INTERESTING CASE

Timaru Herald, Volume CXXXIX, Issue 20027, 7 February 1935, Page 13

INTERESTING CASE

CLAIM FOR SHARE OF ESTATE MURDER TRIAL RECALLED A case of considerable interest, and one in which the trial of Thomas Hall for alleged attempt to poison his wife at Timaru in 1886, and his subsequent trial for the murder of Captain Cain, his father-in-law, at Dunedin in 1887, was referred to by His Honour, Mr Justice Johnston yesterday. The case was one in which Isabelle Ellis Pattison, spinster of Auckland, proceeded against Miles Jefferson Knubley and Melville Jameson Gray, as trustees under certain deeds of settlement, and under the will of Kate Emily Hall, and Harry William Espie Newton and Lewis Geoffrey Newton, claiming £8896/15/5, being one-third of the income derived from an aggregate of £26,690/15/8, as from March 18, 1934. Mr M. G. McArthur (Auckland) with him Mr A. D. Mcßae (Timaru) appeared for plaintiff. Mr F. J. Rolleston <Timaru) appeared for the trustees; Mr F. S. Grayling (New Plymouth) appeared for H. W. E. Newton, and Mr R. J. Brokenshire (New Plymouth) appeared for L. G. Newton. Plaintiff claimed that she was entitled to participate in the funds of a trust created under deed of settlement made by Captain Henry Cain, on February 26, 1870. She based her claim on the grounds that she was a daughter of Jane Ellis Newton, who was a daughter of Captain Cain, and who subsequently married a man named Pattison, and that under the deed of settlement the funds on the death of her mcther were to be divided among the children. The claim wa.s originally made against the trustees, who applied to odd the two sons of Mrs Newton us defendants.

The defence of the two sons was that plaintiff had no status because there was no proof of the death ol | Mrs Newton’s husband afc the time I she contracted the marriage with | Pattisop. The trustees’ defence was • that they were advised in this circum- | stances not to pay out any of the 1 funds until the Court had decided whether plaintiff was entitled to parI ticipate. The trustees adopted a I neutral attitude being prepared to pay ( out the funds as the Court directed. I Action Outlined. ; Mr McArthur said that the main subjects of the action were two deeds of settlement executed in 1870 by Captain Cain. By these he left certain properties, the income from which should be left to his wife during her life, and after her death to his two step-daughters. Upon their deaths the capital was to be divided among their children. In 1900 Mrs Hall executed a will t>y Which she left her New Zealand property to her nephews and nieces and the plaintiff, anh a brother of the plaintiff, who was, then living. Only one deed of settlement was still in operation, the other one having practically been closed. The proceeds of the first deed of settlement amounted to £19.227/6/2. Plaintiff’s mother was married three times, first to Newton in 1874. then to Pattison in 1886 and some years later to one Collins. The Newtons were born during the first marriage, and the plaintiff was born subsequent to the second marriage. She was born on January 17, 1887. Mr McArthur said he understood defendants would endeavour to show that Newton was alive at the time of the second marriage, and plaintiff was therefore not entitled to participate. Newton twice attempted to commit suicide in 1886, but he then disappeared, and no one had been able to trace him. It would also be shown that Mrs Newton married Pattison in Melbourne on July 5, 1886. His submission would be that a marriage de facto having been established, there was a strong presumption in favour of the marriage, and it Was for defendants to prove that it was bad, and, secondly, that as plaintiff was born of a married wonian. there was also a strong presumption in he? favour. It would also be for the defence to show that she was not a child of the marriage. Isabelle Ellis Pattison, stated that she was born in Dunedin on January 17, 1837. Her mother was Jane Ellis Espie. Witness was the person referred to in Mrs Hall’s will, and was referred to as her niece. Witness said she had a clear recollectiop of her mother and Pattison, who lived together for some years, practically up till within six months of Pattison’s death- The Newton boys also lived with them, and they travelled extensively together.

To Mr Rolleston: Mr Knubley had never contested her right to share in Mrs Hall’s estate.

To Mr Grayling: She had always looked on Harry and Lewis Newton as her half-brothers. The family resided in Australia for a time, and then all six went to England. Harry Newton left home, and later the family resided out of Auckland on a farm. Last year an offer was made to settle, which she decided to accept, but later decided not to go on with it. His Honour: What has this to do with the issue? Mr Grayling: Simply to show that a genuine attempt was made by the added defendants to settle plaintiff’s claim. To Mr Brokenshire: She had always looked on Pattison as her father, and the other members p f the family had always regarded her as Pattison’s child. Mr Rolleston said that the settlement was dated 1370, and since then the funds had increased very considerably, due to careful administration and judicious handling of properties It was unfortunate that after 50 years as a trustee and having the funds available for distribution, Mr Knubjey should he involved in litigation. There had been no trouble with the trust until 1932, when Mrs Pattison died. In this year, plaintiff, realising that the trust was coming to an end, wrote to Mr Knubley for advice. In March 1934, Mrs Newton died, and the tion then arose in an acute form, and Mr Knubley decided to hold the funds until a decision had been made by the Court. The defence of the trustees was that they were prepared to submit to the decision of the Court. They did not think that whatever the decision, plaintiff could not claim a specific amount against the trustees, because the securities had to be realised on. He suggested that if the Court held in favour of the plaintiff, that the decision should be in the form of a declaration that she was or was not entitled to participate, and not that she should be paid a specific sum. If his suggestion was adopted by the Court, no injustice would be done the defendants. Trustee’s Story Miles Jefferson Knubley, solicitor, said that in 1386 he was associated with one Spalding, -who was a trustee of the deeds of settlement involved in the case. Witness knew Captain Cain, Who'died on January 29, 1886, and ho also knew Mrs Newton, Captain Cain’s daughter, and her husband, W. J. Newton. On January 26, 1886. he was surprised one morning to have a visit from Mr Newton at his (witness’s)

house. He knew that Newton had attempted to commit suicide by cutting his throat, and he appeared at witness’s house with his throat tied up. He did not remember seeing Newton again personally.

Witness gave evidence regarding powers of attorney he attended to for Newton and his wife, and said that he had subsequently made inquiries about Newton, but had never traced him. In August, 1886, he received a cable message from Mrs Newton asking for money. It came from Melbourne, and that was the first intimation he had as to her whereabouts. He saw Mrs Newton later in Dunedin, at the trial for the murder of Captain Cain, she having been a witness. Mr Spalding retired in 1890, and he handed witness a bundle of letters concerning Mrs Newton. Witness continued to pay Mrs Newton her share up to the time of her death. The first he hear/* of Miss Pattison, apart from her birth, was when he received a letter from her in 1932.

To Mr Grayling: The father of the added defendants was known as Billy Newton. He had reason to believe that Newton and his wife did not get on well together. He remembered having seen apd spoken to Pattison, who had been employed as a cadet at Newtop’s farm at Castlerock, Totara Valley. Captain Cain’s property in Timaru was known as “Woodlands.” To Mr Brokenshire: A man named T. W. Hall wrote to him concerning Newton. This was not the Hall mentioned in the case. Witness was a witness at the trial of Hall for the murder of Captain Cain in January, 1877. Mrs Newton, the mother of the plaintiff, was to have given evidence at the trial, but she was confined, her confinement being the birth of the plaintiff. He could not recall her depositions being read, but he was satisfied that her evidence was given. He could not recall under what surname Mrs Newton gave evidence. Hall Poisoning Case Letters written by Mrs Newton to Spalding and Mr Knubley were produced, and in one of these Mrs Newton referred to the trial of Thomas Hall for poisoning his wife. This letter was dated August 2, 1888. The preliminary hearing of this case was August 16. 1886. and was held in the Courthouse in Timaru.

Cross-examined by Mr Brokenshire, Mr Knubley said he was satisfied the letters were in Mrs Newton’s handwriting.

To Mr McArthur: He remembered that there was a mortgage over Newton’s farm at Castlerock, and he also remembered having sold it up, under the powers contained in the mortgage. He remembered haying written to Mrs Newton asking her to sign documents in the name of Newton, and she replied stating that she was very much concerned at not being able to sign her present name (Pattison) to them. Mr Rolleston read a letter sent by Mr Knubley in reply to this letter, in which he set out his reasons for asking Mrs Newton not to sign in any other name. He said he had heard that Newton was still alive, and if she signed in the name of Pattison, the marriage wopld have to be proved, and this might lead to trouble and expense. He set these reasons out simply to let her know how matters stood, because if Newton was still alive, Mrs Newton might have been liable to prosecution on a charge of bigamy. At this stage the Court adjourned for lunch, and on resuming, Mr Grayling said that the only point for the Court to decide was whether the plaintiff was the child of Pattison or Newton. The added defendant H. Newton was born on June 15, 1876, and the brother about four years later. In 1886, W. J. Newton attempted to commit suicide, and about this time Pattison arrived either as a cadet or as a paying guest. Evidence would be called to show that Pattison occupied the same room as Harry Newton, who would say that as spon as his father left the house, Pattison would go to Mrs Newton’s room. This went on for a long time. Later Mrs Newton went to stay at “Woodlands,” to nurse Captain Cain, who was seriously ill. While there, Harry Newton spoke to an old servant named Denis Wren and told him what had been going on, and as a result Harry Newton rode a horse out to Castlerock anc’ informed his father. Newton taxed his wife concerning her conduct, and offered to forgive her if she would go back to him, but this she refused to do. On January 20, 1886. Newton attempted to commit suicide, firstly by attempting to shoot himself, and later by cutting his throat, but on neither occasion was the wound serious. On January 26, Mr Hall called on Mr Knubley and gave him power of attorney from W. J. Newton to hipiself. Hall. Later Mr Knubley prepared power of attorney from Mrs Newton to Hall. Mrs Newton left Timaru for Dunedin on February 16, 1886. and an old servant, Bridget, who married Wren, would say that she had not seen Mrs ton after she went to Dunedin. The next that was heard of Mrs Newton was correspondence received by Mr Knubley, and in this she stated she was married to Pattison. On the marriage certificate Mrs Newton described herself as “widow,” but she attached no month, although the ! year was 1886. In the following year the trial of Hall for the murder of Captain Cain took place, and Mrs Newton was unable to give evidence owing to her confinement. His Honour: Was Newton not wanted for that trial?

Mr Grayling said that there was no mention of him in the reports of the case. Newton Recognised Evidence previously given by Frederick J. LeCren, that he had seen W. J. Newton in a bank in Winton in 1893, and had given a description of Newton to the bank manager, was put in by Mr Grayling. LeCren asked Newton if he was Billy Newton and he had replied that he was. Newton said “Are you a LeCren from Timaru?” LeCren went into the box and reiterated the description he had given to the bank manager. Harry William Espie Newton, labourer, of New Plymouth, produced a copy of the marriage certificate of his father and mother. In his younger days, witness lived at Castlerock, which was 24 miles from Timaru, and he was practically brought up on the farm. He remembered Pattison coming to the farm, and he also remembered his father’s attempt to take his life. Pattison’s ocupation on the farm was that of a “loafer.” Pattison and witness occupied the same room. Pattison used to get up early in the morning, and when he came back witness would ask him where he had been, and he would reply “to see your mother.” Witness was frightened to tell anybody, because he was always getting into trouble with Pattison and his mother. Witness did tell Denis Wren, who was a gardener at “Woodlands.” Witness stole a horse out of the stable at Woodlands, and put the saddle and bridle on with a step ladder. He got to Castlerock and asked his father if he knew that Pattison was going to his mother’s room when he went to work in the morning. Later his father visited Woodlands, and asked his mother if she would go back to him if he forgave her, and she said she would not, and that she was going to leave him.

Referring to'his father, witness said that he was a doctor when he came to New Zealand, and he thought his

father won more medals as an athlete than any man in New Zealand. Witness had a recollection of going to Australia, and of Pattison meeting him. He hated Pattison, because he had nothing but the stockwhip all the time he was with him. Pattison did nothing but travel all over the place, because he was ashamed to be seen by anyone. Later the family went to England, and here witness ran away to earn his own living.

To Mr McArthur: While in England, he had visited his uncle, Sir Henry Newton, who was ill, and he had said: “Come and see me when I am well. I have something to tell you.” He did not see his uncle again, because he died. He knew his uncle had a letter from his (witness’s) father, because he told witness not to worry about his father, that he was all right. The contents of that letter he had never seen.

Edwin Ley, farmer, residing at Sutherlands, said that he remembered W. J. Newton, for whom he worked for 3?. years. He was then at Castlerock. He saw Newton the day he attempted to commit suicide, but did not see him again after that. Newton was a good all round athlete, either at running, jumping, vaulting, swimming and boxing. He remembered Pattison being at Newton’s place, and from what he had seen, he considered that Pattison had been too friendly with Mrs Newton. Bridget Wren, widow, living in Christchurch, said that she had once been a servant at “Woodlands,” the residence of Captain Cain. She left there on February 16. 1886, the day she was married to Denis Wren, who was groom and gardener at Captain Cain’s. On the day she was married, Mrs Newton asked her if she w r ould keep her son Lewis for two weeks, while she went away, and this she did. At the end of the two weeks, Newton himself came to the house and took Lewis away. The last time she saw Mrs Newton was February IS, 1886, and she did not see Newton again after the day he took Lewis away. No further evidence was offered. Mr Rolleston did nqt address the Court.

Mr Grayling said the evidence had been very difficult to obtain after so long a lapse of time, but he submitted that it was evidence on which the Court could rely. Mrs Newton had seen her husband in February, 1886, and she was married to Pattison in Melbourne five months later. There was no presumption of death, and Mrs Newton had no reasons for thinking she was a widow. His contention was that on LeCren’s evidence that Newton was alive at the time Mrs Newton married Pattison. the second marriage could not have been valid. Mr Brokenshire accepted the argument advanced by Mr Grayling, and added that the inference to be drawn from Mrs Newton’s statement on her certificate of marriage to Pattison, that she was a widow, was that she knew that Newton was still alive. She had done this because her friends knew that she had parted from her husband, she had to put up some show in Australia, and she could not put a definite date on the marriage certificate, because she would have been laying herself open to prosecution for bigamy. Mr McArthur said the burden of proof was on the defendants to show that the second marriage was bad, and this, he contended, had not been done. He also contended that the evidence of LeCren was not strong enough to prove that Newton was still alive. Even if it was held that Newton was still alive when plaintiff was born, plaintiff would still be legitimate by law. having been born of a married woman. In support of this contention, Mr McArthur cited a large number of authorities.

The case concluded at 5.30 p.m. His Honour reserving pis decision. His Honour expressed regret that the

authorities were not available in the Timaru Law Library, and so he would have to give his decision from Christchurch.