SUPREME COURT

Southland Times, Issue 17289, 8 March 1913, Page 3

SUPREME COURT

A CRIMINAL FOR SENTENCE. CIVIL BUSINESS CONTINUED. (Before Sir Joshua Williams). The court resumed at 10 a.m. yesterday when a prisoner named William John Richards, alias Kitto, alias Johns, alias Ralne. alias Smith, was brought up for sentence on three charges of theft. He was convicted at Gore of stealing eleven steers. the property of William Nielson, of Clinton, and valued at about £57. The second charge was that he did steal three head of cattle valued at £ll 16s, the property of John Blair, of Edendale. and he was In the last place convicted of stealing a bicycle of the value of £lO 10s, the property of Henry Bush, farm labourer of Waianiwa. Mr 8. Neave appeared for the prisoner, who gave his age as about 34 years. He had, said Mr Neave been in New Zealand a little over 12 months, and out of that time had been working for eleven months on a farm at Waianiwa. He left that employment with the Intention of returning to his wife and children in Cornwall. He had no reason lo steal except that it could be presumed that he commuted the offences with the object of improving his financial position for the benefit of his wife and children. No one was the sufferer by the offences, as everything had been recovered. The prisoner had £6OO on fixed deposit in the bank, and aa there was no reason for him to steal, it* was, counsel suggested, a case for medical advice. Mr Macalister said that nothing was known of the prisoner except from his own statements. He arrived at Bluff on January 22nd. 1912. from Melbourne, where he had landed from England. The bicycle was stolen from the farm on which he was employed. He said that his proper name was William John Richards, and that he had sold his farm at Home which he had inherited from his father. His Honour remarked that the prisoner seemed to have had no need to steal. Mr Macalister went on to say that the prisoner arrived in New Zealand under the name of Richard Johns, but placed his money in the bank under the name of James Kitto. He left the stolen bicycle at Gore station, under the name of Smith, and sold the stolen cattle at Edendale under the name of Rowe at Gore. When he was arrested he had a loaded revolver In his possession as well aa a quantity of ammunition. He stated then that had he been interfered with he would have used it. The probation officer in his report said that it was suggested that the prisoner was mentally weak, but there was a lot of method in his weakness, and in his opinion the man was a cunning ruffian. Mr Macalister also understood that the opinion of the probation officer was that the prisoner was a dangerqus, cunning, man. Air Neave said that so far as the revolver was concerned, it was not unusual for a person who was about to travel the world to carry one. His Honour remarked that It was quite ridiculous in a country like this. He sentenced the prisoner to one year’s imprisonment with hard labour, and ordered that he be detained for reformative treatment for any term not exceeding five years, the sentences to be concurrent. CARTWRIGHT v.. LONGUET. Caroline Cartwright, for whom Mr Neave appeared, proceeded against C. S. Longuet as sole trustee in the estate of Dora Clark, on a claim for probate; the deed to be revoked and declared void, and that the will be pronounced invalid. Mr Longuet appeared in person and Mr Rattray appeared for 'the trustees of S. John’s Church. Mr Neave opened the case and proceeded to call evidence. Caroline Cartwright, the plaintiff, said that she lived in Vthan street and war* a neighbour to Air Longuet. She came to New Zealand from India about 40 years ago with her mother and father, and she lived with them until she was married. She was led to believe that she was their only child. In 1909 witness came into Invercargill to live with her mother, who asked her to do so, saying that she would get the proceeds of the farm, and what was left when she (her mother) died. Mr Longuet received the money got from the sale, and by mistake invested it in her mother’s name instead of her own. In that year her mother had a paralytic stroke, as a result of which her right side was paralysed. Another result was that she could not speak so as to be understood, and in addition she was mentally affected. By New Year time she was able to walk about five chains at a stretch. She could not read after the stroke, and two gentlemen, one of whom was connected with the Wesleyan Church, to which she went, used to come and read to her. After New Year the deceased had to be watched very closely because she used to wander away, both at day and night time. in other respects also she was eccentric. The witness gave evidence concerning a conversation she had with Archdeacon Stocker with reference to the disposal of Mrs Clark’s money. In reply to Mr Rattray, witness stated that when she heard that her mother had changed her will leaving all of her money to the church she spoke to Archdeacon Stocker, who said that he would ask the vestry to refuse any gift unless proper provision was made for witness. Evidence to the effect that the testatrix was mentally affected and Incoherent in her speech after the second stroke was given by -Mary Ann AlcKonzie, George Johnstone. Charles Arthur Batt, John Thomas Hall. -Margaret Kitto, and George Cartwright. The last-named gave evidence touching on a conversation he had with Archdeacon Stocker in Conon street. The Archdeacon, on learning that she was in a critical condition, expressed the hope that her will

was all right, and the witness remarked that he hoped only that it was made when she was in her proper senses, but he had heard that she had left her property to the church. Archdeacon Stocker said that she had given the church plenty during her life, and would have to leave everything to her daughter. Later on they met again and the Archdeacon told him then that he had found out about the will, and that there was only one will, by which all the property was loft to Mrs Cartwright. THE DEFENDANT’S CASE. .Mr Longuel said that he had thought it fit to appear in person, as lie was a trustee. He did not. however, think it was necessary to address his Honour as he purposed giving evidence. Giving evidence Mr Longuel said he had known the deceased intimately for 17 or IS years, during which time she, had been a near neighbour of his. Her husband. William Clark, died in November. 1903, and soon after his death the witness advised Mrs Clark to make her will. She had some property, but had difficulty in deciding how she should leave It. She was fond of Airs Cartwright, and wished to make provision for her, but had a strong dislike to Mr Cartwright. She had spoken from the first of leaving something to the church. He advised her to leave her property to Mrs Cartwright, advising Iter that she could alter It later, if she desired. He prepared a will on those lines, and she came to the office to sign it. She asked what would happen in the event of Mrs Cartwright's death, and again said that she did not wish Mr Cartwright to get any of her money. She signed the will, but stated that she would alter it at a later date. In the will put In Mrs Cartwright was described as "my adopted daughter.” He asked whether Mrs Cartwright had been legally adopted, but Mrs Clark could not inform him. He saw Mrs Clark frequently after and she continually spoke of altering her will. Then the Illness referred to took place. After a time she became stronger, and he then saw her frequently. She instructed him several times to prepare a new will leaving the property for life only and afterwards to the English Church. He put her off for some time, not, as suggested by his friend, on account of her unfitness, but because the estate being small the original will might as well stand. Site became imperative, and gave him definite instructions, as a result of whicli a new will was executed. After her first attack she had some difficulty In speech, but with a little patience there, was no difficulty in understanding her, and he had none at the time of the making of the will. She also spoke of the children several times, and had spoken of leaving something to the little girl, and he asked her if she still intended to do so. She emphatically said "no," saying that the children were none of hers. She improved steadily until the time of tiie second attack, the was called and went to see her immediately after the attack and visited her frequently between tbe time of her attack and her death. For some days she could not be made out very well in what she was attempting to say, but later became better, and said on one occasion that she was pleased that the church was getting the property. After the death both he and Airs Cartwright spoke of her state of mind when the will was made. He suggested that he should see the doctor and did so. As a result he got probate for the will. To Mr Rattray : He remembered the Archdeacon’s seeing him about the vvill before the second stroke, and at that time the second will was not in existence. To Air Neave : The deceased had been irritable at times, but he would not go so far as to say that It resulted in her losing her ordinary senses. He had seen her angry, and he believed that she was sometimes worse in the house. He had no reason to doubt Airs Cartwright and he was not surprised to hear of her attitude towards the children. He did not think that she was affected in her mind so far as to prevent her doing what she wanted to do. On one occasion following her second illness she asked him about certain interest due to her about that time, and had at other times indicated that she was able to attend to her business. To his Honour : She gave no reason for changing the will other than her dislike for Mr Cartwright and that the children were none of hers. Dr Ewart stated that lie had attended the deceased and had known her about nine or ten years. He remembered the attack of- apoplexy referred to, but so far as her mind was concerned there was practically no visible effect. The apoplexy caused pa.ralysis i of the right side, and made Iter more emotional. He saw her In December and again in February, and she was quite in a fit slate to make a will when he saw her. Bo far as her speech was concerned he thought that she was perfectly able to convey what she wanted. Archdeacon Stocker also gave evidence, and denied that he had said to Cartwright that there was only one will. Evidence for the defendant was also given bv Mrs Robinson. Mr Rattray said that the church trustees deemed it their duty to be represented in the proceedings, although at the same time they did not wisli to press any claim. They merely wished the facts to bo placed clearly before his Honour. They felt that if the testatrix were competent to make a will and that it was her will that the property should go to the church then the position should not be altered, and he submitted that Mrs Clark was quite competent. She wished to make provision for her daughter, but also desired that none of her money should go to her husband, and she had accordingly arranged that it should go to the church at her daughter s death. Air Longuel said that the proof of unsoundness lay on the plaintiff, and he submitted that the actions of the testatrix had been consistent throughout. Mr Neave also addressed the court. In giving his decision his Honour said that in his opinion testamentary capacity had been abundantly proved. The strongest evidence In favour of testamentary capacity to his mind was that of Air Longuet. It showed that the testatrix was able to form an opinion without any assistance or hindrance as to how she was to dispose of the property and that she had made up her mind firmly. That was shown because she went two or three times to Mr Longuet and asked him to alter her will. She appointed him trustee on her own motion, and it was her own idea that her daughter should have only a life interest in the property, and that the church should get the balance at her daughter's death. She was therefore capable of forming a deliberate intention as to the disposition of her property. In such circumstances unloss it was proved clearly that the will was not the offspring of a sane mind very strong evidence indeed would he required to show that the testatrix was not capable of exercising her will. He did not think the testatrix in that case showed any sign of mental affection. She carried out what she had stated to be her intention to a number of people both before and after her stroke of apoplexy and, while there was evidence that she was extremely irritable and did very curious things, it was clear that when the irritation passed that there was no reason why she should not he a perfectly sane person. The way in which the will was prepared and executed showed clearly to him that the testatrix had a mind which comprehended a testamentary act. Judgment was given for the defendant and costs on the lowest scale were ordered to be paid out of tbe estate. IN BANKRUPTCY. Alessrs Bing, Harris and Co. (Mr O'Beirne) made application to have John Bell hairdresser, Invercargill, adjudged a bankrupt. Air Neave appeared for respondent and offered no objection to an order being made. Mr O'Beirne called John Stevenson and Charles Joshua Alartin. and his Honour made an order adjudging the debtor a bankrupt. IN DIVORCE. Sophia Russell (Mr Macalister) petitioned for alimony against Arthur Stewart Russell (Mr Eustace Russell). His Honour made an order by consent for the payment of £3OO alimony.