LUBASCH & LIEBELT 

            Maria Elisabeth LUBASCH                

1835-1890

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

• 1st husband  Johann Gottfried LIEBELT 1837-1866.

• 2nd husband Johann Wilhelm PAECH 1844-1916.

Summary

• Trove documents & transcribing of the Adelaide Times & Adelaide Observers' reporting of the 3 day trial 22,23 & 24 June 1857.

• The Times & the Observer provided different aspects of the trial so both have been transcribed in full.

• The South Australian Register has identical reporting with the Adelaide Observer therefore it is represented with Trove document.

• A description of  ‘blood letting’ practised by 3 generations of the LIEBELT family is described in the above.

• This court action began on 28 October 1856, & concluded after 29 September in the Law & Criminal Courts of the Supreme Court.

• Maria Elisabeth LUBASCH 22 years of age [her mother was still alive] was confirmed 9 July 1857, as the heiress and costs were to be paid by the brothers in law.

• To meet the 4 daughters married to the men who pursued Maria Elisabeth LUBASCH through the courts, THIELE, LIEBELT, JAENSCH & WIETH, see Part 1.

The Family Names that are Mentioned in this Article:

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

Table of Contents

1. Witnesses for the Trial
2. Adelaide Times
   • Day 1  22 June 1857   Trove & transcription
   • Day 2  23 June 1857  Trove & transcription
   • Day 3  24 June 1857  Trove & transcription
   • 8 July 1857  Maria Elizabeth gets probate & brother in law JÄNSCH to pay costs.
3. Adelaide Observer
   • Day 1  22 June 1857  reported on 27 June 1857.   Trove & transcription
   • Day 2  23 June 1857 reported on 27 June 1857.  Trove & transcription
4.   South Australian Register

• Day 1  22 June 1857  Identical to Adelaide Observer.  Trove only.
• 6 July 1857  Maria Elizabeth gets probate & brother in law JÄNSCH to pay costs.  SA Register reported on 9 July 1857.  
• 11 July 1857  Brothers-in-law applied for costs 'it was not an adverse action ... we are all the same family'.      
• 29 September 1857  'List of Remaining Causes'.

        5.  Authors summary of the trial.

• Relationships
• June - September 1856
• 5 Daughters + 1 mile = 1.6 kms
• LUBASCH's assets
• Blood letting by the Liebelt the Tailor.
• 3 October 1856
• Pastor STREMPEL evidence
• Gottlieb BRETOG evidence
• The Will contents
• Saturday 4 October 1856
• Sunday 5 October 1856
• After the Will
• Christian GUST
• Pastor STREMPEL & family
• 18 September 1857, did LUBASCH have a son?

1.   Witness for the Trial:  

• BRETOG Gottlieb 
• CHAMERS Andrew M.D.
• DOLLING Johann Gottfried farmer of Hahndorf, neighbour of 'Zebra' passengers in Prussia.
• GUST Christian 14 yrs
• GOSSE Mr M.D.
• JAENSCH Christian husband of LUBASCH & GREISER daughter no 5 Johanna Dorothea LUBASCH.
• LIEBELT nee WOLF Anna Dorothea wife of Johann Christoff LIEBELT & 1st cousin of LUBASCH’s 1st wife.
• LIEBELT Johann Christoff LIEBELT farmer, of Blakiston, husband of above
• LIEBELT Johann Gottlieb husband of LUBASCH & GREISER daughter no 4 Johanna Caroline LUBASCH.
• LUBASCH nee GREISER Anna Dorothea LUBASCH, widow of Gottfried LUBASCH.
• LUBASCH Maria Elizabeth, plaintiff, youngest daughter of LUBASCH & GREISER.
• MACFARLANE [sic] Lachlan, husband of LUBASCH & GREISER daughter no 3, Johanne Dorothea Louisa LUBASCH.
• STREMPEL Carl Friedrich Adolph Hahndorf, Lutheran Pastor
• THIELE Guilliam [sic] [actually Johann Wilhelm] husband of LUBASCH & GREISER daughter no 2 Johanna Eleanore Henriette LUBASCH.

2.  

1st Trial Day 22 June 1857

Adelaide Times

LUBASCH v. JAENSCH

Reported in the:  Adelaide Times [SA : 1848-1858], Monday 22 June 1857 page 3, LAW & CRIMINAL COURTS

Adelaide Times [SA : 1848 - 1858], Monday 22 June 1857 page 3

Trial Day 1Trial Day 1

 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.

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:

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

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. 2 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.]

2nd Trial Day 23 June 1857

Adelaide Times

LUBASCH v. JAENSCH

Reported in the:  Adelaide Times [SA : 1848-1858], Tuesday 23 June 1857 page 3, LAW & CRIMINAL COURTS

Trial Day 2

LAW AND POLICE COURTS

Supreme Court-Civil Setting

      (Continued from yesterday's Times). 

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

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).

2nd  Witness:  Gotlieb [sic] BRETOG

Gotlieb BRETOG corroborated the evidence of the previous witness.

3rd 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. 

4th 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.

The names were not left blank.  He first conversed with LUBASCH about the substance of the will, and then he wrote it out.  During the conversation he asked LUBASCH who was to be the heir.  LUBASCH replied, "My youngest daughter."  LIEBELT was sitting on the sofa near to LUBASCH at the time.  LUBASCH seemed to understand him, and at that time it did not appear that his memory failed him.  At first LUBASCH expressed himself decidedly that the youngest daughter should pay out 900 pound to the others.  Witness having finished the writing of the English part of the will referring to all his household furniture and effects, &c., LUBASCH, recollecting himself said, "What is that?"  Witness replied it was usual to insert that form in every will where the heir was mentioned.  [Laughter.]. He read the will to LUBASCH in English.  Witness asked of LUBASCH about the partition of the 900. 

LUBASCH replied, ​"to every one of the four daughters 200 pound."  Witness said the would only make 800 pound, to whom was the other 100 pound to go.  He then observed LUBASCH's absence of mind, for, after leaning over a chair, he said, "Indeed, I have got five daughters."  Witness thought that LUBASCH alluded to Mrs WHIELE [sic], his eldest daughter, as not mention had been hitherto made of her, but he only asked LUBASCH generally to whom he referred.  Before Mr LUBASCH could answer the question, LIEBELT spoke to him and said "you would not forget dear Maria Elizabeth's 100 pound."  LUBASCH replied to that, "oh no," and told witness to put it down.  Witness then asked when the 900 pound was to be paid, to which LUBASCH said 400 pound at my decease, and 500 pound at the death of the mother.  Witness asked if it was to be had immediately after his decease, adding that that would be difficult, LUBASCH said yes.

He asked how the mother was to be provided for, to which LUBASCH said, by the interest of the 500 pound. He then asked if anything was to be done for Mrs WEITH; LUBASCH said, "Oh yes she is to have the two acres on which she dwells".  At this time he noticed that LUBASCH felt a difficulty in utterance,and he thought that if the "heirs" had not been present, perhaps LUBASCH would have expressed himself otherwise.  Having now finished the will he read it over to deceased. At this present time, witness could speak better English than he did in October last, because he read the newspapers. Witness continued - LUBASCH said he would have forgotten his eldest daughter, fi the pastor had not reminded him, although he intended to do something for her.  During the conversation, LIEBELT joined in several times.  Mr LIEBELT assisted deceased in getting up in the chair.  

The greater part of the time LUBASCH leaned on his arm, but witness could not say whether he was sleeping.  LIEBELT did occasionally repeat witness's questions to LUBASCH, and once he explained LUBASCH's answer to witness.  It appeared to witness, and he mentioned it at the interview, that it was an error of Mr LUBASCH, that the 100 pound should got to the eldest daughter, because he had at first made another statement, that the 100 should go to the youngest.  LIEBELT said, "I know that; I have already spoken to him about it."  Witness had never said since that LUBASCH was not in a fit state to make a will.  LUBASCH had the use of his reason, but his mind was occasionally weak.  Witness, at the earlier part of the interview, spoke to LUBASCH about spiritual matters; after some time, LUBASCH replied that he was too much troubled with pains to attend to such matters.

By the Attorney-General - Would not have made out the will if he thought LUBASCH was incapable of attending to it.

[Left sitting.]

3rd & last Trial Day 24 June 1857 

Adelaide Times

LUBASCH v. JAENSCH

Reported in the:  Adelaide Times [SA : 1848-1858], Wednesday 24 June 1857 page 3, LAW & CRIMINAL COURTS

.Trial Day 3

LAW AND POLICE COURTS Supreme Court-Civil Side.  

(Continued from yesterdays Times)

1st Witness: Andrew CHALMERS M.D.

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.

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

Completion of reporting by the Adelaide Times.

Maria Elizabeth LUBASCH gets probate & brother in law JAENSCH asked to pay costs.

Wednesday 8 July 1857

Adelaide Observer 

LUBASCH v. JAENSCH

Reported in the Adelaide Observer [SA : 1843-1904] Saturday 11 July 1857, page 3, 

SUPREME COURT. - IN BANCO

Wednesday, July 8

[Before the Acting Chief Justice and the Acting Judge]

  This was an action tried June 22 and 23, to test the validity of a will made by the late Gottfried LUBASCH appointing his youngest daughter, Maria Elisabeth LUBASCH, his heiress. 

The Attorney-General moved that the rule for granting to Maria Elisabeth LUBASCH a probate of the will be made absolute, and that the letter of administration to Christian JAENSCH and his wife be repealed, also that the costs of and attending the said rule and the issue directed to be tried by the Court be both paid by the said Christian JAENSCH.  

An order was made by consent, reserving the question of costs.

3.  

1st Day of Trial Monday 22 June 1857

Adelaide Observer

LUBASCH v. JAENSCH

Reported in the:  Adelaide Observer [SA : 1843-1904] Saturday 27 June 1857 page 3, LAW & CRIMINAL COURTS

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 Honor that there were, besides three medical witnesses, & 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 Honor was disposed to to sit till  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 brining in the parties again from the country, as well as the probability of some unexpected circumstance 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 Honor, with the concurrence of the counsel for the defendant, assented.  

1st Trial Day Monday 22 June 1857 cont.,

Adelaide Observer

LUBASCH v. JAENSCH

Reported in the:  Adelaide Observer [SA : 1843-1904] Saturday 27 June 1857 page 3, LAW & CRIMINAL COURTS

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 the plaintiff; Mr GWYNNE and Mr ANDREWS for the defendant.

Dr MATTHEWS acted as interpreter.

1st Witness:  Anna Dorothea wife of Johann Christoff LIEBELT

Anna Dorothea wife of Johann Christoff LIEBELT, who deposed to her 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 200 pound. The eldest daughter was to have two acres of land and a small cottage. Witness's son was expected to marry the deceased's youngest 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 that 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.  

Mrs MACFARLANE lived about two miles and a half or three miles from him.  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 his 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 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. 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 of after he was bled.   He only complained of his chest, and gave no evidence of being in a state of stuper.  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 as very fond of James YEATES, and had taken him into his service.  YEATES had left his service previous to his illness, and was present on the morning 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 go.  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, besides 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 acknowledgement taken.  His name was Gottlieb LIEBELT, who was in the Court.  There was 2 or 3 pound in the house when her husband died.

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 probable 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 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 500 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 head a right to keep it in his possession.  Obtained it the next morning, and took it to town to Mr Nootnagel, to get ir registered.  When he applied to the plaintiff for the will on the Monday morning, she into her bedroom, and fetched if 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 where 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 anyone suggesting that to him.  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 Attorney-General - It is proof, your Honor will perceive of the transmission of instincts [A laugh.].

4th Witness:  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 witnesses 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 the will produced.  The testator retained his senses unimpaired 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 know 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 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 on 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:-

South Australia Register [Adelaide, SA : 1839 -1900] Tuesday 23 June 1857, page 2.

2nd Trial Day 23 June 1857

Adelaide Observer

LUBASCH v. JAENSCH

Reported in the Adelaide Observer [SA : 1843-1904] Saturday 27 June 1857 page 3,

LAW & CRIMINAL COURTS

LAW AND CRIMINAL COURTS

Supreme Court - Civil Sitting

LUBASCH V. JAENSCH

Continued 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 [Maria Elisabeth LUBASCH] 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 elicited 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:—

1st Witness:  Carl Friedrich Adolf STREMPEL, Lutheran clergyman

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 tired.  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 deceased 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 up 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 £200 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 £400 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 then drew up the will in accordance with those instructions, and read it over to LUBASCH before he signed it. LIEBELT frequently joined in the conversation. He assisted LUBASCH to sit up. Whilst witness was drawing up the will, LUBASCH was leaning with his head over a chair, but witness did not know whether he was dozing or not.  Remembered on one occasion 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, because he had previously said he intended the whole of it for his other daughters. He, therefore, put the question to him again on that subject, on 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 the will if he thought the testator was not in a fit stale to make it.

2nd Witness:  Andrew CHALMERS M.D. 

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 the Attorney-General:  Saw the deceased about a month before.  He was asthmatic. The disease of which be died was pneumonia. There is a great distinction 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 respecting the state of his mind had he known that he would have been examined upon the subject.

3rd Witness:  Dr GOSSE

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

Dr. GOSSE 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.

4th Witness:  Christian GUSTE

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 [author: STREMPEL],  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.  

5th Witness:  Lachlan MACFARLANE

Lachlan MacFARLANE, farmer — Resided at Mount Barker, 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 afterwards 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.

6th Witness:  Christian JAENSCH, [with J.W. THIELE & Gottlieb LIEBELT], one of the defendants.

Christian JAENSCH, one of the defendants, married one of the daughters of the late 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 know of his illness till James YEATES informed him of his death.  The deceased left property, consisting of horses, land, and various goods.  Was appointed one of the executors pending that trial.  Estimated the property at 2,400 pound. [Author: difficult to read on Trove could say 1,400 pound]

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

7th Witness:  Pastor STREMPEL, 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.

8th Witness: Gottlieb LIEBELT husband of Johanna Caroline LUBASCH daughter of Gottfried LUBASCH & Dorothea GREISER

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 £200 out at interest.  Heard nothing of his illness till his wife had returned from church on the day of his death.

9th Witness:  Guilliam [sic] THIELE

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.  

Witness:  Johann Gottfried DOLLING

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 £200 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 HUNT's 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 compared 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 had 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 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 retuned into Court with a verdict declaratory of the validity of the will.

South Australian Register

LUBASCH v JAENSCH

Reported in the:  South Australian Register [Adelaide, SA : 1839-1900], Thursday 4 June 1857  page 3

LAW & CRIMINAL COURT

SUPREME COURT - CIVIL SITTINGS

Cause List

Thursday, June 18, 1957

Wednesday 8 July 1857

Adelaide Observer 

LUBASCH v. JAENSCH

Reported in the Adelaide Observer [SA : 1843-1904] Saturday 11 July 1857, page 3, 

SUPREME COURT. - IN BANCO

Wednesday, July 8

[Before the Acting Chief Justice and the Acting Judge]

  This was an action tried June 22 and 23, to test the validity of a will made by the late Gottfried LUBASCH appointing his youngest daughter, Maria Elisabeth LUBASCH, his heiress. 

The Attorney-General moved that the rule for granting to Maria Elisabeth LUBASCH a probate of the will be made absolute, and that the letter of administration to Christian JAENSCH and his wife be repealed, also that the costs of and attending the said rule and the issue directed to be tried by the Court be both paid by the said Christian JAENSCH.  An order was made by consent, reserving the question of costs.

4.

1st Trial Day 22 June 1857

 South Australian Register

LUBASCH v JAENSCH

Reported in the:  South Australian Register [Adelaide, SA : 1839-1900], 23 June page 2,

LAW & CRIMINAL COURT

SUPREME COURT - CIVIL SITTINGS

Author: The reporting in the SA Register is identical to that of the Adelaide Observer, therefore this has not been transcribed.

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.)

Christian JAENSCH & brothers-in-law loose & to pay costs

South Australian Register [Adelaide, SA ; 1839 - 1900], Thursday 9 July 1857, page 3

LAW & CRIMINAL COURT

Supreme Court - In Banco

Wednesday July 6   [Before the Acting Chief Justice & the Acting Judge].

This was an action tried June 22 & 23, to test  the validity of a will made by the late Gottfried LUBASCH, appointing his youngest daughter, Maria Elizabeth LUBASCH, his heiress.   The Attorney-General moved that the rule for granting to Maria Elizabeth a probate of the will be made absolute, and that the letter of administration to Christian JAENSCH and his wife be repealed; also that the costs of and attending the said rule and the issue directed to be tried by the Court be both paid by the said Christian JAENSCH.  

An order was made by consent, reserving the question of costs.

The brothers-in-law apply for costs 'it was not an adverse action.... we are all the same family'

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

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.

South Australian Register [Adelaide, SA: 1839-1900] Tuesday 29 September 1857, page 3

LAW AND CRIMINAL COURTS, Supreme Court - Civil Sittings, List of Remaining Causes, Tuesday September 29.  HICKS - LUBASCH v. JAENSCH - ATKINSON

Author:  I have not been able to find any further documentation on the outcome of this 'cause.'

Authors Summary of the above events & the trial

The ‘Authors Summary’ is taken directly from the witnesses statements as reported in both the Adelaide Times and the Adelaide Observer.  It includes some additional facts from research 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 [1808-1864] & her husband Johann Christoff LIEBELT [1805-1866] 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 was 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 [b1837-1866] was 19 years old in 1856 & Maria Elizabeth 21 years.  Gottfried’s mother [Anna Dorothea LIEBELT nee WOLF] said he was 26 years of age at the trial.  Johann Gottfried died the same year as his father, he was only 29 years old.
  • Maria Elizabeth LUBASCH's fiancée, Gottfried LIEBELT was a 1st cousin to Maria Elizabeths older sister’s [Johanna Caroline LUBASCH 1827-1902] husband Johann Gottlieb LIEBELT [1823-1893]
• 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 Johanne Luise LUBASCH [1820-1899] & who [who is the author's great, great great grandmother] married to Johann Gottlieb WEITH [a mason, 1812-1881] received [in the will], the two acres of land and the house standing thereon / where she was currently living.
    • 'should also have a certain cottage & land, two acres on which she dwells'.
  • They had arrived in 1855 with 2 young daughters on the ‘La Rochelle', another child born in SA died in 1856, & 2 more children were born in SA the youngest of which inherited this land, which past to her husband Johann Friedrich Wilhelm FAEHRMANN [1857-1935] & [J.F.W. FAEHRMANN is the author's great great uncle through the LIEBELT / FAEHRMANN side].

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 [1806-1892] 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 [1823-1884] house, but he was not then at home.

•  Mr MacFARLINE [sic] is: -  Lachlan MacFARLAN 1806-1892, publican of the Oakfield Hotel, Mt Barker & 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.
• On Saturday 4 October 1856 Maria Elizabeth LUBASCH  'Passed by Mrs MACFARLANE's [sic] house on the Saturday.  Informed a servant that her father was very ill.'  This house was on the main road adjacent to the current Auchendarroch.
• In 1856 Maria Dorothea Luise LUBASCH & her husband Lachlan had 7 of 11 children, & of those 7, 3 had already died.  Of the next 4 children, 2 died as infants.
• 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.  Anna Maria Dorothea & Christian JAENSCH were married 15 April 1853, in Hahndorf by Pastor Gotthard Daniel FRITSCHE, just 3 years before LUBASCH's death.
• This is the couple who headed the court case against Maria Elizabeth.  

5 daughters + 1 mile = 1.6kms

There are 5 daughters who ‘live from half a mile to 2 miles away’  [=.8 km-3.2 kms]

• Mrs THIELE, Mrs LIEBELT and Mrs MACFARLANE lived 2 miles away from LUBASCH [=3.2 kms]
• • ​1st daughter: Mrs WIETH lived on the same section [This is confirmation that they lived at what is now 59 Auricht Rd on 2 acres of land.]
  • 2nd daughter: Mrs THIELE lived two miles off.  [=3.2 kms]
    • In 1856 Mrs THIELE were living in Grünthal which is 2.5 miles [= 4 kms] from the German Arms, Hahndorf.
  • 3rd daughter: Mr MACFARLANE lived about two miles and a half or three miles from the deceased.  [=4-4.8 kms]
    • Mrs MACFARLAN was living at Oak Farm, Mt Barker which is 5.8 kms from Section 3812, Hahndorf. 

  • 4th daughter: Mrs LIEBELT two and a half or three miles from him.  [=4 kms-4.8 kms]

    • Mrs LIEBELT was living on Section 3903 Hd of Kuitpo  [LFH pge 46] which is 7.1 kms from Section 3812, Hahndorf.  

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

    • JEANSCH [sic] & WHIETH [sic] much
• • ​Note:  Maria Elizabeth LUBASCH & her mother lived next door to Mrs WIETH who was at 59 Auricht Rd & the Lubasch family farm was about 400 metres east.

Anna Dorothea WOLF  & Johann Christoff LIEBELT nearer’ miles off’

• ​In 1856 these LIEBELTS were living on Section 4420, [LFH 116] this is 4.3 miles from the German Arms, Hahndorf.
• lived about the same distance from the deceased as Mrs MACFARLANE.  
• 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. [Section 4222 & Section 4230 Hd Onkaparinga]
• An interest in the German public-house [German Arms which was left to Maria Elizabeth LUBASCH & she did not sell it until 1869.]
• 200 pound out at interest.  
• LIEBELT, her son in law, had none of her money [Johann Gottfried LIEBELT 1837-1866 m Maria Elizabeth LUBASCH in 1859].

Gottlieb LIEBELT aged 34 years in 18574th daughter Johann Caroline LUBASCHbut 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 this description is her 4th daughter Johanna Caroline's husband Johann Gottlieb LIEBELT [1823-1893], aged 34 years in 1857.

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 husband 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 1856

• 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 [in Mt Barker] 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.  
  • According to Reg Butler's Database Johann Christian JAENSCH & Johanna Dorothea LUBASCH in 1859 lived on the south side of the Main St, Hahndorf. This is 2 years after 1857 but by 1968 there home belonged to John & Betty CLEGGETT.   

Sunday 5 October 1856

• 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.  

• Maria Elizabeth LUBASCH
  • 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.  

     

Christian GUST

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 was employed by LUBASCH.

Pastor STREMPEL

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.

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

 Just months after the trial, who is Mr C. LUBASCH?

Bibliography