WILL UPHELD.

Dominion, Volume 4, Issue 1007, 23 December 1910, Page 6

WILL UPHELD.

THE HILL CASE, SONS OF TESTATOR REBUKED. JUDGE'S COMMENT, "POSITIVELY APPALLING." *rUe disputed will of the late Herbert -.'■• Hill; of■' Wellington, was again before the : Supreme Court . Jestofday afternoon, when Mr. Justice , Cooper heard argu- : went-and gave jud.jir.ent in the case of Hill v. Beere. The plaintiffs are four of the sons of the late-Herbert Hill, of Wellington, drain-pipe -.manufacturer, their names' being George, • Samuel, Herbert, and' Thomas. Tho defendant, Oswald -Beere, of Wellington, solicitor, is the executor of the disputed 'will, Tho estate was, sworn at (ab>out ,£14,000 net). The will was duly proved,, and the action - .was to: revoke probata on 'he ground that tho; testator was of unsouad mind when : the will was made,, and was subjected tu undue influence. Mr. A. Dunn appeared for the plain-tiffs,-and Mr. M. Myers' for the' defendant. . ' ' ... . Argument for the Plaintiffs. Mr. Dunn at first contended that,- al- : . -though the burden of proof rested initiglly.on the plaintiffs, yet in any case like this the ultimate burden of proof must rest upon the side that relied upon the sanity of the testator. ' His Honour pointed out that it had •beem decided by Mr. Justice Connolly In Edgecumbo v. Edgecumbe, 1896, that this ,was not so. . '; ■ V . Mr. Dunn argued that' when the testamentary capacity of a testator was in question; and evidence.on each side was equally balanced, tho onus probandi muse rest-, upon those, who sought to-establish .' 'the sanity of'.the testator. His Honour' said that the onus' ot •;proof. was matter of procedure. Pro- . 'bate of" the will in this ease had " Tie'en .granted, and'it was therefore prima facie valid, arid the onus of proof must lio on . 'the side'which attacked it. Mr. Dunn continued to argue'the point inntil hi 6 Honour suggested that he'should !go on to other aspects of the case. ■ "According to. your view," said his 'Honour, "you have to satisfy me that your evidence is equal to or preponderates over that adduced by Mr. Myers." Alleged Want of Observation. '. Continuing, Mr. Dunn suggested that Mr- Beere,.not being on liis guard, and not knowing the late, Mr. Hill very Well, . did not observe what a bad state ho was in. Mr. Myers pointed out that Mr; Beere had had intimations that the testator /, gave way to drink. - . Mr.''Dunn' next emphasised the evidence .that,, the testator failed to.-detect : ' a typist's error in an important part of the.'will, and that he estimated his estate at JBIO.OOO,; whereas it was sworn at . -'<£14,522. -

His' Honour said it was quite natural for a man who owned a good deal of real (property to estimate it at a figure differing ■ considerably, from a' Government valuation mado after his death. Mr. Dunn' also sought to make a point of the testator's omission- of any mention of- his.-'son' George—his' favourite son—in connection with the: will.

_ His Honour recalled the evidence" showring-, that the. testator explained to - the ; why he-did-not leave George a ; 'share of the estate. He also pointed out . that George's name 'occurred several times in the will. Mr. Dunn-next dealt with the evidence ; as,to the- drinking habits of the latd Mr. Hill, and suggested that such a bad phy- \. 'Bical condition as the' deceased was ;6hpwn to 1 have been in. would almost certainly affect the mental powers. The de- . lusion that Mr. Johnson had "faked" ' the books indicated, this. His Honour: You ask'me to set aside tt will on the mere suspicion that chronic alcoholism would so affect a man's mind that he would be unable at any time to understand the contents of a will. What authority have you,for that? I know of none. ■ "

'Mr.Myers said he could show Mr. X/unn an authority to the contrary.' Mr. Dunn said he . relied on the genoral principle. He then traversed some of the medical and other evidence. HIS HONOUR'S JUDGMENT. ■ CANNOT SET ASIDE THE WILL. His Honour, after remarking that it ; ffoujd'-not be necessary for Mr.' Myers to' adaress him, proceeded to "give judgment. He', said .he had considered the evidence and the law bearing' on the i case,' and was quite satisfied that he could ** . se.k aside the will. The statement i ~?, ln L a " c S <;d two grounds for doing 60: (1) That the testator did not know and, approve of the >vill and was not of 60und, mind, memory, and understanding when it was executed; and (2) that the ■ execution of the_ will was obtained by means'of undue .influence on part of relatives then .residing with the deceased. . a tittle of evidence had. been given in the second ground, and thereforo tho sole point to be decided was as to the testamentary capacity of the deceased. Testamentary capacity meant that a man must be capable of understanding tho . nature of the .business in which he was engaged;, he must have a. recollection of his .property and-,the:..circumstances. of the . persons. who had. claims to be the objects of his bounty, and he must have a competent idpa' of . the. manner in which he wished to dispose of his property. If those condition did 'not exist that was an- indication that a man Was not of sound mind, memory, and understanding. The Testator's Condition. This was hot a case of attack on a' will Siade by. an- insane person during a - lucid 'interval. The testator, was not insane, but-he was an excessively heavy drinker. : His Honour appropriated tho words- of Sir John Nicoll, in an English case which, he said was of • precisely- similar character to the present one. 1 According to that learned Judge- all that required to be shown was the absence of : tlic excitement at-the time when the act was - done;. or at least the. absence of such a degreo of the excitement as would vitiate the act,' and the result would depend upon the deceased's state and, condition: at the time, to' be collected principally from what passed at the time of giving instructions and signing the instrument purporting to be the will. That applied in the , present case, which was' concerned with the will of a man who was an immoderate drinker, and who, for 19 or 20 years, was accustomed to drunk and remain drunk for long periods, .but who was at times sober, and continued so for a long : time, and was: a keen and shrewd man of business up to a certain point. That his health suffered from his drinking was beyond question, and that the organs of his body degenerated was also beyond question, but it appeared in the plaintiff's'case that up to April, 1908, he had not lost the capacity for transacting business nor the; knowledge of business matters. . . \

Sober When ho Made the Will, In this conncction his Honour also reviewed the evidence as to the capacity of the testator and his business actions in 1906 and 1907, down to the formation of his business with a private company in ■ 1908, with himself, his son . George, and his . son-in-law . Arthur Johnson, equal Holders of a total ; capital of iGOOO, to lease . the\ plant and business property From the testator. The evidence of the plaintiff, George Hill, that his father was i perfectly competent business man when that arrangement was entered into, in April, iOOB, disposed of a great deal of the evidence of_ unskilled witnesses, and carried the business capacity of the testator down to witllin twelve months of the time when ho made his will. The presumption was that he was sober when he made the will,, and this was not disproved'by any rebutting evidence,.

The Executor's Evidence. Much depended on the evidence of the defendant, and his veracity had not been attacked by Mr. Dunn, but only his powers of observation. Yet the sobriety of the testator on March, 10 f(whep ho gave the instructions for his will) was proved to demonstration, Mr. Bcere's evidence of what : toot place being accepted as true. • Some of the witnesses for the plaintiffs had said that the late Mr. Hill, .when under: the influence of liquor, acted in ; such a'way that no person of ordinary intelligence, onco he began to talk, could fail, to detect his cowliKoa.

Ho must havo boon experiencing, at that :time, one; of' his'temporary '"lapses into sobriety." His Honour then reviewed the defendant's evidence as to his interview of March 10 with the testator, which, his Honour held, indicated that the testatorwas able to intelligently transact business. Tlio signature of the deceased on tho will was tho signature of a sober man, and was as good as his signatures' on documents of 1900 and 1908, and they had the evidence of attesting witnesses as to his sobriety and competence.

No Improbability in the Will. patent drunkenness had been suggested, but there was (as Sir John Nicoll had said) really no such thing. A man must be either drunk or sober. There was no direct evidence that he was drunk on March 10. Ho agreed with Mr. Dunn that the will .must be looked at to see if thcro was anything in it so improbable as to, lead to tho presumption that tho testator did know what ho was about at tho time. He could find nothing of tho sort in tho will. The deceased appeared to have been always a hard and unforgiving* father, but there was nothing in tj l ® will that was inherently improbable. H hether tho onus of proof was on the executor or the plaintiff—and ho was inclined to think it was on the plaintiff— ■ j i.' le<!n that the will was made by a man of testamentary capacity, one who knew, what .he ■ was about. Sons Rebuked: "Positiyelv Appalling." I wish now to make some general remarks," continued, his Honour. "It is positively appalling to think'that a man given liquor in that way should have been supplied by members of his family, day m and day out, with whisky in enormous quantities and champagne. They must have known that tho inevitable result would be eventually his death. Their only excuse was that they could not keep liquor from him. It was forDiWn by,,,tho doctor,' and yet his sons took' .it, to -him at the rate of a bottle of'whisky' a day or' more, the excuse being that they were compelled to do so by a man who, during part of the time, was actually bedridden. I think that, to say the least, they were guilty of serious errors of judgment, and almost of dereliction of duty in supplying liquor in enorquantities ,to their father becauso they wero afraid that, if he did not drink himself to death in. the house, he would do so in a hotel. Clearly there .must have been some means of checking his craving for liquor other than by giving him that which increased tho craving which ho had, time after time said that he had. When he was in the private hospital, and liquor was kept from him, he was getting bettor, but his family allowed him- to be removed from there and brought home, in order that lie might again havo liquor, and hb continued to havo it until his death. It is a terriblo .case,, and I,feel .that I am perfectly justified in saying what I have said." After some remarks, which are reported elsewhere, his < Honour concluded by saying that judgment must be for the defendant,- but tho question of costs remained. \ ..Mr. Myers asked for costs. ' His Honour referred to a ruling of Mr. Justice .Williams that where a plaintiff claimed, to upset a will on grounds of testamentary incapacity and undue influence, and failed on both, costs must be allowed.

Mr. Myers referred to imputations that 'were made by the other side against the late Mr. Hill, some members of the family andono of the medical witnesses, intimidation of witnesses being- the- apparent object of making the; imputations. He pointed out that no evidence was brought in support of those imputations, and he. asserted that none could be brought.

His Honour concurred in the statement that there had been no such evidence. His Honour allowed costs on tho highest. scale, as on an action for JBIOOO, three extra days at ,£ls 15s. per day, summons for discovery■ one guinea, interrogatories two/guineas.