SUPREME COURT.

Press, Volume LXV, Issue 13359, 26 February 1909, Page 8

SUPREME COURT.

CIVIL SITTINGS. His Honour Mr Jn-tifc Dennistoii pre-idc-d a: th<- supreme Court civil sitting.- ye-tt-rday. VSCUIiN v. ASCII F.N AND ANOTHER. This was an action brought by Anna. Catherine A-ehon against Hamman I H.-iirv As.-h-n and t loderiek Beker (trii-'.'c, and i .vcii!(ir>.i to set a>ide tin- will (it' Jk-nry A.-i'lu'ii, of Olioka, (HI UK- L/folllld <ll Ullduo llltlllilioe. j Mr Wilding, with liiiu Mr Harman, appeared tor the plaimiti : Mr Stringer, ! K.f., with him .\lr Helmore, for defendant*. Mr Wilding, in outlining plaintiff's case, .-aid >h< was the widow, who, under the original will made in 1870, J ;i:h .4ivc.ll a lii'e interc-t in the whole j t>l her husband's property. The testaj tor -uffered iroin oanci r in tin- head, and was ill for six mouths buj'oro- lie died, delirious <>v several occa- ! turn-. During the latter part of the I illnevs. the testator nils uui'sfd by i Haninian Henry Asohcn. and as he was I :iivu>:i a lite interest in half of the I property, and l.'ie n-.-idiie after the Id< atii of Ins mother, under a will made I-a few wctks l)efure death, it was alI !c_:<'d that undue influence was u»od. J Tlie widow received only a life iiitirost I m hall of tin- property, and the other , two childri n were excluded. Frcni his '■•'Miiim as sick nurse Henry A.schc-n «a.s in a position to inihiI'liii' the testator, who was picidiarly suseeotible to such iitiliK nee. Henry A-chen was instrumental 111 gelling the later will prepared, and as he eiuoHy beuetited under it, the onus that i!ie testator was of sound mind and uiidi-r-itaiidin;; at the time was upon Imn. Illf plainiilf. in the (viiir.se of her evidence, said her husband, who died on April Ith. 1111)7. never mWkhl to make a \w\v will. Her son, naiiunan ilenry Aschen. lold her that she would not gel her husband's life insurance money when lie died unless it ivus made over to her. and l!io new will was made (or that purpose. liv-r husband war. wandering 111 iii.s mind at the time the will was '.submitted to him, and he waved it away. Her husband thought the old will »ao in force uu to llietiiiie of his death. Catherine Mohrlons. sister of the piaintiif, described the illness of A.-X'heii. and said that during the few inniitiin lie was attended by his .-on Harry, who was kind to him r.o;nelime.s, but tometimos he was not. , After Aselien died witness <'.\presscd the opinion to Harry that it was a fahaino that tile other children should havo been left out of tho will. Harry .said he wars- entitled to everything, as ho had stopped at home and worked on the farm. Frederick Meyer, grn-ndson of Aschen. detailed a conversation he had with lii.s uncle Harry in March. l!<07. The latter said h<> was getting things .-r-ttUvl up. and had to do it. as he had a wife and family to keep. He .added that- if he was a chicle man J would have been a different tiling. Anna Meyer, daughter of A.-ehen, said that after the death of her father she heard of the niiv will. and approached Harry on tin matter. To Mr .Stringer: In November, 1007, her mother visited Frederick B< ker and an arrangement was arrived at wheroby witness and hi r brother John were to r<'ce:ve money out of t'ho estate to settle the dispute about the will. Tho witness heard of it and refused to take anything. Henry promised to give John £200, and an agreement to that effect vsis drawn up. l'aymont was to bo made within six months of her mother's death. Courtney Nedwill, medical practitioner, gave evideneo that the effect r)f the disease of cancer was to induce mental apathy. A rr.au dying from cancer would bo easily influenced by those in attendance «.<;i him. and 'his will power would bo greatly weakened. John Asehon. s-itond w>ll of the testator, sti.t.vl that he l,i>t .snw his father about a month before 1.0 died, but had no conversation with him about bus affairs. To Mr Stringer: When witness first Irft his father, his brother Ilenry wins at Spi'ingston. but he went Iwiek to live with their father shortly afterwards. Witne.sss'-; brother had agreed to give him L'liOO six m-onth.s ai'te-r his nvcthi'-.'s 01-eath. He would expect to be paid the £200. but he had no y'.MMirity for it. Cord Hrnry Mpvct, farmer at Ladhrook-, also gavo evidence. In tho opening for the defence, Mr Stringer said that on John Aschen leaving his father, Jlrury, who had niarrifd, agreed to enme back to look after his father and hoh> to work tho farm. The father agreed to leave Harry the property if he looked after bis mother. Mr Bokor, a friend, was called in. a- it was found desirable to provide that the life insurance should go to the old lady. At that time it was agreed that Henry was entitled to the property ; a will was prepared and read over to A soli en, who" thoroughly under.stood the contents, and signed the document. For thr defence Henry Arthur Rluoit j Davios. medical practitioner. Kaiapoi, ! deposed that " he attended the testator from December. ISKIB to March, 1007. Ho visited the testator on February -Ith and March :27th and 31st. in 1!K)7. and found niui j quite rational an<l cupa.ble of mnnagi xj. his own affair-. He nndor*toed wji.it wa.s caid to li'in. although towards the last lie grow a little apathetic. A week before his death he was nuito cr. va !iie 01 making a will and nndcr-tnr.ding it. ar.d a work earlier, on 21st. ■-< ithiiugh witness did not see him. he •«•- lieved he was still bitter able tr> do s-.. Frederick Rekrr save evidence n« tn ri'ceivefl instructions from Aschen in ' March. 1907, to leivo a w'll prcjiarefl | pro\ iding for Mrs A«ehen, sen... and : for Harry and his wife, w h ; > were to j liavi everythiim after Mrs A.-chon. sen., . died. Tnc will was dldv prepared by ■ Mr H"lmoro. Mes-rs ' Shcrwin and i Melirieu were the T!'e will i was read over twice io Aschen. who I tiioroughly nnoer«Toov7 "t.. and after- j ward- signed his name t:> it. Tlir pro- j perty was w.irth about £1000 net. i Walter Stanley P!ier-.vin and Oeo. i Mehrten also gave evidence. | Hamman Henry Am-!iou sta't.-.l that ! h<> left home pbeut seven years ]>rior | to his father's deat'i. Tw<-!ve months | after leavin":, witness's brotiior-in-law and his fathiT a-ki'd him to come back I'ome. as bis brother and his wife were leaving. Witness consented, and wont back His father had uotiiin;-:. as his brother bad the hor.=e=; and imp!< ments, | and nok theni to lii- new lilaco. Witliess ;.nt his savings (il>.-'iit il 7~> or t> 1, )) into ;l:e Hi- father said that '.ifter his dentil ivjtnow and his j n'.cthor were to live on Uie farm. and. t'n.it after her de.it"n. '• would all -o ' to him. The >uhj-ct of a v.-v- will was ' 1 ,- o(ii!"iitly nieutionerl by his father, but witness never infiisr nc<-d !'im mi air way. His fa the r W a - ruent-illy capable u;> to within four days i.f his <!.-.ith. In ;:ivi'::;- iu<lg!v.p-;t l;i-? Hnti-iiir snid hr- sn iv tir> rcn-~o:i to ooiib; th" -fry I the dofenco. Th-re was no question j .•1- n A-oh<?ir* inieiuions, and these j wi'.-e hv t'-e will -!i ai>. i:;- i tell-g- nt and raiiona! rmuner. He! va« sat'i'-cd that tho_ defer..la :i: - - <-vi- j evi;ie:i;-f for tV i.laintin" w:> - uiuri'. . j Tin- will of -i:e te-tnto-v i-ade <v j Mnrri -Jl<t. IMO7. iv-.i'd be ad.-.iittrd :o liroh.ite in -ili.|!i:i fe.rm of lav.. .ludgnie'i-. '.!•. the c!a:m w.m'd \h f-.;r d"- • fi'it'laui. 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