DEAF MUTE'S ESTATE.

New Zealand Herald, Volume LXIV, Issue 19740, 13 September 1927, Page 13

DEAF MUTE'S ESTATE.

•.. RELATIVES CONTEST WILL. QUESTION OF INTENTIONS. PROBATE ORDER NOT GRANTED, _ [Bt TEM3BAPH. —OWN COBRISPONDBJIRj HAMILTON. Monday. .The validity of a will prepared on be* half of a deaf and dumb man who died in Hamilton a few months ago and left the whole of his property, valued »t £2300, to one brother, was contested in the Hamilton Supreme Court to-day. The testator was Perrival Chapman Ewen, farm labourer, Tamabepj, who had been deaf and dumb since childhood. He wa* :: a bachelor and lived alone. Last Janu. ( ary he asked his nephew, a law clerk, "to prepare a will for him. Ic the will ho left the . whole of his property to hi* brother, Herbert Frederick Ewen, wh« was known as Dick. Three relatives, a nephew, Lance Ewen, and two brothers', Harry Arthur and Frank Ewen, for whom Mr. Tompkins appeared, asked the Court to set ths» - will aside on the following grounds:— (t) That the testator did not know or ■approve of the contents of the will dated January 6, 1927. (2) That he was not at the time of execution of the will of sound and disposing mind, memory and understanding. (3) That execution of the will was procured by undue influence op fraud and was not the spontaneous act of the testator; and (4) that the will was not duly executed. Instructions Received by Nephew. Mr. P. JL Watts opposed the application on behalf of the beneficiary, Herbert Ewen, who was referred to throughout the case as Dick Ewen. Donald Lipton Ewen, a nephew of the testator, said he lived in Hamilton nntil May, 1925, wherr he removed to Auckland. While in Hamilton he was employed in a solicitor's office and the testator often asked him to assist him collect interest due to him. Deceased was a general labourer and was a bachelor living at- Tamahere. While visiting Hamilton last January the testator requested witness to prepare a will for him. Testator wanted the whole of his property left to his brother, Herbert Frederick, who was commonly known as Dick. Witness received testator's instructions gSS by means of the deaf and dumb alphabet, by testator's utterance of the word "Dick," which he could just manage to articulate, and by other sigr*. Witness* father, Vincent Ewen, was present when the instructions were given. . Witness told deceased that Dick Ewen would be the executor of the will as'well as the sole beneficiary. It was suggested, to deceased that an outsider should witness the will, but testator would not agree. Witness and his father witnessed the document. Testator made his intentions and desires perfectly clear, and was mentally and physically fit to give his instructions. % ; Second Witness' Opinion. Witness, in answer to Mr. Tompkins, said that although testator could not speak and was not a proficient in the use of the deaf and dumb alphabet, he was particularly smart in grasping anything'that was communicated to him. The sum deceased left represented his life's savings. Deceased was about 60 years of' age when he died. Vincent Ewen, farmer, Frankton, said he was present when his Bon received testator's instructions regarding the will. Testator was of sound mind and clearly indicated that the whole of his property should be left -to Dick to do what &6 liked with it.

His Honor:' Can you say that he intended Dick to have this properly as very own? Witness: I should say not. In answer to a farther question, by the e Judge, witness said he considered testator intended that the property should be shared by his brothers and sister. Caqnment by the Judge. Witness said he was surprised deceased left his money to Dick, whom fee had. not seen for many years," while *thar brother* F.ved near him all: his life: Witness did not realise that he stood togain from the estate if the will was upset until the case came before the Court. • In answer to His Honor Mr. Tompkins said there wt re suspicions circumstances regarding the preparation of the will. „ His Honor iiaid that in the fu*«f ft* conflicting evidence he had heftrd, Jm conld not grurt probate at this stage. He asked Mr. Watts to reconsider the position and to mention the case again in the afternoon. "When the case was resumed this afternoon Mr. Watts said, in view of the conflicting evidence, he did not think it right to ask the Court to make the order nisi for probate absolute. His Honor agreed with counsel on. this point. Air. Watts said the evidence of Vincent Ewen took hita nnawares.lt was eontrary to what he expected and there appeared to be something unexplained about the case. ~ Mr. Tompkins -withdrew the allegation of fraud. His Honor said there was not th» slightest justification for the suggestion of fraud. It was a question of testamentary capacity and whether the persons concerned really interpreted ~ testator's intentions correctly, added the judge. Mr. Watts: I take it that the action of Frederick Ewen was proper in this matter. His Honor: He had to do it. Thtf order nisi was discharged, the costs of both sides as between solicitors and clients to be taxed by the registrar and paid out of the estate.