AN UNUSUAL CASE.

Taranaki Daily News, Volume LIV, Issue 194, 14 February 1912, Page 7

AN UNUSUAL CASE.

A CASUAL TESTATOR. CLAIM AGAINST DECEASED MAN'S ESTATE. A case presenting some unusual features and, incidentally, illustrative of friends failing to record business transactions'among themselves in black and white, was heard at the Magistrate's Court yesterday, when James Rothery, hotelkeeper at Oakura, sought to recover the sum of £49 from Mrs. Jones, executrix of the estate of the late J. W. Wood, representing board due and moneys advanced. Mr. Grey appeared for plaintiff, and !Mr. Johnstone for defendants. According to the evidence tendered on plaintiff's behalf Wood had come to the hotel in 1909, and since then he had stayed there intermittently for short periods until December 1910, when he died while on a visit to New Plymouth. Wood, who worked in the district as a bush contractor, had come to be on intimate terms with his landlord, from whom it was stated he at various times borrowed small sums. He also fell in arrears with his board and lodging account. It was on May 34, 1,910, that he became a permanent boarder. "WHY DON'T YOU MAKE YOUR WILL?"

One day he was about to set out on a fishing expedition, when someone at the hotel jokingly remarked, "Why don't you make your will, in case you don't come back again." This Wood there and then decided to do, the will being written on a piece of paper with a lead pencil. While making the will the testator said he would make a bequest of £SO to Mrs. Rothery, stating, "I owe you (the landlord) so much, and will leave you this so as to square things up, and the balance will do for Mrs. Rothery." Rothery and a partner of Woods named Burrows witnessed the will, under which he (Burrows) also was to benefit to the extent of £(lo—money due to him, it was stated, from testator. The bequest, however, it was explained, had been refused by the administrators, as owing to Burrows being a witness it was irregular. He had since recovered some of his money through other channels. Late in November, MO, Wood left the hotel to attend the New Plymouth show, explaining that he would settle up when he came back a few days hence. Early in December, and during his sojourn at New Plymouth, Woods died. Some time afterwards probate was granted in the will referred to.

Giving evidence, the plaintiff (Rothery) said that he had put down the items in the claim in an old exercise book. Subsequent to the death of Woods he destroyed the book and entered up the items in his ledger, on understanding from Mr. Johnstone, solicitor for the defendant, that the claim was admitted. Richard Burrows, another witness, who used to work with Woods, and who also stopped at the hotel, said he had seen Eothery lend Woods money on more than one occasion, although he had no idea what the amounts were.

Evidence was also given by Catherine Rothery, wife of the plaintiff.

- frothery was cross-examined at length by Mr. Johnstone as to his action in destroying proof of debt in the shape of the exercise book. Counsel also denied j that he had admitted liability of the account, and added that he might have said that nothing could be done till the j will was proved. Mr. Johnstone went on to say that where a claim for money lent and board and residence supplied j was made against an estate of a deceased | person, the proof of debt should be of the very strictest character. It had certainly not been advanced in this case. Also reasonable corroboration should be .requested, whereas plaintiff's claim was based entirely on his own supported fitatement. Plaintiff had admitted re- 1 ' ceiving a cheque from Wood, and had stated that he only retained £2O, but -there was no entry, commented counsel, by which the payment of the balance, £4O, to-Wood could be traced. Besides, there was more than a suspicion that a good deal of the cash said to be lent could not be recovered under the Licensing Act. Further, it was a matter of •comment that a claim against a laborer was allowed to mount up to £49. Mr. Johnstone concluded by asking for a non-suit.

Addressing the Court 'Mr. Grey sought to prove that there had been corrobora- - tioil, and- as regards the book, said that .it was out of all reason to expect a man in a small country'hotel to be a logician or a» accountant. -Mr. "Grey also ridi- • euled the suggestion by opposing Counsel that a hotelkeeper should, take a receipt for change, and went on to say that if a publican lent a - man 30s there was no prohibition against .him spending it in drink. In non-suiting plaintiff the Magistrate slid he could not say that strict evidence had been given. It seemed extraordiman to borrow the, sums suggested. The Magistrate added that lie could not accept the excuse offered by plaintiff for destroying his books. He |ad been. very lax,-- His Worship explained that according to the statement of ,claims Woods had run up an account for'£7l', but had been given credit for £2O out of a cheque for £6O in October of 1810, and a small amount of £2.