WILL TANGLE

Evening Post, Volume CXII, Issue 17, 20 July 1931, Page 10

WILL TANGLE

A SOLDIER'S LETTER

"TESTAMENTARY DOCUMENT"

COUKT'S FINDING-

' Holding that. a. soldier's letter was intended as a testamentary document, his Honour, Mr. Jnstieo Heed, in a reserved judgment delivered, to-day, said lie thought that letters of administration that had been granted must be recalled. , • The ease was one in which Anna Matilda Plimmer and others were'the plaintiffs, and the Public Trustee was the defendant. It was an originating summons for the recall of letters, of administration in. the estate of Isaau Harold' Primmer, granted some 16 years ago.to his father, Charles Plimmer, now deceased. * • ' ' "The Public Trustee," said bis Honour, "is the executor in the estate of Charles Plimmer, deceased,.and has discovered, amongst his papers, a letter written by Isaac Harold Plimmer to his mother just before going into action, on Gallipoli. .. . . He was killed. It is claimed by the plaintiffs that; such letter is a testamentary disposition." The letter whs written from Gallipoli oil the Bth August, 1915, and commences, .'Dear Mother and Father.' It refers to a. great, fight then in progress, and his letter ends as follows: '1 am writing this in a hurry, things aro a bit dicky, and one doesn't know when one " is going to get layed out; let's hopa when it comes it will be only of a temporary nature. In case it is more permanent you must not grieve too much, for I'll be doing my duty and that is the main thing, it's one little chance one has, and one has to make the most' of it. We haven't been-asked to do anything very serious up to date, but this time it will be. Remember me to all my friends. I'll not be writing any farewell letters other than this. Give my loveto Girlie and Mollio and to yourselves love and good-bye. I can't thank you. sufficiently for all you have done for me, and this is but the little I can give in rctmyi. Dad will . fix my , affairs. I would like him, however, to arrange that what I possess "to be divided equally, that is, between, himself, mother. Girlie, and Mollie.' ■■ "It was enclosed in. an envelope addressed to his mother' and is endorsed in his handwriting, 'To be sent only if the sender is dead.' Admittedly the whole letter is in his handwriting^ The writer was a Eoldier in active military service, and section 11 of The Wills Act, 1837,, applies, which reads as follow: —«Any soldier being in actual military service . . . may dispose of.'his personal estate as he might have ditto before tho making of this Act. Section 34 of The War Legislation Amendment Act, 1916, extends the power of disposal to real estate, and section 23 (2) of The War Legislahon and Statute Law Amendment Act, 1918, makes that extension retrospective to the commencement of the war. . "The effect of these statutes is that no question arises as to the.duo execution of the letter in question, the solo question being as to whether or not'it discloses the intention of the deceased respecting tho posthumous disposition, of his property. INTENTION OF LETTER. "That it was intended as a testamentary document is made clear by the following circumstances: (1) Tho letter is written to his parents aiid , indicates that he is iii daily peril of death; (2) the writer expresses definitely his wishes with regard to the disposition of his-property;1 (3) he encloses the letter in an envelope which boars the endorsement that it is 'to be sent 'only if. the sender is dead.' "It is contended that the use of the word 'however' in the letter indicates that, there, was no definite disposition of his property, intended. It.is'said that the'proper interpretation is that he left everything'to his father, but that if his father considered it right he should do as the deceased wished, I do not think that is the proper construction. Deceased in tenor, appoints his father executor—'Dad will fix my affairs.' He proceeds then.to express his wishes as to the disposal of his property. The effect of the word 'however' is to negative any assumption, that, by 'fix my affairs,' he meant, that his father :was to be entitled to take everything. The whole document, and the circumstances surrounding the writing of it, and the endorsement upon the envelope containing it, show 'a fixed and final expression of the testator's wishes.' I think the letters of administration granted must be re-called, and that the letter in question is entitled to probate." ' , , . ■ ■At the hearing Mr. G. 8.. Powles appeared fpr the plaintiffs; Mr. Rose for the Public Trustee as executor of the will of the late Charles Plimmer, of Wellington; Mr. H; H. Cornish for.the unborn grandchildren; and Mr. J, Lockie for the Wellington City Coun* ■oil. ■ , , ' • ,