AN OREPUKI WILL CASE.

Western Star, Issue 2220, 8 July 1898, Page 7

AN OREPUKI WILL CASE.

At the Supreme Court on Monday the case of John Turnball and Harriet Forb»s y. Harriet Ralston for the reFOcation of a will was commenced befora Mr Justiee PeunefsthT and thß following jury :—N. Johnson (foreman), H. A. Massey, P. L. Gilkison, R. Dunlop, B. Meredith, J. Stronaoh, G. Froggatt, 8. Lawrenoe, 0. L. Hawson, W. B. Mitchell, A. P. Hawk#,and J. McKerobar. Mr T. M. Maodonald appeared »or plaintifiV, and Mr J- Maoalister for defendants. Mr Mao lona'd, in opening, eai<» the plaintifia were the son and daughter of the deceased (James Turnbull) and of the defendant (Mrs f-alatoo). Their father died on 13th September, 1892, tho day on which th* plaintiffa allege be made bis last will. The deceased had been a miner at Oreonki and had accumulated a moderate share of property. He was married ani had several ohildren. Tho evidenoe of the witnesses oounsel would call would show conclusively that the deceased was a man of considerable strength, both of body and mind. Unfortunately he was given to drinking. His malady took the form of " bursts or bouts. These generally took place abjut washing-up time wh»n he would go into

town to sell bis gold. These bursts lasted from three days to a fortnight. Ooui.scl did not suggest that be was drinking all the time but off and on. In the beginning of 1891 be went to Preservation, and it is probable that before be went there he made the alleged will, which plaintiff* olaimed was not his last will. He was not away very loner, bat returned to Orepnki Practically, aftjr his return till » fortnight before his dpath he was sober and then he had anothor burst. He gradually got better, and on Friday he was able to work. On Saturday he WMltrj much better, and on Sunday he was better still. On Monday night he felt ill and brought up iume blood, and his wife came to the conolnsion that a blood vessel bad hurst, and that he was in a serious condition. He died on the night of the 13th September. T>r Nelson arrived between two and three in the afternoon. He examined him, ascertained what was wrong, and informed Mrs Tnrnbull and some other people that he was not likelv to recover. H» then told deoeaaeo. that'he must prep ire himself, and that if he had any affairs to settle or business to arrange he should get it done. Unfortunately Dr Nelson was desd. He would have been a material witness, bnt tbey had hisstatenuots In coos- queue* or the doctor's statement one of the persosi in the room suggested that Turobnll should make hit) will. He was asked how he wished hi* property left, and he replied, "All my property to ray wife as loan a« ehe remains sinole. In n

ooarerwfcion with deonue'!, he said a pre»ious | will hod been made but be had not signed jt and espressod himself dissatisfied with V. Simpson at once wrote ont a will in accordance with the inutruotioM. It wa§ wad ot« to deceased; he was satisfied with it, and be was propped ap in brd while he affixed bit mark to it. It was then signed bywilnessea as required by l»w The will was tben handed by Simpson to Mm Tornball to take care of. She put it in a drawer and they had beard nothing of it since. Defendant in her statement of defence denied that the aecond will had been made, •nd allied that if it had »een deceased wan not aware of what ba was doinjr. After his father's d«-ath John Tornbull *pok» to hie mother about the will. He was then about 18 years of age. His mother told bim that

the will Simpson had written oat had not been properly signed, that it was no good, and that the had destroyed it. The difference in the two wills was that in the event or her re-marrying the property would devolve upon the children j while tbe will she P™™ 11 left the property entirely to herself. On the 11th Jnne, 1895 she married again. A pro posal was made to John Tnrnbull not to take any further proceedings if Mra Raleton gave him £4O and the house he was living in. He said he would not agree to any term* for hig own benefit, but wanted his father a death-bed will carried out, which would benefit the children under age. Jas R Colyer, olerk of the District Court at Invercnrgill, prodoood the will of 27th Jan, 1892, the affidavit Bigned by Harriet Tnrnbull, anl all the paper*filed et the timo of granting probate. Henry Simpson, miner, Oiepuki, said be bad been there 16 years. The deceased was quit* sensible when witness saw btm on bis death bed. There was no sign of liquor about him. When Dr Nelson arrived Mrs Turnbull came in with bim. The doctor advised bim to settle his aff.irs, and "omeone asked him if he had a will. Tnrnbull eaid he had made one at Riverton, but he did not know if it had been eiantd. He then aureed that a new will should be drawn up and witness said he would write it and asked tbe deceased what he would put in it. He replied, " Everything to my wife as long as sbo remaini single." Witness then wrote out the will and read it over to deoeased, so

that tbone in tbe room could bear. Turnbull said he thoogbt it would do, and appeared to understand it. Deceased wai assisted up while be put his mark to the document. Witness and Mr Freutx then signed it as witnesses. Mrs Turnbull put the will away in a drawer and he had never seen it atnoe. In orMS-examioatiou Henry Simpson stated that deoeased was in a sound condition of mind when he made the will. He bad suffioienipomr to turn himself in bed, but bis nerves were too shaken for him to sign the will bevond affixing bis mark. Charles Frentz elated that he w«e nreient when the laßt will wae made by deoeased. He signed it. Catherine Forbee, widow, Orepuki, eaid ■ha had suggested to Simpson that Turnbull should have a will drawn up and Simpson asked him if he wished it and he said yes. Witness did not hear what the wording of the will was to be. Mrs Turnbull was present wben tbe will was signed and she must have been present when it waa read over. CroBS-examioed: Deceas-d was asked by Simpson to put his mark (a cross) to tbe will. Evidence waa given for plaintiff by Jane Lennon, Harriet Forbes and J S Evans to the effect that James Turnbull, deceased, bed been drinking to excess prior to confinement to his bed, be had vomited a quantity of blood ; Dr Nelson had told them of the danger of the illness. Witnesses were orosi-examinel as to the condition of deceased when be made the will, each of tboae present at the time saying that he was sensible and knew what be was doing.

John TurnbuU, son of deceased, oorroborat'd what the other witnesses had said as to what took ploce just before his fatber'gdeatb, and added that about two months afterwards defendant told him the will had nofc been signed and she had destroyed it. Last year ahe said she heard witness had consulted a solicitor in regard to the will and stated that she did not know ivhy he was acting in that way, as she and her husband had boon very good to him. He denied that they had, and snbjcquently, Mrs Lock and defendant both offorod to ftivc witness £4O, and the house he was living in if he would take no further action in the matter. He would not comply with their wish, stating that his object was to benefit his brothers and aistera. Evidence was given by Minnie Harvey, I Drs Tcoung and Macleod, Roue TurnbuU. L Cross, T Johnston and W H Fortune. This closed the oase for plaintiffs. Mr Maoalistor abandoned tho defencp, and the terms of thi dcorce wero arranged. His Honor placed eight issues before the jury and they gave answers, the sabstanoo of whioh was that deceased made a will on tbe 13th day of Sept 1892, while in sound mind, that he aigned it in the presenoe of two witnesses and that the said will had not been destroyed by the testator or by anj person in hia presence and by his direction with the intention of revoking it. Thedeoree to be. prepared is as followa(1) Revoking the erant of probate of tb< will of 27th Jan, 1892. (2) Declaring tbe instrument of 13thiSep tariff. 1892, to be the last w 11 and testa ment of tht» dec-ased James TurnbuU. (3) Deolaring by eonsent that the meamn, of the said will is that on the marriage of th

I wife of the testator bis property peases to the ehildrm of tbe testator in eqml shares. (4) Granting administration with the saiJ will of the 13th September, 1893, annexed to the "defendant, Harriet Balstoo, abe giviog security bb in an estate of £I6OO or such other security as the court shall think fit. (5) Ordering the plaintiffs* costs in the action as between solicitor and clients to be paid out of the estate with liberty to the administratrix to raise tbeamomr by mortgage. (6) The defendant within twelve months to free tbe property from all encumbrance, and epecially to procure the cancellation of a guarantee or security entered into by ter for her present husband's debt to tbe Bank of New Zealand, and relieve the testator's estate from all responsibilities thorefrom. In case of failure to do this, another administrator to be appointed by thj court. (7) The administrator or admini-tramx to be entitled to alt the rights of a surety in respect of the sa-'d guarantee or secur ty. (8) Liberty for either par y to apply to the court on the question of security as they or she may be advised—General liberty to apply.