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ROBINSON'S BAY CASE.

WILL IN DISPUTE,

The hearing of the list of civil cases at the Supreme Court Christchurch, included the case Marshall v. Public Trustee and Alexander Duxbury which was heard on Tuesday and Wednesday morning before his Honor Mr. Justice Denniston ■. In this action Mary .Lydia Dixon Marshall v. Public Trustee and Alexander Duxbury, an application was made to recall the probate granted of the will hi the late William Whitfield, on Uwiy 20, 1914 to th® Public '.fyustee. The will was dated February 24, 1910. Mr Raymond XC -with him Mr Williams I appeared, for the plaintiff, Mr Beswick appeared for the Public Trustee, and Mr E. 1. Harper for Alexander Duxbury. ! Mr Raymond, outlining the case for the plaintiff, eaid that on August 10, 1892, when aged nine years, she was adopted by the wife of the testator, under an order by a magistrate, the statutory effect of the order making her the adopted child or both. Mrs Whitfield and her husband who were childless. Plaintiff from that time lived 'with the Whitfields and worked for them on tfceir farm ; assiduously. On November 15, 1901 , by a will /.prepared ift Whitfield's handwriting, lie left twenty-seven acres of land to [the plaintiff. That will was Superseded by one dated June .21, 1902 (which the plaintiff alleged was the last valid will of the testator), and the gift to the plaintiff, of the twenty-seven acres was repeated, provision being made for the and the residue going to a nephew in America. Legacies were left to the Duxburys, who were nephew and niece to Mrs Whitfield. In 1903, with the approval of her adopted parents, plaintiff became engaged to Fredrick Cfrarles Marshall, who them worked on the farm. They' were married in September, 1908, film* the testator's house. In August 1908, Marshall, at the instance of the testator, took a lease of 102 acres belonging to the latter, who built a fcouse for the young couple. On -Sepfcember, 28, shortlY after taie marriage the house* built by the testator for the yx>ung couple was destroyed by fire/ and all their effects were destroyed. Whitfield worried very much about the fire and from that date his health failed. He came to Christchurch and save instructions to the Public Trust Office as to a new will. In the new will which plaintiff was trying to set aside, the gift to her was reduced from twenty-seven •acres absolutely, to a life interest in seventeen acres. A few weeks this new will was executed the Akaroa constable warned the Maflshalls that Whitfield's delusions, especially against Mrs Marshall, were increasing. Two days after lie had signed the will

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Whitfield took to his bed suffering: from mania. On June 25, 1914, he died at the Marshall s residence. Frederick Charles Marshall, farmer, Robinson's Bay, husband) of the plaintiff, gave ' evidence supporting counsel's statement and added that when discussing the lease and improvements to the property, Whitfield said: "It has come to this, that I might as well'tell you. I might live two years or two days, whenever I go Lydia will have this property." The fire that destroyed witness house and contents occurred in September. Whitfield never seemed the same after the fire and worried more over witness's losses than his own. Whitfield insisted upon rebuilding the house. Witness and his wife saw h,im daily; his delusions increased as time went on. During 1910 he could not look after himself, and in April, 1911, after his wife's death, an order was made giving charge of his estate to the Public Trustee. Witness added that the twenty-seven acres were worth £45 per acre. He had paid the full rent of 22s per acre. He and his wife understood that they were to get 102 acres on Whitfield's death. Witness was always on very friendly terms with Whitfield until he became violent. , Thomas D. Kendall, local ripputy of the Public Trustee, '."•••U'tchurch, said that he sucoeded the late Mr Smythe on December 1, 1914. Since June, 1911, the office had charge of the testator's papers. The Office records showed that the will dated June 21, 1902, was returned to the testator om March 10, 1910, with advice to destroy it, another later will having been executed. The document (produced) was an office copy of the earlier will. Mary Lydia Marshall, the plaintiff, gave evidence corroborating her counsel's opening statement. Witness said that Whitfield went to a nursing home in Christchurch in 1910. When he returned a keeper was engaged for two months to look after him. After that witnss and her husband looked after him. He died in June, ISI4. When the will was read over, after the funeral, witness was very surprised. Later she saw Mr Smythe, the Public Trustee, at Christchurch, who said that it was rather a disgraceful affair, and he would do what he could f o"r her. To Mr Beswick: Mr Smythe advised her to try and get more. She had expected to get the 102 acres, from what Whitfield had told her. To Mr Harper i She mentionedthe question of insanity at her first interview with Mr Smythe, who gave her to understand that the will might be upset. Annie Homersham, married, living jn Christchurch, said that in 1910 she kept a nursing home practically a private mental hospital. The late Thomas Whitfield entered the home in June of that year and sjtayed there for about seven weeks. His mind was very disturbed and he had many delusions. Witness considered it a chronic case and asked that he should be taken away. Caroline Bailey, of Akaroa, widow, staid that she knew the late Thomas Whjtfield for very many years. In "1903, she, with her husband, went to England, via America. At Fiji Whitfield joined the ship. He often spoke to witness highly about plaintiff and said that without her he must have died long .ago. He also spoke well of his prospective son-in-law. He added that his daughter (the plaintiff) had been so .good to him that she would have all he left. Ellen, Mari a Marshall, matron-in-cfcarge' "'of tfe.e Curraghmore Home, sajd that &h,e had eighteen month's nursing experience in the Christchurch Hospital. In January, 1910/ she went to Robinson's Bay, to her brother's place, and stayed there till the beginning of April. She made the acquaintance of Whitfield, who she saw constantly. He was not mentally normal.: Witness gave evidence of delusions of the deceased. William Kepple said that he knew the late Thomas Whitfield for over twenty years. Deceased thought "that the sun shone" on his adopted daughter, and called her wonderful. Witness told of a visit to Ohras.tehurch paid by deceased, who then sa;id that he was going to iS'lter his will and that "the people at the Bay (Robinson's Bay) would b.e- disappointed." Richard W. Shepherd, constable stationed at Akaroa, said that Whitfield .continually complained j to him of being annoyed, but enquiries proved that anch complaints were groundless. Ultimately, witness warned the. Marshalls that deceased wanted looking after. Richard Walker Anderson, medical practioner, said that he had read the evidence of Dr. Macready, taken in Queensland, and in witness's opinion Whitfield must have been suffering from senile dementia. One result of such dementia was often a violent and unaccountable dislike to persons to whom the patient had been attached and on whom he depended. This closed the case for the

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plaintiff. Mr Beswick opened ior the Public Trustee. He said that the practical effect of the testator's last will was that the Duxburys were preferred to the Marshalls. At no time did the testator seem to regard the plaintiff as he would .have regarded a natural daughter The 100 acres were never intended °Wilnam Davy Wilkins, John R. Witham, T. E. Taylor and Harry W. Wilkins gave evidence the signing ■of TOtfield's will at Akaroa in 1910 m the office of the local agency of the Public Trust Office. Nothing was noticed strange about the testator's behaviour by any ot these witnesses. Henry Turner said that in January, 1910, he was chief clerk in the Public Trust Office, Christchurch. Whitfield. called regarding alterations to his will. Witness made lead pencil alterations on a carbon copy of the earlier will, until testator was satisfied. Whitfield's condition appeared to be normal. He seemed to be in a hurry to have the will completed. William Morgan, brother-in-law of the testator, said that Whitfield was all right mentally till April, 1910, and quite capable of managing his affairs. John William Hayward, Pres : byterian minister at Akaroa, gave evidence that the late Thomas Whitfield was a member of the church. So far as witness knew, Whitfield's mental condition was normal. He was able to discuss current events intelligently. Alexander Duxbury, nephew of the deceased, said he was left £100 under the last will of Whitfield. Witness gave particulars of land leased from deceased. Witness added that he had not expected to get anyttiing under the will. John M. Duxbury, brother of the previous witness gave evidence. Archibald Hewitt testified to the deceased sanity previous to April, 1910. In February of that year Whitfield said that he was very kard up as he did not get his rent in. - Mary Ann Morgan, married, also gave evidence. Deceased, she said, was ailing for many years, but she had never seen him violent. That concluded the evidence for. the defendants. Before calling on counsel to address him His Honor intimated that he was satisfied a prima facie case had been made out by Mr Beswick, that the deceased was in a satisfactory condition to make his testamentary dispositions at the time of the execution of the will. His Honor deferred judgment in the case.

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Permanent link to this item

http://paperspast.natlib.govt.nz/newspapers/AMBPA19160225.2.6

Bibliographic details

ROBINSON'S BAY CASE., Akaroa Mail and Banks Peninsula Advertiser, Volume LXXV, Issue 3525, 25 February 1916

Word Count
1,685

ROBINSON'S BAY CASE. Akaroa Mail and Banks Peninsula Advertiser, Volume LXXV, Issue 3525, 25 February 1916

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