SUPREME COURT.

Otago Daily Times, Issue 10760, 26 March 1897, Page 4

SUPREME COURT.

CIVIL SITTINGS. Thurshay, March 25.' (Before his Honor Mr Justice AVillianis.) JAMES AIHEKS V. WILLIAM TAYLOR AND FLORENCE AIMEKS. GEORGE WILLIAM TAYLOR AND FREDERICK ERNEST TAYLOR. A suit for the purpos-3 of proving a will in solemn fovm. Me J. V. M. Fraser appeared for the plaintiff, and the Hon. "W. D Stewart (instructed by Mr F. Z. Moore) for the defendants. This was a case arising out of two mutual wills, which wills were made irrevocable, tbe husband making a will in favour of his wife and the wife a will in favour of her husband. A further will was made by Elizabeth Chambers Taylor, wife of the said William Taylor, on December 14, 1596; after making the said will in favour of her husband. By the last-mentioned will deceasfd lefc her piano, four volumes of the "Family Physician," and a eewing machine to her daughter, Mrs Aimers: a gold watch to Elizabeth Booth; and one of her brooches to each of her nieces, Ellen Booth and Olive Booth, the furniture and wedding rings to her husband, and the residiSfe of her personal estate, including life policies, between her three children equally, appointing James Aimers executor of the said will. The case for the defendant was the second will was made under undue influence by Florence Aimers and others, and also that the first will, which was made irrevocable, was the last will and testament of the deceassd, who died on December 24, 1896. Sir Fraser, iv opening the case for the plaintiff, said he understood that for the defence an attempt would be made to set up another will of a slightly earlier date. So far as the testatrix was concerned, three wills would probably come before the court, the present one being the replication of a will made in March, 1896. The will would be attacked in the ordiuary way by a denial of the necessary proof^-and a suggestion of I undue influence. The earlier will was counter- | claimed, and was met by a similar defence. It was somewhat awkward for him to anticipate evidence, and counsel proposed to content himseli with proving the will. His Honor said if counsel established this will, that being the last one, there would be no question about the other; at least only a question oi contract. Mr Fraser said he never consented to the con tract coming before tbe court. He would provf due execution, acknowledgment, and sanity The learned counsel did not think his learned ; friend would contend that a tesUtor had notpowei j to make a fresh will. Nothing could take aw aj th-.it power, although he might remain bound bj a contract entered into iv a previous will, the pre vious will being treated as a contract under tb< , will. He mentioned this because the earlier wil purported to be made in pursuance of some con tract, and therefore was irrevocable. So far ai ! the making of a will was concerned, that was sur plusage, and could not be attached to th< will. The circumstances of the case wen that the defendant was a watchmaker ii Dunedin. He had been married a great numbe of years to the testatrix, and until quite recentlj | had laboured to support the household. Somi ■ years ago the life of the testatrix was insured ir 1 two offices, and as long as she had earning powe; she had paid the premiums; but an incurabli * disease subsequently prevented her froua eirninj r" her livelihood and the payments fell into arrear The terms on which she lived with her husbanc . were not of the btst, although she did her best ti hide her unbappiness from the eyes of the world 1 He would call evidence to show that Mr Taylo 5 did not at any time treat Mrs Taylor with tha ' degree of sympathy and affection that would le:( , her to regard him ar a kind and sympathetic hus , band. Eaily in 1836 deceased's ailment heearn [ | somewhat acutely developed. She had a conver * i sation with her husband, relative to certain dis ' [ positions she wished to make of some persona * ! trinkets. She wished to give her wedding ring 1 - I her daughter, but her husband -Tould not alloy I : it. She was then told by her husband that he t policies had lapsed, but this wa3 found not to b . I the case. The husband then attemuted to get th amounts of the policies increased. This, of course ' could not be done, as deceased w:»s suffering frot c an incurable di?e*se. '■ Mr Stewart: My learned fricad is going into 1 case on which he is not c-illiug evidence. i. Sir Fraser : It is impossible for me to avoi 6 giving the history of the will. His Honor : Sir Stewart's contention is tl\n your case, Mr Fraser, should be confined to th first questions showing the immediate I'ircun stances under which the will v.-as executed, show ing the surroundings at the time, if testatrix wci sane, what took place at the time the mont was assigned, and if anyone were using undu influence. v Mr Stewart : I object to my learned frien 3 making statements he does not intend to brin , evidence to prove. a Mr Fraser said the testatrix found it necessar I, to make a will, which was practically a replic; tion of a will made by her in IS9G. She ha special reasons for making this will, because, s c | she alleged, she had been induced to make annths W | will whinh she did not treat as a testaments! 1 ! disposition. sr The following witnesses were called on beha _ of the plaintiff :—Harold Kd ward Bellhouse, Eh Goldsmith, Bllen Barningham, J. K. Stampe Julius Seehof, and Dr Jeffcoat. l" The Hon. \V. D. Stewart, iv opening the ca; ■o for the defendants, said that some yeare ago tl c deceased and her husband had agreed.to iosui io their lives. Mr Taylor insured his for £100, an ie deceas-d insured hers for £25, which she afte „ that each should keep the other's policy in fore c and whoever died first the property of that perso was to go to the survivor Mr Taylor kept M ja | Taylor's policy in force, hut she allowed her hu la | hand's' to run out. Matt-en west on up to Marc 3 t last, when owing to au alleged attempt on tl ,y part of one of deceased's daughters to induce h* li to will what property ;'he possessed to hi (the daughter) instead of to Mr Taylor, tt '- latter suggested that each should have sn irr !• vocable will drawn up. This was agreed to by M a Taylor, and Mr F. Z. Moore, at Mr Tayioi s. request, prepared there wills. Mr Taylor signe _ his, and Mra Taylor eventually signed the oi in regard to her property. Mi Taylor kue nothing about the will subsequently executed I the deceased until the day of the funeral. Gouns a- j said he did not propose to occupy the time of tl as j court with a lengthy opening address, uud wou > t j leave the question of law till afterwards—shou' | it be necessary then to go into it. For the dele nee ■™ Frederick Z. Moore, solicitor, was called ar :tl gave evidence, and was under cross-examinatic of when the court adjourned, shortly after 5 p.m. la ! The further hearing of tho cs.se is to be resums I ) i at 10 :'O a.m. on Monday next. Q- "BOOMERANG" Brand Australian Brand 18 ■ JOSHUA BROS , Melhouuse, Proprietors. ! After Crucial Tests adopted by the Briti, nt ' Admiralty, War Office, Army Hospitals, ar ; ij House of Commons. Won highest award at tl Exhibition of Uoideaux, beating the famous pr id ducts of the C-.iguac centre. Kecoiuuicnded by tl » Lancet, British J/cdicoJ Journal, aud Lond. Tiwri,. 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