SOLDIER'S WILL

Press, Volume LVII, Issue 17117, 12 April 1921, Page 2

SOLDIER'S WILL

MESSAGE FROM BATTLEFIELD. A soldier's will, supposed to have been made in a pay-book, which was subsequently lost, was the subject of a Supreme Court action at Auckland in which Mr Justice Stringer gave judgment on Saturday. Tho testator was the late Lieutenant Erdington Goodwin, N.Z. Macume Gun Uorps, whose estate was valued at about £IO,OOO. The plaintiff, Mrs Alice Vera Goodwin (Air Leary), widow, Green lane, Auckland, sought to obtain a grant of Letters of Administration of her husband's estate under the lost will, or alternatively Mrs Goodwin and Henry Cotterill, solicitor, Christchurch, sought to obtain a grant of probate of an earlier will, and of a codicil of which they were the executors. Dr. Fitchett appeared for the infant defendants, three children of the deceased, His Honour said there was no dispute as to the facts. 'Under the earlier will the deceased left the whole income of the estate to his wife, and thereafter the whole trust estate was to be divided among his children. The codicil bequeathed £SOO to his sister-in-law, Mrs Lila L. Horne. While, on tho battlefield in Juno, 1017, Lieutenant Goodwin wrote a letter to his wife, containing the following passage: "I altered my will in my pay-book leaving everything to you absolutely, but in the event of anything happening to me you may not get the book. Still they usually send them over to the next-of-kin." He continued to correspond with his wife regularly until his death in August, 1918. Every effort was made to recover the earlier pay-book to which the deceased referred in his letter, but without success, and it was conceded that it must now be treated as lost. It was conceded by counsel for. the plaintiffs that the letter itself could ■ not be regarded as testamentary, but it was submitted*that it was ample and sufficient' evidence of the existence and contents of the lost will. On tho other hand, it was contended for the defendants that the language of the letter was ambiguous, and that, in view of all the circumstances,' it ought not to be accepted as sufficient proof of the con- , tents of the will. ■. ' ■„ ...-'■ Tho letter, said his Honour, was writ- j ten under the most abnormal conditions possible to conceive. It was_ written in greatrhaste and amidst the din and dust of a great battle. As the deceased said in the letter, '.'Now.j-my dear, I have only a moment or'two lett to write you. Thp guns are going by the hundreds, arid th'e~ whole place is just fleduam. Dust is all over the place," and then followed the passage already quoted as to the will. His Honour,did not think he was justified'in holding that a passage in a letter written so hurriedly and under such exciterrient was unmistakably a clear and accurate statement of the exact effect of some document the deceased had signed dealing with lis the accidental omission of a few words would entirely alter the meaning of the passage. Again, was it not reasonably possible that the letter contained a hurried intimation' not of what he had actually done, but of what he intended to do? If the idea of making the alteration only occurred to him while writing the letter, then he might quite naturally say he had altered it intending to do so immediately after concluding his letter, but was prevented from carryingout his intention by the exigencies of the impending battle.. There was a strong inherent improbability, concluded the judge, that the deceased, who was an educated and intelligent officer, having, shortly before his departure for the fronts after careful consideration and under proper advice, made ,a just and reasonable testamentary disposition .of his estate, giving his wife the whole income derived thorcfrom during her life without conditions ,or restrictions, with remainder to his children, should, without apparent reason have acted so unjustly as to make a new will disinheriting his children, of his love for whom he spoke in the warm- 1 est terms in his letter, and giving .the whole of his estate to his wife absolutely, which in her own oest _ interests would probably bo an improvident'. aud inexpedient thing to do. Having regard to the considerations bsforo mentioned, and to all the circumstances of this case, his Honour did not find such cogent and convincihg i evidence as alone, would justify him in granting the,claim of the plaintiff, Alice Vei-a Goodwin. He was not satisfied that' the will propounded by her was ever made, or, if made! that the pas* sage in the letter was sufficient evidence of the terms of such will. Be therefore refused to grant probate of the alleged lost will, and would grant the altera nate claim of the plaintiffs, vis., probate of the earlier will and codicil to them as the executors therein named and appointed. If later on tho alleged lost will should be discovered" and should be found to contain an absolute gift of the estate to the wife of the deceased, proceedings could be taken to recall the probate now granted.