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THE WILL CASE., Issue 8034, 10 October 1889
THE WILL CASE.
WINMILL v. GALLIE,
PROBATE OF THE WILL REFUSED,
His Honor Mr Justice Williams sat at the Supreme Court at eleven o’clock this morning to deliver judgment in the will case of Winmill v. Gallic.
His Honor said that before delivering judgment he ought to tell the gentlemen engaged and the parties to the case why judgment had been so long deferred. The hearing of the case itself had been broken by a number of adjournments, and was not finally concluded until the end of June. After the conclusion of the case there was a stress of business before the Court, and the cases then taken occupied, one way and another, a good deal of time, and did not allow him a large amount of leisure. He might also state this: that of all the cases that ever came before him this one was by far the most difficult.
His Honor then read his judgment as follows :
In this care Mrs Gallic propounds the will of her late husband, John Gallic. The will bears date the 20th of August, 1872; the testator died on the sth of September, 1878. The grant of probate is resisted on the ground that at the time of the execution of tho instrument propounded John Gallic was incapable of making a will. It is an indisputable rule of law that the onus prohandi lies, iu every case, on the party propounding a will, and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator (Barry v. Butlin, 2 Moo., P.C. 481). He must, therefore, prove that the testator, at the time of the execution of the Instrument, possessed a sound and disposing mind and memory—that is, that he retained sufficient active memory to collect in his mind, without prompting, particulars or elements of the_ business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in relation to them (Converse v. Converse, Redfield’s ‘American Cases on Wills,’ p. 171). The testator must therefore not only be able to understand that he is, by his will, giving the whole of his property to one object of bis regard, but he must also have capacity to comprehend the extent of his property and the nature of the claims of others whom by his will he is excluding from all participation in his property (Harwood v. Baker, 3 Moo., P.C. 282). It has been, indeed, said by Sir James Hannen in Boughton v. Knight (L.R , 2 P. and D., p. 72). repeating iu effect what he had said in a previous case, that whatever degree of mental soundness is required to establish responsibility for crime, capacity to marry, capacity to contract, capacity to give evidence as a witness, that the biahest degree of all, if degrees there be, is required in order to constitute capacity to make a testamentary disposition. There is no duty, moreover, cast upon the Court to strain after probate and to grant it where grave doubts remain whol’y nnremoved (judgment of the Privy Council in Panton v. Williams, 2 Notes of Cases, supplement, p. xxix.). If upon the whole of the evidence the Court is not satisfied that the will is valid, the Court ought to presume against it (Sutton v. Saddler, 3 C.8.-N.S. 87). No doubt if the provisions of a will are in themselves leasonable, that circumstance is of itself some evidence that the person executing it was possessed of reason. But however consonant to reason and justice any paper propounded as a will may be in tho Court’s view of it, it must still appear to be in substance and effect the very act and deed of tho deceased as a competent testator, and not that of some other person making use of hU name, with however good intentions (Brodgen v. Brown, 2 Add. 241.) It has been suggested also that as where the provisions of a will are simple a less degree of capacity is required to understand them than if they were complicated; therefore in the case of a simple will less evidence of capacity is sufficient to justify the Court in establishing it than in the case where a will is complicated. For this passages in the judgments in tho cates of Bleuitt v. Bleuitt, 4 Hagg. E.R., at p. 452, and Durwell v. Coifield, 1 Kob. 8.R., at p. 51, appear to afford some authority. There must, however, always be tho preliminary question whether there is opacity to make any testamentary disposition at all. As to that, the law seems well summed up in the first proposition stated in Mr Wood Renton’s ‘article in the ‘ Law Quarterly Review,’ vol. 4, p. 442, as follows:-“A testator must possess a memory sufficiently active to recall the nature and extent of his property and the persons who have claims upon his bounty, and a judgment and will sufficiently free from tho influence of morbid ideas or external control to determine the relative strength of these claims.” In the present case it is necessary also to state the proposition of law laid down by Lord Penzance in Smith v, Tebitt (L.R., 1 P. and D., at p. 434), that a diseased mind onco proved to have established itself would be presumed to continue, and the burden of showing that heal hj had been restored falls upon those who assert it. This then is the law which has to bo applied to the evidence brought forward. Tho will itself is an exceedingly simple one. It leaves all the testator’s property to his wife subject to the duty of maintaining and educating Us children during their minoiity. The testator’s property, beyond his household furniture and any trifling cash balance in the hands of his agents, consisted only of two freehold properties, one in High street (let at tho date of the will to Hoyt and Chaplin), and the property in Leith street where the testator lived. Such a will is very commonly made iu the colony by persons in the situation in life of the testator, the husband trusting that when the time comes the wife will do what is right for their children. In the present case it is contended that there are circumstances which show that, if Gallio had been a competent testator, ho would have boon unlikely to have made a will in these terms. What has actually to be determined is the mental capacity of Gallio on the 20th of August, 1872—tho day on which the will was made; but in order to come to a just conclusion on that subject it will be necessary to consider the evidence as to his mental condition before and after. I propose, indeed, to leave until the last the consideration of what actually took p’ace with respect to the preparation and execution cf tho will itself. It has been proved beyond a doubt that Gallie fer many years was a hard, strong-willed man, tenacious of Ids rights, shrewd, industrious, and keeping a very firm hand over his affairs. It has also been proved that, io 1861 or 18 2, he left off his business as a blacksmith, and had an illness of some kind, and that thereafter he suffered mentallyand physically a complete change. I am entirely satisfied, notwithstanding the evidence cf Mrs Gallic, that there was a great mental deterioration even in 1852, and that later on this deterioration ooia’derably increased. After they went in 1862 to live in Leith street it is certain that Gallio was no longer “ the robustick man” of one witness, “the sicker chiel ” of another; nor could it then be said of him that he was more, rogue than fool, as a third witness thinks be was at an earlier period. As to the extent of Gallic's mental capacity from 1862 to his death in 1878 there is a considerable conflict of evidence. Fortunately, however, there exist, in one instance at any rate, entries male at tie time relating to Gallie’s mental condition ns to which there can be no question. I allude to the entries in the books of the lunatic asylum Starting from these I propose to discuss, first, what has been called the lunatic asylum episode; then to consider the evidence as to his business transactions ; then to allude to Mr Dick’s inquiry; and then shortly to refer to the evi dence of witnesses on both aides who speak of Gallie from their own observations. In so doing I shall discuss tho admissions of his incapacity alleged to have been made by Mrs Gallio. I shall refer later to the evidence as to Walker, and then to the will itself. Gallio was committed to the asylum on the 16th of June, 1865, by Mr Strode, the Resident Magistrate. The warrant of commitment was produced. It recited that Gallie had been examined by Dr Hulme and Dr Burns, and that they had sworn that he was suffering from mental derangement, and was likely shortly to become dangerous to himself and others. In the asylum diary them is an extract signed by Dr Hulme, the medical officer then attending the asylum : “Galiie admitted with dementia; had previous (years since) paralysis; tongue implicated.” There is also an ent/y on the 16th of June, signed by Mr Hume ; “John Gallie was admitted to-day, having in a fit of delirium taken a staff from a boy, protesting it was his, and beating the boy.” On tho 20th there is another entry: “John Gallie, admitted on the 16th inst,, is going on favorably; he is becoming more resigned.” On the 7th of August there is an entry: “John Gallie in excellent bodily health, but demented.” The last entry, also signed by Mr Hume, is da’ed the 21st of August, and is as follows: “John Gallie was relieved this day by order of R. H. Forman, Eeq., 8.M., on Mrs Gallie promising and giving satisfactory surety that her husband would be taken care of, and that he would not be dangerous to others. Gallie left the asylum in excellent bodily health (having grown fat since his admission), but not any better mentally. Dementia. *’ Tho order signed by Mr Forman is also produced. It u addressed to the keeper of the Lunatic Asylum, Dunedin, and is as follows: “ Upon presentation of this authority you are hereby required to deliver to Lydia Gallie the person of John Gallie, now under your charge. She, the said Lydia Gallie, having tendered sufficient for his (the said John Gallle’s) safe keeping.” Gallie therefore was in the asylum from the 16th of June
to the 21st of August, 18(15, was insane when he was discharged, and was handed over to his ’ wife, she becoming responsible for his safe keeping. Dr Hulme is dead ; Dr Burns was not called, having no memory of the occurrence. It is nut disputed that both of these gentlemen were careful and competent. Mr Hume, however, was called, and so were Messrs Andcrsoa and Baxter, who were warders in the asylum at the time. Allof them state that they perfect.y remember Gallic's admission aud his condition in the asylum. As the number of patients was then small, and as Gallic for nine weeks was in the immediate custody of these persons, their evidence is most valuable. It fully bears out the entries in the asylum journal. Mr Anderson was the warder who had actual chaigo of Gallie. Mr Anderson is now a merchant, and is a witness of the highest intelligence, lie states that he never saw Gallie read a newspaper in the asylum; that he could neither fill his pipe nor keep it a'ight; that Gallie was an untidy man, and that they used to have to wash his face every morning, and sometimes put on his vest aud coat and strap up his braces for him. Mr Hume, who has had a lengthened expoiience in the treatment of insanity, states that he does not consider Gallie could have undertaken any legal busmesp, or signed any document, when he left his hands. Mrs Gallie was confined on the 23rd of June, a week after Gallie was taken to the asylum. If, however, Gallie had been arrested under some mistake, it is reasonable to suppose that Mrs Gallie at once, and before her confinement, would have sought the assistance of Gallie’s agents, Messrs Gillies and Street, or of his_ friend and neighbor Mr Harris, all of them influential persons, who, if a wrong had been done, would have been willing and able to sot it right. No remonstrance, however, was made, nor were any steps taken by any person, although the fact of his confinement must have become known. Mrs Gallie herself says she got him out of the asylum as scon as possible. She, however, was* able to go down to the Registry Office on the 4th of August to register the birth of her child, aud Gallie remained in the asylum until the 21st of August. Tne evidence is conclusive, not only that Gallia was properly confined in the asylum, but that the propriety of his confinement was admitted at the time by everybody connected with him, including Mrs Gallie, It is proved also beyond doubt that he was discharged from tho asylum not became of any improvement in his mental condition, but because Mrs Gallie undertook to be responsible for him. The evidence now given by Mrs Gailie as to Gallie’s condition before and at the time of the asylum episode is entirely untrustworthy. She says “when he went into the asrlum his speech was much the same as it used to be.” “ Mia mind was as good after he left off business as before.” “ His mind was as strong as ever.’ “ There was nothing unusual about him at the time he went into the asylum ; just the same as at other times. Nothing unusual about him when he was in the asylum. Nothing unusual about him the day he left the asylum, ” “He was just the same then as the day he went to Sievwright’s office to have his will executed.” That his mental condition may have been the same when he executed the will as when he was in the asylum is possible. The evident intention, however, with which Mrs Gallie’s evidence was given was to lead the Court to believe that his mind had never become enfeebled at all. If her evidence as to this were true his detention would be inexplicable, but the cotemporancous evidence shows conclusively that his detention was proper, and therefore that Mrs Gallie’s evidence is not to be depended on. As to the acts done and business transacted by Gallie, we have also a considerable amount of coteinporaneous evidence. We find that he registered the birth of his son Henry in 1863; that he voted at municipal elections in December, 1863, and ia March and April, 1865, signing his name in the poll book. Since that time the ballot has been in force, and the books have been destroyed. Diking, however, says ho polled him for mayoral elections four or five times from 1868 on. Diking says he was taken to the booth in a cab, given a ticket, shown how to vote, put into the booth, and taken back again, they trusting he would vote right. Whether he did vole properly we have no means of knowing. Doting says they did not discuss matters with him, because be could net speak, and that the Committee, w hen they came to Gallic’s name, always said (hat he was right, and that he hadn’t got a mind of his own. MTndoe says that in 1867 he wont to see him regarding his vote for the election of superintendent, and that he said he would vote for Mr Maoandrew ; that he got him up to the poll; and that it was with difficulty he got his vote recorded. This was before the ballet. M'lndoe went to inquire about him ia 1869 at his house, and ho saw a female there, who told him he couldn’t Kte Gallie. In 1871 there was another election for superintendent, in which M'lndoo was an active supporter of Maoandrew. He says : “Two or three of us went to Gallie’e, and found he was not fit to take to the poll. A lady cams to the d or, and said he was not fit to come out of tho house.” In 1873 there was anothercleotiou, in which M’lndoealao supported Mr Maoandrew, He says that some members of the Committee were down at Gallie’s, but he knows ho did not then poll. This is the direct evidence of Gallie having actually polled. There is also the evidence of Brown that in 1857 he naked Gallic for his vote for Birch forrnaycr, ard didn’t get it, and that the next year or the 3 ear after he asked Gallie for his vote for Driver against Birch, Gal.ie said he’d go for Birch and have nothing to do with a Yankee. We find, alsa, that Gallic on different occasions executed deeds. On the 23rd November, 1865, he executed a power of attorney to Mis GaUie to leas? his properties and for general purprs.s, but not including a power to sail land. Thispowir of attorney was prepared and attested by Mr D’Arny Haggitt, a solicitor then practising in Dunedin, and since dead. Mrs Gallic states that th ; s power of attorney was given to her because people might not like to trust him after he came out of the asylum. In December, 1866, he signed a lease to Hoyt and Chaplin, attested by Mr Street, who is since dead. On the 28th of February, 1872, he signed an application under the Land Transfer Act, witnessed by one Alexander Willis, in respect of the land sold to Altken. On the 28th of August, 1872, he executed the will in question. On the 6th November, 1873, he s'gned the lease to Wi'sm at the request of Miller, which was also attested by Mr Street. On the 29th of April, 1871, he signed the extension of lease to Watson, which Mr Donniston attested. On the 22 :d of May, 1878, less than four months before his death, he executed a conveyance of part of his land to his son, John Gallie, attested by Francis, who was called as a witness, but who really remembered nothing. Apart from the evidence of Mr Uenniston and Mr Watson as to the lease of 1874, and of Mr Sievwright and Mrs Gallie as to the will, which I will refer to later, all that we can safely say is that the formal execution of these various instruments has been proved. But little reliance can bo placed on such execution as evidence of capacity. The remark of Sir John Nicholl in Groom v. Thomas, 2 Hagg. Eco., at p. 445, applies to the present case. He there says:—“lt has been relied on that he was treated as a person of sound mind, that he executed instruments, powers of attorney, deads of assignment, drafts on bankers ; but is his recovery correctly to be inferred from these circumstances? It is necessarily the case where a person is in the hands of his family, who are unwilling to take out a com mission of lunacy, that under their sanction such formal acts should (be done, and such instruments signed.” I myself think such a course is highly inexpedient, but that it is not unfrequently adopted in perfect good faith is certain. Tho important question is what part did he take in the negotiations which led up to the preparation and execution of the* formal ins'ruments and in any other business transactions in which he was interested. As to the power of attorney, there is no evidence. Tho fact of its execution is, I think, evidence against Gallie’s capacity. Gillies and Street were the only persons who had business relations with Gallie. The only reasonable explanation of the power is that it was executed at their instance in order that they have a person cf sound mind authorised to transact business with them. Mrs Gallie’s own evidence suggests something of this kind. As to Hoyt aud Ohaplin’s lease, there is no evidence beyond that of John Gallie. As to the surrender of this lease, as to the negotiation of the agreement for lease with Miller, and as to the extension of the lease, we have letters from Street to Mrs Gallic suggesting terms, giving advice, and treating her in every way as tho owner. Copies of Street’s correspondence have been preset ved; no letter to Gallie has been found, and all the letters are to Mrs Gallie only. All receipts, also, that qvn bo found are receipted either by Mrs Gallie or John Gallic, jun. Mr Hislop says he never saw Gallie in Gillies and Street’s office ; though if he were of reasonably sound mind it would be impossible not to suppose he would have taken an interest m his property, as he was quite able to get about and had abundant leisure, Mr Hislop says he remembers Mr Street leaving the office after having expres’edan intention to go and see Gallie on business; but tho person Mr Street wrote to on business matters and the person he saw would probably be identical. Mil'er’s evidence is also important as directly contradicting the evidence of Mrs Gallie and John Galhe on the subject of negotiating for his lease. He is distinct that he never saw Gallie at all in the matter. It is noticeable that tho agreement with Miller drawn up by Gillies and Street was made not with John Gallie, but with John and Lydia Gallie, the evident intention being that Mrs Gallie should be bound personally. Mrs Gallie also stated that Watson went down to negotiate for the extension, but Watson says he was never there till the execution of the instrument. With respect to Mr Denniston’s evidence as to the execution of the extended lease of 1874, I am by no means satisfied that he made Gallie understand it. I have no doubt Mr Denniston read it over and explained the 1
tiaimcticm fully, hut this, I think, hj clear: ' that nothing in the nature of conversation took - place between them. If Ga lie Lad asked any , questions the peculiarity ul his speech would have at once attracted Mr Denniston’s atte.u- : tion, and there would have be .n some talk and explanations which would have impressed the occurrence on Mr Denniston’s memory. I infer, therefore, that Gallic was silent, or confined his expressions to a gesture or monosyllable, which Mr Denniston understood as signifying an intelligent acquiescence. Mr Denniston did not know beforehand the kind of man he was going to see. If, seeing a person cf grave and venerable appearance seated at a table, he gave a lucid explanation of the transaction, and the person addressed signed the document, Mr Denniston would naturally suppose all was right. Mr Watson’s evidence as to the execution Cirrits the matter no further than Mr Denniston’s. Mr Watson, however, speaking of the prior negotiations, says: “We came into contact.with Hepburn, who negotiated with Gallie.” *Watsoa, however, did not soo Gallie, but saw a good deal of Mrs Gallie and John Gallie, jun. Hepburn is d ad. Mr Davie, however, his partner, says this : “I know there were negotiations between Hepburn and Gallie. I once went into Hepburn’s room and saw Gallie. Hepburn said: ‘This is Mr Gallie, about the High street lease.’ Hepburn conducted this negotiation.” He says, also, he is positive that Gallie was alone. Street’s letter, however, of the 10th of March, 1874, to Mrs Gallie, shows that M’Landress, Hepburn, and Co. had been in communication with Street as to getting an extended lease. With respect to Aitken’s purchase, both Mr and Mrs Aitken distinctly contradict both Mrs Gallie and John Gallie. and deny that they had anything to do with Gallie in negotiating for their purchase. Mrs Aitken, in fact, only came forward as a witness when she saw the evidence given by Mrs Gallie on this subject. This explicit conDadiction of Mrs Gallie and John Gal ie by Miller and the Aitkens entirely independent witnesses— throws the greatest doubt, in my opinion, on the truthfulness of Mrs Gallie and John Gallie, If these persons had really negotiated with Gallie, they could baldly have failed to remember it, and they have no in stating anything else than the truth. It is difficult to understand how Gallie could have been sound in his mind in 1871, on the occasion of Mr Dick’s visit of inquiry,(much lees that he could have then occupied the position of head of his household. There was a scandal afloat concerning Mrs Gallie Into this scandal Mr Dick and Mr Fawcett, office-bearers of the Baptist Church, of which Mrs Gallie was a member, were deputed to inquire. _ They called at the house and spoke to Mrs Gallie, and she referred them to her children John and Lizzie, aged seventeen and fifteen respectively. Mr Dick and Mr Fawcett did not, however, spetk on the subject to Gallie, nor did Mrs_ Gallie refer them to him. Mr Dick says he considered Gallie as imbecile, and was not surprised at Mrs Gallie not referring them to him. Mr Dick did not in his evidence mention the name of the man mixed up in the scandal, but it was evidently Walker, who at that time, if not living in the house, was frequently about the house. Gallie, of course, was living in the house, and, except when out walking, was constantly there. His physical health was good, be could eat and smoke, chop wood, and walk about, and, though not vigorous, was in no sense a sick mar.. It is not suggested that his eyesight wis impaired. If there w;.s anything wrong he would know it. and if his wife in h>s own house were accused of impropriety he would be the man to whom she would naturally turn to conclusively refute the slander. “My husband is sitisled, what more do you want?” .shou'd have been a conclusive answer to Mr Dick, but Mis Gallie passed over the head of her household altogether and referred Mr Dick to a boy and a girl. The only reasonable inference to bo drawn from thess circumstances is that Gallic’s mental condition wes such that any reference to him would have been use'f ss. The-e is a gxeat mass of evidence from different persons who had various opportunities of seeing Gallie, Th's evidence is in many respeds conflicting. Some witnesses soeak of rational acts done by Gallie and of conversitims they had with him. A large number, however, apeak of his inability to carry on a connected conversation, and of bis rambling from one subject to another. Many speak of h’s untidy and neglected appearance, and give different instance s of childish and irrational conduct. It is imposs ble to disregard the concurrent evidence of persons so completely independent of the parties and of each other as Dr Hochen, the Rev, Dr Stuart, the Rev. Mr Bruntou, the Hon. T. Die!-, Mr Bain (formerly in the detective s i vice), Mr B. B. Martin, Mr Anderson, of the firm of Anderson and Morrison. All these gentlemen are persons of intelligence, and had ample opportunities of observation, and all have arrived independently at the same conclusion. The family evidence, which really follows that of Mrs Gallie and John Gallie, amounts, in fact, to this: that Gallie was throughout a man of comp'ete’y sound mind and understanding. I am perfectly satisfied that this is untrue. That Gallie was not wholly without intelligence, and that on some occasions he displayed more intelligence than on others, is obvious from the whole of the evidence ; but that he had the degree of intelligence Mrs Gallie claims for him is incredible. We have, however, the evidence cf a number of witnesses, who depose to statements made bv Mrs Gallie as to Gallie’s condition, which, if she made them, are inconsistent with the evidence she now gives, and which amount to admissions on her part, not only confirming the asylum witness s, but showing that Gallic’s condition remained the same after he left the asylum. Mrs Morell, who lived in the neighborhood for about two years from 1864, and who attended Mrs Gallie in her confinement in 18G5, says that she had many times conversations with Mrs Gallie about the old man-what a trouble he was to her, and what she had to do for him; that Mis Gallie told her that she had to wash him; that on one occasion he put his new clothes down the water closet; and that she had to do all the business herself, as he was incapable of doing anything. Mrs Morell left the neighborhood ihortly after Milly was born in 1865, and saw Mrs Gallie on two occasions afterwards, once after Gallie’s death. Mrs Morell’s evidence is probably open to the suggestion that the conversations of which she speaks might really be only one conversation, and have taken place at the last interview, after Gallic’s death, and refer to the latest years of his life only. Bramley, however, left the neighborhood in 1859. He cays that when Mrs Gallie had been up at Gillies and Street’s she would complain, and say that she wouldn’t have had to do it if Gallie had not had this trouble, and that she didn’t know what she would have done if she hadn’t had Walker. The Rev. Mr Brunton, who visited the house in 1869 and 1870, formed the opinion that Gallie was an imbecile, especially from what Mrs Gallie said. Mr Brunton states that she especially mentioned Gallie had had a stroke, and that she bad to bp constantly on the watch lent Gallie should get away, as he was in the habit of wandering if he could get away, and that the boys in the street would make fun of him. Mrs Campbell, who lived in Leith street up to 1870, states that Mrs Gallie told her that she was oblig d to keep Walker there, that Gallie was so incapable to do anything. Mrs Peters, who was in the house (luring Annie’s illness in 1870, states that Mpa Gallje (old her that Gallie would get up in the night and move the furniture in the house about and pile it against the front door if she did not watch him; also, that she had to cars for him as a child, wash and dress him, and that if she didn’t look after him he’d put on his trousers hind side first. Mrs York, sister to Mrs Peters, who was in the house at the same time, says Mrs Gallie told her Gallie was suffering from softening of tbe brain, that he was unable to attend to himself when he got up in the morning, that he would put on his trousers hind side first; al-o, that unless she followed him to the water closet he would sit down as he was, and that it was very unpleasant for her to attend to him. Mrs Fairbairn, who lived next door from 1869 to 1872, says that Mrs Gallie did not speak to her much about Gallie, but has told her that he caused her a go'd deal of trouble and required a good deal of attendance. The Aitkene, who came in July, 1872, to live on part of Gallie’s land, both say that when they were about to put up a dividing fence Mrs Gallie asked them to put up the palings on her side, so as to prevent the old mm from getting up on the rails. Tha fence was so erected accordingly, and still stands there. Miller, who was negotiating for a lease in 187 A went down to the house and asked Mrs Gallie if he could see Gallic. He says she replied that he was unfit to do business, and that his nvnd was gone, or something to that effect. M's Logan, who visited the house, stated th it about 1873 or 1874, after Annie’s death, Mrs Gallic told Mrs Logan her troubles: that she had to do everything for Gallie, just like a child ; that when he had to go to the back she had to undo his things; also that she had to watch him at the back, or he would be out. Mrs Moss, who lived in Hanover street from 1863 to 1875, speaks of one occasion when she saw Mrs Gall’e prevent Gallie going out, and when Mrs Gallie explained to her that when he got out he went away too far and stayed out toolong, and she got anxious about him. Mrs Mackenzie, who only knew Mrs Gallie in 1879, says that she told her that Gallie had been a great source of trouble and anxiety to her, having been out of his m : nd for twelve years, and that she had to treat him as a child. To these admissions by Mrs Gallic must certainly be added the particulars given in Dr Borrows’s certificate of death. Dr Borrows had only attended Gallie a few days before bis death. It became his duty under the 35t' section of the Registration of Births and Deaths Act, 1875, to give a certificate in the presoiibed form, stating to the best of his knowledge and belief tbe cause of death, both secondary and primary. Dr JJorrqws certified as the primary cause sgfteninij' of the brain, comipemrng six-
teen years before death; and as the secondary, general paralysis, commencing two years before death. Mrs Gallie would have been the person to whom Dr Borrows would naturally refer for particulars of Gallie's previous illness. I certainly infer, notwithstanding her assertion to tbe contrary, that the told Dr Borrows that Gallie had been for sixteen years previous to his death suffering from softening of the biain. Now these witnesses are for the most part strangers to the partie and to each other. It is impossible to suggest any conceit between them, and the same observation will apply to the general body of witnesses called by Mr Fraser. This, no doubt, adds greatly to the value of their testimony. Where, however, the witnesses form a group, and where they would naturally have been in constant communication with each other, the value of their testimony is much Jess, When the question of capacity was originally raised, each one would strain his recollection in order to call to mind any rational acts of Gallie that he could think of, would tilk them over with the rest, and each member of the group would have his recollection and imagination stimulated and influenced by the recollection and imagination of tbe rest. Tbe evidence ultimately given by each member would really not represent his independent memory. This might reasonably be expected to happen even where there could be no suggestion of any intention to deceive on the part of any member of the group in question. As I have previously said, the will itself is one which under ordinary circumstances a man in Gallie’s position might well make. It is urged, however, that the relations of Mrs Gallie and Walker had been to the knowledge of Gallie of such a nature that it was very unlikely that Gallie, if ho bad had his senses about him, would have left all his property to his wife. Obviously it is not necessary, in order to support this contention, to prove that improper relations actually existed between Walker and Mrs Gallie. If it be shown that Gallie had at one lime believed them to exist, and that nothing is shown to have taken place to have led him to alter such belief, that is sufficient. Now Grant’s evidence, if true, shows that after Gallie went down to Leith street, and before he went to the asylum, Gallie had conceived rightly or wiongly a fixed idea that his wife had been unfaithful to him with Walker, and that ho had had a will prepared absolutely excluding her from all share in his property. _Mr Grant is a man of high character, wholly independent of the parties, and it is impossible to suppose that his evidence is the result of imagination. It was suggested, as Grant said in his evidence, that he told Gallie he should take the matter to the Divorce Court, and as there was no Divorce Court till 1868, that either Grant was wrong in giving the date cf the occurrence or that the mistake showed that Grant’s evidence was incredible. Because Grant may be v rong in a detail of the conversation, it by no means follows that he is wrong in the substance of his narrative. 1 certainly believe Grant’s story, and think there is every reason to believe the occurrence took p ace as he says before Gallic went to the asylum. Grant’s account shows that Gallie had at the time of the occurrence considerable mental capacity, and there is other evidence to show that in the early days in Leith street Gallie’s capacity, though weakened ,was much superior to what it subsequently became. If, as a fact, there were grounds which might have led Gallie to suspect something wrong, this would tend to corroborate Grant’s evidence that he did suspect something. Let us see, then, what independent witnesses say as to what they observed of Walker. Grant himself says that he has repeatedly seen Walker at Guide's when passing by. Findlater says that in the sixties Gallie had a man, Walter going about with him, and that on one occasion, when Walkeraud Ga lie came down to where he was living, w?alter bought some liquor, and on its being proposed to give Gallie some Walker would not allow it. Munro says that before 1865, when he h-ft Dunedin, he used to see Walker with Gallie. Bramley, a neighbor from 1804 to 1869, says that Walker had Gallie vt ry much under control; that he (Bramley) went once to the theatre with Walker and Mrs Gallic, and once a trip to the Heads with them; that he has met Mrs Gallie and Walker several times of an evening in Leith street coming homo aria in arm; and that he should say Walker was “ boas” of the house, if he was asked. He says that he never saw Walker long away, and that ho was there a short time before he (Bramley) left in 1869. Mrs Morell made Mrs Gallic’s acquaintance about twelve months before the youngest child was born, and attended her ia her confinement, which took place in a cottage rented for tie purpose in Albany street. Walker, she says, -was living in the house, and appeared thoroughly the roaster. Mrs Morell says Walker came to fetch her when Mrs Gallia was confined, called on Mrs Gallie three or four days after, when she was still in bed, and afierwards helped her out of the cab when she returned to her own house. Mackay says that if from 1863 to 1870 he wanted to find Walker he should have gone to Gallie’s house. Baxter, who had been warder at the asylum when Gallie was there, left there in 1866 or 1867, and went down to live nearly opposite Gallie, Baxter says be was oft-n ia Gallie’s house; that he often saw Walker; that he seemed pretty well at home, and more like the “boss” than Gallie; and that Gallic’s was the only place ho krew Walker live, Lambert, who carted firewood to tho house between 1863 and 18S7, states that after Walker left his store he took up kis residence at Mrs Gallie’s, where to all appearance ho bad full control, because when the wood came Walker always ordered the old man and the children to cany it up. He says the wood was paid for by Walker, who got the money from Mrs Gallie. Frew remembers Walker living there and his being at Nelson, and that while he was there Mrs Gallic asked him (Frew) to read a letter which she had re-eived from Walker. He also remembers Walker’s return from Nelson, and seeing Walker an i Mrs Gallie together. Mrs Campbell, who lived in Leith street from 1863 to 1870, and knew the family well, says that Walker was living in Leith street during this period. This lady says that shortly before Mrs Gallic’s youngest child was born, in Jure, 18‘5, she told Mrs Gallie that out of respect for herself and her family she shou'd put Walker out of the house. To this Mrs Gallie replied that she could not do that, as she was obliged to keep Walker there, as Gallic was so incapable to do anything. Yesey, who in 1866 was a boy of thirteen, and came then to live in St. At drew street, says that he knew Walker well, and that he has seen him sitting in Gallie’s verandah as if living there. Begg, who at the end of 1868 occupied the cottage which Bramley then vacated, and lived there fifteen mouths, says that he used to see Walker very often going out and in. Dean, who for three years, from 1866 or 186J on, was a policeman, with his beat in North Dunedin, believes that there was a man besides Gallie living in Gallie’s house during that period. Kelly, who was building a schooner in 1868, 1869, or 1870, in Peliohet Bay, thinks Walkerlived in Gallie’s, and says he was there most of the time he was building tho schooner. Mrs Butcher, who lived in Leith street on a section next but c ue to Gallie’s. until 1876, and who was on very intimate terms with the Gallie family, says that r lived in the house for years j that she understood be was there to keep an eye on Gallie, as it wasn’t safe for him to be without somebody. Bhe also says that Walker in'etfered ia the household affairs, and that if she wanted to borrow anything she would not have asked Gallie but Walker. She says that when she has been sleeping in the house, Gallie would get up in the night, half dressed, and walk about till Mrs Gallie or Walker would get up and calm him down, and put him hick to bed again. The evidence of all the foregoing witnesses, with the exception of Mrs Butcher and of Baxter, who, as appears from his wife’s evidence, has continued to live in the same house, is limited to the period before and up to 1870. Mrs Aitken, however, who cime next door in July, 1872, says she has very often seen Walker there, and that he seemed to be going abaut almost os if he was at home. Walker must have been about at the time of the Dick inquiry in 1871; and there is, of course, tho evidence of the Lu6fords as to his presence at that time. Mrs Gallie’s account of Walker is that she originally sent him down to put up fences; that her husband took a fancy to him ; that be stopped ten or twelve months in the house, and then left, because his work was done. Phe states that he left her to go into the store; that afterwards he might have come back to see them as a friend, but never staved there—except very, very seldom, when he came to see Gallic Walker became bankrupt in December, 1869, and left the store. Mrs Gallie says he didn’t come to the house after that, except now and again: that during the period he first stayed in the house he was simply in the position of a labeling mas, and that fhe rover talked about Walker ta Gallie, nor did Wa'ker talk to hqr about Gallie, Here, again, it is difficult to reconcile Mrs Gallie’s testimony with that of a number of independent witnesses. That does not, of course, prove that Mrs Gallie committed adulteiy with Walker; but the independent evidence does show that Walkei’s position in the house has not been satisfactorily explained, end further, that a man prematurely aged ami enfeebled, as Gallie was, might not unnaturally haibor feelings of j -alousy ar d. suspicion toward* Walker, and express them in the way in which Grant says he expressed them. I have considered the question of Walker apart from the evidence given by Mrs LudforO. My own opinion is that if any woman whomsoever comes into Court and charges her own mother with adultery, in order to get money, even though the charge be true and her claim just, she would stick at very little. Nor did Mrs Ludford’s opportune hysterica impress me favorably. I am bound, however, in justice to her, to say that where her evidence is capable of corroboration by independent evidence, it has been to a great extent corroborated. Her
description of Gallic much more resembles that given by the mass of independent witnesses than that given by the rest of the family. If, then, Grant’s evidence is credible, it is clear that Gall e believed that his wife had been unfaithful to him with Wain er. Mrs Gallic herself says that Gallic never spoke to her about Walker, therefore there had been no explanation between Gallie and his wife, b'caudal, we know, was flying about in 1871, and Walker, according to the Aitkens, still frequented the house in 1872, the year the will was made, If Gallie really believed in 1803 or 1864 that his wife had been unfaithful to him, and had then determined, in consequence, to leave her nothing, that in the absence of evidence showing the existence of circumstances to change his belief would make it very doubtful^ whether a later will leaving ail his property to his wife was a genuine expression of his intentions Mrs Gallic states that some years before Lydia went away Gallie had giv. n her a copy of a will ho had then made, and that the never ascertained Its contents, and aim that for a few years before the will of 1872 Gallie used always to say he would leave everything to mother. Mrs Gallic’s evidence, therefore, carries back this expression of Gallic’s intention to about the time when, accoiding to Grant, ho had expressed a directly contrary intention. Mrs Gallie’s statement that she never made herself acquainted with the contents of the earlier will is in itself highly improbable. The will now contested is engrosser! in Mr Sievwright’s handwriting. He is one of the attesting witnesses, and a clerk of his named Rei lis the other. Mr Sicvwright’s memory is a complete blank as to what took place. He cannot say whether he received the instructions, or who gave the instructions. Keid, the other witness, was not called. No evidence was given accounting for his absence, but a statement was made by Mr Chapman to the effect—if I remember right —that he was in New South Wales, and remembered nothing about if. Whether that was or was not the statement made 1 am sathfied of this; that in a case like the pre. ent it was the clear duty of tho parties propounding the will to do their utmost to find Reid, iu whatever part of the earth he might b j , and if he could not bo found to have given evidence of the fact, If they discovered bis whereabouts, then, even although he told them ho remembered nothing, be should have been tendered for cross-exami-nation, either by actually producing him or by applying for a commission to examine him, and giving tho other aide tho option of joining in it. The evidence as to what took place with respect to the preparation and execution of tho will really rests on Mrs Gallie’s evidence alone and upon any inference which can be drawn from Mr Siovwright’s practice in attesting wills. Gallie was admittedly an entire stranger to Mr Sievwright. His speech was very thick, and difficult to bo understood by strangers. I cannot help thinking that if there had been a conversation between Gallie and Mr Sievwright such as Mrs Gallie speaks of, Mr Sievwright must have remembered it. Does the evidence, then, load to the fair conclusion that Gallic had sufficient active memory at the time of tho execution of tho will to retain in his mind without prompting the particulars relating to his family, and was he able to form a rational judemeut on them ? Was ho capable, for instance, of recalling to his mind that sixteen months befo<c tho date of the will his eldest daughter had left her home after quarrelling witli her mother, and of weighing the consideration that an absolute devise to the mother would probably have the effect of excluding this daughter from sharing with the other ohildien the benefits they might be reasonably expected to receivo from their mother’s bounty ? Ihe evidence of Mrs Gallie is distinct that Gallie’s mental capacity was the same after he went to Leith street and after he came out of the asylum as it was in the early days, wnoa lie was canyiug on business in High street. The evidence of John Gallic, her principal witness, is equally distinct _ that his father’s mental capacity was unirapai ed—that his father was as intelligent as himself. These assertions have, in my opinion, been shown to be absolutely untiue. The Coutt, however, is asked, notwithstanding that it has been shown that the evidence of tho propounder of the will and of her principal witness is in this respect utterly untrustworthy, to piece out from the evidence indications of intelligence, and to fay that, although there was considerable deterioration, yet sufficient capacity remained to enable (-'allie to make a will. I do not think the Court should tlo this. If the evidence of the principal witnesses in support of the will is seriously discredited there is no safe ground to go upon. If Mrs Gallie says untruly that her hut-bands mental capacity remained the same as when he was in business, how can I safely rely upon her unsupported testimony a- to how tho will came fo be executed? Her evidence, moreover, as I have pointed out, has in several other points been contradicted by independent witnesses. It is impossible, also, to get over tho fact of Oallie s detention in the asylum in 1865, when ho was undoubtedly in a state of great mental weakne s: of his discharge while still in that state ; and tho lack of any trustworthy i vidence 1 hat his mental condition ever changed for the better after his discharge. At the least, tiie proof of capacity is defective. It is impossible for me, ( upon tho e.vidcnce, conscientiously to say that I am satisfied beyond all reasonable doubt that the document executed by Oa’lio represented the real intentions of a free and capable te>trtor. On tho whole. 1 think tho will express! d not GaUie’s intentions, but Mrs Gallic’s, and that she got him to make it in what she really considered to be the best interests of the family in the same way as he had been got to sign other instruments for their common ben fit. As to tho question of delay, it ii no doubt unfortunate that proceedings were not taken earlier. If, however, the executir dots not choose at an earlier stage to prove the testator’s will in solemn form, it is clear that he omits to do so at his peri l , and if evidence is wanting ho has only himself to thank (Tristram, p. 82;‘Allnutt on Wi Is, p ICO, and cases there cited; Rogers’s ‘ Ecclesiastical Law,' 1,034). This is more especially so in a case like the present, where the capacity of the testator from any point tf view must have been to an honest mind a matter wlrch might be not unreasonably called in question ; and where at the time of the death one of the parties who would take an interest under an intestacy had quarrelled with the person taking under the will. Mrs Winmill, the original plaintiff, was, moreover, not in a position to have instituted proceedings earlier. Mrs Ludford states—and there is no particular reason to douot thr statement—that she did not become aware of Gallie’a death till 1884, and immediately she did so his capacity was challenged by Mr Travers’s letter. The present case, moreover, is not one where pr.bate in common form has been granted and is asked to be called in and revoked, but where the executrix has never taken out probate at all, and now, after ten years, ssks for it for the first time. I regret that I have, after long and anxious consideration been forced to the above cone usion. Ones sympathies ero naturally in favor of a woman who tended an imbecile husband carefully for years, who has since his death brought up his family out of bis property, and against whom scandals, long dead, have now been brought to ]jfe again by her own daughters. Probate of the will will be refused, and letters of administration will be granted to the plaintiff.
Mr Chapman said that argument of the question ol costs would, be presumed, stand over till an early period next week. Hia Honor : Any time you like. Mr Chapman said he would arrange with his learned friend for a day. As to the concluding words of the judgment, would His Honor reserve that question—as to letters of administration being granted. Mr Fraser said that surely that was not a matter for reservation, Mr Chapman remarked that he would simply intimate that that had not been argued at all. It was not a question that could be'argued, for’the same reason that the question of costs could not be argued, and he would ask His Honor to reserve it. His Honor : It depends rather on the framing of the pleadings. Mr Fraser: That’s tho view I have taken ° His Honor: I have not considered the matter. I treated it as a matter of course. I quite admit Mr Fraser has not gone into the question, and I assumed it was not disMr Fraser: Your Honor has the pleadings. I never dreamt that the matter would be questioned. It is absurd to raise the Question. All the other side are hostile. They have opposed bitterly from beginning to end my application. Are we to now argue to whom probate shall be granted ? After conference between counsel, Mr Chapman said: My learned friend is willing that it shall stand over with the other question for argument. His Honor : I think, Mr Fraser, that that is the fair course. There is no doubt that the question has not been argued at all. It may perhaps be said that the trial was really a trial not so much of tho action as of the counter claim. Mr Fraser : That is so, your Honor, and 1 suggested to my learned friend that it should stand over. . His Honor: The judgment will simply be : Probate of the will will be refused.
THE WILL CASE., Issue 8034, 10 October 1889
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