It was not simply the devolution of the family’s title and great fortune that was at stake; the future of the Earldom depended on the outcome of the case. Toby, who was sixty-three, had a son and a grandson to carry on the title. Tom, who was forty-seven, had never married. For almost twenty years Tom had been in love with the wife of the heir to the Duke of Norfolk by whom he had an illegitimate daughter and with whom he was still very much involved. It was doubtful whether he would ever produce a son: unless Toby won the case, the centuries-old Earldom would die with Tom.
It was, as the judge was keen to stress, a ‘friendly contest’. Eighteen months before the court hearing began, the two brothers had exchanged letters. ‘I would like you to know that I am really delighted you are clearing this matter up now & once and for all,’ Tom wrote to Toby. ‘If the case should go in your favour (or for that matter in mine) I would like you to know that my affection & feelings for you will not be altered in the very smallest degree.’ Toby, the elder sibling, was less sanguine. Riddled with self-doubt, and ‘very unhappy’, he expressed his ‘utmost dislike for the whole thing’. ‘I feel very deeply being the person responsible for bringing all these family skeletons into the limelight,’ he confessed to his brother.
The moral character and motives of George and Evie Fitzwilliam – and particularly their mother, Evie – lay at the heart of the case. The brothers’ relationship with their parents had determined both their lives. Ultimately, Tom had supplanted his brother in his parents’ affections after Toby, the elder by sixteen years, was cast out. It was Tom who had inherited the family’s spectacular Elizabethan mansion, Milton Hall, and the gracious lifestyle of a gentleman farmer. Toby, cut off in his father’s will, had been forced to work, earning a living as Secretary to the British Field Sports Society. ‘So far as I am concerned I have no faith in the case whatsoever,’ he wrote to Tom.
Nor from my own point of view have I much concern about which way it goes. Many years ago I realized nothing would be coming my way so I have faced nothing on expectations. For nearly twenty years I have had a marvellous job which has made me more happy than I can say. What more does a man want? … I should be the happiest man on earth if it wasn’t for this b----y case.
For Toby, the case involved raking over a past he had vowed to forget. Both his parents, so he believed, had betrayed his love. He was convinced his mother had destroyed the papers proving his legitimacy out of spite.
In June 1920, shortly before undergoing a serious operation, Evie Fitzwilliam had written a letter to her husband, George, to be handed to him in the event of her death. ‘My darling one,’ she began.
You and I have loved one another as no other man and wife ever did. I have always played the game with you and you have been goodness and straightness itself. For all this I am grateful … I hate leaving you and Tom as I love you both so much and you have both loved and honoured me. God help you to bear my loss. Keep straight for Tom’s sake. Let him look to us both as two of his best friends.
In what she believed to be her last words to her family, Evie had excised Toby. She could not have been a worse friend to her elder son. At the time of writing, they had been estranged for six years. She had not seen or spoken to him since the day in November 1914 when he had been given special leave by his Commanding Officer to go to Milton Hall before leaving for France to fight on the Western Front. Toby’s marriage to Beryl Morgan had been the cause of their falling out. Evie never forgave him for marrying ‘the granddaughter of a draper’. She had even refused to meet her grandchildren.
The rift had been a source of lasting unhappiness to Toby. Until the day Evie died, in March 1925 – five years after the operation she thought would kill her – he had tried to make it up with his mother. Ten years after their last meeting, he had almost succeeded. ‘The prospect of seeing you again is too splendid,’ he wrote excitedly in January 1924, after she had issued an invitation for him to come and stay for the weekend. ‘I must keep all I’ve got to tell you till we meet. I do hope you are strong and well now. I heard how ill you had been for a long time. As for me, you’ll find me thinner than ever and going bald very fast. The result I think of an obstreperous family.’
Toby had assumed that Beryl and their two children, Rosemary and Richard, were also invited for the weekend. He was wrong. Ten years after the event, his mother’s anger over his marriage had not subsided. She wrote back by return: ‘I want you to quite understand that we do not intend to have anything whatsoever to do with your wife and her family, nor do we wish them discussed. Now having got the unpleasant part of my letter over I wish to say that if you agree to this you will always be welcome here.’ Toby was devastated. Writing to his father, he said, ‘I can hardly tell you how much I was looking forward to seeing everyone this weekend … I believe I know what your opinion would be of any man, most of all your son, if he accepted such a condition and have therefore most reluctantly written to Mother refusing. I cannot tell you what a grief and disappointment it is to me and can only hope that some day things will come right.’
They never did – despite it being a wish his father shared. Ten months later, Evie became seriously ill. ‘I don’t know how things will turn out, but there is no doubt it is touch and go,’ George wrote to Toby. ‘My only regret for the moment, if anything should happen to her, is the thought that you and she never came together again and made friends – anyhow, forgive her for my sake.’ Four days later, Toby received a call from his father to tell him that Evie, who was fifty-eight, was dying. Rushing up to Milton immediately, he arrived too late.
But it was what he perceived as his father’s betrayal that had caused Toby the most distress. Although their relationship had been volatile, they had remained on more or less friendly terms throughout the years that he had been estranged from his mother. After Evie died, they had grown closer; Toby and his family frequently stayed with George at Milton. As the elder son, Toby had expected to inherit the Hall and the estate. But when George’s will was read out after his death in 1935, he had left everything to Tom.
‘I had been treated by my father as his eldest son all my life, and I imagined that Milton was being left to me and it was a very great shock,’ Toby later recalled. ‘I have never once grumbled or felt any umbrage about not being left Milton or any money at all, but I had the most frightful feeling that my father deceived me all his life. It was the biggest shock I had had, I was really – we were good friends and to wake up never having been told anything just knocked me out.’
Toby believed that his father had cut him out of his will to honour his mother’s last wishes. His inheritance was the price Evie had demanded he pay for his marriage to Beryl. In 1914, in a series of vituperative letters, she had sworn that if the marriage went ahead Toby’s life ‘would be ruined for ever’ and that he would ‘estrange himself for ever’.
Toby had never doubted his legitimacy, though he had come to realize that he might have difficulty proving it. He had been raised as George and Evie’s eldest son and heir and neither of his parents had ever told him that he was illegitimate. On the contrary, in the rare moments that the subject was discussed, they had both assured him that he had been born in wedlock. As late as 1930, five years after his mother’s death, George had reiterated to Toby that he regarded him as his legitimate son and heir.
It was only after Toby married Beryl that Evie began to spread rumours behind his back that he was illegitimate. Up until then, she had gone out of her way to stress to friends, and to members of the Fitzwilliam family, that he had been born after she and George married.
If, in 1914 or soon after, Evie had destroyed the papers that proved his legitimacy, as Toby believed she had, she could not have known that, decades later, the future of the Earldom would be at stake. Her motive in destroying the papers – if she had done so – was to prevent Toby from inheriting the Milton estate.
Given the strength of Evie’s feelings against Beryl, Toby had no doubt that she was capable of such a
vengeful act. Indeed, there was evidence to suggest that she had contemplated it in 1909, when Toby had fallen in love with an actress whom he had wanted to marry. In the years before the First World War, marriage to an actress was still regarded as scandalous. Though Evie herself had once been on the stage, she forbade the union. Toby, like his great-uncle Milton before him, was banished to Canada. A close family friend, Mary Fullerton, was at Milton the morning he left in disgrace:
‘I went to Peterborough station and saw Toby off to Canada. The actress and her mother were at the Station Hotel and Toby, who had been very unwilling to go to Canada, had a word with them on the steps of the hotel before he left on the train. I returned to Milton and found Evelyn Fitzwilliam in a peculiar mood. She was furious with Toby over his attachment to this girl. Up to this time I had never heard any suggestion that Toby was not legitimate and he was generally regarded and treated as if he was legitimate and George Fitzwilliam’s heir. Evelyn Fitzwilliam then said she had the papers proving Toby’s legitimacy, but that she was now going to destroy them. She mentioned that she had been married in Scotland. I was amazed to hear any doubts about Toby’s legitimacy, and I implored her not to do anything hastily. I pointed out that Toby was going to Canada to start a new life, and begged her to forget the past and let him start again. I left with the impression that she would not do anything hastily. I cannot remember that I ever went to Milton again. There was no doubt in my mind that after this incident I was out of favour because I had taken Toby’s side and acted as I did. Evelyn Fitzwilliam was very strong-minded. George Fitzwilliam was a weak character as far as she was concerned, and she absolutely ruled the roost.
It is possible that documents proving Toby’s legitimacy had once existed. This impression was directly confirmed by his aunt, George’s sister Alice. She remembered a conversation with Evie, in the library at Milton, which took place before the First World War – and before Evie and Toby had fallen out. ‘My sister-in-law … I can see her now standing with her back to the library window,’ Alice remembered. ‘She said: “Are you one of the people who think that Toby was born before we married?” I said: “I am afraid I am because we have always been told so,” and she said at once: “Well, it is not true.” George came in from the other room and said: “No, and I have got the papers.”’
‘The papers’ he was referring to were the documents relating to their wedding in Scotland in the autumn of 1886, some eighteen months before Toby was born. In 1930, five years before he died, George made a recorded statement, sworn in front of a Commissioner of Oaths. It proved only that George was under the impression he might have been married in advance of his first son’s birth. ‘When travelling in Scotland in the year 1886,’ he said, I went through a form of marriage with my late wife, Daisy Evelyn Fitzwilliam, which we believed to be valid.’
Had George given the Commissioner of Oaths a selective version of events in his statement, or was he telling the truth? For Toby to be proved legitimate it was necessary for the court to establish that the Scottish marriage had actually taken place.
Fifty years earlier, when Billy Fitzwilliam’s uncles and aunts had accused him of being an impostor – a changeling who had no right to succeed to the Earldom – the family had pulled back from the brink of going to court. In February 1951, in their second inheritance dispute of the century, and facing their demise, they had no choice.
At the outset, the case, with its mountain of supporting documents – thousands of pages of depositions, sworn affidavits, and for the most part unilluminating bills and correspondence – threatened to become the most expensive in British legal history: a real-life rival to Dickens’s Jarndyce v Jarndyce. Rumour, gossip and a lack of hard facts were the defining features of Fitzwilliam v Fitzwilliam – as they had been when Billy’s right to succeed had been disputed within the confines of the family.
The two brothers were represented by England’s most distinguished silks. Toby’s leading barrister was Sir David Maxwell-Fyfe, who had been Britain’s Assistant Chief Prosecutor at the Nazi war-crime trials at Nuremberg. Maxwell-Fyfe’s challenge was to convince the judge, Mr Justice Pilcher, that, on the balance of probabilities, George and Evie had been married in Scotland, and that it was a valid marriage under Scottish Law. Tom’s legal team contested that the marriage had never taken place at all.
The couple had met in the spring of 1886, when George, an Army officer, was twenty-two years old, and Evie, then twenty, was an actress. The lawyers were hard-pressed to produce all but the barest of sketches of their relationship. George, who spent a good deal of time at drinking clubs and music halls in London’s West End, had apparently been introduced to Evie at the Gaiety Theatre, where she was appearing in the chorus of a sentimental musical called Little Jack Shepherd under her stage name, Eva Raines. George, of medium height with a shock of fair hair, heir to the 23,000-acre estate at Milton, was both handsome and supremely eligible. The judge, from the little he could gather, said he pictured him as a ‘simple, straight-forward and affectionate young man’. Considerably less was known of the young Evie. As the search for records to confirm her identity revealed, it seems she was not the daughter of a respectable country doctor, as she claimed. But whoever she was, her charms were not in doubt: ‘She was the most lovely woman I have ever seen,’ Alice Williams Wynn, George’s sister, remembered. That George was swept off his feet by Evie was not in dispute.
In September 1886, Evie accepted an engagement to play a minor role in a touring musical comedy called The Beggar Student. It was scheduled to open in Glasgow at the Grand Theatre on 20 September 1886. At some point during the Scottish tour, the alleged marriage was supposed to have taken place.
‘One could almost smell the lavender and hear the whispering of the silk beneath the crinoline,’ one newspaper reporter commented of the elderly women in their eighties and nineties who took the stand. In the absence of official records, or witnesses to the marriage – in short, any evidence relating to the venue, the precise date, or the form the ceremony had taken – the lawyers were largely reliant on their testimony. The women had known the couple in the late 1880s and 1890s. Forced to cast their minds back over sixty years, they told the court the little they knew.
Had George merely accompanied Evie to Scotland and lived with her in what the judge referred to as ‘a state of concubinage’, or had they married while they were there? Brandishing an ear trumpet, the eighty-three-year-old Kate Rickards was a key witness. The daughter of Evie’s former landlady in London, she had gone on the tour as a companion to the actress. Unhappily for Toby, Mrs Rickards was unable to provide details of the wedding: in the course of her eight-hour appearance in the witness box, she was not even able to confirm the couple had married. Picking over the fragments of her memory, the barristers, struggling to make themselves heard, barked their questions.
‘Can you tell us on what terms of affection they were to each other?’
‘Very, very great affection,’ she replied. ‘They were very, very devoted to one another.’
Seizing on her recollection of the journey to Glasgow, they quizzed her over the only reference George and Evie had made to marriage.
‘We went up by train. Going over the border they chaffed me and said I must be very careful because we were going into Scotland and I might find myself married whether I wanted to or not.’
In the 1880s, Scotland was a notorious destination for eloping couples. The butt of music-hall jokes, it was known as a place where marriages could be contracted quickly and informally. Yet despite having teased Kate on the train, George and Evie did not tell her of their own plans to marry. In any event, Kate, it transpired, was firmly under the impression they were already married. Arriving in Glasgow, the trio had rented a small flat on Sauchiehall Street. ‘We had two bedrooms and a sitting room. They had one bedroom and I had the other. They lived there as Mr and Mrs Fitzwilliam, as man and wife, and so naturally I thought they were married.’
If, as George’s evasive
statement to the Commissioner of Oaths intimated, he and Evie had married in Scotland, they had had every reason to keep their wedding secret from Kate. It seems they had deceived her mother. In 1886, Kate was a naïve eighteen-year-old; as she confessed, her mother would never have allowed her to go to Scotland with an unmarried man and woman.
It turned out, so Toby’s lawyers submitted, that George and Evie had in fact been married twice. However, the circumstances of their English wedding were as mysterious as the one in Scotland. Once again, Kate Rickards had been there. But, for the second time, George and Evie had chosen to keep her in the dark.
In the winter of 1888, two years after the alleged Scottish marriage, Kate was living with the couple at their flat at 88 New Bond Street in London, where they were known to servants, tradesmen and friends as Mr and Mrs Fitzwilliam. One morning, Evie woke Kate early. It was New Year’s Eve – 31 December 1888 – a little over six months after Toby had been born. ‘She [Evie] came in one morning and asked if I would be a witness. She did not say what it was for or anything. I went to St George’s Hanover Square, and it was a very dark, clammy, foggy morning and there was no one in the church at all so far as I could see, and they went through a ceremony. It seemed not a bit like a wedding. I did not think it was a wedding and it did not dawn on me that it was.’
Kate Rickards was cross-examined by Mr Milner Holland, the King’s Counsel representing Tom. ‘When you left New Bond Street, are you telling His Lordship you did not know where you were going to?’
‘No.’
‘You did not know which way you were going to turn after you got out of the door?’
‘I did not know where they were going, I did not know it was a church they were going to; they did not mention anything about a marriage.’
‘You see, Mrs Rickards,’ Milner Holland continued, ‘I must press you about this; here was your closest girlfriend and a man you considered to be her husband with whom you had been living for a long time but without, according to you, without a word of explanation suddenly asking you to put on your hat and come out on a cold December morning and go to church; and then what happened?’
Black Diamonds: The Rise & Fall of an English Dynasty Page 47