MR. HILL'S WILL.

Dominion, Volume 4, Issue 1006, 22 December 1910, Page 8

MR. HILL'S WILL.

FAMILY AT VARIANCE. '•"FAVOURITE SON'S" EVIDENCE'S "TEAT CURSED CRAVING."-i.-'iTho difference of opinion'among-some i'if/tho sons and, daughters, of tho. late •■Herbert Hill, as' to. how. his : property sj>ught. to .to divided amongst' them, *(kept;. Mr. Justice Cooper ' and counsel occupied fdr.several hours yesterjjdajv /It was the fourth day of the '(hearing. ' . , . < Vi'-Tlie.proceedings: "were in the form of

:*ianj application by. four of the sons for tf; //(revocation"of tho probate of the will, toil tho ground that their father (a well-fei'-i |ki}'owri'. "old 1 identity" of this city) was l,t:; : ;iof unsound mind , when ho mado it, and unduly influenced by somo members . lot tho family, who wore then.living with ! • Ihiin. Tho estate was'-worth about j:" net::;,/'. .s'. . : ' ' ;-',// [ Tho plaintiffs,; George '■'Hill,' drairi- -'- ■ 3p'Po manufacturer, Samuel Hill, settler, ; )Herbert Hill, settlor; and Thomas Hill, j'-;.."; ;:i«ettlGr, all/of l;- .eented by Mr. A. Dunn, and the deli." fondant, Oswald Beere, of Wellington, h;i ..isolicitor, the .executor' named in tho j . disputed will, >was- 1 represented -. by. Mr; •• • ' 'M. Myers. , '-. »■ j' :j: "His Father's Favourite Son." ; Geofgo' Hill, ;one' of - tho ' plaintiffs,; [;V/• /was further exaniined yesterday. : He p'*"4«aid: that -.at', the. time 'of. Mr. Beere's ,'yisit' to . receive . instructions' for the :'f S' ; will (Marcll,, 1909)V.;th0 /deceased, was 'confined to ! the liouse, ..owing to, tho V.-'ieffects ,of drink. Witness had a third /<sh'a ; re ; iri 'thti . which took over, •' ' ibis father's: drain-pipe-making business. ;i l : -'The' other .two-thirds were, held, at' the jtiine of ', his father's "death, by Arthur ... '. Johnson and the testator; , Tho'. capital /.'.' .of' tho company was, £6000, and' it owned a lease of the business for: five i ; /,,v;iyears with'fight' of. renewal. -■. : ■ His- Honour: Even assuming that 110 v. adequate provision was. made for this

[/'. witness, that, does not • show that the i; . '. !testator was ot unsound mind or was J-; siibject to undue influence. ' r Mr. Dunn said it would not by it-self tsj-: Amount-to' proof, but'he submitted that

pyy with other things it was .of 'some' weight jfe ' ; vif; a -father, left : his favourite' son: out .of his will. ■ 1 . . . ' His Honour said that if the evidence :jßa'.:;'..to;; testamentary' capacity ware vf.';.'exactly balanced, for 'and; against, such a circumstance might turn the-scale." ' 'Witness,"in 'reply to' his-Hpnouiysaid' ihe had. no means -except' his share in' . ,tho company, and it only brought liim L£4-, a week as salary:' . .there ' nvas a/dividend of. £100.; <He superini|i. .-'.tended" : the 'and : ;:'johriMni'did tb'6'office' work. ..' ;. v 1 ; ■ To Mr. Dunn: He was Ins'father's v. . .'favourite son. He had . formed "no con- . .'elusion as' to why'ho' was' left ; .out. jif - 'Me. .^'ould'-say., his. father, was unable to ;y:; '' abstain 'fi'om .drihk' for a month.'' pi : .His Honour: .You have said that for; Aprior; to' s his : death .. .your !•_ ; . iather .was incapableof : ' transacting j.' ibiisine'ss. I point : oiit tliat '.this.. leise of .the business was''signed .by ;"him 'in April, : l9Qß. Was he aTI right' then?-—' :s&v ■-.Yes'.V 'Ho was 'all right then." , is-::His ; Honour: Well, that only carries -. us back :two-years. . ; : -Dunn elicited a .statement" from .Si ■'.'Witness.that H6. 'had heard that his $S '• fewer,-.anaiiy' years 1 ago,' -used; to 'carry ■ a. 1 .revolver and'threatened to shoot; people'. ' .' ' ' S'' ■ ¥3"; Myers; protested; against such 1 '■;questions. ■ H<s>'declared that counsel; . • jmust know that they ought not to bo put, and they were questions which, if ... (answered, would have the/effect of gefcftipg< a-: favourite.' son; to blacken . his U\; r),dead father's.character.:', ; -

. ''Might Have Been Thrown Down the Sink." Cross-examined, -witness would, not say his fatterywas under tho influ- • once, of liquor on. the day. when Mr.. ;if ' : ' : called': ' ; :'He, Oiad ? fetolicd liini a /bottle of- beer that day. He did not rey|!j; 'iinemljer'his:latter-talking 'sensibly for 't'' > any'length of time on. any.occasion during 1903. ' . i! Could any person who was talking to [fe<' Tour: father .for, say, half an hour, seo p%r. be .was under: the influence of liquor?— "Yes." . -:s: -r -f;;.- ■"■- -: : : -v. : .' --.-Didi you ever go to Mr. Beere, to • sug-fciy.,-:-BBsfc' .that • your father, '.was : , drunk' on tifcr that occasion ?—"I don't: say he ' was drunk." ■ i ■ - Witness said he took no notice of his' ... . father's condition when lie saw hint ; just after Mr. Beere's visit. He only ' aieard him reprove two of his daughters ior not coming to see Mr. Beere off the. ■■ He also : asked . witness y."Where's the whisky?''- and witness told .him where he : had put it.... Then you can't say : that he .drank Cr : ';;ianj-thirig/ that'.; daj'p—''No.': (smiling) v'i.' ilt',might- have .been thrown 'down tho •'. 'sink." •■ ■ Don't you 'know -it;, was afterwards \ thrown down-■ the sinkVby Mrs. Johnson?—" No. I don't." ■ . /' , - Atthotimo the will was made he was ;;' ;..:.,,gettihg £6: a' .week, from- the business. pA -V He would not sell his share in the busi:ness .for £2000. > ' ■ Doctor Contradicted. •j;'.. Do you '.think that' at. any time during IDOO, the. year ■'!he:.-died ) \ , .!he v \vas ieally; able'. to; '. and appTe- . business, matters .'at.: all-?— "Mo. . .1 donlt ,think ho'was:'-'. You; haveheard Dr., Perkins - say. tliat of March and tho beginning' :-'.;,: : .6f : April that .year,"' w'hein- lie-saw. ;/our \ .. fatter, ho had never,: sfjen him'.better. Si':?: Was; Dr." Perkins fight 'No. :It "was .. .not true." w-z Suppose your fatherih'ad left -you,'his ■g.. favourite son/ half" his. property, would i. yo'u have tried, to show that he- was' not ;y.;.,'bf-.sound:mind when-ho made the,Tvill? —"Yes. ' I would have tried to.have it ..' equally divided." " ,' ' . ■ ' Mr.. Myers: You're a very, generous man! ) ■ ... ' '

Jte-examincd by slr. Dunn: Witness >v-cpuld not,'read writing or print. He v.; could I not .go'into the partnership' ac-' counts. Ho had been sent to four dif--ferent schools.' ' ". ' A Daughter's Evidence. . ■ _; " -'.'Susan James, a married. daughter of i; .'/ihe testator,' said: she 'had two shares under the'will—a tenth; She lived in father's..house until- hdr''marriage, ■'.■;and;.had' since, visited . the. house fre-p-quently'. ..It was not .possible for her '• father to abstain from drink for,, .'a . month during the year before',he died. : .0h 'Monday, February 22, 1909, sho and lier husband went, to sce.her father ..' about a .business matter, but. lie was . " drinking, . arid' tajked ' nonsensically about "Port Arthur" ,• and "Little San Toy," and they could not talk business. Sho went again on March 9, and; sho arid one of her sisters saw their father going upstairs on . his hands and knees, . with' his -tongue hanging out, aiid -breathing . heavily. . He fell on. one knoo. He was mad drunk. One day in May of the. same year -her. father •- told her: that Mr. Johnson had been - faking the books, arid he was going to see Mr. Beere. about his will,, and would have- to meet George'. He also «aid that every time one of my family f ' «niea to give him a helping hand Arthur Johnson says "Don't you do it. If you doi you'll be a fool. He doesn't ihi'nk of, all he's had from me." Her .:. father, .'was drunk - and childish at: the ti'ne. arid after talking a little while : he cried.' He said he would go to Mr. . JTcere's the hext day, but she did not think he ever went out again.: Sho saw hifn next in the. hospital, when , . 'ici' said he wanted to go home, because : ho. cnnld get drink there. AVhen he

got back home he had drink every day. 'iney-bad to'givo. it him. . "Most Extraordinary," says His Honour. ho, had not got it, I .suppose lie would have made a noiso?—"Oh, lie was terrible, if lio could not get it. Ho threatened to shoot mo once.' 1 - Witness said she had seen her brother led. and her sister, Mrs. Johnson, taking drink to linn. He ivoulcl go down oti his kiiecs to beg, for it. His Honour said it was a most -sxtraordinary thing that when:this'man was very ill, and could not' leavo bis bed, somo member of his family said they had to supply him with, these largo quantities of linuor. . Mr. Myers: Your Honour will remember that Mrs. Johnson has denied that she fetched any; Witness said .it vbuld-have oeen a hard matter for her father to give Tip drinking in .1909. Jt.had a great.noid of him. Ho used to use objectionable language when drinking. ' Sir. Myers objected to a great number of questions asked by Mr. Dunn. His Honour (to . Mr. Dunn): You must, not lead the .witnesses. Thought r Herself - Unfairly- Treated. Cross-examined : Witness and her husband did not ask him for £52 10s. when uiey went to. sec him. in February. They asked him for a horse and vehicle, which would have cost that sum. Ho did not. grant the request, She had overdrawn her share in tho estate. She did not know if 1 it was overdrawn/to the amount of £600. Mr. Beere, when asked by; a lawyer on her behalf for a a statement of accounts, declined .to furnish it, saying that Mr. Dunn would criticise it. 'She had not visited her unmarried -'sisters -.since her -father's death. . Sho was not unfriendly to them. Sho did not think it fair that her younger sisters should get twice as much as herself. ' ..

Is that not the cause of. your trying to upset the will?—'.' No. It is.becauso my'brothers'were treated fairly." Which "of them?—" Sam:, and George and Tom." '

Why." 4° you say .Tom.' was not treated fairly?—" Because he wasn't." But doil't you knoiv that his children got shares un^er. the will ?—"He should have got it himself:" "That Cursed Craving." Witness, also said, that sine© her father , had a fit (stated by another witness to have been in 1906) she had never known him to; have been without liquor. She had never seen him without it, except in the hospital. He was habituallychildish '.in :his talk. Anybody talking to him when. he was under the influence 1 of liquor must' have been blind' if they could not see it. She could' not say/if ho.was capable of doing 'business . when in' the hospital. To-, his Honour: Ho; said to her in the. hospital,' "i'm tired, of- this.' I've got' that cursed craving again." ' .

Re-examined. 1 by Mr. Dunri: Before .her marriage, 10 years ago, her father frequently.;said, to-her that' Tie would leave his money 'equally among his children. i . ■ . . ; : Another-Son. In/, the Box. Herbert William Harold Hill, - driver, Wallace. Street, one of the plaintiffs and fourth son of the testator,"'said "he had been married five years, but had not lived- at home, for.'tho last. 12 years. Since his'marriage he had; always- lived near"his father. ' ; by : Mr. MyersHis father was not fit to do'business during 1908 nor 1909. ■■ • Don't you know, that he did a great deal of buying .and selling land in 1903 i; conducting; the;:busiriess himself ? don't'know."/ - •Did you know him ever, during 1908 or 1909, to ease t off,'tho suffi■oieritly to tallS ; 'to -anybody for, say, half aiiV hour ?—"Not to my knowledge'. I don't think so. He never eased off. enough to' 'do business." ■ Mr. Myers, said he did. not know whether. he .'could make, any . admissions that would shorten the proceedings. They had had the evidence of Dr. Perkins, and Mr. Beero as .to particular days. Air this'general evidenco was not disputed. He was accustomed to drink and at times drank heavily. Mr. .Dunn: But he'carried it further, I, : submit; than; -mere.' addiction to' drink. People who saw. him every day are tho best; judges of " his condition. -His Honour: Those; who saw him at. the time could', give .the ;best evidence. ' Mr. Dunn said-he.wished to call further evidence of people who saw the deceased about the time the will was made and some who saw him on the very day. • . . - - ' More Conflicting Evidence. . Janies Cottrell,' cab-proprietor, said he.had lived for tho last three years ibetween tho testator's house and tho .Grosvenor Hotel.. He often saw Mr.' .Hill, and his condition was very shaky. The deceased used ,to talk a silly, lot 'ofrot t'O'lthe barmaid at the. Grosvenor, .and.witness used to get away from him as'soon as possible. This was when he was under the influence of .liquor. Witness did-not see. him sober for '18 months or two'years." Ho seemed .unable to talk rationally for more, than two minutes at a time. ' He was usually in the hotel' from 10 a.ni. until after •I p.m. 1 . - Sir. Myers: If a doctor said that he saw' the . deceased on three consecutive days, towards the end of flip period you .arp speaking of, and that ho was perfectly well and .there were no signs of his having had any drink for sometime, 'do you say that was ' possible?—" No. It was not. possible.". ■•-'!'■' . . •''•His Honour'read.from his notes Dr. Perkins's. evidence -to the above effect..

■ Mr. "Myers: Was tho .doctor wrong then, if ho said that?—"He must have been.". . . . .' '• . " . . ... iOn Mr. Myers , putting- it to'witness that George- Hill, had sworn .that his father was. at home and-having liquor brought to him f thero-daily during portion of tho period when witness nad .said .he was speeding hours every day in. the-hotel, the. witness admitted that hei. may have • been mistaken about dates. John Hinchelwood, driver, also gave evidenco as to drinking habits on the part of the late -Herbert Hill. Albert E. James, carrier,. son-in-law of deceased, corroborated portion of tho evidence, of his wife. .' \ -John Wilkinson,' bricklayer, said ho had done ;the bricklaying; work at the late Mr. Hill's yards,-when, required-, for twenty years. He was quite unfit, for ■ business, and like a.baby from the'time of 'his fit in 1906.... ~ His Honour pointed out that George Hill had. said that his father was quite competent to do business ih April, 1908. Mr. Dunn:. But. I submit this witness is - entitled to .the same .weight as tho others. .... _ ; - His Honour 1 . His evidehce is absolutely without weight. The testator's own son, your ; principal client, .lias swoftn that his father was perfectly competent to .do business up to April, 1908, and you call a'bricklayer who says he was always, like a- baby after' 1906.. It is merely! wasting time to put a .witness like that' in tho box. Mr. Dunn, continuing . his examination, asked a question to which Mr. Myers objected. 1 "Never mind," said his Honour. "I'm not taking -any notice of what this witness says." More About Drinking. George Hill, brother of the testator, of no occupation, said ho lived in a room at deceased's for- seven years up to tho time of his death, to look after the horses. He gave evidence as to the drinking habits'of tho deceased. . Evidence, mostly on tho same point, was given by: : ■ John M'Coll, carrier, Newtown;"John. M'Carthy, drainlayer; Enoch Spencer, bricklayer,..brother-in-law of deceased; William John Spencer, drainlayer, ' brother-in-JAw .of the :de- ;

ceased; Francis M'Fadyen, pipe-layer; Edward Hill, painter, youngest son of deceased; and dames A. M'Gec, a neighbour of tho late ilr. Hill.

Thomas 1 -William Hill, pipe-maker, bricklayer, and draimnaker, one .of tho plaintiffs; said that until his marriage he was working'for/his father, but tne latter then "cnucked him out," saying his wages-.were too high-. Ho was getting £2 10s: a 'week. Subsequently, '»n occasions specified, his.father, refused to reemploy liim, but he did afterwards at ccrtain times, work for. his father. A Photograph of the Testator. Mr. .Dunn, handed witness, a photograph, purporting to bo ono which had been-mentioned earlier in tho case as having been taken 011 the Sounds trip, in 1009.

Witness said it was a photograph of his father, and he was drunk at the time. . .

His Honour, on seeing the photograph, said the person pointed .'out -'as Mr. Hill appeared to bo shaking hands very genially with somebody, but, he could not -say that lie appeared to bo drunk. . Mr. liters read the following inscription 011; the back of the picture:—,"A photo, of father taken by Gertie 011 the s.s. Nayua, 1906." It was then pointed out , that the photo must have been taken on the Islands trip—not the Sounds trip, his Honour remarking that this was shown by tho name of tho ship..- _ Mr. Myers: The suggestion is, I suppose, that the daughter, took her father's photograph when, he was drunk for purposes of exhibition. His Honour pointed out that this witness's evidenco was in conflict with Dr. Ewart's as to tho condition of the deceased, while the latter was attending him. • Witness admitted having been in trouble on several occasions. : His Cricvance. Cross-examined: He considered that he "was not treated fairly under the will. Ho knew his children got something under it, but lie ought to--have got it himself. He had worked for his father .and helped , to; build - up the business, and now lie had to work for his wife and children. , They wero now at Palmerston'North on a holiday. It was a fact , that ho had had proceedings taken, against him for. maintenance of his wife. , Ho had been, married years. He thought the last occasion was sixteen years ago. His father had told him .not'to pay.'

Is it not a fact that, during the last' few years drank and were persistently cruel' to. your wife,' so that' sho had to leave you?;—" No.".

Don't you drink' heavily ?—"No." ■ You have been in trouble on other occasions, which' wo; needn't speak of, and -which' y'ou have; admitted to Mr., Dunn. Don't you think,;in view of all' this, that it was very wise , of your' father to provido'that;your; share should go t<i your children instead of to 'yourself?— "No'. I: am, a cripple." : George Williatn Murphy, pottery manufacturer", "said Sain "and Tom. Hiil were now workin'g for liim.- * He could not wish for better workers. ' ' Albert .Edward' Perry; bricklayer, and Robert 'Stephen' "Mason," drainlayer, also'.-cave eridence. ' Evidence of Samuel. Hill. Samuel- Hill, one of ;tho .plaintiffs,., and eldest son of tho testator, said lie was at present a burner at Murphy's pottery works.' Ho saw his father on March 2, 1907, and had several drinks with him. yWitness had just comb out of prison at that time. On a certain Saturday iiight .of.. the. same month,, he was refused admission to his . father's house. Mrs.. Johnson told' him that the, doctor wis /with his father. Ho waited som6'time v aiid''weiit ; a!way. Ho returned next morning) and was allowed to see him in bed. His father told him the.y . : were trying = to. put him in the asylum, , and. asked him as the eldest son to 'prevent, it. He replied, tliat he ivould not lot him go. He would sooner take charge of him himself. Ho was drinking, at the time. That was shown by the fact that he. .took a . Seidlitz powder. ..He always took one in :a morning when he . had . been drinking heavily overnight. Ho called several times, afterwards, and the others; ~declined,offers by him to sit-up with'his father. .. - - , Witness .worked in his father's yard from boyhood until he was 21, receiving to 2s. 6d. a week. Later ho managed'the'yard for "some years. But for the efforts of himself and Tom the business would.not have been,there. Ho remembered his father having delirium; tremens'many years, ago. Mr. Myers roso to deprecate' this class of evidence.. His.Honour 'again pointed out to Mr. Dunn that tho testator had been shown to be capable of doing business until 1908. ■Witness admitted having been in trouble several times. William' Sweeney, labourer,' was , tho last, witness. - . Counsel's.addresses will be heard this afternoon.