THE BERRY WILL CASE.

Te Aroha News, Volume VII, Issue 474, 24 May 1890, Page 5

THE BERRY WILL CASE.

CAVEAT ON THE GROUND OF INCOMPETENCE OVER A MILLION POUNDS INVOLVED. A case which seems likely to occupy the attention of Mr Justice Manning and some of the leading members of the Sydney bar for several days to come was opened on May Bth in that branch of the Equity Court which is commonly devoted to ecclesiastical jurisdiction. It will be remembered that: Mr David Berry at Coolangatta died towards the close of last year, leaving the bulk of his property to his manager, Mr John Hay. The will, with a codicil which traversed the original in several essential items, was executed by Mr James Norton, M.L, C., of the well-known firm of solicitors. The codicil, though previously deliberated upon, was signed by the testator when in articulo mortis. It was notified in the “ Gazette ” that probate would be applied for, and then came forward a caveator in the person of Mr George Simpson, first cousin to tho testator, who is objecting to the judicial ratification to the document on the ground that the testator was not in such a state of mental competence as to be able to execute the deed.

The case came before Mr Justice Manning sitting in Ecclesiastical jurisdiction, in the form of a joint application by Mr .John Hay, of Coolangatta, and Mr James Norbun, M.L.C., for the granting of probate to the will.

The will, which varied but slightly from the one previously made, was prepared in 1886, and revised on September 23, 1889, the day of the testator’s death. In the , responsive allegation of the defendant, which was read, it is set forth “ that the deceased, at the time of his death was about 102 years of age, and that he was totally blind, quite imbecile, and incapable of managing his affairs ; that he was nob of sound disposing mind, memory and understanding, but was then, as he had been for , some time before, in such a state of mental ; decrepitude as to be incapable of giving instructions for or making a will, or doing any j other serious act of that or a like nature re- i quiring thought, judgment and reflection.” < Mr James Norton, M.L.C., senior partner in the firm of James Norton and Co., < solicitors, examined by Mr Salomons, said k he had been a solicitor since 1848 and had c prepared several hundred wills prior to the J present one, which he executed in his own s handwriting. He also executed the pre- 1 vious will in 1886. He became solicitor to J: the Berry family in succession to his father, $ a position they had held for 60 years or t thereabouts. Had ample opportunities of 11 judging of the character and capacity of £ testator. Testator lived on the income p of his property, which was extensively tequipped with buildings and machinery for the adequate working of the estate. He ti had also steamers on the Shoalhaven River, a which ran right along the boundary of the 41 property. They were used for taking ° produce and passengers from the estate to u Sydney. The estate on both sides of the h river was considerably over 60,000 a., all ® ( freeho'd, with the exception of a small t< strip rented from the Government. Tes- d tator occupied about 20,000 a. for his own ® use, some of the tenants, however, residing n on it. Mr Berry, with his overseers, d managed the estate, but latterly had the assistance of Mr Hay, the executor, who was a beneficiary under the will. Tes- . tator was an educated man, a great reader and, to witness’ belief, a great j* thinker. He took a great interest in public matters, especially those affecting S his district; and particularly he was in- ~ terested in the agricultural exhibitions which book place at Broughton Creek (now a the town of Berry). Testator had an extensive library of old books and also kept abreast of current literature by reading the ?! magazines and newspapers of the day, His memory was an amazing one, and he could ® remember all kinds of events both near and distant. He gathered from the testator 1 that he was about 93 at the time of his 8£ death, having been born in 1796 and died S unmarried. Physically he was a tall man , of very powerful frame, but latterly stooped £ a little, and had a good constitution. His ai health varied, though generally he ap- . peared in good health and used oc- f 1 casionally to come over to Sydney. Up £ to the day of his death witness saw £ no sign of mental decay of any kind. ?! He was partially deaf, and it was £ necessary to speak loud to make him under- 1 stand. Naturally he was a quiet man, w and with strangers very reticent. He was inclined to Beriousness rather than , levity. Witness had frequent convereations with him on political, scientific and , private topics. He had many conversations ? with him as to the disposition of his property, and visited Coolangatta up to the w time of his death. In 1886 was there for 14 days, also stayed there about a week in 81 1887. He went on September 18th of last w year, arriving on the Wednesday, testator dying on the Monday. So far as he (wit- ® ness) knew, he had prepared all the wills . for the deceased. It was about June or July, 1875, that he prepared the first will. a ' All his instructions for the preparation of " the will were given by word of mouth and Y witness wrote it in his own hand. The will was duly executed and the testa- , tor retained it. He had not seen it b since, but was told that it was destroyed “ by Mr Hay with other papers. That *’ was before there was any mention of a ai caveat. He did nob know the defendant, George Simpson, bub he was nob one of the w persons to be benefited by the will. In D February, 1886, witness again went t" oi Coolangatta. Testator was then the onlfjj ir survivor of the family. He was really the B last of hia race. St. Andrew’s University tc was in Scotland, not far from Coupar in hi Fife, where Mr Berry was born. He w stayed at Coolangatta on this occasion for A about a week. He asked testator what his rr wishes were, and to give him the names of a; the persons to whom he desired to leave la legacies, and also the persons he wished for h trustees and executors. After a long conversation he obtained the names of legatees, ai the amounts of the bequests, and other par- si ticularswhichwereinsertedintbewill. There D was some discussion as to who should be ap- n pointed as executors. Witness drew up a B long list of names and added his own at the It. foot. Testator went through the list very ai carefully, dissenting from some, but nob C objecting to Mr Hay’s name. He also « placed his finger on witness’ name. Being tl nsked if he desired Mr Hay and himself g to act as executors, he signified in the A affirmative. The will was then drawn up J according to instructions. The school- b master and the gardener were selected as C witnesses. Testator read it himself and si kept it in his possession. There was a E bequest of £30,000 to the sustentation \ fund of the Presbyterian Church. It was E £20,000 i n the previous will, and testator n in reading the new one expressed jus

wish to increase it. There was another alteration in the direction of increasing from £3OO to £SOO a legacy to an old servant named Fraser. He had no doubt whatever that testator knew perfectly well all he waß doing. Under this will, which was dated February 15, 1886, testator appoints his cousin John Hay, of Hazelbank, Auckland, and the Hon. James Norton, of Ecclesbourn, near Sydney, solicitors, his trustees and executors. He bequeaths to is clerk, William George Matthews, of St. Leonards, in recognition of his laithful services to his late brother Alexander and himself for upwards of half a century, an annuity of £l5O a year. To his land steward, Henry Gordon Morton, who had been emp’o, ed in connection with the estate for upwardy of 30 years, he bequeaths the sum of £1,000; to his overseer, Alexander Fraser, Benr., also of 30 years’ service, the sum of £500; to John Hawkins, employe! by the testator as a shipwright, £3OO ; and to Mary Ann Keenan, domestic servant, £2OO. To every person who had beea in his employ for a period of five years or upwards, including the persons already named, he directs that there shall be paid amount of one year’s salary or wages, in hddition to whatever may be due to them at the time of his death. Testator furthor bequeaths to David Simpson, Springfield, North Waratali, near Newcastle, a sum of £5,000 ; to Mrs Mary Robertson, widow of the Rev. Mr Robertson, at onetime minister or the Presbyterian Church, St. Leonards, the sum of £2,000, and to her unmarried sister a like amount. There is also a legacy of £I,OJO to the widow of George Armitt, of Polduff, St. Andrew’s, Scotland, with a direction to pay otf a mortgage on the Polduff property. Testator also directs that the sum of £ICU,OCO shall be set apart for the purpose of erecting a hospital for non-infectious diseases for the benefit particularly of the inhabitants of Broughton Creek and the district of Shoalhaven, and generally to all persons to whom it may be accessible. To the sustentation fund of the Presbyterian Church of Australia he bequeaths the sum of £30,t00, and to the trustees of the University of St. Andrew’s in Scotland, £100,000; to liis cousin, David Hay, of Auckland, New Zealand, the sum of £IO,OOO. lie also directs that in every case in which the tenant of city part of his property shall not hold a lease for any definite term his tenancy shall be extended for a period of one year from the time at which it could have been legally terminated by notice to quit, or otherwise, free of rent, and that every other tenant shall be exempted from the payment of one year’s rent. To the aforesaid John Hay he bequeaths the house known as Coolangatta, together with the land on which it stands, as well as the five adjoining grants, comprising altogether 21,200 a ; also all other lands lying to the eastward of the original Coolangatta grant; also all cattle,implements, stores, household furniture and other effects. The trustees are vested with the management of the property, and are empowc ed to increase the legacies if not deemed sufficient, and to pay sums of money to anj; blood relation of the testators in need of assistance. None of the bequests must be questioned by any person or in court on pain of forfeiture; and he further bequeathed the residue of moneys not paid away by the trustees to the said John Hay, who liad been assisting liim in the management of his affairs for some time past, and who entertained for him such respect and affections that it would be his anxious endeavour to make the memory of himself (the testator) and liis late brothers respected; and that the said John is not to be called upon to account at law or in equity or otherwise for any money to which lie becomes entitled under the bequest.

A codicil to the foregoing, oxccuted on September 23rd, 1889, read as follows :

Whereas since the date of my said will David Simpson, Airs Catherine Arinitt and my cousin, David Hay, have died, and whereas 1 am desirous of making certain alterations in my will. Now I revoke the respective legacies of £5,000 bequeathed to D. Simpson, £I,OOO to Airs Armitt, and £I,OOO to my cousin David Simpson. I direct that my land steward shall be at liberty to use and occupy during his life the house and land now occupied by him without payment of any rent. I revoke the direction that certain of my tenants shall not be called upon to pay any rent for one year, and also the direction that in all other cases each tenant shall be exempted from the payment of one year’s rent I bequeath unto my cousin, John Hay, in addition to ail other benefits, all steam vessels, punts and boats which belong to me. I direct that my trustees shall expend the sum of £SOO in the erection of a cottage on part of my land suitable as a residence for Mrs Hall, and shall convey the same to her in fee simple, together with the land on which the same shall be erected, not exceeding two acres. I charge my residuary real and personal estate devised and bequeathed to my trustees with the payment of all my just debts, and funeral and testamentary expenses, and with all legacies and annuities bequeathed by my will, and also with all expenses which may be incurred in carrying out the several directions given in the will and codicil.

Witness, continuing his evidence, said he understood that David Simpson, who was a beneficiary under the will made in 1886, was a brother of the defendant. It was a legacy of £5,000, and as he had since died, witness asked if it should go to David Simpson’s relatives. Testator replied, “No, 1 have given them plenty of money already. They do not deserve it, and it would be like throwing money away.” Testator read over both the will and the codicil very carefully. Before daylight on the day of his death witness was sent for to Mr Berry’s room, where he found Mr Hay supporting him. The codicil was signed a little before nine o’clock. Testator then said he would like to see a clear copy of the will, embodying both the will and codicil. He was then in perfect possession of his faculties. Witness prepared the will in accordance with the testator’s w ishes and took it to him to be signed. Ho tried to sign it, but could not propsrly trace the letters, and made a scratch. Witness suggested that Dr. Lewis, who was in attendance, should sign on his behalf, but MiBerry would not agree to this proposal. The signing was postponed till after lunch when testator again tried unsuccessfully, and at last agreed to rest his hand upon the doctor’s hand as he traced the letters of his name. Mr Salomons: With reference to this clause about immunity from actions at law. Did you put that in the other wills ? Witness : Not in all of them. It was my suggestion, as I thought it would accord with Mr Berry’s ideas. He had the fullest confidence in Mr Hay ? Yes ; I frequently heard him say so, and there appeared to be a strong tie of affection between them. Mr Hay and his wife lived in the house for several years. In reply to His Honor, Mr Salomons said that stamp duty had been paid on £1,252,975, which was made up as follows: Ooolangatta estate, £677,093; North Shore estate, £521,050 ; and personality, lees debts, £54,832. John Hay, the residuary legatee, said he was a consin once removed to the late David Berry. He was born at Coolangatta on the estate in 1850. His father and mother came out from Scotland to Mr Berry and resided on the estate. Mr Berry told him ho had frequently called at the house of witness’ father when he was on the

way to St. Andrew’s University, where Alexander Berry was educated. Witness’ mother died before he was two years of

age, and his father then went to New Zealand, subsequently fetching witness to join him. At nine years of age he was sent to be educated at Madras College, which is associated with the St. Andrew’s Univer-

sity. His father died in New Zealand in December last year at the age of 81. In 1861, witness, at the desire of Alexander Berry, went down to Coolangatta to visit Mr Berry’s two brothers and sister. Alex-

ander Berry was at the time living at Crow’s Nest, North Shore. Mrs Armitt, who was named in the will, was a sister of the Berrys. Another sister died at Coolangatta. Witness retired from business in Auckland in 1871 and afterwards married. He hud been engaged in the drapery business since 1864. In 1872 he went to Coolangatta with his wife on a visit. He stayed there for about a month. Alexander Berry died in the month of July, 1873, When, at Coolangatta he received Mr Berry’s instructions in regard to the workmen, and also dealt with correspondence requiring replies. Testator discussed with

him alterations of the property, the general arrangement and working of the {steamers, communications with tenants, of whom there were between 400 aDd 500, and communications with the surrounding municipalities. In some cases Mr Morton, the land steward, dealt with these matters, but at other times the business was entrusted in bis hands. This was the practice right up to the time of Mr Berry's death. He (witness) did not know the defendant, and so far a she knew hud never seen him in his life. Mr Berry was a generous man, bub never liked to give publicity to his generosity. He never courted publicity, Sometimes he consulted witnesses as to private gratuities and benefactions. Most of the tenants occupied farm lands and some had town allotments. The rent-roll was nominally about £17,000. Previous to his (witness) going to the estate there was only a small river steamer. Under instructions from Mr Berry, witness, who had been managing director for two steamship companies in New Zealand, ordered a fairly large oceangoing steamer, which was built according to his plans on the Clyde in Scotland. Two other steamers of this class were constructed, and there were three of them regularly engaged carrying passengers and produce between Shoalhaven and Sydney at the time Mr Berry died. There were about 200 persons employed on the estate. Wheelwright, blacksmith, carpenter and other workshops were in full swing, and there had been a shipbuilding yard in use or the last 40 years. Witness was also entrusted with the supervision of the North Shore estate, which consisted of between 500 and 600 acres of timbered land. The first time Mr Berry disposed of any of his land by sale was in 1883 or 1884. He came to Sydney in May, 1884, and said he would sell subdivisions of the North Shore property. The land sold realised about

£37,000. Another section of land was sold, he believed, in 1885 or 1887. This was something over 9 acres at Crow’s Nest, North Shore, and it realised about £17,000. Mr Berry deferred any further sale of the land at North Shore in order that he might seß the course the Government proposed for the railway line to Pearce’s Corner, which was not at that time properly defined. Testator always regarded witness as a friend and as his equal, and treated him with the utmost confidence. Mrs Hay held the same relation towards him. Testator was in ill-health in 1886 and witness nursed him. He was a man of great independence of character, and did not like to receive assistance during his several illnesses. He had a peculiarufcyof never liking to appear ill, or to be the object of sympathy, and tcld only witness of his ailments. He was also a man of determined will and of a serious turn of mind. During the whole time witness was with him he never saw him take a glass of spirits. It was with the greatest difficulty that his medical advisers could prevail on testator during his final illness to drink a glass of champagne. When reading he had a habit of placing his book on his knee, and this accounted for the stoop in his figure. Witness then spoke at length as to the habits and characteristics of the testator. Up to the time of his death he was a great reader, and could always remember the number of the page at which he had left off reading without being obliged to turn down the corner of it. His faculties were keen and eyesight unimpaired to the last. He could see objects at a great distance without glasses. He made the most careful study of his properties and could map them out on plans and measured them all by the scale, at the same time indicating the character of the land—whether flab or undulating. Whenever he took up a new selection he walked over it on foot and personally measured it out. He had a general knowledge of mechanics and was of an inventive and constructive frame of mind.

Correspondence was then read and particulars of large business transactions detailed to illustrate the capacity of the testator and the relations which subsisted between him and the legatee. During the closing days of his life, witness nursed the testator, sitting up throughout the night to give him nourishment every three hours. Mr Berry repeatedly declined to have a professional nurse, wishing to obscure his ailment as much as possible. With regard to the will ol 1875, witness destroyed it after testator’s death, not knowing at the time that it was of any value. Mr Salomons : You destroyed it under Mr Norton’s instructions? - After Mr Berry’s death Mr Norton left tho last will with me along with the codicil. He said : “It is unnecessary for me to take it to Sydney. I will leave it with you along with the codicil and previous will.” I said to Mr Norton, “Have you got the previous will?” He replied, “I never had it in my possession from the day Mr Berry signed it.” I said, “ Should 1 send it to you if I find it?” He said, “ It is unnecessary to do so ; it is mere waste paper,” or words to that effect. Going through the papers soon afterwards, I destroyed the will along with some other worthless papers. His Honor: Did you read the will?—I glanced through it. As far as I remember the property went in trust in one way or another to the-Church of Scotland and the College of St. Andrew’s, to be administered by home trusts. I took very little, notice of the will, and did nob copy anything out of it. Did he ever speak to you of George Simpson, the defendant in this case?—No ; he’never mentioned his name to me at all, and 1 myself did nob know him. Dr. Thomas Ross Lewis, qualified medical practitioner, residing at Coolangatta, said he knew the late Mr Berry since February, 1883. For the last five years he saw him on the average once a week, and had sometimes slept in the house. He had ample opportunity of forming an opinion as to the testator’s mental capacity. He was a man of extraordinary mental grasp and power. From August, 1889, he had attended testator professionally up to the time of his death. His final illness took the form of physical decay from old age. His intellectual faculties were perfect in their manifestation up to half-an-hour, or even a few minutes, before he died. Nothing ever occurred that caused him to doubt that deceased was of sound mind and of full capacity to transact business of any kind. His memory was extraordinarily vigorous. He was present at the time of the signing of the last will. Testator tried to trace the first letters of his name, but his fingers were seized with trembling, and, on the suggestion of Mr Norton, the signing was postponed till the afternoon. The tremor did not arise from any mental cause. Mr Norton had suggested that the will should be signed by deputy. In the afternoon testator asked witness if it would be right to sign the will by deputy, as suggested, and he replied, “ You know Mr Norton too well to think he would mislead you.” Mr Norton was then sent for. On coming into the room he said, “ Would yon like Mr Robertson to sign it?” Ho replied “No,” and, putting his hand on witness, said, “You do it.” Witness Ihen traced the signature on the document, testator’s hand resting upon his own. Mr Norton then asked testator if he acknowledged the signature as his own, and he replied in the affirmative. Mr Robertson and. witness then signed the will in the presence of the estatoj;and by b\s qqn?ef\t. testator's men-

i tal capacity was unimpaired during the whole of the time. He had a paroxysm shortly before he died. The Rev. Hugh Angus Robertson, residing at Erromanga in the New Hebrides, said ho was conducting a mission station at that place. In June, 1889, he was on a visit to New South Wales and preached at Coolangatta in aid of the missions. He saw Mr David Berry on June 9th for the first time. After preaching in the church he had a long conversation with the testator in reference to mission work. Ho displayed a most appreciative interest in the subject and appeared to thoroughly . understand it. His clearness of intellect and vigourpf mental faculty struck witness as being very remarkable in a man of his age. His physical capacity was also very noticeable. Mr Berry shook hands with him at parting, and the pressure was so hearty that he would nob care for another grip like it. (Laughter.) John Hay, recalled, was cross-examined by Mr Walker. Said he only glanced at the will of 1875, but had a recollection of Mr Wm. Berry’s name appearing in it. Re did not keep a list of the documents he destroyed. They were chiefly old invoices and letters of application from tenants on the estate. He saw many letters from members of the Simpson family. These were not destroyed, but handed over to his (witness') solicitors. He did not find any trace of a parchment will. Sometimes Mr Berry’s house was filled with visitors, who came uninvited, and sometimes if testator did nob wish to be with them he would retire to his bedroom. John Simpson, a nephew of the defendant, called at the house shortly before Mr Berry’s death, in consequence of applications made on his behalf by other members of the Simpson family. He (witness) heard testator conversing with John Simpson aboutthe building of a house, but did not hear him say that he would build it or do anything for him.

Mr Walker : Do you recollect an article which appeared in the “ Daily Telegraph ” about Mr Berry soon after his death ? Yes, I remember seeing one several columns in length. Articles appeared in most of the papers. Did you furnish the information from which the “Telegraph” article was compiled ?—I supplied information to several persons who applied for it, but I do nob remember that specially. I did not write it. Have you any belief as to who is the author of it ?—I have no idea. The facts could have been obtained from anybody in the district.

Did you supply the information setting forth the great personal obligation that the testator was under bo yourself ? —No, I did not supply that information. Witness added that of late years testator led a more active life than for fifteen years previously. The case was then adjourned.