SUPREME COURT.

Temuka Leader, Issue 2374, 25 June 1892, Page 2

SUPREME COURT.

The hearing of the case Bailey v Ross Listed two days. The Hon. W. D. Stewart, with him Mr Kinnerney, appeared for the plaintiff, and Messrs T. L. Joynt, and with him Mr Hay, appeared for the defendant. After some argument it was decided to hear the defence first, but at a snbsecpient period Mr .Joynt showed this was the wrong course. This was a case in which Mrs Bailey, wife of the late Benjamin Bailey, of the Washdyke Hotel, disputed her late husband's will, on the ground that a certain portion of it had been fraudulently inserted. The will read as follows: —" This is my will, Benjamin Bailey (known in England by the name of John Barkley), oft Timaru (Gentleman). I appoint niy wife Margaret and my friend David Mitchell Ross, and [Charles Bowker scored | out J, all of Timaru, executors of this my ] will". I give all my real aud personal i property "to my trustees (upon trust with J

•espect to my leasehold in King Street, rimaru, section 212., Timaru, and all 'urniture therein my wife may require) shall be for the use of my wife during lier life, but should she decide to leave the same and reside eslewhere the same shall be sold and the proceeds thereof devoted to the trust; and all my jewellery (watches and rings, etc.,) I desire shall be sold; and my wife shall pay the ground rent of the said section so long as she shall occupy the same, viz., nine pounds per annnm; in trust to convert into money all my real and personal property (except my wife's aforsaid life interest) and dnvest the proceeds in any manner my trustees shall deem prudent at their discretion and to psiy out of the income of the proceeds the yearly sum of forty pounds to my wife for life, and after her death to divide the corpus J equally onehalf between my brothers and sisters namely—(names and addresses given)— said half of the corpus to be liable for my debts. The other „equal half (after payment of my debts, funeral, and testamentary expenses out of the moiety bequeathed to my brother and sisters aforesaid), I leave, give, and bequeathed unto my friend the said David Mitchell Ross; and out of the said sums I authorise the payment of my nephew's passage (Richard Evans.) being paid to England. Provided that if any before mentioned brother or sister shall die in my wife's lifetime leaving a child or children who shall survive my wife, then such child or children shall take (and if more than one equally between them) the share of which his, her, or their parent would have taken of, and in my first said property if such parent had survived me and my said wife; I empower my trustees to postpone the conversion of all or any part of my property for so long as they shall think lit, and the income of unconverted property shall from the time of my death go in the same manner as the income and proceeds thereof would have been applicable if the same had been converted. I give the legacy or sum of £lO (ten pounds) to each of my trustees. In witness thereof." (Here follows the usual attestation, which mentions that the name " Charles Bowker" is to bo deleted where it occurs.) The following declaration of trust was submitted :—The words and letters here included in square parentheses are interlineations in the original:—" New Zealand to wit. In the matter of the will of one Benjamiu Bailey (alias Barkley) of Timaru, deceased, and of a bequest of the half corpus of the estate thereunder made to me David M. Ross thereunder, (to be used as privately instructed by the deceased) . Be it known by this Declaration of Trust made by me the said David Mitchell Ross (in renunciation of the bequest personally), this sixth day of February, 1889, probate granted me same date. This minute or declaration of trust is consequently noted, i.e., whereas the bequest made to me in the said will is not for or accepted by me personally, but upon trust for the substantial benefit of one Frank George, his wife, and [the] family [of] late [A. G. Stone] of Timaru (but' now of Sydney, N.S.W.) payable subject to the exercise of my discretion, and failing such payment to the said family [ies] then to the legatees named in the said will and which I so decide, and in "such equal proportion. Therefore it is witnessed that the said bequest is not mine personally, but a trust fund for the use of the George [and Stone] families or the other legatees named first in the said will. And I declare this trust accordingly, renounce and assign the same from myself and exrs. and adinns. and now hold the funds to the use of the parties aforesaid absolutely. D. M. Ross. Signed, sealed, and declared before me this sth day of February, 1889. J. H. Sutter, J.P., Timaru."

From these two documents it will be seen that whereas half the estate is left by the will to Mr D. M. Ross, it was only on trust, and that he got it for the benefit of the George and Stone families.

[ The evidence of D. M. Ross went to show that by the will half the estate was to goto the deceased,sbrothers and sisters at Home, and half to the children of George and Stone, but Mrs Bailey was to have a life interest in it. Stone was a son of the first Mrs Bailey, and George was a brother of Stone's wife. The present Mrs Bailey was a servant in the late Mr Bayley's house during the life-, time of his first wife (Stone's mother). The present Mrs Bailey disliked the Stone and George families. The reason Bailey gave for leaving money to the George and Stone families was th it he had lost money belonging to their mother, and wished to make it up for them. Had sent £lO each to Bailey's brothers and sifters at Home on the advice of Mrs Bailey.

Iu the course of a severe cross examination the defendant said he kept no separate banking account for the trust estate, but paid all into his own account in the bank. Mr Stewart urged that the attestatlp clause of the will which struck Mr Bowker's name out of it, was not written in the presence of Mr Bailey, as the ink and writing was the same as that in the body of the will, which was written in Mr Ross's office.

Dr Eeid, W. M. Sims, J. H. Sutter, Maty Ross, Madeline Elder, Ellen Houston (late Mis Stone), and Frank George were examined, but we have not space for their evidence, which tended to support the will. For the prosecution, Margaret Bailey, wife of the deceased, and co-tiustee with Mr Ross under the will, sworn, stated thatj Mr Bowker's name was in the will as cotrustee with Mr Ross and herself. Heard Ross read the will, and it gave Ross nothing more than it gave Mr Bowker. Heard Bailey say he wanted the jewellery sold and £IOO sent home to his friends. At her own death everything was to be sold and the money seiit Homo. They were to send Home £IOO at intervals, and retain enough to keep witness. Bailey never said a word <'ibout giving anything to the George or Stone families. Ross refused to read the will after the funeral and offered excuses; she never saw the will until she saw it in the witness box. She never knew there was anything wrong with the will until last July, when she asked Mr Ross about it. He then stamped his foot and asked what she wanted. Mrs Fail-bourn gave evidence of witnessed the will. She signed it before Bailey did. Richard Evans, laborer, nephew »f deceased. Came out to the colony at Bailey's request. Bailey told him about the will ; that £4O a year was to be given.

to his widow, and house and furniture as long as she lived, or liked to stay in it, and at her death the money was to be divided between Bailey's brothers and sisters. Went to Ross's office several times before Bailey's death to see the will, but Ross would not show it. Asked Ross to read the will in the presence of the relations, and Ross told him to mind his own business. Called on Ross afterwards, who showed him a paper purporting to be the will. Witness pointed out it was not signed by any one, and Ross said : " What do you know about it ?' There was £2l in the will to pay witness" passage home, and Ross wanted him to go. He-r 1 hi-, uncle speak of the Stones, but never of the George's. When Stone died, Bailey said he was better dead than alive. Heard his uncle express regret at having placed his will in Ross's hands, but said as he was associated with Bowker he could not do jmuch. Witness was a policeman in the Old Country. Henry Miller, farmer, Pleasant Point, gave evidence of Ross having refused to read the will.

The Rev. Mr Gi'lies, J. Miller, and C. Booker gave unimportant evidence. Henry Oxby and F. Osborne gave evidence to the effect that they heard Bailey say Stone swindled him out of a property in Heaton Street. He seemed annoyed with Stone over it. K. G. Turner stated Ross tried to sell him a property in King Street for £l4O (this property had previously been bought at £l2O according to Mr Ross for the Stone family). It made it appear the property was his own. J. S. Gibson, sworn, stated his wife was a sister of the first Mrs Bailey. Benjamin Bailey (or John Barkley) was a deserter from the army, and had a brother in Timaru who threatened to expose him if he did notsnpply the brother with money. For this reason Bailey transfered property to his wife and gave 1.0.U5. to Stone so that if arrested Stone would be able to make a claim on him. No value was given for the 1.0.U5. Before Mrs Bailey's death she transfered property to her son, Stone, and this caused a serious quarrel between the two families. Heard Bailey talk about his brothers and sisters at home. Asked Ross did Bailey remember his brothers and sisters in his will and Ross said" Heremembejed me ;youknowlwas an old friend of his." Did not think it improper to ask Ross that question as Bailey was witness's brother-in-law. This completed the evidence, and the case was adjourned to Christchurch, where the law points will be discussed on a day to be agreed upon by the lawyers.