and rational during the time she remained with him.  Previous to this, about the end of April, 1856, the deceased sent for her, and asked her if her son, who was then engaged to his daughter, Maria Elizabeth, would take charge of his farm at his death.  He stated that Maria Elizabeth [the plaintiff] was his heiress, and he should require her to pay over to each of her four married sisters 300 pound The eldest daughter was to have two acres of land and a small cottage. Witness's son was expelled to marry the deceased's younger daughter, and the deceased wished him to pay the amounts named from the proceeds of the farm, in a manner to be provided for in his will.

Saw him again at the end of June or the beginning of July, when he said he had not been able to execute his will.  He said he had frequently called on Mr MACFARLANE, one of his sons in law, to go with him to Mr ANDREWS, the solicitor, at Mount Barker, for that purpose, but Mr MACFARLANE always made excuses for not going.  He also said he had been once himself to Mr ANDREW's house, but he was not then at home.

By Mr GWYNNE:  On the Friday previous to the death of the deceased the Pastor was at his house before her. The deceased was lying on a sofa in the sitting room.  When she arrived she offered her hand to him, and asked him how he was. He replied that he was very ill.  No other conversation followed between them for the next hour and a half.  At the time the Pastor left the room.In five or seven minutes after his leaving the conversation occurred respecting the will.  No one was present except the deceased, the plaintiff, and witness.  LUBASCH spoke first, and asked her to go and send her husband to him.  She asked if he required her husband to stay all night.  He said he might do so if he pleased, but he wanted to his last testament written.  

Mr MACFARLANE lived about two miles and a half or three miles from the deceased.  Mrs JAENSCH lived half a mile from him.  Mrs LIEBELT two and a half or three miles from him.  Mrs WIETH lived on the same section, and Mrs THIELE lived two miles off.  Witness lived about the same distance from the deceased as Mrs MACFARLANE.  The person she had named were the daughters of the deceased.  Neither of them was present at the house of the deceased at the time referred to.  Heard from her husband that the deceased was bled the previous day.  Her husband was a tailor, and bled the deceased. 

On leaving the house of the deceased on the Friday, went to the store, and passed the house of Mrs JAENSCH. Did not call and tell her how her father then was. All the daughters knew of their father's illness. Witness's son was engaged to the plaintiff in April, 1856.  Their marriage was not dependent upon the result of that action that she was aware of. Did not know how much landed property he had left.  When she saw the deceased, in April, 1856, he asked her what were the intentions of her son, both with regard to his (deceased's) daughter Maria Elizabeth, and his farm.  

Her son and the deceased's daughter were engaged to each other before that time.  Remained at the deceased's house about two hours. There was no allusion to their marriage.  Her son was twenty six years of age.  Did not know how often he had been to see the plaintiff. Did not go to the house herself to do the courting.  Had not been especially anxious about the settlement of the property.  Was not present when the will was made.  Did not see the deceased afterwards, till his death.  Never saw or heard of any of the daughters of the deceased being present with him during this last illness, before the will was made. 

By the Attorney-General: Had known the deceased from childhood; they were distant relatives, witness being first cousin to the deceased's first wife. They came from the Frankfort-on-the-Oder.  

2nd Witness :  Anna Dorothea LUBASCH, widow of Gottfried LUBASCH.

Anna Dorothea LUBASCH, widow of the deceased, deposed to her being present when the will was made. LIEBELT said to her husband he ought to make a will, and that they ought to send for Pastor STREMPEL.  He was accordingly sent for, and when he arrived LUBASCH said to him it was his intention to make a will, and asked if he could undertake to prepare it. 

The Pastor said he could, and enquired of LUBASCH the particulars. Her husband expressed his wish that after his youngest daughter was married her husband should take charge of the farm and pay out of it 900 pound.  The Pastor enquired the names of her daughters, all of which were taken down and read to her husband.  The eldest was to have two acres of land with a cottage on it, the youngest to have the farm, and the other four to be paid 200 pound each from the proceeds of the farm.  They were to be paid 100 pound within a year, and the interest upon the other 500 pound was to be paid to witness during her life.  Her husband was very sensible and very clear in his mind at the time, but very weak on account of an affection (sic) of the chest.

By Mr GWYNNE:  Did not send for a medical man till the day after the will was made.  Christian GUSTE (sic) was present when the will was made.  LUBASCH was the first who commenced the conversation respecting the will by saying that there was none made, and he might die.  He as also the first to propose sending for the Pastor.  The Pastor was there in the morning of the same day, but nothing was said to him about the will at that time.  Her husband was confined to his bed five days, and died on the Sunday after the will was made.

By the Attorney-General:  Her husband was not confined to his bed, but remained on the sofa till he died. Her married daughters very seldom called at their house.  

3rd Witness: Johann Christoff LIEBELT farmer, of Blakiston, husband of 1st witness.

Johann Christoff LIEBELT, farmer - Resided near Blakiston. Remembered going to the house of the deceased on the Friday previous to his death.  LUBASCH gave him his hand, and said he wished to have his will written out.  Asked him whom he wished to be present beside himself.  LUBASCH said he had been thinking that Mr ANDREWS should be present. Asked him who he should send for Mr ANDREWS. LUBASCH made no reply. This was between 7 and 8 o'clock.  Informed the deceased that it was very dark it would be difficult to get any one to go for Mr ANDREWS, and it was probably Mr ANDREWS would not be at home.  Suggested to LUBASCH to send for the Pastor. LUBASCH said it would be lawful for the Pastor to make his will, and directed that Christian GUSTE (sic) should be sent for him.  After he was gone, LUBASCH remarked that perhaps the Pastor was performng the evening service, and directed his daughter (the plaintiff) to follow GUSTE and tell him not to interrupt him if that was the case.  When the Pastor arrived LUBASCH and he shook hands.  The Pastor took a chair by the table, and began to converse with LUBASCH respecting his spiritual affairs.  LUBASCH complained of a pain in the chest, which prevented his saying much on the subject.  Witness then said to the Pastor, "You need not be astonished that LUBASCH has sent for you to write something."  LUBASCH then asked the Pastor if he would be able to make out his will.  The Pastor replied, 'Oh yes, I have some experience and knowledge of this.'  The Pastor then enquired of LUBASCH how he wished to have the will prepared.  LUBASCH gave directions respecting the will, the nature of which witness did not remember.  The pastor suggested that the should be witnesses present.  LUBASCH replied, "Here are BRETOG, LIEBELT, and your self." He then directed the pastor to state in the will that his four married daughters should have 200 pound each, and that his daughter Maria Elizabeth should pay to them from the estate 400 pound in a (sic) twelvemonth after his death, and reserve 500 pound more for them, the interest of which should be paid to her mother during her life.  

The Pastor then asked what was to be done with the ninth 100 pound. LUBASCH replied that he had five daughters; and that he wished Maria Elizabeth to have 100 pound of the 300 pound; also, that his daughter, Mrs WIETH, should have the two acres of land and the house standing thereon.  The Pastor wrote down what was stated to him, and asked LUBASCH if it was correct, who stated that it was.  The testator saw the will after it was written, and the Pastor read it to him.  LUBASCH said, in German, 'I understand it.' The Pastor then asked him to sign it.  He said he could not do so with his trembling hand.  The Pastor said, 'Now, touch the pen.' He did so; the Pastor guided it, and LUBASCH put his mark to the will.  Witness remained till the following morning, having sat up with LUBASCH during the night.  LUBASCH complained of a pain in his chest, but appeared otherwise as reasonable and sensible as at other times.

By Mr. GWYNNE:   Left before the doctor arrived the next morning.  LUBASCH's last words to him were, 'My chest, my chest; I cannot get rid of my pains.'   Was there on the Wednesday, Thursday, Friday, Saturday, and Sunday, and always found LUBASCH on the sofa.  Was present on the Sunday when Dr. CHALMERS arrived, and LUBASCH was dying. The making of the will to the time of its completion and signature occupied about an hour and a half.  LUBASCH did not sleep during this time.  The document produced was the will referred to.  Saw LUBASCH put his cross to it.  The Pastor placed it on the sofa for that purpose.  The Pastor said he would take it to the schoolmaster, and have it translated into ENGLISH.  The Pastor kept it, and told witness that if LUBASCH died, he (witness) must take it to town, Asked him if he must do that personally.  The Pastor replied, 'Yes'. Applied to the Pastor on the Sunday, and obtained the will.  

Took it to the house of the deceased, and left it there on the Sunday evening. Gave it to the plaintiff, because he did not think he had a right to keep it in his possession.  Obtained it the next morning, and took it to town to Mr NOOTNAGEL, to get it registered. When he applied to the plaintiff for the will on the Monday morning, she went into her bedroom, and fetched it from thence.  Did not see LUBASCH on the sofa on the Tuesday previous to his death.  Bled him on the Thursday, in the foot, and took from him a good-sized coffee cup full of blood.  Did not open an artery, but a vein.  Did not know the name of the vein. Bled him in the same place three years before, at his request.  

BRETOG, Mrs LUBASCH, and her daughter Maria were present when the will was drawn, beside the Pastor and himself.  Heard the Pastor say something about a printed form of a will.  Saw GUSTE bring one into the room.  Saw the Pastor copy the will from the printed form.  The name of the plaintiff was inserted in the English part of the will at the time and in the order in which it stood.  LUBASCH personally directed the Pastor respecting the will.  Did not interfere except by asking the testator whether he alluded to the plaintiff when he referred to his fifth daughter.  Reference was made to the rate of interest to be paid on the 500 pound. The testator named 5 per cent, without any one suggesting that to him. LUBASCH had five married daughters at the time. They all lived near the road between his residence and that of witness. Did not inform them or their husbands of the illness of their father nor see either of them at their father's residence previous to the making of the will.  

By the Advocate-General:   Bled LUBASCH at his own request. He had asked him to do to previously. Had practised blood-letting in Germany.  His father and grandfather practised it before him.  The Advocate-General - It is a proof, your Honour will perceive, of the transmission of instincts. (A laugh.).

4th Winess: Gottlieb BRETOG

Gottlieb BRETOG - was in the service of the late Gottlieb LUBASCH in October last, and was present on the Friday evening previous to his death, when the will was made. His evidence was corroborative of that of the previous witness as to what occurred during the making of the will.  LUBASCH in reply to the Pastor respecting witnesses, stated that witness and the Pastor should be the witness to the will, and LIEBELT the curator or executor.  He then gave directions respecting the disposal of the property and the will was prepared as directed.  Witness signed only will produced. The testator retained his ?? paired whilst the will was being prepared and signed.  After the will was signed, the deceased instructed witness to direct the boy GUSTE not to make it known that the Pastor had made the will.  Whilst the Pastor was reading the English part of the will he asked LUBASCH if he understood it.  He replied that he did.  He did not translate it into German. He usually conversed with Germans in the German language, and with Englishmen in English.  

5th Witness: Maria Elisabeth LUBASCH plaintiff

Maria Elizabeth LUBASCH, plaintiff, stated that her late father had been in the colony 17 or 18 years at his death.  She remembered the Friday previous to his death.  He was then fully conscious of what he was doing.  Dr CHALMERS came the next morning about 10 o'clock.  

By Mr GWYNN:  Was present when her father signed the will.  It was taken away by the Pastor to be translated.  Had it in her possession on the Thursday after her father's death, but not previous to that.  Did not have it on the Sunday night.  LIEBELT gave it to her the Thursday.  Did not give it to him on the Monday morning from her bedroom.  Believed she received it from LIEBELT after he had been to Adelaide.  Did not know whether it had then been registered.  Was present when her father died. He was as sensible then as when he made his will.  Was present when the doctor called upon him on the Saturday. He was as sensible then as when he made his will.  Passed by Mrs MACFARLANE's house on the Saturday.  Informed a servant that her father was very ill. Told her sister (Mrs JAENSCH) on the Friday, in her husband's presence, that her father was very ill.  The part of the will, written in English was not left with a blank, and her name filled in afterwards.  Remembered a printed form being brought from the schoolmaster's which was in English.  Before the Pastor made a copy he enquired of her father what he wished inserted in the will.  The witness then proceeded to detail the conversation between her late father and the Pastor, with the instructions given by the former to the latter respecting the will.

The case occupied the Court during the whole of the day, and was adjourned to the following morning.  The cause list was rearranged by His Honour during the day, and now stands as follows:-  TUESDAY, June 23 Hicks-LUBASCH v. JAENSCH-Atkinson (Adjourned case.)

6th Witness:  Anna Dorothea LUBASCH

Sent for Dr CHALMERS on the Saturday previous to her husband's death. LIEBELT, who bled her husband on the Thursday, did not administer any medicine.  Her husband was never delirious either before or after he was bled.  He only complained of his chest, and gave no evidence of being in a state of stupor.  He was in the same state when he made the will as when Dr CHALMERS saw him.  Did not at any time during his illness apprehend that he would die.  Was not alarmed till she saw him dying. LIEBELT had bled him three years before.  

Did not inform her daughters of the illness of their father, but supposed they all knew it.  Her husband never expressed a wish to see his daughters during his illness.  Her husband was very fond of James YEATES, and taken him into his service.  YEATES had left his service previous to his illness, and was present on the morning of his death.  Was not aware that her husband frequently expressed a wish to see him.  Did not remember his calling to see her husband before the day of his death.  

Did not remember YEATES offering on the Sunday morning to go and inform Mrs JAENSCH of her father's illness.  Did not tell him not to do.  Did not know why the deceased's daughters did not come to see him during his illness. Her husband died possessed of an 80 acre section, beside the land on which they lived.  He had also a piece of land adjoining the 80 acre section, about 15 acres, also an interest in the German public-house, and 200 pound out at interest.  LIEBELT, her son in law, had none of her money, but another man by that name had borrowed of her husband 50 pound, for which there was no acknowledgment taken.  His name was Gottlieb LIEBELT who was in the Court. There was 2 or 3 pound in the house when her husband died.  

……………………………………………………………………………………………………………………………………………………………………………………………………………………

THIS IS NEW INFORMATION JUST DISCOVERED AND HAS NOT YET BEEN EDITED

South Australian Register [Adelaide, SA:1839-1900] Wednesday 24 June 1857, page 3.

1 LUBASCH V. JjLKSSCH. 

South Australian Register [Adelaide, SA:1839-1900] Wednesday 24 June 1857, page 3.

LAW AND CRIMINAL COURTS

SUPREME COURT - CIVIL SITTINGS

Tuesday June 23

[Before His Honour, Mr C. Mann] 

LUBASCH V JAENSCHC

ontinued from the preceding day. Dr. HUBB, acted  as interpreter.

The Attorney-General stated that the case for the plaintiff was concluded.

Mr. GWYNNE submitted that it was incumbent on the plaintiff to call the second attesting witness to the will, and quoted authorities in support of his view.  The question was discussed, and decided by His Honor against the view taken by Mr. GWYNNE. Mr. GWYNNE then addressed the Jury. He referred to the facts elcited by the evidence on the part of the plaintiff,  and commented at some length on the circumstances that, though none of the married daughters were present by the bedside of their dying parent till after the will was made, there were two persons,, LIEBELT and his wife, who were constantly there. Then the after conduct of LIEBELT, in obtaining possession of the will, and the nature of his evidence, as contrasted with that given by the plaintiff, taken in connection with the circumstance of LIEBELT's son being engaged to the plaintiff, sufficiently  indicated his designs.  With regard to the assumption on the part of the plaintiff, that the testator had made an equitable distribution of his property, he contended that two-thirds of the whole would fall to the share of the plaintiff under the will.  The property was estimated at nearly £3,000, of which only £800 was demised to four of his married daughters, and only a small portion of his real property to the other married daughter, leaving the whole or the residue to the plaintiff.  He should call evidence to show that the deceased was in a state of stupor when the will was made, and that the particulars were drawn from him by dictation of LIEBELT during such stupor. The will itself contained prima facie evidence that it had not been prepared  in the manner stated by the evidence of the plaintiff.

It could not have been written at the dictation of the testator, because its formalities evidently showed that it had been copied from the printed form to which reference had been made;  and it was also evident, on inspection of the document, that the name of the plaintiff was inserted after the will was drawn.  It was very extraordinary that though frequent reference had been made to the Pastor, by whom the will was drawn up, he had not been called to give evidence on a matter of so much importance.  It was his intention to do this, as also to call the boy GUSTE,  who was present when the will was made. He should likewise call Dr. CHALMERS, who attended the deceased the day after the will was made, who would state to the Jury that the patient was in a state approaching coma, and that the intellect must have been in a morbid state of inactivity the day before, resulting from the disease with which he was affected.  If this was established, it would follow that the deceased was not in a condition to make a will, because the sworn testimony which had been given showed that he was in the same state of mind on the evening previous to Dr. CHALMERS's professional visit as on that occasion.  This had been proved even by the evidence on behalf of the plaintiff, which showed that no change had taken place with regard the mental condition or the testator from the time that the tailor bled him in the foot till he was visited professionally by Dr. CHALMERS.  The learned gentleman, after some further remarks, called the following witnesses:—

Carl Friedrich Adolf STREMPEL, Lutheran clergyman—and Resided at Hahndorf.  He had known the deceased, Gottfried LUBASCH, and saw him on the Friday preceding his death, about 2 o'clock in the afternoon.  He attended at the request of Miss LUBASCH to impart spiritual instruction to her father. Found him very ....  He could not speak at any length.  Put questions to him in such a manner as that they could be answered with a simple affirmative or negative.  He, however, used other expressions besides yes and no.  Witness remembered his saying, "Sir, you find me in great illness."  Considered him in a fit state to receive spiritual consolation. Had never made a statement to the contrary.  Always considered him in possession of his reasoning faculties, but thought his memory was failing him from the errors he committed.  He suggested that a medical man should be sent for, and as there was no one disposed to go to Mount Barker for Dr. CHALMERS, witness went for the German doctor, but did not find him at home.  Was sent for again in the evening to attend LUBASCH, and arrived at his house a little before 10 o'clock.  The de ceased was lying on the sofa, and Mr. LIEBELT was near him.

Was told, in answer to his enquiries, that he was sent for in order to draw np the testator's will.  Did not remember whether it was LUBASCH or LIEBELT who in formed him of this, for both of them spoke to him. Was asked if, in case of necessity, he could draw up a will. Replied that he had once been present when a will was made, and had seen a form, which could be used on that occasion. The form was sent for and obtained, from which he drew up the will produced, the English portion of which was a verbatim copy of the form, with the exception of the names.  There were not blanks left for the .names. Witness conversed first with LUBASCH respecting the conditions of the will, which he wrote down, and afterwards made the will in accordance with such instructions. Asked LUBASCH who was to be the heir. He answered  "My youngest daughter."  LIEBELT was sittting by the sofa at the time.  Did not put the question nor receive the answer through him.  LUBASCH seemed to understand what occurred.  It was not at that time that witness observed there was a failing in LUBASCH's memory.  It occurred afterwards, when he was reading to the deceased the English part of the will.  He asked the deceased to whom he intended to will the £100 remaining of the £900, after paying the £300 to each of his four daughters. The testator answered I have five daughters.

Witness did not wish to suggest a name, but asked LUBASCH generally to whom he referred.  Before he had answered LIEBELT said,  "You will not forget your dear Maria Elizabeth."  LUBASCH  then named her as the person to whom the amount .should be devised. Witness then made enquiries respecting the payment of the £900, when LUBASCH directed that £100 should be paid to the four sisters at the death of the deceased, and £500 at the death of his wife.  It was afterwards suggested that the £400 should be paid a year after his death, to which the testator and the heir assented.  LUBASCH afterwards directed witness to make provision in the will for the demise of the interest upon the £500 to his widow, at 5 per cent.; and of the cottage and two acres of land to Mrs. WIETH.

Witness 

7 will in accordance with those instructions, and read it over to Lubasch before he signed it. Liebelt frr queutly joined in the conversation. He assisud Lnbasch to tic up. Whilst witness was drawing, up the will, Lubascli was leaning with his head over a chair, but witness did not know whether he was dozing or not. Remembered on one occaskw Liebelt explained to witness the meaning of the instruction given by Lubasch. Did not think it was the intention of the testator that the £100 should remain with his youngest daughter, became he had pre viously said he intended the whole of it for his other daughters. He, therefore, put the question to him again on that subject, oil which Liebelt interposed by saying, ' He knew that he intended it for his youngest daughter, because he had before spoken to him about it.' By the Attorney-General— Would not have drawn up tit will if he thought the testator was not in a fit stale

8 to make it.

Andrew Chalmers, M.D..— Was practising at Mount Barker, and knew Gottfried LUBASCH  eight years previous to. his death.  Was called in on the Saturday morning before his death. He was suffering from inflammation of the lungs.  He was sinking when he first saw him.  His lungs were hepatizsed, and his lips purple, indicating that the blood was not properly oxygenized, on account of the lungs not properly performing their functions. The carbonized state of the blood would produce a morbid drowsiness of the brain. This he found to be the case on questioning the patient.  His mind was wandering, and his language incoherent.  Inferred from the state of the deceased that he must have been wandering in his mind for at least 12 hours, and most likely for 24 hours previously. The plaintiff and her mother were present.  The plaintiff said her father was much worse the night before. This he should have inferred from his knowledge of the plaintiff's general state of health.

By tbc Attorney-General:  Saw the deceased about a month before.  He was asthmatic. The disease of which be died was pneumonia. There is a great dis tinction between this and consumption. The latter disease is caused by the formation of tubercies in the lungs.  All diseases of the lungs, which cause the de carboniization of the blood, affect the mind.  Could not tell the precise stage when the disease began to affect on the mind.  Medical science was sometimes at fault in prognosticating the termination of a disease.  Did not believe, from what he had learned, by his own experience and from reading, that the deceased could have been in a state to give clear directions respecting  any particular subject 12 hours previous to his visit to him. Did not know that his experience had exhausted his subject. Would have examined the patient more particularly le specting tho state of his mind had he known that he would have been examined upon the subject.

By Mr. Gwynne:  Hepatization was a term to express the solidification of the cells of the lungs.

Dr. Gosie examined:   Hepatization varied very much as to the time when it took place after the commencement of diseases of the lungs. If hepatization was at all general, the mental functions would be proportionally impaired.  In examining a patient the state of the mind would guide him to a considerable extent as to the state or the disease itself.  As soon as the blood arrived at a certain state of impurity the mind would not be able to perform its functions.

By the Attorney-General:  Regarded the brain as the organ by which the mind manifested itself.  If a person answered questions with a simple yes or no his mind might be affected, but not if he carried on a conversation intelligently.   Doctors were not in fallible any more than lawyers. They sometimes differed.

Christian GUSTE, a lad apparently about 14 years of age, deposed to his having been in the employ of LUBASCH some Years before his death.. He remembered his dying.  He was taken ill on a Tuesday.  Knew LIEBELT and saw him at the house of LUBASCH on the Friday. He arrived between 7 and 8 o'clock in the evening, and advised LUBASCH to have his testament made to avoid future quarrels.  LUBASCH was lying on a sofa, and LIEBELT sat near him. LUBASCH, in reply to his suggestion respecting his will, said, ' Yes we.can.'  LIEBELT advised that some one should be sent for for that purpose. Witness was sent by LIEBELT and the plaintiff to the pastor. Heard LUBASCH speak but very little before he left the house.  Pastor STREMPEL went to LUBASCH.  Did not remember who was the first who spoke.  Was sent to the schoolmaster for a form of a testament, which he obtained and took back with him.  When he returned there were LIEBELT, the Pastor, BRETOG, LUBASCH, his wife, and the plaintiff present.  LIEBELT was sItting near LUBASCH.  Afterwards saw LUBASCH sitting on a stool;  and a table was near the sofa, on which Pastor STREMPEL was writing.  Heard the Pastor ask LUBASCH how he wished the will to be made. LUBASCH did not reply ; but LIEBELT said the youngest daughter was to pay out £900. These were the first words he heard in reference to the will. Afterwards he heard LUBASCH say every one of his children was to have £200.  LIEBELT  sat near the sofa during the whole time that the will was being prepared. Did not see that LUBASCH was sleeping,  because he leaned his head forward.  He took some time to reply to the questions put to him, because he was rather weak.  LIEBELT put many questions to LUBASCH. LUBASCH raised his head a little when be answered the questions put to him.  Could not say that any person touched him at such times. Heard the Pastor ask LUBASCH who was to be heir to the property.  He replied, 'Ann'.  Maria Lubasch said, "No, no". The Pastor asked the question a second time, when LUBASCH replied, "Maria Elizabeth". He was then hanging over the chair.  LIEBELT was near him, but did not speak.  Some portion of the will had then been written.  During the making of the will, LUBASCH said every one of his daughters was to have £200 each; to which LIEBELT remarked "You told me this two years ago,"

By the Attorney-General — Was now in the service of Gottlieb JAENSCH, and was previously in the employ of Christian JAENSCH, the defendant.  The Pastor arrived at the house of the testator between 9 and 10 o'clock.  

Lachlan MacFARLANE, farmer — Resided at MountBarker, about two miles and a half or three miles from the residence of the late Mr. LUBASCH. . Married his daughter.  Was: first informed of the illness of the deceased on the Saturday afternoon about 3 o'clock, from Dr. CHALMERS, whom he met accidentally.  Was leading a horse to the paddock at the time.  Took the horse back, and, as soon as convenient, went to see LUBASCH.  He appeared to be asleep when he arrived, but in five minutes after wards  he roused up and knew witness.  He held out his hand to him, but did not speak.  Saw the plaintiff there, and had a little conversation with her.  Did not know that  LUBASCH had made his will till after his death.  Was on his way to town a day or two after the funeral, when Christian JAENSCH  told him of this. The deceased  never spoke to witness in his life about the disposal of his property.

By the Attorney-General — Did not remain very long at the house of the deceased on the Saturday.  Did not remember when he saw him previously.  

By Mr. GWYNNE - He was then in his usual health.

Christian JAENSCH, one of the defendants, married one of the daughters of the lat Mr LUBASCH. Lived bout three and a half or four miles from the residence of LIEBELT, and about 300 yards from that of the deceased.  Was not aware of his previous illness.  Remembered the plaintiff being at witness's shop on the Friday morning previous to the death of deceased.   Witnesses's wife was present.  The plaintiff did not tell her that her father was ill.  Did not not ??? know of his illness till James YEATES informed him of his death.  The deceased left property, consisting of houses, land, and various goods.  Was appointed one of the executors pending that trial.  Estimated the property at 2,430 pound. [???]

By the Attorney-General — Would give that amount the amount for it.  Was married nearly five years ago.

Pastor Strernpel, recalled by His Honor — Had not minutely examined the will, but, as far as he could judge, it was in the same state as when he drew it up.

By Mr. Andrews — On examining the document found that one of the sheets had been separated into two half sheets.  No alteration had been made in the writing to the best of his knowledge.

Gottlieb LIEBELT — Had been married to one of the daughters of the late Mr LUBASCH 10 years.  Saw the deceased the Saturday before the commencement of his last illness.  He said he was getting old and did not know how to manage his farm;  that he had been waiting ever so long for the marriage of his daughter Maria Elizabeth, and would like her to take the farm, and pay out to the other children £800.  He said he had been talking to LIEBELT about it, who said plainly he would not have it.  He said he wished all his daughters to have an equal share, except Mrs. WIETH,  whom be could not give so much as the others.  He also said if the youngest daughter took the farm, he would like her to have £100 more than the others.  The farm was worth about £1,000, and the deceased had a section and a block of 15 acres about a mile from the farm;  also £300 out at interest.  Heard nothing of his illness till his wife had returned from church on the day of his death.

Guilliam THIELE — Lived at Grunthal, and had been married to one of Mr. LUBASCH's daughters 16 or 17 years.  Saw the deceased frequently previous to his death.  Had a talk with him in April, 1856.  He complained that he was getting old, and asked witness to give him advice respecting his affairs.  Advised him to give over his farm to Maria. LUBASCH said LIEBELT did not like to take the farm on the terms he wished to give it to him.  He said he would allow LIEBELT to have the farm on his marrying Maria, and £100 more than either of the other daughters.  First heard of the illness of LUBASCH  late on the Friday evening previous to his death.

This concluded the evidence for the defence.

The Attorney-General called the following witnesses, to show the state of the deceased's mind on the Saturday before his death.  

Johann Gottfried DOLLING — Knew the deceased 20 years previous to his death.  Saw him 11 hours before he died.  Shook bands with him, and remarked to him,  "We only met on Tuesday, and you have been taken suddenly ill".  LUBASCH replied, "After you left me, I was passing by Mr. SCHULTZE's public-house, and he asked me to go in.  I went in, and said I was not in a state to drink.  SCHULTZE replied that he did not ask me in to drink, but that Mrs. SCHULTZE would make me a cup of coffee". He then went on to state that he 'remained to tea ; and a good deal more conversation passed between witness and LUBASCH, which he could not recollect.  Remained about an hour and a half.  LUBASCH made his statements with perfect composure.  This was between 6 and 9 o'clock in the evening.

By Mr. Gwynne — Knew Gottlieb LIEBELT,  Remembered being with him on the Monday after the death of LUBASCH.  Did not tell him that he was at the house of the deceased, and was disgusted with the manner of the deceased's wife and daughter.  Did not say to him there is a will made, and he [the deceased] was not fit to make it, and if you let it stand you are quite foolish.  Remembered telling LIEBELT that there was a will made, and he  would tell him the contents as far as he knew. Told him he had learned there was £300 left to each of the daughters, and an acre to the widow, and that he did not think it fair that so little was left to her.  Did not remember meeting THIELE on the Monday, at HUNTs public-house.  Did not remember saying to him on that day that it was not LUBASCH who made the will, but LIEBELT.  Heard such a report, but was convinced that it was not true.

Mr. Gwynne proposed to call evidence in to contradict this; but His Honor ruled that it could not then be admitted.  He then addressed the Jury on the evidence for the defence, as tending to show that the deceased was not in the full possession of his faculties at the time when he made his will.  He contended that this was proved by the evidence of the Pastor, showing that LUBASCH  had even forgotten how many daughters he had. and that he was sinking into a state of stupor, as shown by the same evidence, and confirmed by the testimony of Dr. CHALMERS, and the medical opinion of Dr. GOSSE.  He referred to the influence which LIEBELT and his wife had over the deceased, and the care taken to keep from the knowledge of his married daughters the facts of his illness and the making of the wilL  It was shown by the evidence that there was a undue distribution of the property, which he argued had been proved to have been brought about by LIEBELT at a time when the testator, being in a dying state, was not in the full possession of his faculties.

The Attorney-General, in his address to the Jury, commented on the manner in which the evidence given by the witnesses for the plaintiff was elicited as com pared with that drawn from the witness GUSTE.  The former had made their statements voluntarily, but the latter had done so only in accordance with what had been suggested to him.  Then the evidence of the two medical gentlemen was in strong contrast with each other. It was held as a general principle that in proportion to the skill and intelligence of a .person was his reluctance to speak positively upon any difficult question of enquiry.  He was disposed to give to Dr. GOSSE a greater amount of credit for his attainments in medical science than to Dr. CHALMERS ; and Dr Gosse had stated truly that he would infer what was the slate of the lungs by having first ascertained the condition of the patient's mind.  And yet Dr. CHALMERS had ventured to speak with so much confidence upon the previous state of the mind of the deceased from his conjectures respecting the condition of the blood.  He did not wish to say anything to disparagement of Dr. CHALMERS, of whom he knew nothing; but when they heard a medical man coming forward and giving opinions which were in direct opposition to the testimony of five witnesses who had spoken as to the state of mind under which the testator made his will, he had a right to ask what were the antecedents, what the knowledge, experience, education, and skill which he possessed to entitle him to come into that Court and pronounce with so much authority an opinion, the effect of which was to brand with perjury the five or six gentlemen whose evidence was in direct opposition to that opinion.

The learned Attorney then proceeded to comment upon the credibility of the witnesses and upon their evidence at some length.  He argued that the circumstance of LIEBELT  having himself suggested that Pastor STREMPEL should be called in to draw up the will was an evidence that there was no design on his part to act in any way but such as was consistent with strict integrity. The respected Pastor of the Lutheran congregation, of which all the parties were members, would be the last person whom any one having sinister designs would have recommended for such a purpose. The value of the property left by the testator had, he believed, been over estimated by the witnesses for the defence;  but even if this were not the case, unless it could be shown that the distribution of the property bad been made with such manifest injustice, as to induce a doubt respecting the soundness of the testator's intellect at the time the will was made, no inference whatever could be arrived at as tending to invalidate the will.  Every person on making his will had an undisputed right to bequeath his property in whatever manner he pleased, and he felt assured that the Jury would not return a verdict, the effect of which would be to set aside a will made under the cir circumstances detailed by the evidence, and which was supported by so many collateral circumstances, particularly when by so doing they would convict five or six respectable witnesses of conspiracy and perjury.  

His Honor summed up the evidence at great length, during which he called attention to the very many particulars elicited during this trial, and their bearing upon the question at issue.  He directed them to weigh the evidence with special reference to the state of mind of the testator at the time be made his will, with regard to his knowledge of his family, his property, and the manner in which he was disposing of that property, and to give their verdict accordingly.  

The Jury retired, and in five minutes returned into Court with a verdict declaratory of the validity of the will.

The Court was adjourned to 10 o'clock the next morning. 

 

South Australian Register [Adelaide, SA: 1839-1900] Sat 11 July 1857, page 3, IN EQUITY.

LUBASCH V JAENSCH

Mr GWYNNE, on behalf of the defendants, applied that they might be allowed costs arising out of the late action.  The case was brought to try the validity of a will, and the result was beneficial to all parties.  His clients might have been the plaintiffs, for it was not an adverse action, the parties all belonging to the same family. 

The Attorney-General did not admit this, but was not prepared to argue the point.

The Court declined to make the order.

 

 

 

 

 

Adelaide Times [SA:1848-1858] Wed 24 June 1857, Page 3, Law & Police Courts

Supreme Court - Civil Side

[continued from yesterday's Times]

LUBASCH v. JAENSCH

Andrew CHALMERS M.D., stated that he was practising at Mount Barker,.  Had known Gootfried [sic] LUBASCH eight years previous to his death.  Was called in on the Saturday morning before his death, and found him suffering from inflammation of the lungs.  Deceased was sinking at the time, and was under the influence of a morbid drowsiness go the brain; his mind was wandering and his language incoherent.  He must have been in that state for at least twelve hours, and most likely for twenty-four hours previously.  

Much additional evidence was offered, which did not materially differ from that which had already been adduced.

The Jury returned a verdict for the plaintiff, thus affirming the validity of the will.

 

 

 

 

 

 

 

 

 

 

8.  Authors Summary of events & the trial

The ‘Authors Summary’ is taken directly from the above witnesses as reported in both the Adelaide Times [SA : 1848-1858] and the SA Australian Register [Adelaide, SA : 1839-1900].  It includes some additional facts that have been researched from other documents ie ‘The Ships List’, David SCHUBERT’s ‘Kavel’s People’, Reg BUTLER’s Hahndorf Data Base or from Adelaide Hills Local Wiki.

Relationships

  • The LUBASCH's & the LIEBELTS were together on the 'Zebra' & they lived 5kms from each other in Brandenburg, Prussia, they had all been in the Colony for 17 years.
    • Anna Dorothea WOLF & her husband Johann Christoff LIEBELT farmed at Blakiston & often visited the LUBASCH’s in Hahndorf. Some of their children were similar in age.
    • Anna Dorothea WOLF had known Gottlieb LUBASCH since she was a child in Prussia & she is a cousin of his 1st wife Caroline WOLF [1790-1823].
    • In 1856 Anna Dorothea WOLF 48 years had been married to 48 year old Johann Christoff LIEBELT for about 26 years. 
  • LUBASCH & his 2nd wife, referred to their youngest daughter Maria Elizabeth as ‘Elizabeth.’
    • Anna Dorothea WOLF & Christoff LIEBELT’s 3rd child became engaged to 21 year old Maria Elizabeth LUBASCH in April, 1856 or before April, & no date had been set for the wedding. The engaged couple, Johann Gottfried [b1847] was 19 years old in 1856 & Maria Elizabeth 21 years.  Gottfried’s mother said he was 26 years of age.
    • Maria Elizabeth LUBASCH's fiancée, Gottfried LIEBELT was a 1st cousin to Maria Elizabeths older sister’s [Johanna Caroline LUBASCH] husband Gottlieb LIEBELT.
  • Towards the end of April 1856, LUBASCH had sent Maria Elizabeth LUBASCH to get Anna Dorothea WOLF
    • Would her son [Johann Gottfried LIEBELT] after the marriage, take care of his household & farm?
    • Maria Elizabeth was the "heir"
    • Her son [Johann Gottfried LIEBELT] would pay 900 pound down, [200 to each of 4 sisters & 100 pound to Maria Elizabeth]
    • 400 pound should be paid out in 12 months after LUBASCH dies to his four older daughters and then the 500 pound remains & the interest set by LUBASCH at 5% was to be paid to the mother during her life, & paid out at her death.  100 pounds goes the Maria Elizabeth LUBASCH
    • LUBASCH’s oldest daughter married to WEITH receives two acres of land and the house standing thereon.
      • The eldest daughter Johanne Luise LUBASCH m WEITH, should also have a certain cottage & land, two acres on which she dwells.
        • With her husband Gottlieb WIETH, & 2 young daughters they arrived on the ‘La Rochelle’ in 1855.

June-September 1856

  • At the end of June or the beginning of July, Anna Dorothea WOLF spoke with LUBASCH again, when he said he had not been able to execute his will.  He said he had frequently called on Mr MACFARLANE, one of his sons in law, to go with him to Mr ANDREWS, the solicitor, at Mount Barker, for that purpose, but Mr MACFARLANE always made excuses for not going.  He also said he had been once himself to Mr ANDREW's house, but he was not then at home.
    •  Mr MacFARLINE [sic] refers to Lachlan MacFARLAN 1806-1892, publican of the Oakfield Hotel & is also one of Gottlieb LUBASCH’s son's-in-law having married his 3rd daughter Johanna Dorothea Luise LUBASCH in 1845.  ‘Mr ANDREWS to make his will’  is the same Mr ANDREWS for the defendant.
  • Saturday 27 September, LUBASCH’s 2nd daughter [Johanna Eleanore Henriette LUBASCH married to Johann Wilhelm THIELE] had seen her parents,  but not since. None of the other daughters had seen him for several weeks & they very seldom visited.
  • On Friday 3 October, Maria Elizabeth told her older sister, Anna Maria Dorothea and her husband Johann Christian JÄNSCH together that their father was very ill.
  • On Saturday 4 October, Maria Elizabeth went to her older sister Anna Dorothea Luise's home, she was married to Lachlan MACFARLANE, they had servants and she informed one of them their father was very ill. 

5 daughters

  • There are 5 daughters who ‘live from half a mile to 2 miles away’  [.8km-3.2kms ].
    • Mrs THIELE, Mrs LIEBELT and Mrs MACFARLANE lived 2 miles away from LUBASCH [3.2kms]
    • ​1st daughter: Mrs WIETH lived on the same section
    • 2nd daughter: Mrs THIELE lived two miles off.  [3.2kms]
      • In 1856 Mrs THIELE were living in Grünthal which is 2.5 miles [4kms] from the German Arms, Hahndorf.
    • 3rd daughter: Mr MACFARLANE lived about two miles and a half or three miles from the deceased.  [4-4.8kms]
      • Mrs MACFARLAN was living at Oak Farm, Mt Barker which was just over 4 miles from the German Arms, Hahndorf.  [6.4kms]

    • 4th daughter: Mrs LIEBELT two and a half or three miles from him.  

      • Mrs LIEBELT was living on Section 3903 Hd of Kuitpo  [LFH pge 46] which is 3 miles from the German Arms, Hahndorf.  

    • 5th daughter: Mrs JAENSCH lived half a mile from him  [.8km]

      • JEANSCH [sic] & WHIETH [sic] ‘much nearer’
    • ​Note: Maria Elizabeth LUBASCH & her mother must have lived next door to Mrs WIETH
    • Anna Dorothea WOLF  & Johann Christoff LIEBELT ‘3 miles off’
      • lived about the same distance from the deceased as Mrs MACFARLANE.  
      • ​In 1856 these LIEBELTS were living on Section 4420, [LFH 116] this is 4.3 miles from the German Arms, Hahndorf.
  • All the five married daughters lived 'near the road between his [LUBASCH] residence and that of witness', that of Christoff LIEBELT at Blakiston.

LUBASCH’s Assets

  • 80 acre section, beside the land on which they lived.  
  • He had also a piece of land adjoining the 80 acre section, about 15 acres,
  • An interest in the German public-house
  • 200 pound out at interest.  
  • LIEBELT, her son in law, had none of her money
    • but another man by that name had borrowed of her husband 50 pound, for which there was no acknowledgment taken.
    • His name was Gottlieb LIEBELT who was in the Court.
      • The only man who this description fits is her daughter, Johanna Karoline's husband Johann Gottlieb LIEBELT, now aged 33 years.  
  • There was 2 or 3 pound in the house when her husband died.  

Tuesday September 30, 1856,

  • LUBASCH took to lying on his bed on Tuesday 30 September 1856 which was 5 days before he died. He complained of his chest. 

  • Blood Letting

    • Christoff LIEBELT visited LUBASCH on Wednesday, Thursday, Friday, Saturday & Sunday, always found him on the sofa.
    • Christoff LIEBELT did not see LUBASCH on Tuesday.
    • On Thursday 2 October & had ‘bled’ LUBASCH at his own request.
      • He took a coffee cup full of blood from the foot
        • Took a good-sized coffee cup full of blood.  
        • Did not get it from an artery, but rather a vein,
        • Name of which he did not know.  
      • He had bled him in the same place some 3 years before at LUBASCH’s request.
      • Christoff LIEBELT had practised blood-letting along with his father [Johann Christoph Snr 1775-1846] before him, in Germany. according to Alan Wittwer 'also practised blood letting' [LFH page 16]. 
      • He 'had practised blood-letting in Germany. His father and grandfather practised it before him.' 
      • His father was: Johann Christoph LIEBELT Snr 1775-1846 married Anna Elisabeth STEINBORN 1769-1857
      • His grandfather: Unknown b1750c.

    Friday 3 October 1856

    • The Pastor was there in the morning, but nothing was said to him about the will at that time.
      • In the afternoon STREMPEL found that none of the family would go for the doctor, he went himself for the German Doctor who lived close by, but he was out.  
      • LUBASCH preferred Dr CHALMERS, at Mount Barker, but STREMPEL considered it was too far to go.
    • Maria Elisabeth LUBASCH told her older sister (Mrs JAENSCH), in her husband's presence, that her father was very ill.
      • Johanna Dorothea LUBASCH & Johann Christian JAENSCH
    • Anna Dorothea WOLF came to see LUBASCH at 2pm, LUBASCH’s wife, daughter & Pastor STREMPEL present.
      • At sunset Anna Dorothea LIEBELT left, [having stayed 2 hours] being sent by LUBASCH to get her Christoff LIEBELT so he could assist with his Will & yes he might stay all night.
      • This was the last time she saw Gottfied LUBASCH alive.

      • On leaving the house of the deceased on the Friday, went to the store, and passed the house of Mrs JAENSCH. 

      • Did not call and tell her how her father then was.

    • Christoff LIEBELT arrived an hour after sunset on Friday.
      • LUBASCH wanted Mr ANDREWS to come for the will.
        • Asked him who he should send for Mr ANDREWS. LUBASCH made no reply.
        • Christoff said it was very dark it would be difficult to get any one to go for Mr ANDREWS
        • It was probably Mr ANDREWS would not be at home
        • This was between 7 and 8 o'clock in the evening.
        • The only ones present were LUBASCH’s wife & daughter.  
        • Christoff LIEBELT stayed with LUBASCH all night but left before the doctor arrived on Saturday morning, but was there on Sunday when Dr CHALMERS arrived & LUBASCH was dying.

    Pastor STREMPEL

    • LUBASCH said it would be lawful for the Pastor to make his will, and directed that Christian GUSTE (sic) should be sent for him.
    • Pastor STREMPEL arrived at the request of Miss LUBASCH.
    •  After he was gone, LUBASCH remarked that perhaps the Pastor was performing the evening service, and directed his daughter (the plaintiff) to follow GUSTE and tell him not to interrupt him if that was the case.  

    • STREMPEL was finishing at the evening prayer-meeting, when the boy, Christian GUST, came to him, and said that LUBASCH was very bad so he returned to him again at 10pm.

    • When the Pastor arrived LUBASCH and he shook hands.  The Pastor took a chair by the table

      • STREMPEL found LUBASCH in a fit state of mind to receive spiritual consolation, in full possession of his reasoning faculties, with his memory partially failing, which got worse during the evening. 

        • Mr LIEBELT was sitting on sofa next to LUBASCH & his wife Mrs LIEBELT and Mrs LUBASCH were also there.  

      • STREMPEL asked for what purpose he was called, when, either Mr LUBASCH or Mr LIEBELT said it was for the purpose of making out a will.  

        • Pastor STREMPEL sent Christian GUST to fetch a form of some other person's will.  

      • The pastor suggested that witnesses should be present.
        • LUBASCH replied, "Here are BRETOG, LIEBELT, and your self." 
        • Christian GUSTE (sic) was present when the will was made. 

      • The will produced was in his writing; it was verbatim of the form he had mentioned, except the names which were Gottfried LUBASCH and Maria Elizabeth LUBASCH.

        • LUBASCH dictated in the form of his Will which was written in German & then wrote his mark, an X on it. 

        • He read the will back to LUBASCH in English.  

    Gottlieb BRETOG 

    • Was in the service of the late Gottlieb LUBASCH in October last, and was present on the Friday evening previous to his death when the will was made.
      • His evidence was corroborative of that of the previous witness as to what occurred during the making of the will. 
      •  LUBASCH in reply to the Pastor respecting witnesses, stated that witness and the Pastor should be the witness to the will, and LIEBELT the curator or executor.  
      • LUBASCH  then gave directions respecting the disposal of the property and the will was prepared as directed.  
      • BRETOG signed only will produced. 
      • The testator retained his ?? paired whilst the will was being prepared and signed.  
      • After the will was signed, the LUBASCH instructed BRETOG to direct the boy GUSTE not to make it known that the Pastor had made the will.  
      • Whilst the Pastor was reading the English part of the will he asked LUBASCH if he understood it, which he replied that he did.  
      • STREMPEL did not translate it into German, although he usually conversed with Germans in the German language, and with Englishmen in English.  

    The Will contents

    • Her husband expressed his wish that after his youngest daughter was married her husband should take charge of the farm and pay out of it 900 pound.  The eldest was to have two acres of land with a cottage on it, [oh yes, she is to have the two acres on which she dwells], the youngest to have the farm, and the other four to be paid 200 pound each from the proceeds of the farm.  They were to be paid 100 pound within a year, and the interest upon the other 500 pound was to be paid to LUBASCH’s wife during her life.

    Saturday 4 October

    • Dr CHALMERS was sent for & arrived at 10 am.
      • He diagnosed inflamation (sic) of the lungs which was the cause of Gottfried being in a state of morbid stupor.
      • He said that he would have been like that for the twelve hours previously, which would include the time at which will was made.  
    • Maria Elisabeth LUBASCH passed by Mrs MACFARLANE's house on the Saturday.
      • Informed a servant that her father was very ill.
      • Told her sister (Mrs JAENSCH) on the Friday, in her husband's presence, that her father was very ill.  

    Sunday 5 October

    • Anna Dorothea GREISER did not think her husband was so unwell that he would die until she saw him sleeping more often & ‘dying away’.
      • LUBASCH was not confined to his bed, but remained on the sofa till he died. 
    • Gottfried died on the sofa in the front room, the sitting room, where they all talked on Friday 3 October.
      • His daughter Maria Elizabeth was present.

    After the Will

    • The Pastor said he would take it to the schoolmaster, and have it translated into ENGLISH.  

      • ​The Pastor kept it, and told witness that if LUBASCH died, Christoff LIEBELT must take it to town

      • Asked him if he must do that personally.  

      • The Pastor replied, 'Yes'. 

    • Christoff LIEBELT applied to the Pastor on the Sunday, and obtained the will.  

      • Took it to the house of the deceased, and left it there on the Sunday evening.

      • Gave it to the plaintiff, because he did not think he had a right to keep it in his possession.  

      • Obtained it the next morning, and took it to town to Mr NOOTNAGEL, to get it registered.

      • When he applied to the plaintiff for the will on the Monday morning, she went into her bedroom, and fetched it from thence.  

    • Maria Elizabeth LUBASCH had the will in her possession on the Thursday after her father's death, but not previous to that.  

      • Did not have it on the Sunday night.  

      • LIEBELT gave it to her the Thursday.  

      • Did not give it to him on the Monday morning from her bedroom.  

      • Believed she received it from LIEBELT after he had been to Adelaide.  

      • Did not know whether it had then been registered.  

    1.  

    Christian GUST / GUSTE was a boy who was with LUBASCH on Friday evening.

    • It is possible that this male is Christian GUST 1841-1930
    • 8 years of age on the ‘George Washington’ with his father & brothers.
    • 2nd son of Louise VETT [1805c-1848 at sea] & Heinrich Carl Freidrich GUST [1801c-1885]
    • in 1856 Christian was 15 years of age
    • in another 11 years his older brother Johann Wilhelm August GUST would marry 1867 to Johanna Dorothea KUCHEL (1842c-1926).  
    • Both brothers eventually made their homes in Mt Gambier.
    • Father and 3 sons arrived on the 'George Washington' in March 1849. 

    James YEATES or James YATES is an unknown male who once but not currently employed by LUBASCH.

     

     

     

    1. Lutheran Pastor Carl Friedrich Adolph STREMPEL born in Posen, Prussia, [1831-1908] arrived on the ‘Gellert 1847. He became pastor of the Hahndorf parish in October 1855. Australian Dictionary of Biography. He said he had known LUBASCH for about a year.  First saw LUBASCH on Friday 3 October.
    • 5 May 1858 he married Marie Charlotte Friederike MEYER [1841-1890], daughter of Rev Heinrich August Eduard MEYER [1813-1862 & Friedericke Wilhelmina STERNICKE [1818-1889]
    • Marie MEYER is a younger sister to Auguste Sophie Louise [1841-1911] who married [1864] Johann Gottlieb LIEBELT [1840-1900] who is the younger brother of the future husband of Maria Elizabeth LUBASCH.
    • OR
    • Anna Dorothea WOLF & Johann Christoff LIEBELT are the parents Pastor STREMPEL’s  wife to be [Marie MEYER] sisters [Auguste MEYER’s] future husband, they married 6 years later.

     

     

    •  
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    •  
    •  

     

     

 

  1. Summary: 1 Section of 80 acres.  1 Allotment of 15 acres that adjoined the 80 section.

 

The verdict is returned.

The Jury returned a verdict for the plaintiff, thus affirming the validity of the will.

The validity of the will was upheld by the Jury

27 June 1857 Adelaide Observer [SA : 1843-1904] page 3

During the day, the Advocate-General applied, on the part of the plaintiff, for the adjournment of the case of LUBASCH v. JAENSCH till Monday morning.  He informed His Honour that there were, beside three medical witnesses, a considerable number of Germans, who would require an interpreter, and it was therefore probable that the case would occupy the Court many hours.

Unless His Honour was disposed to still 11 or 12 o'clock that night, it could not be terminated.  In that case great inconvenience would result, on account of the necessity of bringing in the parties again from the country, as well as the probability of more unexpected circumstances preventing the whole of the same Jury from attending on the Monday.  In that case, the trial would have to be commenced again.  The case could not be heard on the Saturday, a Special Jury case having been fixed for that day.  His Honour, with the concurrence of the counsel for the defendant, assented.

Christian JAENSCH to pay all costs. 

 

10 July 1857 Supreme Court, 

10 months after Gottfried LUBASCH's death Maria Elisabeth is given Probate of the Will.

 

 467. Executrix named in and appointed by the last Will and Testament of Gottfried LUBASCH late of Hahndorf in the Province of South Australia Farmer deceased a true copy  of which said last Will and Testament market 'A" is hereunder written did appear at the Supreme Court aforesaid and claim Probate of the said Will. Whereupon the same was proved approved and registered and the Administration of all and singular the goods and chattels rights credits and effects of the said Gottfried LUBASCH deceased was by order of the Court on the eighth day of July one thousand eight hundred and fifty seven, granted unto the said Maria Elisabeth LUBASCH she having first sworn that she believed the paper writing annexed to the affidavit of Christian JAENSCH and Anna Dorotea JAENSCH sworn the twentieth day of October one thousand eight hundred and fifty six and filed in this Honorable Court be the true last Will and Testament of the said Testator who died Hahndorf aforesaid on the fifth day of October one thousand eight hundred and fifty six.  

And that she would well and truly execute the said last Will and Testament of the said Gottfried LUBASCH deceased and that she the said Maria Elisabeth LUBASCH would make and exhibit unto this Honorable Court a true and perfect Inventory of all the goods and chattels rights credits and effects of the said deceased on or before the twenty ninth day of July thence preset and that she would also render a just and true account of her executorship when she might be lawfully called upon so to do and lastly that she the said Maria Elisabeth LUBASCH believed that the goods and chattels rights credits and effects of or belonging to the said deceased within the said Province and its dependencies at the time of his death did not exceed in value the sum of One thousand pounds. Given at Adelaide this tenth day of July in the year of our Lord one thousand eight hundred and fifty seven under my hand and the seal of the Supreme Court of the Province of South Australia.   Benjamin BOOTHBY, Judge."

 

 

1839 home & land allocation Hahndorf.

1857

Adelaide Times SA:1848-1858], Friday 18 September 1857, page 2, News of the Day

"A Return of Wills and Letters of Administration has been printed by order of the House of Assembly, showing the number of wills provided and letters of administration granted, and the several amounts paid into the Treasury with respect to the same; also a return shewing [sic] the amount of fees paid to the Receiver of Fees in the Supreme Court, on account of Common Law and Equity proceedings.  In the return of wills proved from September, 1854, to the end of July, 1857, the following is a list of property sworn to over 1,000 pounds; the items below that being too voluminous for publication:- .....LUBASCH 1,000 pounds.

 

 

 

 

 

  • LUBASCH family home allotment, No 80 Main Street Hahndorf.    Reg BUTLER Hahndorf Data Base, page 204.

According to Reg BUTLER Hahndorf Data Base page 204 ‘M LIEBELT was the young child of G LUBASCH.  She rented out the ‘German Arms’ premises to the brothers in law Robert HUNT and Thomas IDE.  R HUNT shifted the hotel business across the street in 1862. 

1869 Wilhelm PAECH LTO title, Husband of Maria LIEBELT, née LUBASCH he operated the ‘Union Inn’ at this stage, at the other end of Hahndorf’s Main Street.

 

1865 Maria Elisabeth LUBASCH is taken to the Supreme Court again.

1865 'LAW AND CRIMINAL COURTS., The Adelaide Express (SA: 1863 - 1866), 15 June, p. 2., viewed 04 Aug 2022, http://nla.gov.au/nla.news article207602069

 

Author’s note:

  • On 16 December 1859 Maria Elisabeth  married husband no 1, Johann Gottfried LIEBELT
  • 8 years after the disputed Will [1857] that was found in her favour, 30 year old Maria Elizabeth LUBASCH is taken to court by her brother-in-law, J.G. WEITH.
  • Maria Elisabeth is now the defendant and her previous lawyer Mr Edward Castres GWYNNE is now the Judge, there is no jury.
  • Maria Elisabeth is represented by Mr DALY
  • The Plaintiff Johann Gottfried WEITH represented by Mr INGLEBY & Mr HATCHETT
  • Interpreter, Dr HUBBE.

 

1865:   WEITH [sic] V LIEBELT

Mr ANDREWS wrote out an agreement in 1857 at LUBASCH’s request but WIETH refused to sign it.

Received no money from his deceased father in law, but he built a house for him. It was a one roomed slab hut.  

15 June 1865 Adelaide Express [SA : 1863-1866] page 2

LAW AND CRIMINAL COURTS Supreme Court-Civil Sittings.  This day. Thursday June 15  [Before His Honour Mr Justice GWYNNE, without a Jury] WEITH [sic] v LIEBELT and UXOR.  Mr INGLEBY and Mr HACKETT for the plaintiff, and Mr DALY for the defendant.  

This was an action to recover 150 pound upon a promise under the following circumstances:- In 1856, one Godfried LEUBASCH (sic) died leaving five daughter him surviving, all of whom, except one, the present defendant, were then married.  

Two days before the decease of LEUBASCH he signed a will leaving the bulk of his freehold and personality to his unmarried daughter, but it being whispered about that the testator was not in his right mind when he made the will, the whole of the husbands of the married daughters, except the plaintiff, who was married to one of them, threatened proceedings to set aside the will, and the plaintiff was induced to join the other on the defendant's promise to give him 150 pound.  

1st Witness: Johann Gotlieb [sic] WIETH 

Proceedings were taken by the other brothers in law to upset the will, which was upheld, but the defendant never paid to the plaintiff the 150 pound as promised.  Mr HATCHETT opened the pleadings and called Johann Gotlieb WIETH, the plaintiff, who stated that he married Louisa LEUBASCH (sic) daughter of Mr. LEUBASCH deceased, in the year 1840. Remembered Mr LEUBASCH dying about the 5 October, 1856.  

He was not present when the will was read.  After his death, he [witness] had a conversation with the present defendant, when she persuaded him not to join with the other brothers in law in taking proceedings against her.  He understood her to mean that he was not to join in the proceedings to set aside her father's will.  

Mr ANDREWS drew out a writing for that purpose, but he [witness] did not sign it. She came to him afterwards weeping, and asked him not to go to law and to sign a paper.  He told her that he would not join the others in going to law, but he would not sign any agreement.  She told him that if he would not go to law she would give him 150 pound, and in consequence of that promise he took now law proceedings in reference to the will, and the defendant took possession of the whole of the freehold and chattels of her father.

There was a trial had against her by the other relatives, and the day after that trial the defendant told him she would keep her promise, and they then went to Mr NOOTNAGEL's of chi to put into writing what she had previously promised.  Four other persons were present, and one of them signed as a witness a paper [produced], which expressed that if she succeeded in getting possession of all the estate of her deceased father under his will that she would pay him, the plaintiff, 150 pound at Christmas, 1857, or at Christmas 1859, with 8 percent, interest in the meantime.  

By Mr INGLEBY - since witness instructed Mr HATCHETT to bring the present action he went to the defendant and asked her if she would give him the 150 pound.  She replied that she had no money then, and therefor could not pay him.  

By Mr DALY - He first came to the colony in 1855, and married his wife in 1840.  Received no money from his deceased father in law, but he built a house for him. It was a one roomed slab hut.  The second or third day after the funeral the meeting at Mr ANDREW's office took place. When the conversation took place there he knew that the whole of the other children intended to take proceedings against Mrs LIEBELT, and with reference to the 150 pound, Mrs LIEBELT said to him that she had heard he did not intend to go to law, and that she would give him 150 pound. He intended to have joined the others in the proceedings had she not promised him the 150 pound. The case was unfinished when we went to press.

LAW AND CRIMINAL COURTS. Supreme Court-Civil Sittings

Thursday June 15, (Before His Honour, Mr Justice GWYNNE)  WIETH v LIEBELT .........This was a case in which the facts were not disputed, and was therefore, by arrangement, heard before His Honour without the intervention of the Jury....... and Mr DALY for the defendants.  

Interpreter, Dr HUBBE.  Mr HATCHETT read the pleadings, and Mr INGLEBY stated the case.  

The action was brought to recover 150 pound and interest due thereon at 8 percent.  On the 22nd and 23 of June 1858, an action (LUBASCH v JAENSCH) was tried in the Supreme Court as to the validity of the will of Gottfried LUBASCH. The question in dispute was as to whether the deceased was of sound mind when he made his will.  He had at the time five daughters, four of whom were married, and by the terms of the will his single daughter, Maria Elizabeth LUBASCH, the present defendant, was the most largely benefited, the real estate having been bequeathed to her.  

The will was dated October 3, 1856; the testator died October 4 1856; and the will was proved July 8, 1857. The validity of the will was upheld by the Jury.  Previous to the trial, however the present defendant entered into a verbal agreement with the plaintiff that if he refrained from taking part with the other members of the family in impeaching the will, she would undertake to pay him 150 pound.

After the trial in the Supreme Court had taken place she expressed her pleasure that the present plaintiff had not joined in the proceedings, and she accordingly ratified her promise by signing an agreement, of which the following is a translation:- 

Adelaide, June 24, 1857, - It is agreed between Miss Maria Elizabeth LUBASCH of Hahndorf, and Johann Gottlieb WEITH of Hahndorf, bricklayer, that Miss Maria Elizabeth LUBASCH, in case she gets into possession of all the estate left by her deceased father Gottfried LUBASCH, as provided for by his [LUBASCH'S] will, shall pay to J.G. WEITH the sum of 150 pound sterling, Christmas 1857.  If  M.E.LUBASCH cannot pay the money in 1857 Christmas, then she shall certain play the money to J.G. WEITH at Christmas 1858, and pay to him interest at 8 per cent, yearly. Witness the signature- G.DOLLING, M.E.LUBASCH, Gottlieb WEITH." 

The question therefore arose as to whether ... evidence as to what transpired before the trial could be taken as interpreting this written agreement, for the purpose of proving mutuality and consideration, without bringing the case within either the Statute of Limitations or the Statute of Fraud.  The following witness for the plaintiff were called and examined by Mr HATCHETT:-

Johann Gottlieb WEITH [the plaintiff], mason lived at Hahndorf, and married Louisa LUBASCH in 1840.  Remembered the death of his wife's father about October 5, 1856 and that he left a will or testamentary paper.  Remembered Maria Elizabeth LUBASCH asking him not to join with the other brothers in law in taking proceedings respecting the will.  Understood her to mean that she wished him not to join in disputing or attacking the validity of the will.  

A writing or agreement was prepared by Mr ANDREWS, but he did not sign it. The female defendant came to witness some time afterwards weeping, and begging him not to go to law.  Witness said he would not join with the others in going to  law, when she said she would in that case give him 150 pound.  In consequence of this agreement he took no part in the proceedings.  

His Honour, in reply to Mr DALY, said he could take no notice of any parol..... evidence which contradicted or varied the written agreement. 

Examination continued- The defendant's wife obtained possession of the estate and furniture of her deceased father. Remembered a trial in that Court, and witness saw the female defendant the day after.  They went to Mr NOOTNAGEL's in order that she might give witness in writing what she had already promised.  There were present Mr DOLLING, the father of LIEBELT, and Pastor STREMPEL.

The document produced was signed at that time.  His Honor-If there had been only a verbal contract, the plaintiff would be precluded from bringing an action by the Statute of Limitations.

Mr INGLEBY- The Statute of Limitations had not been pleaded.  Issue had only been joined upon the question of special contract.  

Mr DALY submitted that his learned friend should rely either upon the verbal agreement or the written one.  If he relied upon the former, the answer to that would be the Statute of Limitations, and if he relied upon the latter, there was no consideration named, and therefore the claim could not be upheld on that account.  

Examination of the plaintiff continued by Mr....... expecting the time of payment.  It was fixed when they went to Mr NOOTNAGEL.  Had seen Mrs LIEBELT since the issue of the writ, and asked her if she would pay the 150 pound.  She said she could not pay him then, as she had no money.  

By Mr DALY - Came into the colony in 1855, and was married in 1840.  The father-in-law assisted to build his house.  It was only a one room slab hut.  The meeting with Mr ANDREWS was on the second or third day after the funeral of his father-in-law.  The present defendant's wife, then Miss LUBASCH, said at that time she had heard that he [plaintiff] did not intend going to law, and she would give him 150 pound.  Would have joined with the other brothers-in-law in contesting the will if she had not promised to pay the 150 pound.  

The object in going to Mr NOOTNAGEL was to have the previous promise reduced in writing.  Gottfried DOLLING, farmer, lived near Hahndorf, and was the attesting witness to the agreement produced.  

His Honour - In point of morality there was no question but that the defendant was bound to pay the 150 pound, unless it could be shown that Mrs LIEBELT never came into possession of the estate.  The only question was as to whether the claim of the plaintiff could be maintained in law.  Every person who made a promise was bound to perform it, though indeed, according to Dr DALEY, there were exceptions even to this, as in cases of promises being extorted by a highwayman.  

Mr DALY said that it was well known that the defendant was not in a position to pay the amount, and that she had no disposition to shirk her moral obligations.  He intended, however to show in evidence that she was not put in possession of the property as she had anticipated when. 

His Honour-If she is not in possession, that is another matter.  

Mr INGLEBY- But this is not put in issue.

Heinrich NOOTNAGEL gave evidence as to his having drawn up the agreement which had been produced; and on being recalled at a subsequent part of the proceedings he stated as follows:-

I was here on the day of the trial, and saw the present plaintiff and Maria Elizabeth LUBASCH afterwards at my office in Gawler place.  We had been taking over this matter before, and therefore I knew what they came to my office for.  Maria LUBASCH gave instructions to draw up the agreement, and WEITH concurred in it after it was written.  Something was said about the time of payment of the 150 pound and other matters; but the amount to be paid was quite understood.

It was stated in conversation that the reason why this money was to be paid was this -that WEITH had not joined with the others in the action which had taken place respecting the will of the late Gottlieb LUBASCH.  

C.A. WILSON, Registrar and Chief Clerk of the Supreme Court, produced the documents connected with the administration of the will in the Ecclesiastical side of the Court.  

Mr. INGLEBY obtained leave to amend, by inserting in the declaration a statement that the defendants were in possession of the property referred to in the agreement.

Mr DALY asked permission to traverse by amending his plea, and applied for an adjournment of the case, on the ground that he had been taken by surprise.  An argument followed upon some nice points of law, which resulted in the plaintiff being nonsuited, with the understanding the case should be brought before the Full Court.

Friday 23 June 1865

 

1865 'LAW AND CRIMINAL COURTS., South Australian Register (Adelaide, SA: 1839 - 1900), 24 June, p. 4., viewed 31 July 2022, http://nla.gov.au/nla.news-article39127492’

1865, 24 June
 

LAW AND CRIMINAL COURTS Supreme Court-In BANCO, Friday June 23 (Before the Full Court) Habeas Corpus.  

WIETH v LIEBELT.

This case has been frequently before the Court.  An action to recover 150 pound and interest was tried before Mr Justice GWYNNE, July 15, without the intervention of a Jury, the facts being undisputed.  

A question as to whether parol evidence could be admitted to show the consideration for which the written agreement was made, upon which the plaintiff ......... his claim, was raised during the trial, and a nonsuited was entered by consent, with the understanding that the legal point thus raised would be brought before the Full Court.

Mr INGLEBY now moved for a rule.... to set aside the nonsuit, and that a new trial should be granted.  He read the pleadings, and proceeded to argue that the writing relied upon by the plaintiff contained sufficient evidence upon it face to let in parol evidence in proof of the consideration upon which the contract was based; and that a written contract necessarily implied that an agreement had previously been made of which the writing was only the evidence.  

In answer to the Chief Justice, Mr INGLEBY stated that he drew a distinction between a parol agreement and a written contract made contemporaneously, and in which the parties themselves were their own amanuensea, and written documents in which the parties employed another person to express in writing what had sometime previously been agreed upon, as in the present case.

In the former case it would have been difficult to support his application.  The learned gentleman maintained that there was no authority to prevent the admission of parol evidence in a case of this kind, in which the legality of the contract could not be disputed.

Justice GWYNNE read from Taylor an extract to the effect that in cases in which the parties resorted to writing for the purpose of expressing the nature of the agreement they had entered into no parol evidence could be admitted to contradict, vary, add to, or subtract from the contract; and remarked that the law of the case could not possibly be more clearly defined.  

The Chief Justice said he would have been glad in this case if anything could have been advanced to show that what had long been considered an elementary principle of law was wrong, but in the absence of any such proof he did not think the rule, if granted could be upheld.

Mr INGLEBY in that case did not wish to involve the plaintiff in the expense of the rule.

 

Author’s note:

  • Parol Evidence
    • ”In contract disputes, parol evidence is any agreement that is not contained within the written contract.  Under the parol evidence rule, these agreements made outside of the contract are inadmissible in court unless there is evidence of fraud, duress, or a mutual mistake.”
    • ”An example of parol evidence is when two parties agree in a contract to exchange a good for money on a specific date.  One party receives the goods, but does not pay.  The unpaid party sues and wants to apply an additional fee for nonpayment”. [https://study.com}
  • Johann Gottlieb WEITH [sic]
    • Married in 1840
    • Came to colony in 1855
    • Received no money from Gottfried LUBASCH, his father in law.
    • WIETH built a house for LUBASCH, it was a one roomed slab hut.
    • Gottfried assisted to build his house.
    • WIETH was a bricklayer
  • G DOLLING the witness
    • Johann Gottfried DOLLING [1810-1887, 55 years of age in 1865] Lot 5a, Hahndorf, of Sections 4233 & 4234 Hd of Kuitpo. 1860, 10 June.
    • Sold his land to Emil Louis Alfred Von DOUSSA

 

  Adelaide


Hills Localwiki Crops, SA Almanac 1844 'Gottfried Lubasch had 13 cattle.

 

References

Hahndorf Volume 1, a survey carried out for the Australian Heritage Commission G.Young, I.Harmsdorf, L.Brasse, A.Marsden

 

Bibliography

 

Notes

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