LAW AND POLICE.

New Zealand Herald, Volume XXIV, Issue 7862, 3 February 1887, Page 3

LAW AND POLICE.

SUPREME COURT.—Civil Sittings. Wednesday. [Before His Honor Mr. Justice Ward sod a special jury of twelve.] A Disputed Will Case.—Wm. John Suitai and others v. Susannah Harriet Harrison and Mrs. Lowe: This was an action brought by Win. John Suiter, as trustee and executor, named In the will of Susannah Harriet Fuller, to obtain probate under the will o£ the deceased. By an order made in Chambers, Mr. and Mrs. Charles White, parties interested in supporting the will, were joined with the plaintiff in the action, and Mr. Laishley was appointed to represent the infant, Charles Fuller ; Mr. Cotter, instructed by Mr. Cave, ■ appeared for Mr. Suiter; Mr. O'Meaghor for Mr. and Mrs. White ; and Mr. Button and Mr. Theo. Cooper for the defendants. The following special jury was empanelled and sworn Wm. S. Laurie, Jamas M. Lennox, Thomas F. Cheeseman, Wm. Buchanan, Wm. Berry, Wm. Thos. Jas. Baird, F. Larkins, A. K. Taylor, Chas. Arnold, Frcdk. E. Compton, Percival J. McArthur, and David Nolan. Mr. F. E.Compton was chosen foreman of the jury. Mr. Laishley, before the case was Jt opened, said, in consequence of the order of the Court being made, he inquired into the case, and found that there were two wills, and he put in pleadings. Since then he understood that the plaintiffs had obtained a written statement from the infant, which was an answer to the pleadings. His Honor said if the infant was to be a witness it did not much matter. Mr. Laishley said that he thought it right to mention it, to explain his position. Mr. Button, in answer to His Honor, said the infant was between 16 and 17 years of age, and he had merely made a statement of the evidence which he would give. Mr. Cotter, in his opening remarks, said that, notwith* standing the oath which had just boen administered, they would not be required to assess any damages, although certain valuations of property would hare to be considered ; but the only issues to be put before the jury were two : First, whether the will of Susannah Harriet Fuller is her last will and testament; and whether she understood the contents of the will when she executed it; and whether it was fully explained to her. And the other question was whether the will and codicil were executed under the undue influence of Mr. and Mrs. Charles White, or either of them. The statement of claim set out that Susanah Harriet Fuller, widow, late of Whangarci, died in Auckland in December. She made a will on the 14th of September, and a codicil on the 13th of November, and appointed plaintiff, Mr. Suiter, and two settlers in Whangarei, executors. The will and codicil were signed by Mr. Cave and Mr. Wynn Williams, solicitors, as witnesses. That deceased was at the time of sound mind, and plaintiff claimed probate of the will in solemn form of law. The statement of defence was a denial that this will was the last will and testament of the deceased, and that when she signed it she was not of sound mind. That the execution of this will was obtained by the undue influence of Jane Leah White and Charles White, or either of them, and defendant claimed that the Court pronounce against the said will. There was also a statement by Mrs. White, in which she denied that the execution of the will was obtained by any undue influence, and that deceased was at the time of sound mind. Tho statement of Charles Fuller repeated the allegations of the statement of claim, and denied the statement of defence, and claimed probate of the will. Mr. Cotter then proceeded at length to open the case, and explain the evidence which he would adduce. Mrs. Harrison and Mrs. Lowe, the two defendant*, were daughters of the deceased, and beneficiares under the will. Mrs. White, at whose house the deoeased died, was also her daughter, and Charles Fuller (the infant) was her son. There was an elder son, but he did not appear in the action, as under either will ho would be equally benefited, there having been a will prepared by Messrs. Thorne and Kigby, and executed on the 4th of September, in which the property was distributed in a different manner to that of the will of the 13th of September, and the codicil of the 14th November. The first witness called was Chas. W. Cave, solicitor, who deposed that about the latter end ef August, or beginning of September, Mr. Edward Lewis called at his office, and witness accompanied him to Mr. White's house, Howe-street, I'onsonby, and there he saw Susannah Harriet Fuller. Previous to that, he had never seen either Mrs. Fuller or Mr. and Mrs. White. He saw Mrs. Fuller between two or three o'clock in the afternoon. She was in bed, apparently not suffering, but witness understood that she was suffering from cancer, and not likely to recover. Mr. Lewis accompanied him into the bedroom. The interview lasted about two hours. Mrs. White might have been in once during that time, to give Mrs. Fuller her medicine, but he was inclined to think she was not in at all, and if she was, she took no part in the proceedings. Mrs. Fuller told witness she wished him to make her will, and said she had made previous wills, but she wanted an alteration, and she produced a memorandum of the way in which she wished to dispose of her property. Witness, verbally from her, took down instructions without referenco to the memorandum. He produced the instructions he took down at the time. This was tendered in evidence, also the memorandum Riven to him by the deceased. Witness said Mrs. Fuller was particularly clear in her mind, and appeared to him to be a good business woman, with a thorough knowledge of her affairs. At this stage Mr. Button objected to Mr. Cave's notes of the instructions he took from Mrs. Fuller being put in as evidence of the state of her mind at the time ; and His Honor ruled that as this was Mr. Cave's translation of the instructions, not tho words of the deoeased, it could not be received as evidence, and Mr. Button's objection was allowed. The instructions contained on the memorandum. handed to witness by _ Mrs. Fuller were received in evidence. Witness said that with regard to the eldest son, to whom she left £100, she was half inclined to leave him nothing, as she had advanced him many sums, and helped him out of many scrapes. In regard to Mrs. Harrison and Mrs. Lowe, she said she had made many advances to their husbands when they were in difficulties, and expressed herself firmly that she .would tie the properties up to the daughters as tightly as possible. She considered Mrs. Harrison entitled to more than Mrs. Lowe, as she had lived with her many years in the hotel, and helped to earn the money. She told him this to explain why she was making an unequal distribution of her property. Before witness left her, he promised to prepare the draft, and go through it with her when it was ready, and on September 11 Mr. Lewis and witness went to Angleseastreet, Ponsonby, to which Mr. and Mrs. White and Mrs. Fuller had removed in the meantime. They saw Mrs. Fuller in her bedroom, no one else being present. Mr. Lewis read the fair copy draft produoad, and witness sat by his side, and followed him on the rongh draft. The draft was read clause by clause, and she was asked whether she understood their effect. Some of them she discussed, and suggested some alterations. The name of Mr. Storey was added as an executor. She had previously only appointed Mr. Brown and Mr. Suiter, and in tho clause regarding the residue, Mr. Cave had included the name of Henry Colin Fuller, the eldest son, but she ordered that to be struck out. Witness asked her for further particulars as to her real estate. She went through some bundles of papers, and produced a number of receipts for purchase money. That interview lasted three hours at least, and Mr. White came in to get the papers for her, and then left the room. He did not join in any conversation or discussion. Her mental capacity was then good, and she appeared if possible to be even clearer than on the first occasion. Witness then left, and had the will engrossed, which he took up on the 14th September, accompanied by Mr. Lewis and Mr. Williams. The will was read through to her, Mr. Lewis and witness only being present. After it had been read she mentioned that she had given her jewellery and family portraits to her daughter, Mrs. White, that she had made a codicil bequeathing them to Mrs. White. Witness pointed out that this will would be a revocation of the codicil, and therefore the bequest had better be put in the will, and at her request witness added the bequest on the first page of the will. Mr. Williams, solicitor, witness' managing clerk, was then called in, and Mrs. Fuller signed the will in the presence of both of them, and also her name opposite the interlineation, and all three subscribed their names in the presence of each other. Mrs, Fuller reauested wit-

ness and Mr. Williams to act as witnesses. The interview lasted about an bonr or more, and Mrs. Fuller was as perfectly competent and olear-headed as she had been on either of the previous occasions, and he saw nothing which could raise a suspicion of incompetency in his mind. Witness took the will away, and kept it in bis safe until after the death of deceased, and never had the slightest conversation with Mr. or Mrs. White as to the contents of the will during Mrs. Fuller's lifetime, and Mrs. Fuller promised that she would not mention to the members of her family how she had disposed of her property. After the will was executed, witness asked Mrs. Fuller to give him the memoranda that she had made, in order that he might attach it to his draft, as it might be useful, and she gave it to him, remarking that it was badly written. It had been in his possession ever since. He next saw Mrs. Fuller on the 3rd of November. He went alone on that occasion, and saw her alone. Sbe said she had seen Mrs. Lowe since their last interview, and that she was anxious to have the two sections opposite Mr. Clendon's, and she instructed witness to prepare a codicil to that effect, She also had some conversation with reference to the bill of sale over Harrison's hotel at Kamo, and that she had then taken steps to realise, and was considering how she should deal with the proceeds. She contemplated making some alterations, but gave no instructions at the time. Witness saw her again on the 9th of November, and sbe said she was satisfied the bill of sale would not produce nearly the amount whioh Harrison owed. She d«tirmined to revoke the bequest of the bill of sale money to Mrs. Harrison and Mrs. Lowe, and in lieu of that the moneys arising from the bill of sale were to be applied to the reduotion of the mortgage on the Settlers Hotel, and to compensate Mrs. Harrison and Mrs. Lowe she would give Mrs. Harrison a further legacy of £200, and. Mrs. Lowe to have the two allotments regarding which she had already instructed witness. Mrs. Fuller had an adopted child, and she wished Mrs. Harrison to havo the care of it. Mrs. Fuller on these occasions was perfectly clear in mind, but apparently much weaker in body. She asked witness to aot as solicitor of the estate, and asked him to get the papers from Messrs, Thome and Rigby, as she did not desire to have the same solicitors as those of Mr. Thompson, her mortgagee,- Witness prepared the codicil produced, and it was executed on the 13th of November. She knew perfectly well what she was doing, and fully understood the contents, and had some conversation with witness about them. After the adjournment for luncheon, the witness was examined by Mr. O'Meagher, His Honor ruling that if he was to examine at all it must be then. The witness corroborated his evidence in chief as to the clear state of Mrs. Fuller's mind at each of their interviews. Of that he never had the slightest doubt, and she appeared to be acting entirely of her own free will. Mr. Laishley also asked witness a few questions, and the witness was then orots-exaimned by Mr. Button as to dates of his visits and the signing of the will and codicil. (At this stage witnesses were, at Mr. Button's request, ordered out of Court.) Robert Godfrey, Wynn Williams, solicitor and managing clerk to Mr. Cave, and attesting witness to the will and codicil, deposed that on each occasion Mr». Fuller seemed quits in her senses, and showed no hesitation in executing the deeds. Edward Lewis, merchant, Auckland, deposed that he had known deceased, Mrs. Fuller, for eight years, and had done business with her during that time, while she was in Whangaroi. She consulted him about her own affairs often. Witness knew her son-in-law, Mr. Lowe, and arranged tbe basis of an arrangement between her and him in reference to the leasing of the Settlers' Hotel, Whangarei, but It was not carried out, as she changed her mind next morning after she had seen Mr. Thompson. Witness detailed the conversation between Mrs. Fuller and himself as to her will, and his engagement of Mr. Gave to prepare it. She asked him whether she could not dispose of her property, and he assured her that she could. (She said that Mr. Rigby had prepared a will iii which the property was to be equally divided, but she objected to it; but Mr. Blgby told her it must be so, or if not, the will would be disputed. Witness told her that it was not so, that she could do as she liked with her property, and no one could dispute it. She seemed very angry, and said she did not want to see Mr. Rigby again, and asked witness to arrange for some solicitor to prepare her will, and also asked him to act as one of her executors. Witness told her he would bring Mr. Cave, so that she might give instructions to him ; that witness would do all he could to assist her in sottling her affairs, bet he preferred not to act as executor. No one else was present at the interview. Witness had no interest under either of the wills. Witness then corroborated the previous evidence as to the interviews between deceased, Mr. Cave, and himself, also as to an interview he had with her about the will prepared by Messrs. Thorne and Kigby. William John Suiter, one of the executors in the will of Susanah Harriet Fuller, deposed that as such he brought these proceedings. He was no relative of Mrs. Fuller or any of her family, but had known her for twelve or thirtsen years, and for marly all that time, business relationship existed between them. He frequently spoke to witnesss of her having advanced Harrison and Lowe money, and of Harrison having abused her daughter. After Mrs. Fuller came to Auckland, in August or the beginning of September, she sent for witness, and asked him to become executor in her will. They had a convention and negotiations relative to the Settlers' Hotel. She was perfectly clear in her business, and well able to take care of herself. Mr. Humphries was to be tenant of the hotel, and witness was to assist him. They agreed to terms, and witness had deeds prepared by Mr. Cotter, but when Mr. Thompson, the mortgagee, came to town he objected to the deeds unless they were prepared by Thome and Rigby. Mrs. Fuller said she would prefer having some other lawyer than those, as they were Mr. Thompson's solicitors, and she was afraid of being had. Witness consented to be one of the executors of her will at their first interview. In cross-examination the witness said that he received a post-card from Mr. Storey, one of the co-trustees, stating that as there was a dispute he would refuse to act for the present, but he had not consulted Mr. Brown, the other trustee, as to whether he would join in proving the will. Witness left the matter entirely to his solicitor, Mr. Cave. The further bearing of the case was then adjourned until ten o'clock next morning. POLICE Wednesday. [Before Messrs. C. D. Whltcombe and B. W. Hammond, J.P.'s. Drunkenness. — Richard Sarsfield was fined 5a and costs. John Stanhouse, on remand for medical treatment, was fined 5a and costs, and ordered to pay 9s, cost of maintenance.

Stowaway.—George Wilson was charged with travelling on the s.». Te Anau between Sydney and Auckland without paying his fare. The accused pleaded guilty. The purser of the steamer proved the offanoe. Fined 403 and costs, or 14 days* hard labour.

Stealing Clothing.—Albert Treby was charged with the larceny of a pair of trousers, belonging to Edwin Green. Mr. J. P. Campbell appeared for the accused, and pleaded guilty, under circumstances which he related in mitigation of sentence. Accused was under the influence of liquor, and, being possessed of a craving for drink, he appropriated a pair of trousers belonging to another boarder in the Governor .Browne Hotel. lie took the articles to a dealer and offered them for sale, but the licensee of the hotel arrived and brought the trousers back again. Under the circumstances, he asked that the case might be dismissed with a caution, as he had been fourteen days in prison on remand. Fined 5a and costs, and to pay all the expenses of the prosecution, amounting to 30s. Alleged Assault.Ann Jane Roderson was oharged with assaulting Clara Clement, by striking her and knocking her down, on January 28. Mr. C. E. Madden appeared for the informant, and by arrangement with Mr. Meagher, who was instructed for the defence, the case was remanded till Monday.