SUPREME COURT.

Southland Times, Issue 14439, 9 June 1910, Page 2

SUPREME COURT.

(Before His Honour Mr Justice Williams.) WEDNESDAY, 8 th JUNE. THE McSPORRAN WILL CASE. JUDGMENT FOR DEFENDANT. The Court was occupied till 4.15 p.m. In hearing evidence for the defendant in the case. Susan McSporran v. Mary Sellars Wilson. Mr J. S. Neave represented plaintiff, and Mr W. Macalister (with him Mr A. B. Haggitt) appeared for defendant. Evidence in support of the opening statement made the previous day by Mr Macalister was given by Mary Sellars Wilson (defendant), William Manson, J. J. Wesney, J. L. Watson. William Ronald, James Young, Andrew Millar, Charles Robinson, Andrew Brown, Jas. McCallum, John Stead, Thos. McChesney, and Mary Wilson (daughter of defendant.) After counsel had addressed the Court ■with reference to the legal aspects or the case and in review of the evidence. His Honour said that in the case were two actions by plaintiff against defendant. Each of the actions was on different grounds, but by agreement they were tried together, as the evidence in respect to one claim was for the most part evidence In support of (lie other. The first action was to set aside the will of Nell McSporran, who died in April, 1902. It was sought to set aside the will, on two grounds ; first, that Nell McSporran at the time of making the will was of unsound mind ; secondly, that defendant used undue influence over Neil McSporran in obtaining him to execute the wiii. McSporran died eight years ago, in April, 1902, Plaintiff and her sisters lodged a caveat against the probate of the will, which defendant had applied for. That caveat was lodged on the ground that McSporran was alleged to be of unsound mind. The plaintiff and her sister Barbara (who was now dead) knew then everything in respect to Nell McSporran’s state of mind stated now. There was nothing at ail to show that anything fresh had come to their knowledge during the past ton years in respect to his state of mind. Then in May, 1902, they entered into a compromise with the defendant, and in accordance with that compromise withdrew the caveat. Whether that compromise amounted to acquiescence was, in his opinion, unnecessary to enquire. The Court had that eight years ago the plaintiffs knew exactly what they knew now, and that they commenced proceedings on the ground of the unsoundneas of mind of the testator, and that they abandoned those proceedings. In such circumstances it • was obviously for those who alleged that the testator was of unsound mind to make that at the present stage very clear indeed. In his opinion they had failed absolutely to show that the testator was wanting In testamentary capacity. The only evidence that suggested anything of the kind was the evidence of the plaintiff herself and of Mrs Duncan. Apart from that the effect of the evidence of the plaintiff’s own witnesses was that the testator was a man of ordinary ■understanding, and that he was eccentric. He was a High landman, and his most common eccentricity appeared to have been that he never did any work df he could get someone else to work for him. His Honour had yet to learn hat that was a sign of unsoundness of mind. The evidence of all the other Witnesses who spoke of his conduct, of JMr Wcsncy who was one of the attesting witnesses to the will, all showed lhat the man perfectly'well knew what |ie was about. So far as the plaintiffs tvidencc was concerned, there was some evidence that the plaintiff herself was subject to delusions because she suspected that somebody was undermining the house, anti communicated those suspicions to one of the witnesses. He was quite satisfied that the testator was perfectly competent to make a will, and that the will was properly admitted to probate. Then they came, to the action to set aside the transfer which was made by Neil McSporran to the defendant very shortly before his death. It was sought to set that aside on several grounds. The first ground to consider was the allegation that he was not tiie owner of the pieces of land, but held them in trust for plaintiff and her sister Barbara McSporran (deceased). to the knowledge of defendant. There was nothing to show that he held it to the knowledge of defendant in trust for plaintiff and' Barbara McSporran. One piece of the land had been bought so long ago as 1887. and the purchase of the other piece was completed in IS9O. From that day until the present proceedings were commenced a week or two ago there was never any claim of the sort made by Susan McSporran or by Barbara McSporran to Nell McSporran during his lifetime ; or to Mrs Wilson until after his decease. The only thing In the nature of such claim was the letter in Mr Macalister's handwriting <ind signed by Barbara .McSporran, which His Honour got from Mr Wesney. That claim, however, did net seem to have been put forward by Mr Watson in his negotiations with defendant and her solicitor. On the contrary, .Mr Watson In those negotiations treated the transfer which was complained of as a valid transfer and did not attempt to impeach the right of the testator to make tt, or of Mrs Wilson to be the transferee of it. Even the statement made to Mr Watson by Barbara was that she had as much right to the land as Neil bad, not, as alleged In the second claim,

Unit he was not the nr but was holding some in trust lur Barbara atul the present plaintiff. Further, ther» was the direct statement by the present plaintiff in her communication to the C.A. Board (when the Board wrote to her in .March, 11)01!, that relief would bo stopped unless satisfactory arrangements were made) that Barbara answered by saying that her brother owned the land and got no benefit from the relief. That statement was altogether inconsistent with the claim now put forward that the farm was not Neil 11cSporran's property, but was the property of tlie sistvrs. And they held that no such claim was made either against the testator or against Mrs Wilson, but was raised at tlie last moment, after negotiations had been made for a settlement of disputes between the parties, negotiations in which there was no doubt the existence of the transfer which it was now sought to impeach was recognised. if there had been any solid ground for any such claim one might have reasonably expected that that claim would have been put forward at the time the compromise was made. He was unite satisfied, looking on the whole of the circumstances. that the plaintiff had failed to establish that Neil McSporran was trustee for her. Assuming that the land was the property of the testator, the statement of claim in the second action sought to impeach the transfer on the second ground that Mrs Wilson obtained the execution of the memorandum of transfer by fraud. If fraud was alleged it had to be proved. It must not be left in any doubt, and if the land was ths property of Neil McSporran there was no reason why he should not do what he liked with it. The independent evidence of Mr Wesney showed what Neil McSporran wanted. He wanted to' make it over to his niece, and he didn’t want to make it over to the C.A. Board, and he did make it over to his niece and put £2OO as the consideration for it. Ho explained to Mr Wesney how lie arrived at the sum of £2OO ; all that, information came from him. He might have done it at the request of Mrs Wilson, but there was no reason why Mrs Wilson should not have asked him to do so if she liked. And she was perfectly justified in holding her tongue us to the will having been made in her favour and as to the transfer having been made in her favour. There was no duty on her to let oilier relations,, possibly jealous ones, know. His Honour would say that there was not a shadow of evidence so far as the will was concerned that there was undue influence exercised. It did not follow, even it Mrs Wilson deliberately said to her uncle " Now, Uncle, you might just as well leave me that land ; don’t leave it to the others.”, that she had exercised undue influence. The evidence showed that the testator was fond of his niece and he made the will in her favour, as he made the transfer in her favour, to prevent the C.A. Board getting the farm to recoup themselves for the money expended in supporting Barbara and Susan McSporran. The action was not for the purpose of carrying out the arrangement entered into in May, 1002, between Mr Watson and Mr Macalister on behalf of the parties. It was not for a breach of that 'bargain, and whether that bargain had or had not been carried out was really not strictly relevaht to the .enquiry. His Honour could sec, however, the necessity for steps being taken in view of what was undoubtedly a breach of the arrangement on the part of Susand and Barbara McSporran. That was that It was a distinct breach of the arrangement when they made over the stock to the C.A. Board, because it was made a, condition that the Misses McSporran were not to part with possession or dispose of the chattels, and they did dispose of them. It there had been a breach they wore the first parties to break it. However, that was not the question the parties went to the Court to try. His Honour thought it a great pity that the action was ever launched. It was really an attempt on the part of some mischievous person to undo what had been done eight years ago. , The defendant was entitled to succeed, and would be awarded judgment on both actions and costs as per scale ; second counsel to get £5 5s per day for three days and two extra days at £o 5s ; disbursements and witnesses’ expenses to be, fixed by the Registrar. The Court adjourned till 10 o’clock this morning.