SUPREME COURT

Southland Times, Issue 17970, 10 March 1917, Page 7

SUPREME COURT

FKIOAV, MARCH 9. (Before His Honour Mr Justice Sim). His Honour took ills seat at 10 a.m. A Wlbb CASE. j The case W. A. Cockburn v. James G., ; Henry and .John M. Cockburn (executors iu the will of the late Helen Cockburn), an objection to probate being granted.— Mr W. C. MacGregor, K.C., with him Mr A. B. Haggitt for the caveator, and Mr A. S. Adams for the executors. j In his opening Mr MacGregor stated i that the will was dated April 29, 1915, ' and had been signed in Dunedin. The testatrix (Mrs Helen Cockburn) died in ' her own home at Mataura on September : 6, 1916, and the caveat was lodged on • September 8. Probate was applied for by three sons of the deceased and a rule j nisi was granted on December 15th bust, ! returnable last Tuesday. There was an i affidavit filed on Monday morning last | by Dr Evans, of Dunedin, in which the ' doctor stated that on May 1, 1915 —two days after the signing of the will —he , had been called to the house of a Mrs j Miller in Caversham to attend the late j Mrs Helen Cockburn. The patient was ; in a peculiar and violent state and re- ! mained so for a few days. By May 6, | the last day on which the doctor at- I tended her, she was much calmer, but, [ when he questioned her, she had no r idea of her identity, of the iden- | tity of her daughter, or of the extent or location of her property, i She was most certainly not then ■ in a condition to make a will nor, in i the doctor's opinion, could she have been . for a considerable time before. Mr Cockburn, senr., had died in 1909, leaving all the property (two farms at Mataura and one at Ralclutha) to his widow, who signed her first will in Messrs Watson and Haggitt',s office on March 9, 1910. This will left the property practically equally divided amongst the children, all of whom it satisfied. Mr Adams: The will differed in only one particular from the later one. His Honour asked if the will was to be produced, but counsel said that Mrs Cockburn had written to her solicitors on May t, 1910, asking that the document be forwarded to her. Since then it had not been seen by them and there was every reason for believing that the executrix had destroyed it. Unfortunately there was no draft prepared. In any case it was questionable if Mrs Cockburn bad had testimonial capacity in 1910. There Were two executors to the first will, Mr Watson, the solicitor, and Mr Michael Carr, who had been a resident of Invercargill. Dater, when the latter fell into 111-health, the sons suggested that a codicil be prepared and signed transferring the executorship to three of them. This, however, was not done since Mrs Miller, one of the daughters, objected to her mother signing anything. On April 9, 1915, Mrs Miller took her mother first to Ralclutha and then to her own home In Caversham, Dunedin. Apparently about this time instructions had been given by James

Cockburn, one of the sons, to Mr Stewart, a Ralclutha lawyer, to prepare another will, after the lines of the first, but excluding Mr W. A. Cockburn from anythin" more than a nominal share in the property. This will was prepared and it was it that was subsequently signed. So far as was understood, Mr Stewart had no instructions from the testatrix herself but only from Mr .Tas. Cockburn. In the same way the 1910 will had been drawn up under instructions from three of the sons, so that neither was altogether the will of themother, but merely the will of a section of the family. Mrs Smith, another daughter, would testify to her mother s helpless condition when she was staying at Mrs Miller’s in May, 1915. bate in that month the old lady was taken back to Mataura. Unfortunately Dr Boyd, who was then her medical adviser, had since gone to the front so could not be called, but Dr Fleming, his successor, who had attended the deceased for some ten months prior to her death, would give evidence to show that she was not then in a fit state to make a will, and the doctor would also give his opinion that his patient's condition must have been very similar for a number of years previously. Dr Macdonald, of Invercargill, who had examined the old lady's eyes, would also testify to her frail condition. The will had been signed in the daughter's house at Caversham on April 29, 1916. Evidence was given by Drs Fleming and Macdonald, James Boss (farm hand), Malcolm McKinnon (farmer), John Gray (farmer and brother of the deceased), Annie Smith (sister), Chas. Gray Cockburn (son). Nurse Ritchie (who attended Mrs Cockburn for the last few months), Arthur .Cockburn (son), C. S. bonguet, and W. Av Cockburn (the caveator). Mr Adams, in a brief opening, said that the medical evidence of Dr Evans was a surprise to him and lie would have to ask for an adjournment to Dunedin in order to have an opportunity of cross-examining the doefot. His Honour agreed that the affidavit evidence was very strong. Me also thought that it might be advisable to take some further action with a view to getting a decision concerning the first will It was desirable to have some finality. Mr Adams agreed and mentioned that there was a third will which had been drawn up 22 years ago. His friend could hardly carry Mrs Cockburn’s weakness back so far. Mr MacGregor; I don’t pretend to. However, he did not intend to review the facts here when he would have to go over them again in Dunedin. Evidence was then given by Ewen Cameron (goods foreman at the Dunedin railway and a witness to the signature of the will), Jas. Kirkpatrick (grocer, Caversham, and the other witness), Mrs Miller and Miss Helen Cockburn. Witnesses testified that Mrs Cockburn was quite rational when she affixed her mark to the document. Mrs Miller deposed, too. that her mother had given James instructions to have the will prepared. The further hearing of the case was then adjourned to Dunedin and the Court rose at 6 p.m.