A DEATH-BED WILL

NZ Truth, Issue 873, 19 August 1922, Page 6

A DEATH-BED WILL

IN FAVOUR OF A PRIEST

Unusual Case At Palmerston North

ESTATE WORTH £4000 INVOLVED

■ ( A remarkable -will case possessing unusual, features B came before his Honor, Mr. JustiiS Reed, m the Supreme Court at Palmerston North last wee^c. ' . The- following is a true transcript of the will . m question — one of the shortest wills on record — allegedly dictated by a dying man m the Palmerston North Hospital to the person who was himself made sole heir and executor: y ' ■ ; I, Michael O'Connor, of Palmerston North, bequeath all my real ■ and personal estate to ' James Francis MacManus, Catholic Priest, of Palmerston North, arid appoint him my executor. i Two hospital nurses attached their signatures to the document, to which the dying man had previously put his mark— a cross. All of this happened on December 20, 1920, and m April of the following- year when the . will came up for legal ratification, his Honor, Mr. Justice Salmond, refused to grant probate. A year passed during which some of the deceased man's relatives BECAME EXERCISED over the matter and then the executor proceeded against Patrick O'Connor, and others for probate "m solemn form".* It was this action which was heard at Palmerston North last week. Lawyer Oakleigh appeared for the Rev. Father MacManus, and Lawyer Cooper, for John O'Connor, of fellington, laborer, one of the defendants, a nephew of the deceased. The estate, incidentally, was valued at £4000. According to the statement of claim filed on behalf of the Reverend Father the issues, were simple and clear cut and everything was regular and above board. ..'Deceased's wife predeceased him and the couple never had any children, but the dead brother of deceased left five surviving children. The deceased Micliael O'Connor, by his last will and testament left all his estate to the plaintiff, but .at the time of the making of the document he gave the legatee a discretion to dispose of his estate m such manner as he thought best for the "SPIRITUAL ADVANTAGE" of deceased and his wife. At the same time he directed plaintiff — the directions were all verbal and given to the plaintiff's ear alone— to pay to each of the two children of William O'Donnell, of Palmerston North, the surr. of £100; to pay the sum of £300 to st>me charity or charities, and m the exercise of such discretion the plain-, tiff decided to. pay over* £150 to the Home for Incurables, at Buckle Street, Wellington, and the remaining £150 to the orphanage of the Sisters of the Mission, at Nelson ; further to expend the sum of £100, m having masses offered for the repose of the souls ot deceased and his wife. Under 'the directions aforesaid the. plaintiff was also .siven discretionary power as to the balance of the estate, which balance it was allegedly agreed at the time could be set aside for payment of pensions for students m Holy Cross College, Mosgiel, whose parents were too poor to pay the stipulated fees. The plaintiff prayed that the verbal trusts referred to above "should form part of the wjiil and that probate be granted. . . The statement of defence politely repudiated the idea that the will was a prpperly executed document, and further alleged that at the time of its execution the testator was v not competent m mind or body. It was also, set out that at the time of the execution of the will the old man had not the full knowledge of its contents ant did '-"not duly approve thereof; also that the defendant John O'Connorwas. not aware of the truth or otherwise of the allegations made by the plaintiff, relative to the deceased's instructions as to the disposal of the estate, and he therefore denied the same. Father MacManus stepped into the box and asserted that he would not derive any personal benefit from the estate. At 1.40 p.m. on the day of deceased's death he received a call to proceed to the hospital, m order to draw up. the will of Michael O'Connor, who was m a serious condition. Witness endeavored -to get his own solicitor to fro with him, but as the latter was not able to go, he went alone, arriving shortly after 2 p.m., some three hours before the old man's death. There he drew up a will m his own favor m compliance with testator's . " INSISTENT WISHES. At the same time he ascertained the dying man's wishes with regard to, the disposition of 1 the estate, and earmarked the legacies outlined m the statement of claim. The deceased placed his mark on the document which witness drew out. . x Cross-examined, witness swore that the testator was wise to all that was happening, being m a normal frame of mind. He denied that attempts had been made to buy off certain defendants with a promise of a share of ■ the estate. He considered himself at liberty to alter the terms of. his trust, if he thought circumstances justified It. He was not aware that if probate was granted on the will m its original form .there was nothing to prevent him from using the whole of the es-. tate for his own personal benefit — not that counsel for one moment suggested that he would take advantage of this opportunity. , The next witness was Dr. Paget, who recalled having attended the late Michael O'Connor on the day of. his removal to the hospital. The man died the same day of his admission. In answer .to Lawyer Oakleigh, he •stated:, that -the •: 'deceased;- "though ani; great pain, was quite rational, and his mind was perfectly clear. He was m a fit state to carry out "any ordinary business procedure providing 1 it was not complicated." Mr. Cooper: You attended deceased before the will was drawn up? — Yes. Was he not then a dying, man? — He-*was undoubtedly desperately ill. Patrick Francis O'Connor, jeweller, of Palmerston North, \ said that as. a nephew of the deceased he had been joined as one of the defendants. He was not desirous of contesting the will as being well fixed financially he had no wish to share m the estate. He declared himself quite satisfied that there was ■ T ■ ■■ NO NIGGER IN THE WOODPILE, and from what, he had seen of his uncle on the day of his death he had formed the omnion that he had sufficient mental faculties to make his, Will. ■:'■■'"■ ■ ..annah Burnett, a nurse at the Public Hospital, told the Court that shortly after his' admission to the institution the deceased had' asked' her to ring up for the priest. . "■ Mr. Oakleigh: Did not the deceased, mention at . the same time, that ; he wanted to see Father MacManus about his will? — I cannot say; 1 don't remember. . Witness went on to say that she remembered being called m by the Father to witness the. old man's mark to the will. She was not present, however, when the will was actually signed. The priest read it over m the presence of herself and another nurse. The deceased was then very ill. Mr. Cooper: What was his condition? — He was on the verge of collapse- r : ,

Could you say whether he knew all that was happening-? — I am not prepared to swear that he did understand it, and I am not prepared to swear that he did not. Alice Hally, another nurse, stated that after she was balled ;into the room Father MacManus read over the will, and said he had a list of the trusts to be carried out. She then formally witnessed the document. Mr. Cooper: Do you think the dying man was m a fit state to make his will? . Witness: He was not taking very , much notice. He was very ill indeed and was just about on the verge of collapse. He could not sit up and was *■ WRITHING IN AGONY. "' The will was read over to me, not to decea.sed. I ' Mr." Cooper: Can you tell his -Honor whether Mr. O'Connor understood what was read out and approved ol it? — No, I cannot say. You won't say one way or the other?—No, I cannot say. . You remember .„ the circumstances perfectly well? — Yes. Do you think he was capable, of understanding, or capable of knowing what was happening?- — Well, I cannot say. He was writhing m agony. His Honor: You thought it was necessary for the will to be read over to yourself as a witness and that that was being done? — Yes. , . ; .Addressing his Honor, Mr. Cooper said that the defendants were not there to actively oppose the will, but simply to see the trust tested Whether testator was m a fit condition to make his will was open to grave suspicion. It was open' to the plaintiff m .the terms of the will to claim the whole of the estate. It was strange that, while probate was originally refused m April, 1921, no action was taken to approach the Court on the present application until April, 1922. It was also significant that neither Dr. Forrest, the hospital superintendent, nor Dr. Putnam, both of whom saw deceased later m the day than Dr. Paget had been called to give evidence. ;. Mr. Oakleigh pointed out that the plaintiff m the action was not responsible for the "delay complained of by his learned frtend. Father MacManus had really no desire to press for probate, his only desire being to see that the wishes of the deceased were carried out. He regarded his trust AS SACRED. His H6nor: Can you show me any case similar to this where the Court has pronounced m favor of the will? Mr.- Oakleigh: No, your Honor ; these cases are few and far betweenHis Honor: In the case of any person m the street whose reputation is not as high as that of Father MacManus, would the will stand? Counsel replied that if there was evidence of a trust, as m the present , case the will would have to stand. Concluding, counsel explained why the other two doctors were not called. Dr. Putnam when approached, had said that his mind was an absolute blank on the matter while Dr. Forrest had said he was too busy to come to Court, and that m any case he remembered the deceased coming into the hospital and that was all. His Honor intimated that he would take time to considlr his decision.