STRANGE WILL CASE

Taranaki Daily News, Volume LV, Issue 98, 11 September 1912, Page 7

STRANGE WILL CASE

IVAS THKKK ' A LAST ILLNESS?" Ah unusual case, involving the validity of a bequest under a will was heard in the civil action at tlic Supreme Court ye>terday. in which Mrs. Amelia Kay, of Wellington, proceeded against tiie executors of the will of Mrs Elizabeth de la Roche, deceased. Mrs L. I. C. Crompton (widow) and Mr J. 1!. Hoy (solicitor) were named as the defendant jexecutors. Tllje amount involved 'in the dispute was £IOO. The case was first before the court in March last, when the plaintiff proceeded under an originating summons, which was subsequently abandoned in favor of the present action. The bequest was made to Mrs Kay by deceased, who was at the time a "lodger in her house at Wellington, and was subject to the condition in the will, that the plaintiff was to have "well and faithfully nursed me and attended to my personal wants and comforts during my hist illness, and if I die while a lodger in her bouse." The executors refused to give any effect to tlie bequest, 'holding (1) that at tile time of her death Mrs de la Roche was not a lod- ) ger in the plaintiff's house, and (2) that she never had a "last illness" within the meaning of the condition in her will, pimply passing away in her sleep. They also made certain other allegations. Mr I'. J. O'Regan appeared for the plaintiff, and Mr J. B. Roy defended. 'The plaintiff, Mrs Kav, first gave evidence, stating that she first became acquainted with Mrs de la Roche on July 28, 1000. through the latter's application in the advertising colnriins.of a newspaper for rooms. These plaintiff hired to the deceased. Subsequently plaintiff moved to another house. Mrs Roche begged her to continue 'her as a lodger, and as a result of her representations she agreed to let her two rooms at 10s a week. She then spoke of writing to her solicitor (Mr Roy) to procure some money (£300) to enable plaintiff and her husband to build a house. The arrangement was to be that she was to lie boarded for nothing, and in consideration of the £3OO tdie should live rent free. When she died the balance of whatever was owing was to go to plaintiff. Mrs Kay described'her duties to Mrs Roche, which involved much care and attention. Mrs Roche always paid for the milk, paper, and bread over and above 'her board, but beyond that nothing eise. Mr. Roy visited Mrs Roche at plaintiff's house, ag a result of which Mrs Roche had isaid that Mr Roy 'had informed her that the money was invested out, and she could not advance the £3OO. As an alternative to lending the money the deceased promised the plaintiff that she would j leave her a legacy of "something running into three figures." Plaintiff again moved, the deceased again accompanying her, and continuing to pay 10s a week. Later on Mrs Roche made her will, mentioning at the time that she was making a bequest to plaintiff. On March 7, 1911, the deceased left plaintiff's home, stating that-of late she had received letters from Mr* Crompton nnd Oier friends asking her to come and live with them at Omata. A few days prior to her departure Mrs Crompton called at the house. Plaintiff asked her if Mrs Roche was happy in her present home. Mrs Ci'Dinpton replied in the affirmative, and gave plaintiff' no idoa that she was going to take Mrs Roche back with her. When the deceased left for New Plymouth she said nothing about not coming back ngv'--Before Mrs Roche left she paid a fortnight's rent in adva.ice, felling the plain tiff to keep the rooms until she came back. She left all ner household furniture behind. As she was leaving, the plaintiff heard Mrs Crompton remark: "Tell htr to let, voir rooms." To this deceased replied, "No, don't let my rooms." About three days after Mrs. Roc-lie arrived at New Plymouth plaintiff received a letter from her stating that she could not >av whether she would be coming back again, and asked that a few of her personal effects be forwarded to her. Plaintiff sent 'he articles, and the next tiling she heard was that Mrs Roche mid died. During the time that deceased was with plaintiff she was always very had with astlmn, and ha:! influenza several tim >s. This entailed a !< t of attention on the pait of plaintiff. Once when th? plaintiff wa.s about fo to ou a holidav Mrs Roche objected, saying that by so doing she would be breaking her agreement and lli.is forfeit her prospective legacy. To Mr Roy: The deceased praetic/'y j procured all her own provisions. Any medicine she required she paid for. it was incorrect to say that the deceased paid her -Is a week for extra services rendered. The 4s was for only the tliimrs she got at the door from the baker, but - «hcr. and other tradesm-n. The reason why she did not get the agreement put in proper legal form was that she "took testator's word for it." Mrs. Roche did not say that she would write down asking plaintiff to dispose of her furnitire. Joseph Wm. Kay, husband of the pla'ntiif. painter, residing in Wellington, gave corroborative evidence, and recalled hov Mrs Roche had once remarked that after not visiting her for r-bout 30 years her relatione came to Wellington and expressed a icrfire to see her in her old age.

This closfd the ulaintifT's case, and one, of the defendant* (Mrs Crompton) then jravo evidence. Witness, who is a widow, rc<idm<; at Omata, said that all Mi's ■Roche's early years had been spent in that district. For a number of years she kept house for her (witness') husband. She had twice visited Mrs lioche at Wellington 'within the last few years. Witness' sons had also visited her. Within the last four years witness, asked the deceased to come to Omata and sp?n<l her last days with her relatives, as she had expressed a desire to be buried at Omata. When the deceased finally returned to Omata. she had an attack of illness, and within a week of her arrival passed away peacefully in her fdcer>.

To Mr O'Regan: Mrs Hoc lie had heen away from Omata for over .30 years, during which time she visited her four or five times. "Deceased never had the means to visit witness. 'Mrs Roche had a nephew at Khand illali. It was not, a fact thai for 30 years she was practically dcsorlcd by her relative". Relations wer" not strained; they were in fact on verv good t 'mis. ])r. 1). S. Wvlie, who was called to attend ihe deceased, depo-ed that she was dead 011 his arrival. Ito had come to the conclusion that Mrs Roche had died of primary heart, failure. She had in fad, (lied in her fdecp from natural causes.

F. Scully, an officer at t!ie Xow riymouth J'o-,1 Oll'ice. ."iihuiii ted evidence to show that on her coming to Omata the deceased had transferred her savings hank account from 'Wellington to X> w Ph trmrit It.

In his address, Alv i; (!v said fk-u the i|iics(i(iri was. Was Hie phinfill' wiihin liie tenn« .of the codicil of the will?

His 'Honor interjected that it we.* a ipie-fion of fact, 'is t:> whether fhejihint iIV had ohserved the conditions udached to her prospective legacy.

Resuming. Mr Hoy said lhat all (he facts pointed to the fact (hill when "lie left Wellington ihe deceased did so Willi the intention not to return .-'gain. She had liu laM jllncsv within (ic >«r:>ni'nf legacy, la:' term-', of which had Hoi km carried oni. llifi Honor: '\l think plaintiff is entitled to the money, 'ft is really more or less a question of contract. I see no reason to disbelieve the husband an' 3 wife. 'Jjgiere does not; sccra to have anything underlutiid aboul , ■#.%. Huu

j Honor added that there was no *uggesj tion that plaintiff had influenced the deceased into making her will in her favor, lie was aUio not satisfied that Mr« K.x-ha had not i»*J»decl etura to Wellington. He <F»d not atu.eh anr importance lo the trj.nafejv/Rf.e jf a savings-bank account, because it was very easily effected antf without expense. Costs were arranged between th? parties.