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How a piece of paper caused more drama than a soap opera

When James Neale, a market gardener from Wilson Street, Botany, died in May, 1905, he was 74 years old and had suffered from an attack of paralysis. He was first taken to hospital, then brought home to be cared for by his second wife, Emma until he died.

The grave of market gardener, James Neale and his first wife Mary at the Eastern Suburbs Memorial Park, Matraville. Photo Noelene Harris.

James had lost his first wife, Mary, in 1898. Emma met James when she was hired as his housekeeper six years previous to his death. They were promptly married only a few days after her employment. Not long after that, Frederick John Neale, James' adopted son, was asked to leave the house permanently. He was told, James now had a wife to look after him and didn't wish to have him around any longer.

While Emma claimed she did not stop Frederick from seeing James, he had reacted badly on one visit, using such language as he was kicked out of the house.

Frederick, who was a local labourer living in Banks Street, Botany, didn't see James again, even when he was ill and he did not attend the funeral. He had been 17 years old when James told him he was adopted. He had worked with James in his market garden until it was sold and told that he would be looked after in the will.

James had treated Emma well and his final will left the value of his property, about 1000 pounds, to her. However, when Emma applied for probate, Frederick lodged a caveat, alleging the document had been obtained by undue influence.

Mr Neale's last will was written on April 17, just over a month before his death on May 26. It was in this final will he appointed Emma sole executrix. Emma reacted to Frederick's caveat by taking the matter to court to have it removed, which filled the local newspapers at the entertainment of their readers.

Frederick's defence team argued Mr Neale had not been of sound mind, memory and understanding when the final will was drawn up. Further, he had been placed under undue influence to rewrite the will by Emma and those acting with her.

According to Emma, Mr Neale had never been so happy since he married her. The reason for drawing up another will she wanted him to sign, was because she had lost the first one.

This clashed, however, with evidence from those who were around to see their marriage.

The driver of a van who removed Mr Neale to the hospital, heard him saying that his wife was "a fair she-devil when she took it into her head".

Mr Neale's sister Mary Ann Pemberton , gave evidence that during her visits to him, he would often talk about how he was treated by his wife.

"I thought my first wife was bad, but she was an angel compared to this one."

He complained his bedclothes weren't clean and told his sister on one occasion when he was very ill, he had to pass the whole night without a drink as his wife was intoxicated. He complained she was never sober and hadn't provided him with proper nourishment.

Evidence was heard from both sides of the argument as to whether those who were working with Emma would receive a block of land or a cow, if the will was changed. Witnesses also testified to their happy marriage and no evidence of over-drinking on Emma's part.

Court adjourned so the parties involved could arrive at a settlement. When the matter was called on later, Mr James, who appeared for Emma, stated the parties had agreed that probate of the will should be granted on terms which had been filed.

The judge found the terms were a fair settlement. He considered it unfortunate the parties hadn't come to an agreement before legal costs were incurred. He made a decree in terms of the settlement, although these weren't disclosed to the public.


  • 'The Botany will case', Evening News, Friday, 3 November, 1905, Page 4

  • 'Never Sober - complaints against wife', The Advertiser, Friday, 27 October, 1905, Page 5

  • 'Disputed Will - A Botany Resident's Estate', The Australian Star, Thursday, 26 October, 1905, Page 6

  • 'The Botany Will Case - Neale vs Neale', The Daily Telegraph, Saturday, 28 October, 1905, Page 18

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