PARTINGTON'S MILL

Evening Post, Volume CXXXVI, Issue 55, 2 September 1943, Page 6

PARTINGTON'S MILL

GOES TO NEXT-OF-KIN

O.C. AUCKLAND t This Day., Judgment in the case to establish the: ownership of the old windmill in Symonds Street, owned by the late Joseph Partington, was delivered yesterday in' a reserved decision of Mr.; Justice Callan. His Honour found in favour • of, the next-of-kin, and against the propounders of the two missing The hearing of the case last June1 occupied 14 days, and an extensive search was made of the old mill buildings in an endeavour to locale either of the missing documents. The action was brought by the executors of. the first will, Charles Henry Massey Wills and Mrs^ Lavinia Harriett yon Zlinicki (Mr. A. H. Johnstone, K.C., and Mr. Henry), who applied for its formal probate. ■*■~* * The three groups of defendants were:—Herbert Francis Prothero and John Deakin Shearer (Mr. Richmond), executors of the second will; the Auckland City ; Council (Mr. Stanton), Mrs. Evelyn Eliza Robertson, Edward Sellars, and Richard Partington (Mr. Bone); and the next-of-kin, Harry T. Goldie, Charles F. Goldie, Violet E. Goldie, and Ethel M. Goldie (Mr. Martin), Charles'Partington (Mr. Finlay), and Mrs. Ethel M. Patterson- (Mr. North). . The 1936 will was made after advice from Mr. Wills, bequeathing the mill and surroundings to the public of Auckland, in an effort to ensure its permanent preservation, stated . his Honour. The value of the properties included in the trust to the Auckland City Concil had been estimated at figures ranging from £30,000 to £100,000. Considerable publicity was given to the contents of the will at the time, and the city's thanks \vete conveyed to Mr. Partington. That will of 1936 could not now be found but it was clear that on September 11, 1940, Partihgton signed a fresh will which revoked' all former wills.-

Except that this will changed the executors and trustees arid made one or two minor alterations in the trusts devised to the City Council, it repeated the effect of the 1936 will. There was therefore nothing in the contents of the second will to excite uneasiness as to Partingtori's testamentary capacity when he made it. Counsel for next-of-kin submitted that the' .1940 will, however, was itself destroyed by Partington.with the object of revoking it, and therefore the Court should pronounce against both wills.

After closely reviewing a great deal of evidence concerning Partington's behaviour and personal habits, his Honour stated:' "The proper conclusion is that he was sufficiently capable of weighing and.considering everything, when he made the 1940 will," and thoroughly understood all that w^s to be put in it. I find that he had. the necessary testamentary capacity to make it,; that it was. in all respects a valid will, and therefore the will of 1936 must fail.

"I further find," his Honour continued, "that to the end of . his life Partington had sufficient testamentary capacity to destroy the 1940 will with the intention of revoking it."

■ With the exception of the originals of the two, wills,' not a single document of that kind known to have come into Partington's possession since 1936 was missing after a. search .of the premises, his Honour said. Both wills named the City Council as trustee of the windmjll trust, but according .to some of the evidence, Fartington came to favour, reducing the property to be included in it. Deliberate ab ulion or destruction of the wills by any person other than Partington himself might safely be eliminated. There were no grounds for suspecting dishonest action by anyone. It was the Court's view that there was not at the time of the death any such document on the premises. Nor was the idea of accidental destruction or loss considered probable when knowledge was obtained of the workings of Partington's mind. There was evidence that pointed to.the possibility that he might have become dissatisfied with the 1940 will for reasons additional to; dissatisfaction with the executors. He might have become dissatisfied with the notion of the trust for the Auckland City Council, and might have "been searching in his mind for some other way of securing the permanent preservation of the mill. He had strong reasons for not wishing to die intestate, but his death was sudden. He knew that a will could be revoked by its physical destruction. The logical inference was that probably Partington intended to make another will, although he might have been, undecided as to some of the contents.