A NATIVE'S WILL.

Dominion, Volume 2, Issue 562, 17 July 1909, Page 6

A NATIVE'S WILL.

J , NEW TRIAL ASKED FOR. .. ",,'SERiqUS ALLEGATIONS., " J/ARGE INTERESTS AFFECTED. ( .The Native Appellate' Court sat in the | General Assombly Library Building yesterday to hear an application for a new trial 1 of,'proceedings rotating to tho will of Wi Matua, deceased. ; The Court comprised Judges Jonos and Rawson, iwith Mr. Hemi Erueti as 1 assessor. Tho case is. an important one, involving .something line £40,000. The application for a new trial was made on tho grounds that the undermentioned de•cisiona were obtained by fraud—to wit, de- - cisions of the Native Laud Court and Native Appellate Court refusing grant of probate in the'matter of tho will of Wi Matua, de-; ceased; aWdecisions of Native Land Court and Native Appellate Court on applications for'succession to the interests of the said Wi Matua, deceased, in 'Porangahau lb No. 4j, Mangaorapa, Mangamairo B, Wnawhafcanga, and Porangahau No. 2b Blocks. Mr. P. E. Baldwin, appeared for.the applicants (To Amaru Pamoa and others), and Mr.' 0. 'A. Loughnan, for Charles Reardon, supported the application, whilo Mr. C P. Skerrott, K.C., with him Mr. F. B. Sharp, appealed for one group of respondents (Rora s Hokowaka. Te Muora, ,and To TJrupu), and Mr. A D. Fraser for Atareto Taupe's ' children, being parties'intorested against the • application. An objection by Mr. Skerrett to Mr. Longhnan being allowed^to appear was overrnkd by the Court. t , ' Question of Jurisdiction. i J On Mr. Baldwin proposing to begin by erguing'the question of the jurisdiction of ■the Court, Mr. Skerrett contended that it J* was extraordinary for the applicant to raieo -' that question, and that it would be nest to deal with the merits first. , /, ,< Sir. r Baldwin, being permitted , by, the Court to argue the question of jurisdiction, did so at considerable length, and asked tho Court to decide that it had .power to brder a new trial. Mr. Skerrett and Mr. Fraser did not reply. -The presiding .jndge 6aid it mußt be asgumed that the Court had jurisdiction on * proper case being shown. 1 Frosh Evidence. j . N Mr. Baldwin asked leave to put in further affidavits in amplification of those already pnfc in. <, Mr. Fraser urged that if the statements in , >the • affidavits / were true, the ' persons 'making them should be put on r their tnal in' a criminal court for perjury. ' He,'demanded-' that they should called, and exitunined, and cross-examined. The icase was one of the most important of its kind { ' i Mr. Skerrett said the admission, of 'the affidavits would oreate a bad, precedent. ,' 'The■•Court decided to provisionally accept ' the affidavits that were ready, but not to wait for any others. • i The Case'for the Applicants. Mr. Longhnan, in opening the case for the application, .reviewed the history of tho affair, as recited in the previous judgment of the Appellate Court. Wi Matua had made a bequest.to a pakeha>(Reardon) under unusual Wi Matua had left his. home at Porangahau and was living at , ' Waitotara, "among strangers. He was there In frequent communication with Reardon. The woman with whom he was living was addicted to dnnkj as also was the man m whose house they were living; and Wi Matua himself was said to i have a, predisposition of the samo kind. Reardon' also, in the performance of ins self-imposed 'duties towards Wi Matua, lhad supplied him with a reasonable quantity of liquor. -The evidence also showed that the lawyer and interpreter for the making of the will were procured, by Reardon, and that he was present wKen the lawyer was instructed .-" end when the will was executed. Such were the "suspicious crroumstances" as reviewed in the judgment o£the Appellate Court. v The Court,swept away*the evidence of Reardon, i -without stating why, and it had not been shaken by the cr.oss-cxamination. Jones, the interpreter, diod before the case was heard, but the Court, from its knowledge of him, expressed the conviction that he must have been satisfied that Wi Matua understood what he was doing. All tho Native witnosses testified that Wi Matua was in full possession of his faculties, but the Court, while stating that if their evidence could ba accepted the case for tho will would probably be"'made out,' declared that it could not bo accepted. Thus, Mr. Xoughnan argued,''the question was reduced to tho point as to whether 1 Wi Matua was of "disposing mind." The judgment did not stato that he was not, •but merely that the onus of proof on the point w» upon Reardon, and that ho had not discharged it. Then came a dramatic incident. All at once a party of Natives came forward with charges of a conspiracy to dc'feafc the bequest to Reardon He submitted that this conspiracy really did take place, and that part of the evidence given at tho previous hearing before tho Appellato Court was untrue. Among tho now evidence was an affidavit bytheHon.WiPere. M.L C.,m corroboration of a statemont volunteered by the eamo gentleman when tho matter was before Vcommittee of tho Legislative Council, to the effect that Wi 'Matua told him, long before tho will was made, that he intended to Leave eomo of his property to Roardon. Wittresses had spoken or Wi Matua's intention - v ' to leave property to Reardon, and all of,them had 'said that 'they tried to dissuade him from, doing so. All tho previous evidence given on Reardon's side was corroborated by -the fresh evidence, and all tho evidence on the other side waa discredited by it. In the now trial, if gianted, thero was more than a probability that Reardon would succeed.' Mr. Baldwin said tho position of his , clients'was a hard one, whichever way tho case went. It had not been suggested that they had improperly influenced the testator, but they suffered through Reardon's failure I to satisfy the Court that ho had not dono so.' His client P.amoa was the adopted son | of Wi Matua, and he and those with him , only acted vuth Reardon so far as to, apply ' for a now trial. I( Wero the new tnal granted, ' . they would uphold their own claims. Mr. Loughnau asked leave to call V T. W.' as a witness. Objection was taken by Mi. Skerrett and Mr. Fraser on the ground that Mr. Loughnan had closed his case, but tho Court decided to allow tho ev'idenco Thomas William Fisher, TJndor-Se.crctary for Native Affairs, said ho had had business transactions with/tho late Wl Matua, who paid him rent for a house at Waitotara. Wi Matua seemed to him to, bo'in possession of his faculties and able to transact business. Witness had a good doal of correspondence with him thiough Reardon. Mr., Skerrett in Reply. -Mr. 'Skorrett formally submitted that the Court as a statutory Court, and a Court having no original jurisdiction, had no i power to grant the application. lie trusted, however, that the Court would determine the application on tho broader ground of its mont, Tho law, as correctly laad down by tho Appellate Court m its previous judgment, was to the effect that where a wul had been prepa-icd under circumstances that excited the suspicion of tho Court, tho will ought not to be favourably pronounced upon by tho Court, unless tho party produced evidence that removed tho suspicion, and proved the righteousness of the transaction. To do that in tho present instance, it would have to be shown that Wi Matua was of sound mind Whcm he made the will, that ho knew and approved of its contente, that he was a free agent, and not subject te unduo influence, and that tho will was duly executed. Counsel submitted -that the incidents showed that it an extremely bad case of an endeavour to procure by fraud a will in Reardon's favour. Reardon had acquired a groat influence over Wi Matua, wHo was enfeebled by a&e, decrepit through Theumatism, and addicted to dnnk This influenco onabled Reardon to remove Wi Matua from his tribe, family, and home at Porangahau, on the pretence that he should be treated by n tobunga at Waitotara—a remarkable inducement to be held out by an educated pakeha. Roardoii had sworn that .ffihen ho took ike ok] man from Porang&iau — ._» - _ - >/-„ '

ho had no idea that he was to bo a beneficiary under the will, and yet witliin three weeks Eoardon had consulted his solicitor in Wonganui about making Wi Matua's will Reardon had caused a constant supply of drink to go to Wi Matua's house at Waitotara. Ho next procured the execution of a will, and in doing so supplied dnnK, when fcho instructions were given, engaged his own solicitor and interpreter, was himself presont when tho instructions were given, if not when tho mil was executed, and did not take any precaution to see thai tho old man had freedom of action, or had a duo appreoiatron of the claims of his relatives , Mr Baldwin, interposing, said it was alleged that a groat deal of the evidence on ■which. Mr. Skerrott had based his remarks was conspiracy Mr Skerrett 'said that tho substance of all tho incidents he had narrated would bo found in the judgment of the Court After tho execution of the will, Wi Matua wanted to go home, but was prevented by Reardon, who had possession of all his money, opened his letters, and had complete dominion over I him. T?rom the, making of tho will until Wi i Matua died, Ik: was as much a prisoner of Reardon as if <he had been undor lock and koy. Although it was on' tho pretext of con-1 suiting a tobunga that Wi Matua was brought to Waitotara, no tohunga was consulted, and bo medical treatment was obtained ,In reference to the present application,, counsel pointed out that Judge Jackson Palmer's judgment was given on August 24, 1906, and tho decision of tho Appellate Couit in July, 1907, so that thero was a jear during winch further inquiries could liaro been mado On. July IG, 190S, lleardon's petition to the Legislative Council for special leave to appeal was dismissed, and it was. not until October 10, 1908, that this application was lodged. Was thero to be no finality about litigation in the Nativo Land ( Courts? A more foundationlcss application for a new trial had never been made to 'any Court. It was admitted that tho witnesses mentioned in tho application for a now trial wore not called before Judge Palmei. Their evidence could rot have been considered by him, and tho suggestion . that it was perjured was therefore no ground for an application for a new trial. Moreover, the evidence was not material. In support of this contention, Mr Skorrett traversed the evidence of the two witnesses, which was read by Mr. Frascr. The Court at 4.30 p.m. adjourned until 10 o'clock|to-day.