PROBATE DISPUTED

New Zealand Times, Volume XXXIII, Issue 7450, 26 May 1911, Page 1

PROBATE DISPUTED

AUCKLAND LADY’S LEGACY WHY IT WAS REDUCED BY’ ONE THOUSAND POUNDS. ■THOir OUB SPECIAL COEE3SPONDENT. LONDON, April 13. Mrs Jessie Brigham. of Auckland, was the plaintiff in a probate action heard in the InW Courts this week, arising out of the testamentary dispositions of her cousin. Miss Mary Garner Savage, of Hampstead, a philanthropic lady of literary Rifts and suffragist sympathies .who died on December 7th, 1001), Miss Savage left a largo amount of property, valued at about .£30,000, and ihe had distributed it by will and codicil amongst relatives, friends, aud persons whom she had befriended. Tho defendants were Miss Ethel Mary Odell and Mr John Garner, to whom probate was granted on December -2nd, IffU). Mrs Brigham claimed revocation of probate, granted to deiendants, nt a will dated April 31st, 19GG. and two codicils of November 13th aud November d».n, JtOO. Plaintiff alleged that the second codicil was not duly executed, ns tho deceased lady was not of sound teste- ! merit ary capacity. Other parties cited j and affected by tho two codicils put defendants to proof that the testatrix I was mentally capable. Defendants, Miss Ethel Maw Odell and Mr Joim Garner, denied incapacity on tho part of tho deceased lady. The effect of tho second codicil was to reduce plaintiff s lejsacj from £3,0110 to £2.000, and to increase Miss Odell’s legacy from .£I,OOO to .£.,1100. A stun of £I,OOO was also left to a Miss Whiteford on the understanding that Uhat amount, and the extra £I,OOO left to Miss Odell, should bo employed to keep up tho payments to pensioners of the testatrix. Other legacies were lett to friends and old servants. ■Mr Clavell Salter, K.C., and Mr Malcolm IVacnaghten (instructed by Carr. Tyler, aud Overy) appeared for plaintiff; Mr Hume Williams, iv.C., Air W-ilock, and Mr Cliffoul Mortimer (instructed by Llufud and Hortin) ior defendants; and Air: l\V. U. Willis (instructed by i‘reherne. Higgins aud Co.) tor the panics cited.; , . . . , Ali‘i Hume Williams, opening defendants' case, explained that in December, 10C6, ; Aliss Savage (the deceased lady) and ’her mother made their wills, and when the latter died, iu. October, TJO7, Miss \ Savage became possessed of about £30,000. Aliss Savage had made her will accordance- with the fact that she was her mother’s heiress. In January, I«07, Veililst on the Continent, testatrix was tit ill, and returned to ■ Hampstead, iilid was attended by a lady doctor. Testatrix had been in the habit of paying allowances to a numoer of poor relations and friends. In 11*09 she became phxious that these poor people. Should* fee provided for after h?,f death, t and t&d, aim of • tho codicils was that those payments should bo .continued. In the two codicils were executed, \y,iv Hortin, a cousin of the deceased ladv. drawing up tho documents. Counsel j added that tho reason plaintiff's legacy was reduced by £l,ooo'was that Airs Brigham hod herself told Aliss Savage She had £9,000 of her own money. The respU was that Aliss Savage left her £2,000 instead of £3,000, at the same time expressing tho sentiment that the reducion oxxhc amount showed no diminution in Iter asffptiou for her cousin. Aiiiss T/thcl Alary Odell, of Southill Park, ifaimpstead, giving evidence, said sho was al bachelor of arts of London University. dud an assistant mistress at tho North London Collegiate School for Girls. Sho and Sthe testatrix had lived togethei since Testatrix ? Was always perfectly capable, and kncWi what she was doing until within twehty-foiu* hours of her death. In the coUrso of cross-examination wit-ncs-s said after Miss Savage’s death some of those who had been her friends lormecl thedisclves into a “guild of service” —a little band to do good in t.ie deceased hlay’s memory.

MRS 'BRIGHAM’S LEGACY. Mr "W ilUam Hoy tin, solicitor and cousin of tho testatrix, #avo evidence as to the draw*!jig up of the codicils. With regard to thp codicil of November 30th, KHj9, witness! said be telephoned to Ur Lydia Leiuyj (a lady doctor \rlio attended Miss;Savage) and asked it -M.ss Savage was (fit to transact business, Ur Lency replied that she was, lor, although Savage was ill, she was quite sensible. The same evening he went to iu?f> Savage’s flat at liainpfitead and saw Miss Odell, who said, •'Mary;(MWSavage)'has for some y«ars paid pensiouklto several old people, and wishes to i>iw*ido for them. Mo have been talkindit over together, and have made out that-ft will take X3,C00 to provide tho necessary funds. Any stir- ' plus of the X 2.000, -Miss Odell added, was to bo applied.liy horse 1 1 and Miss A\ luteford to similar purposes, whilst -Mrs Brigham’s Igjjacy was to be, reduced by .£I,OOO, as .she (Mrs Brigham) had recently written her from New Zealand saying sho hadU'J.UCO of her own. M itnss and Miss Odell then went to tho room where Mjss Savage was ill. Kneeling by Kpr tide—she was rather deaf—Miss Odell spoke to her about (ho codicil. With 'reference to the Wlnction of Mrs Brigham's legacy, Miss Odcli said that witnfess d;d not like it, and Miss Savage said. “Oh, yes, Jess does not need the monel-."; All this time, witness explained, he liad\ boon standing at the open door of the- room, not wishing to disturb the patient, and heard everything that passed between the two ladies. When Miss Odell came out she said, “Mary will not 1 , niter her. decision,, this referring ,to tho V reduction Oi pmintin s legacv. Afterwards witness ,and Miss Ociell went to Miss WUitcford, wb owns to bo mentioned in, the codicil for Xt.iWO as a kind of trustee, and witnessi said r ,to her. ‘’Gipsy, will* yoii join Mtie. (Miss Odell). Mbs Wlyitcford replied that she would. Witness isaid. “It will bo giving vou a packet, of trouble,’ and she replied, “I don’t ffiind so .lonft. as Mary's wishes aro carried ,out.'* As the outcome a -simple codicil was -drawn np and signed by (the deceased lady.; Miss Odell steadied dier friend s hand while Miss Savage affixed her signature. ■_ ; Mr ■-Clavell Salter- (cross-examining) i You knew Miss 'Savage was. sufienng from what is culled creeping- paralysis, which was killing' her by inches?—U el., we never thought she would live in 1%7, but she recovered .'marvellously after her mother’s death. On one occasion did you say to Ur Konev. “Would;you he able to certify her ’(Miss Savu’gf) as insane?”—No,, I never said anything of the sort. ! Did vou read, to her from, a book on lunacy’ and ask her whether the patient would come within that definition?—l | don't remember - doing anything of the sort. , , ‘ Are you prepared to swear that you did ■ not, or is it only a matter of incmoK? —,

I liavo ho recollection of saying: anything of-the sort. There was‘no occasion to do so. , , . . : The witness further said he did not think it necessary to see the testatrix regarding tho execution of the- codicil of November 30th (the second) as he had trust in Aliss Odell, who at the time -was living with Aliss Savage. Ho had previously never made a •‘will for -a client without personal instructions. His 'hill of costs certainly would lead tho ordinary reader tobclieiV that he had seen the testatrix personally. Ho was standin" outside Aliss Savage's room and could hear her voice when Aliss Odell was talk* in" to. her about the. codicil. He could not say why his bill of costs did not state that he had given Aliss Odell instructions to get Aliss Savage's confirmation. of the instructions*. He had advised £IOOO to bo left to Aliss Odell and £IOOO to Aliss Whiteford for tho purpose of keeping up the payments to Miss Savage's pensioners. Though he had advised that no" trust provisions should bo put in the codicil, he regarded those two sums of £IOOO trust moneys. In answer to the president, he gaid lie meant that neither lady had any beneficial interest in the money. Mr Hortin, i further c r css-ex am i n ed. said he had never in any other case carried out a similar arrangement. He thought it better in the present case, so as to give the two ladies absolute discretion to do as the testatrix had wished. Aliss Sava go was quite capable of giving her wishes, and ho understood what she wished.

As far as ho knew up to February -Ist, 1910, when the vdointiff ordered an inquiry concerning the last codicil, there was no document in existence to sjiovv that the mone-y was not an out-and-out gift to Miss Odell and Miss Whiteford. He could not say -why the money was not given iu one sum of ,£3OOO to these two ladies jointly. He proved the documents -within" fifteen days of tho death; and did not .'consider it- unusually prompt. At the time of the execution of the codicil on November 30th, Miss Savage was not staring.blankly into space in front of her. He saw her ten.minnt.es before she died (December 7th). He was told then .that she was not comatose until forty-eight hours prim- to her death. Air Salter, suggested that the testatrix had been in a comatose condition for many days' before death. The witness said” that, .on December Gth Dr Leney (the lady doctor who had attended) told him that. Miss Savage could do business' if he made haste. Miss Savage did next "day, and on December Bth, the witness wrote to the plaintiff, then iu Auckland. New Zealand'. “\'cu come iu for .£2OOO under her Will.” “Is that, quite a frank way of putting it?” inquired counsel. The witness, whoso answers were difficult. to hoar, replied that he had no idea of deceiving Mrs Brigham. Answering the president, the witness stated that the father of the two Lcgge children (the parties cited in the suit) died about a week ago, leaving them without a shilling. The children's uses range from , nineteen 'downwards. The witness thought thev- might he ob'’ects of the charity to be-dispensed by Miss Odell and Miss AVhitelord. Further .evidence was given, of the testamentary capacity of the testatrix and of her interest iu books, news, and politics, and of tho great pleasure she ex- 1 penenced in seeing her friends and relatmus during October and November, EH-idence was also given of her fondness for and skill at chess, and of her playing chess on various dates between November 6th and November 30th; on tho latter date she had plaved for two hours. The testatrix “had not been allowed to win,” nor bad she any difficulty in moving the pieces. Towards -the conclusion of this evidence the learned president said that it was obvious that the. testatrix wished to benefit some people iu her lifetime and that it-was natural that she should wish to do so after her death. He thought that something ought to be done. WLater Air Clavell Salter asked on what day it would be convenient to continue thp trial, if it should be necessarv to resume the bearing. His Lordship’s 'intimation, of course, would he communicated tn his clients. The president: The first day of next sittings. ThS ease accordingly stood adjourned until (that day. ■