Auckland Star, Wednesday 2nd February, page 5
SUPREME COURT. - Civil Sessions.
THIS DAY.
(Before His Honor Mr Justice Ward and a Jury of 12.)
The Contested Will Case.
William J. Suiter (executor of the will of Susannah Harriott Fuller, deceased) v.
Mrs Susannah Harriett Harrison and Mrs Lowe (daughters of the deceased) for probate
under the will of the deceased.
Mr K. Laishley (by apppointment of the Court) appeared for Charles Fuller (an infant),
Mr Thomas Cotter (instructed by Mr Cave) for the plaintive W. J. Suitor),
and Mr O'Mcagher (instructed by Mr Cave) for Mr and Mrs Charles White
(parties interested under the will), while Messrs C. E. Batton and Theo. Cooper
appeared for the defendants (Mrs Harrison and Mrs Lowe)
Mr Lashley intimated to the judge his desire to mention a circumstance before
the case was heard. He obtained an order on the 24th of January last, in consequence
of which he looked into the circumstances of the case. He found that there were
two wills, one of which had been made on the 4th Saptember last, and the other
on the 14th September, and he came to the conclusion that the will of the
14th September should be supported.
Accordingly he pleaded and served on the other parties interested a copy of
his pleadings.
After that he had been informed the defendants' solicitors obtained a written
statement from his client (an infant), who was virtually a ward of the Court,
which statement he understood was at variance with the pleadings he had put in.
It did not become him to comment on the circumstances, but he had felt it to be
his duty to mention them to the Court.
His Honor inquired if there was any reason why Mr Laishley's client should not
be treated as other witnesss were.
Mr Batton : He is between 16 and 17 years of age. His Honor remarked that although
the defendant Fuller was technically a ward of the Court, yet as he was between
16 and 17 years of age he was able to act for himself.
Mr Laishley : I have seen him since, and he endorses the defence. and I have
made this statement so that the variance contained in his written statment may
not bear another construction.
The 12 jurors were then chosen and sworn and Mr Compton elected foreman.
Mr Cotter, in opening the case to the jury, informed them that they would not be
required to assess any damages. Although certain valuations would be placed
before them, and their attention called to the valuations of certain proporties,
yet the only issues to be placed before them for their verdict were two. One was
whether the will of Mrs Susannah Harrott Fuller, which would be laid before
them, was the last will and testament of the testatrix - whether she understood
when executing it that she was executing her last will and testament, and
whether it purported to be executed as the law required a will to be executed.
The other point was whether this will - in which term he included a codicil -
was executed under the undue influence of Mr and Mrs White, who had been made
defendants in this action. The learned gentleman then proceeded to read the pleading.
He then passed on to explain the facts of the case. Mr Suiter, he said, simply
appeared as the executor mentioned in the will of the 14th September last. So
far as he was concorned, he was not personally interested in the matter. So far as
Mrs Harrison and Mrs Lowe were concerned, they occupied the position of daughters
of the testatrix, and not only as being beneficiiires undor the will of the 14th
September, but also as being beneficiaires under the will made ten days prior
to this one. Under that prior will no doubt both ladies would receive greator
bensfit than in the later one, and that was the reason for contesting this
present will.
Mrs White was another daughter of the testatrix, and she approved of this later
will, and wished probate of it to be granted.
The. infant Charles Fuller was a son of the deceased, and by his guardian
(Mr J Laishley) he also wished for probate to be granted of the will of the
14th September.
These four children were all benefited more or less by both wills.
There was one other member of Mrs Fuller's family to be accounted for, viz ,
her oldest son, Henry Colin Fuller, but he was not a party to this action,
and this was explained by the fact that under both wills he got tho same benefit
and legacy of £100. If both wills, however, were upset, and the estate
declared intestate, then the eldest son would be entitled to one-fifth share
of the estate of the deceased.
Mr Batton : But there is another will prior to that of the 4th Septembor.
Mr Cottar said that he might retort that there was a fourth will which was
prior to the other three.
Tho reason why Henry Colin Fuller got only a legacy of £100 was that during
his mothor's life he had received more than his share of her property.
The late Mrs Fuller came to Whangarei some considerable time ago, and for some
years the was housekeeper to Mr Thompson, who was then owner of tho Settlers Hotel.
After he gave up business Mrs Fuller took a lease of it, and subsequently became
the purchaser of it for £2,500, paying £1,500, and leaving £1000 on mortgage at
10 per cent. She did exceedingly well in the hotel. Under her first will
Mr Thompson was executor, but she afterwards made another, for the reason that it
was undesirable to have her mortgagee executor also.
Mrs Fuller went to England along with Miss White, and it was there that she made
her first will; it was on returning to Auckland that the made a second will.
Soon afterwards she removed altogether to Auckland, and on the 17th August last
she went to live in the house of her son in-law, Mr White, in Ponsenby.
She came to Auckland for medical advice, inasmuch as she was suffering from
cancer of the womb. It was in Ponsenby, during September, that both the third
and fourth wills were made - that of the 4th September being prepared by
Messrs Thorne and Rigby, and that of 14th September by Mr Cave.
Mrs Fuller had acquired considerable property, and in making her wills she was
in full possession of her mental faculties, despite the allegations of the
defendants to the contrary.
Mr Cotter concluded by explaining the evidence he intended to adduce.
Charle White Cave, solicitor, was then called. He deposed that he knew
Mr Edward Lewis. He remembered that gentleman calling upon him at his office about
the end of August or beginning of September last. He went with him to the house
of Mr White in Stowe Street,Ponsenby, when he saw Mrs Fuller.
Previously to that be had not had the slightest acquaintance with either
Mrs Fuller or Mr and Mrs White.
He saw the former lady between 2 and 3 o'clock p.m. in bed, and apparently not
suffering, although he understood she was ailing with cancer. He entered the
bedroom along with Mr Lewis, and the interview lasted about two hours.
No one else but the three of them was present. Mrs White might have entered
towards the close to give the patient her medicine.
Mrs Fuller explained to him that she was about to make her will, that she had made
previous wills, but that she had wished to make various alterations in her bequests.
She took a memo, from a handbag beside her, and said she had written down on
it the way in which she wished to dispose of her property. he was not sure
whether he read it through, but verbally he took down on a sheet of foolscap
her instructions, without reference to the written memo. [Instructions produced.]
She was particularly clear in mind, and showed, to his mind, that she was
a particularly clear headed woman, and knew all about her affairs, She told him
that he could get particulars from Hughes and George, as a few months previously
they had prepared a marriage settlement in view of a proposed marriage between
herself and a Mr Sissons.
When it was proposed to read over tho instructions to the jury, Mr Batton objected.
In answer to Mr Batton, the witness admitted that he had not taken down the
instructions verbatim, but merely the effect of them.
His Honor remarked that this lessened the value of the instructions as showing
the testatrix's state of mind. Mr Cotter requested His Honor to take a note of
the fact that he had tendered this evidence.
Examination continued:
He read over tho instructions to Mrs Fuller for her approval. The memo, of
instructions which he received from Mrs Fuller was as follows.. "This is how
I want my will made out :-
My eldest son, Henry Colin Fuller, to receive £100
My eldest daughter, Susannah Harriett Harrison, Cook and Culpan s shop, and half
proceeds of bill of sale ;
My daughter Eliza Albina Lowe, Cook and Simpsons shop, and half the proceeds of
bill of sale.
To my youngest daughter, Janey Leah White, and my youngest son, Charley Fuller,
I leave the following property to be equally divided between them, viz,:
The Settlers Hotel and Mr Scott's shop and cottage at back of hotel; also ground
opposite Mr Clendon's.
My daughter, Janey Leah at the division to retain the hotel payin Charley whatever
sum would make division fair between the two children, Janey and Charley."
Mrs Fuller seemed inclined to leave her eldest son out of the will altogether,
sayin that she had advanced him large sums of money already, and got him out
of many scrapes. Ultimately she decided to leave him £IOO
Of Mrs Harrison and Mrs Lowe she said that she had made various advance to
their husbands. She had helped Mr Harrison to get the Kamo Hotel and made advances,
which were only partially secured. To Mr Lowe also she said she had made advances,
and Lowe was about that time a a bankrupt.
She expreesed her mind clearly that neither of these husbands should receive
any of her property but that she would tie up tightly to their wives whatever
she left them.
She considered that " Cissy" (Mrs Harrison) was entitled to more than Mrs Lowe
as "Cissy" had helped her to earn the money, and had lived with her longer.
Before he left her he promised to prepare the draft, take it up and go through
it with her when it was ready.
In about a week or ten days he had it ready, and on the 11th September he and
Mr Lewis went to Anglesea-street, Ponsenby, whither Mr and Mrs White and Mrs Fuller
had removed. They saw Mrs Fuller in her bedroom, no one else being present.
Mr Lewis read a fair copy of the rough draft, and witness followed him on the
rough draft. The draft was read clause by clause. Mrs Fuller was asked whether
she understood the effect of them. Some of them she discussed, and suggested one
or two alterations. The name of Mr Storey was added as executor to those of
Messrs Brown and Suitor, and Henry Colin Fuller Was excluded from participation
in the residue of the estate. The interview lasted three hours at least, and
Mr Lewis was present the whole of the time. Mr White entered the room once to
hand Mrs Fuller a tin box containing; her papers. If anything, Mrs Fuller was
clearer in mind on this occasion than she was on the first occasion.
After that he had the deed engrossed, and on tho 14th September he went up with
the will (produced), accompanied by Mr Lewis and Mr Williams (witneses's
managing clerk) and read it over to Mrs Fuller. When it had been read Mrs Fuller
explained that she had made a codicil (prepared by Mr Alexandor) giving her
jewellery and family portraits to Mrs White, and having pointed out that if
kept separate the will would amount to a revocation of the codicil, he added
the latter to the will at her request.
Mrs Fuller then signed the will in precence of himself, Mr Lewis and Mr Williams.
She also wrote her name opposite the interlineations. The attesting signatures
were at the same time added, Mrs Fuller having requested Mr Williams and himself
to act as witnesses. The interview lasted about an hour, and she was quite as
competent as before. There was nothing to raise even a suspicion as to her
competency of mind. He took the will away with him, and it had remained in his
possession until to day. He had not had the least conversation with Mr and
Mrs White during Mrs Fuller's life as to the contents of the will.
Mrs Fuller promised, at Mr Lewis's suggestion, that she would not during her
lifetime mention to her relatives how she had disposed of her property. He did not
see Mrs Fuller again until the 3rd of November, on which day he saw her alone at
the house in Anglesea-street.
She told him Mrs Lowe was anxious to have the two sections of land near
Mr Clendon's, which she had purchased from Mr Thompson, and that this had
promised to give them to Mrs Low, She accordingly instructed him to prepare a
codicil to that effect. aho also had a conversation with him re the bill of
sale over Harrisons Hotel, at Kamo, and in the course of it she told him she had
taken steps to realise, and was considering how to deal with the proceed.
She contemplated disposing of them in a different way from her original intention,
but had not quite made up her mind. He saw her again on the 9th November,
when she told him she was satisfied the sale would not realise the amount that
Harrison owe had determined, therefore, to revoke the bequest of the bill of
sale to Mrs Lowe and Mrs Harrison, and the proceeds of the bill of sale to be
applied to the reduction of tho mortgage on the Settlers' Hotel, Mrs Harrison
and Mrs Lowe being compensated for the alteration by the former receiving £200
and the latter getting the two allotments she wished for. She also wished an
adopted child - a grandchild - to be given into Mrs Harrison's care
Mrs Fuller was then quite as clear in mind as before, although weaker in body.
She requested him to act us solicitor for the estate It was by her solo instructions
that he prepared this codicil (produced), and on the 13th of November it
was read over, signed, and witnessed.
Mrs Fuller knew perfectly well what she was doing.
New Zealand Herald, 3rd February 1887
LAW AND POLICE., SUPREME COURT.- Civil Sittings.
Wednesday. [Before His Honor Mr. Justice Ward and a special jury of twelve.]
A Disputed Will Case.-
Wm. John Suitai and others v. Susannah Harriet Harrison and
Mrs. Lowe: This was an action brought by Win. John Suiter, as trustee and executor,
named In the will of Susannah Harriet Fuller, to obtain probate under the will o£
the deceased. By an order made in Chambers, Mr. and Mrs. Charles White, parties
interested in supporting the will, were joined with the plaintiff in the action,
and Mr. Laishley was appointed to represent the infant, Charles Fuller ; Mr. Cotter,
instructed by Mr. Cave, ¦ appeared for Mr. Suiter; Mr. O'Meaghor for Mr. and
Mrs. White ; and Mr. Button and Mr. Theo. Cooper for the defendants.
The following special jury was empanelled and sworn Wm. S. Laurie, Jamas M. Lennox,
Thomas F. Cheeseman, Wm. Buchanan, Wm. Berry, Wm. Thos. Jas. Baird, F. Larkins,
A. K. Taylor, Chas. Arnold, Frcdk. E. Compton, Percival J. McArthur, and
David Nolan. Mr. F. E.Compton was chosen foreman of the jury. Mr. Laishley,
before the case was Jt opened, said, in consequence of the order of the Cour
t being made, he inquired into the case, and found that there were two wills,
and he put in pleadings. Since then he understood that the plaintiffs had obtained
a written statement from the infant, which was an answer to the pleadings.
His Honor said if the infant was to be a witness it did not much matter.
Mr. Laishley said that he thought it right to mention it, to explain his position.
Mr. Button, in answer to His Honor, said the infant was between 16 and
17 years of age, and he had merely made a statement of the evidence which he
would give. Mr. Cotter, in his opening remarks, said that, notwith* standing the
oath which had just boen administered, they would not be required to assess any
damages, although certain valuations of property would hare to be considered ;
but the only issues to be put before the jury were two : First, whether the will
of Susannah Harriet Fuller is her last will and testament; and whether she
understood the contents of the will when she executed it; and whether it was
fully explained to her. And the other question was whether the will and codicil
were executed under the undue influence of Mr. and Mrs. Charles White, or either
of them. The statement of claim set out that Susanah Harriet Fuller, widow, late
of Whangarci, died in Auckland in December. She made a will on the 14th of
September, and a codicil on the 13th of November, and appointed plaintiff,
Mr. Suiter, and two settlers in Whangarei, executors. The will and codicil
were signed by Mr. Cave and Mr. Wynn Williams, solicitors, as witnesses.
That deceased was at the time of sound mind, and plaintiff claimed probate
of the will in solemn form of law. The statement of defence was a denial that
this will was the last will and testament of the deceased, and that when she
signed it she was not of sound mind. That the execution of this will was obtained
by the undue influence of Jane Leah White and Charles White, or either of them,
and defendant claimed that the Court pronounce against the said will.
There was also a statement by Mrs. White, in which she denied that the execution
of the will was obtained by any undue influence, and that deceased was at
the time of sound mind. Tho statement of Charles Fuller repeated the allegations
of the statement of claim, and denied the statement of defence, and claimed probate
of the will. Mr. Cotter then proceeded at length to open the case, and explain
the evidence which he would adduce. Mrs. Harrison and Mrs. Lowe, the
two defendant*, were daughters of the deceased, and beneficiares under the will.
Mrs. White, at whose house the deoeased died, was also her daughter,
and Charles Fuller (the infant) was her son. There was an elder son, but he
did not appear in the action, as under either will ho would be equally
benefited, there having been a will prepared by Messrs. Thorne and Kigby,
and executed on the 4th of September, in which the property was distributed
in a different manner to that of the will of the 13th of September, and the
codicil of the 14th November. The first witness called was Chas. W. Cave, solicitor,
who deposed that about the latter end ef August, or beginning of September,
Mr. Edward Lewis called at his office, and witness accompanied him to
Mr. White's house, Howe-street, I'onsonby, and there he saw Susannah Harriet Fuller.
Previous to that, he had never seen either Mrs. Fuller or Mr. and Mrs. White.
He saw Mrs. Fuller between two or three o'clock in the afternoon.
She was in bed, apparently not suffering, but witness understood that she
was suffering from cancer, and not likely to recover. Mr. Lewis accompanied
him into the bedroom. The interview lasted about two hours. Mrs. White might
have been in once during that time, to give Mrs. Fuller her medicine, but he
was inclined to think she was not in at all, and if she was, she took no part
in the proceedings. Mrs. Fuller told witness she wished him to make her will,
and said she had made previous wills, but she wanted an alteration, and she
produced a memorandum of the way in which she wished to dispose of her property.
Witness, verbally from her, took down instructions without referenco to the
memorandum. He produced the instructions he took down at the time. This was
tendered in evidence, also the memorandum Riven to him by the deceased.
Witness said Mrs. Fuller was particularly clear in her mind, and appeared to
him to be a good business woman, with a thorough knowledge of her affairs.
At this stage Mr. Button objected to Mr. Cave's notes of the instructions he
took from Mrs. Fuller being put in as evidence of the state of her mind at the
time ; and His Honor ruled that as this was Mr. Cave's translation of the
instructions, not tho words of the deoeased, it could not be received as
evidence, and Mr. Button's objection was allowed. The instructions contained
on the memorandum. handed to witness by _ Mrs. Fuller were received in evidence.
Witness said that with regard to the eldest son, to whom she left £100,
she was half inclined to leave him nothing, as she had advanced him many sums,
and helped him out of many scrapes. In regard to Mrs. Harrison and Mrs. Lowe,
she said she had made many advances to their husbands when they were in
difficulties, and expressed herself firmly that she .would tie the properties
up to the daughters as tightly as possible. She considered Mrs. Harrison entitled
to more than Mrs. Lowe, as she had lived with her many years in the hotel,
and helped to earn the money. She told him this to explain why she was making
an unequal distribution of her property. Before witness left her, he promised
to prepare the draft, and go through it with her when it was ready,
and on September 11 Mr. Lewis and witness went to Angleseastreet, Ponsonby,
to which Mr. and Mrs. White and Mrs. Fuller had removed in the meantime.
They saw Mrs. Fuller in her bedroom, no one else being present. Mr. Lewis
read the fair copy draft produoad, and witness sat by his side, and followed
him on the rongh draft. The draft was read clause by clause, and she was
asked whether she understood their effect. Some of them she discussed,
and suggested some alterations. The name of Mr. Storey was added as an executor.
She had previously only appointed Mr. Brown and Mr. Suiter, and in tho clause
regarding the residue, Mr. Cave had included the name of Henry Colin Fuller,
the eldest son, but she ordered that to be struck out. Witness asked her for
further particulars as to her real estate. She went through some bundles of
papers, and produced a number of receipts for purchase money. That interview
lasted three hours at least, and Mr. White came in to get the papers for her,
and then left the room. He did not join in any conversation or discussion.
Her mental capacity was then good, and she appeared if possible to be even
clearer than on the first occasion. Witness then left, and had the will
engrossed, which he took up on the 14th September, accompanied by Mr. Lewis
and Mr. Williams. The will was read through to her, Mr. Lewis and witness
only being present. After it had been read she mentioned that she had given her
jewellery and family portraits to her daughter, Mrs. White, that she had made
a codicil bequeathing them to Mrs. White. Witness pointed out that this will
would be a revocation of the codicil, and therefore the bequest had better be
put in the will, and at her request witness added the bequest on the first
page of the will. Mr. Williams, solicitor, witness' managing clerk, was then
called in, and Mrs. Fuller signed the will in the presence of both of them,
and also her name opposite the interlineation, and all three subscribed their
names in the presence of each other.
Mrs, Fuller requested witness and Mr. Williams to act as witnesses.
The interview lasted about an bonr or more, and Mrs. Fuller was as perfectly
competent and olear-headed as she had been on either of the previous occasions,
and he saw nothing which could raise a suspicion of incompetency in his mind.
Witness took the will away, and kept it in bis safe until after the death
of deceased, and never had the slightest conversation with Mr. or Mrs. White
as to the contents of the will during Mrs. Fuller's lifetime, and Mrs. Fuller
promised that she would not mention to the members of her family how she had
disposed of her property. After the will was executed, witness asked Mrs. Fuller
to give him the memoranda that she had made, in order that he might attach it
to his draft, as it might be useful, and she gave it to him, remarking that it
was badly written. It had been in his possession ever since. He next saw Mrs. Fuller
on the 3rd of November. He went alone on that occasion, and saw her alone.
Sbe said she had seen Mrs. Lowe since their last interview, and that she was
anxious to have the two sections opposite Mr. Clendon's, and she instructed
witness to prepare a codicil to that effect, She also had some conversation
with reference to the bill of sale over Harrison's hotel at Kamo, and that
she had then taken steps to realise, and was considering how she should deal
with the proceeds. She contemplated making some alterations, but gave no
instructions at the time. Witness saw her again on the 9th of November, and
sbe said she was satisfied the bill of sale would not produce nearly the
amount whioh Harrison owed. She detirmined to revoke the bequest of the bill
of sale money to Mrs. Harrison and Mrs. Lowe, and in lieu of that the moneys
arising from the bill of sale were to be applied to the reduotion of the mortgage
on the Settlers Hotel, and to compensate Mrs. Harrison and Mrs. Lowe she would
give Mrs. Harrison a further legacy of £200, and. Mrs. Lowe to have the two
allotments regarding which she had already instructed witness. Mrs. Fuller
had an adopted child, and she wished Mrs. Harrison to havo the care of it.
Mrs. Fuller on these occasions was perfectly clear in mind, but
apparently much weaker in body. She asked witness to aot as solicitor of
the estate, and asked him to get the papers from Messrs, Thome and Rigby,
as she did not desire to have the same solicitors as those of Mr. Thompson,
her mortgagee,- Witness prepared the codicil produced, and it was executed on
the 13th of November. She knew perfectly well what she was doing, and fully
understood the contents, and had some conversation with witness about them.
After the adjournment for luncheon, the witness was examined by Mr. O'Meagher,
His Honor ruling that if he was to examine at all it must be then.
The witness corroborated his evidence in chief as to the clear state
of Mrs. Fuller's mind at each of their interviews. Of that he never had the
slightest doubt, and she appeared to be acting entirely of her own free will.
Mr. Laishley also asked witness a few questions, and the witness was then
oross-exaimned by Mr. Button as to dates of his visits and the signing of the
will and codicil. (At this stage witnesses were, at Mr. Button's request,
ordered out of Court.) Robert Godfrey, Wynn Williams, solicitor and managing
clerk to Mr. Cave, and attesting witness to the will and codicil, deposed that
on each occasion Mr». Fuller seemed quits in her senses, and showed no hesitation
in executing the deeds. Edward Lewis, merchant, Auckland, deposed that he had
known deceased, Mrs. Fuller, for eight years, and had done business with her
during that time, while she was in Whangaroi. She consulted him about her own
affairs often. Witness knew her son-in-law, Mr. Lowe, and arranged tbe basis
of an arrangement between her and him in reference to the leasing of the
Settlers' Hotel, Whangarei, but It was not carried out, as she changed her
mind next morning after she had seen Mr. Thompson. Witness detailed the
conversation between Mrs. Fuller and himself as to her will, and his engagement
of Mr. Gave to prepare it. She asked him whether she could not dispose of
her property, and he assured her that she could. (She said that Mr. Rigby had
prepared a will iii which the property was to be equally divided, but she objected
to it; but Mr. Blgby told her it must be so, or if not, the will would be disputed.
Witness told her that it was not so, that she could do as she liked with her
property, and no one could dispute it. She seemed very angry, and said she did
not want to see Mr. Rigby again, and asked witness to arrange for some solicitor t
o prepare her will, and also asked him to act as one of her executors.
Witness told her he would bring Mr. Cave, so that she might give instructions
to him ; that witness would do all he could to assist her in sottling her
affairs, bet he preferred not to act as executor. No one else was present
at the interview. Witness had no interest under either of the wills.
Witness then corroborated the previous evidence as to the interviews between
deceased, Mr. Cave, and himself, also as to an interview he had with her
about the will prepared by Messrs. Thorne and Kigby. William John Suiter,
one of the executors in the will of Susanah Harriet Fuller, deposed that as
such he brought these proceedings. He was no relative of Mrs. Fuller or any
of her family, but had known her for twelve or thirtsen years, and for marly
all that time, business relationship existed between them. He frequently spoke
to witnesss of her having advanced Harrison and Lowe money, and of Harrison
having abused her daughter. After Mrs. Fuller came to Auckland, in August or
the beginning of September, she sent for witness, and asked him to become
executor in her will. They had a convention and negotiations relative to the
Settlers' Hotel. She was perfectly clear in her business, and well able to
take care of herself. Mr. Humphries was to be tenant of the hotel, and witness
was to assist him. They agreed to terms, and witness had deeds prepared by
Mr. Cotter, but when Mr. Thompson, the mortgagee, came to town he objected
to the deeds unless they were prepared by Thome and Rigby. Mrs. Fuller said
she would prefer having some other lawyer than those, as they were
Mr. Thompson's solicitors, and she was afraid of being had. Witness consented
to be one of the executors of her will at their first interview.
In cross-examination the witness said that he received a post-card from Mr. Storey,
one of the co-trustees, stating that as there was a dispute he would refuse to
act for the present, but he had not consulted Mr. Brown, the other trustee,
as to whether he would join in proving the will. Witness left the matter
entirely to his solicitor, Mr. Cave. The further bearing of the case was
then adjourned until ten o'clock next morning.
Auckland Evening Star. from 2nd Feb-9th Feb 1887
Courtcase ran over approx 6 days excl. a weekend.
Headings were - The Disputed Will Case & Todays Proceedings.
Auckland Star 3 February 1887, Page 2
The Disputed Will Case.
The hearing of this case was continued yesterday afternoon and to-day before
His Honor Mr Justice Ward and a special jury. Robert Godfrey Wynn-Williame,
solicitor, and managing clerk for Mr Cave, gave evidence as to the execution
of Mrs Fuller's will of the 14th of September.
Edward Lewis, merahant, of Auckland, deposed that he knew the late Mrs Fuller.
He had known her about seven or eight years, and had done business with her while she
had the Settlers' Hotel, Wbangarei. She often consulted him about her own business.
On her behalf he arranged the basis of an arrangement with her son-in-law, Mr Lowe,
for leasing to him the Settlers' Hotol, Whangarei, but it was not carried out, as she
changed her mind after seeing Mr Thompson. He remembered her coming up to Auckland
in November last and staying with her daughter, Mrs White About a fortnight after
her arrival he called upon Mrs Fuller, and in the course of conversation she asked
him if she could make a will in which she could dispose of her property
as she pleased. He# replied affirmatively, and she then said that Mr Rigby had been
up with a will, in which the property was to be equally divided that she objected
to it and that Mr Rigby insisted that it must be so or that the will would be disputed.
Witness assured her she could dispose of her property as she liked, and that nobody
had a right to dictate to her.
Mrs Fuller seemed very angry at what had taken place between her and Mr Rigby,
and said she did not wish to to him again. Her mind was singularly clear,
and she told him her doctors had informed her she would probably only live two or
three months. She said that therefore she was only anxious to settle her
business matters, and that, then she was prepared to die.
He subsequently went and saw Mrs Fuller along with Mr Cave, and on that occasion
Mr Cave received his instructions for the will. The remainder of the witness's
evidence was corroborative of that already given by Mr Cave.
Wm John Suitor, brewer, and plaintiff in the action, deposed that be had no personal
interest io the case. He had known the late Mrs Fuller for 12 or 13 years, and
during nearly all that time he had had business relatione with her.
She frequently spoke to witness of her having advanced Harrison and Lowe money,
and of Harrison having abused her daughter. After Mrs Fuller came to Auckland,
in August or the beginning of September last, she sent for witness, and asked him
to become executor in her will. They had a conversation and negotiations relative
to the Settlers Hotel She was perfectly clear as to her business, and well able to
take care of herself.
Mr Humphries was to be tenant of the hotel, and witness was to assist him.
They agreed to terms, and witness had deeds prepared by Mr Cotter, but when
Mr Thompson the mortgagee, came to town he objected to the deeds unless they were
prepared by Messrs Thorne and Rigby.
Mrs Fuller said she would prefer having some other lawyer than those, as they were
Mr Thompson's solicitors, and she was afraid of being bad.
Witness at their first interview consented to be one of the executors of her will.
Mrs Fuller told him that Mr Rigby had been drawing up a will for her, and that
he had greatly annoyed her by insisting that her property would have to be equally
divided. She stated that she was determined not to see him again, that she hated
the sight of him. She would have another will prepared.
Under cross-examination the witness said that he had received a post-card from
Mr Storey, one of the co-trustees, stating that as there was a dispute he
would refuee to act for the prosent He had not consulted Mr Brown, the other
trustee, as to whether he would join in proving the will. left the matter entirely
to his solicitor.
To-day's Proceedings.
Elizabeth Emma Meredith, a resident of Onehunga, deposed that she had known the
late Mrs Fuller for 10 years, and 8 year, intimately.
She remembered Mrs Fuller coming up to Auckland on the 17th of August last, and
from that time until the old lady's death witness was a constant., visitor to
her - visiting her once or twice a week, and staying with her about two hours at
a time, she was perfectly clear and compotent in mind until about three weeks or
a month prior to her death.
Cross examined by Mr O'Meagber;
Neither Mr and Mrs Chas. White ever interfered with her visits nor attempted to
interrupt any private conversations between Mrs; Fuller and witness. Towards the
latter part of her illness Mrs Fuller used to wander in mind. Witness first
noticed this aberration about three weeks before Mrs Fuller's death.
Jane Leah White, wife of
Charles Henry White, draper, and youngest daughter of Mrs Fuller (deceased),
deposed. that it was 12 or 13 years since her mother went to Whangarei
to act as house keeper for Mr Thompson, of the Settlers Hotel.
After Mr Thompson gave
up the hotel her mother took a lease, and when the lease expircd she purchased it.
In August last witness was living in Somerset Place, off Howe-street.
Mrs Fuller sent a telegram announcing her intended visit to Auckland, and she arrived
at witness's bouse on the lVthof August. She waa then perfectly right in mind.
About the 2nd or 3rd of September they removed to Anglesea-street.
Her mother, about 4 or 5 days after her arrival, talked of giving witness her jewellery.
Deceased had previously spoken of it, viz 3 years ago last January - before they went
to England. Witness was not then married. Witness knew of tbe will prepared by
Messrs Thorne and Rigby, and her mother told her that Mr Rigby could not do as she
wanted him. She also saw Mr Cave at the house, and knew for what purpose he came.
She was not present at any of the interviews except perhaps to hand her mother a
glass of wine or a paper. She did not know either from Mr Cave or her mother how
the property had been left. She first ascertained that on the day of the funeral.
Her mother never consulted her about the disposition of her property, and
deceased was never prevented by witness from seeing anyone she wished to see.
During her mother's illness both Mrs Harrison and Mrs Low visited the patient.
On one occasion Mr and Mrs Low and Mr and Mra Harrison and child were all
residing in witness's house. Her mother died on the 16th Dec and up to three
weeks prior to that time she was able to transact all her business.
Her mother said ehe did not like Mr Rigby to well as Mr Thorne, and she did not
want to see him again That was how Mr Cave came to be called in.
Her mother was in sound mind when she died.
A Rigid and Searching Cross-Examination.
Mr Button: Now, are you prepared to swear that you were not the mouthpiece for
the instructions given to Mr Thorne for the preparation of the first will-that
you told him how to mako it out-and that the last will agrees precisely with your
instructions -
The witness entered into an explanation, but her ultimate answer
to the question was in the negative. She admitted, in answer to a further question,
that both she and her husband were present when the instructions for the will
were given.
Cross-examination continued
I remember Mr Thorne coming twice to the house about the will, but I don't remember
whether he brought it. I swear that on the second occasion I did not deliver my
mother's instructions for the preparation of a fresh will. Neither did Mr
Thorne on that second occasion note down on the back of the old Whangarei
will instructions given by me, and nodded assent to by my mother, for the
preparation of a fresh will. I swear that I can't remember if Mr Thorne inquired
what the rents were.
Mr Button I must ask you to tax your memory, for the
circumstances I am about to examine you on could not possibly be forgotten.
Did not Mr Thorne make a short and. rapid calculation of the effect of the
instructiors given by you for the preparation of the will?
Witness: Not to my remembrance.
Was not your husband present ?-Yes.
Did not Mr Thorne say that it would be a most unfair will, and that he would be
no party to making such a will I do not remember him saving so.
Did he not say that the effect of it would be that you would get £1,600? - No.
Did he not say that such a will would be disputed in the Supreme Court ? - No.
Did he not say that the effect of it would be to give Mrs Low only £260 ? - No.
And Charley £750 - No.
Did not Mr Thome say that he would not be a party to
such a will, as it was evident to him that undue influence had been used.
- No I don't remember. But will you swear that he did not say so - No I cannot
swear that.
Did not Mr Thorne say that he had made a great mistake in allowing you
and your husband to be present when he received his instructions for tbe will?
- No.
Did he not say that he would send Mr Rigby up the next day to seeo your mother
privately without you or your husband being- present ? - I do not remember.
Are you prepared to swear that be are not _Ay 80 J - No.
Did not Mr Rigby come up the next day? - It was in a day or two. I fancy it was
the next day.
Cross examination continued
I swear that I did not know until the day of the
funeral that I was to have an interest in the Settlers Hotel. I can deny
positively that I was the mouthpiece of my mothor in giving instructions to Mr Thorne
for the preparation of the seoond will. The draft of the codicil bequeathing the
jewellery to me was prepared by my husband, and I got the witnesses who signed it.
The jewellery connieted of jone rather costly set, and gold watch and chain, locket
and chain, bracelets and brooches and lings, one of them being a diamond ring.
Before my mother's death I gave a broach each to Mrs Barrison and Mrs Low. Since
this trial came on I have not offered my brother Harry anything to come on our
side with regard to the will. My husband told Harry simply to speak the truth as a
witness. I remember Harry saying that he would have been satisfied if he had
got back from mother the greenstone chain with which he had been presented by
the Melbourne Bus Company. My husband did not reply that that could be made all right.
as it waa only a matter of £16 or £17, and neither did he say that Harry might
therefore assist us.
By Mr Cottor Neither has my husband over offered opposition to either Messrs Thome
or Rigby seeing my mother alone, nor did they ever request us to leave the room.
The gift of the jewelly was first referred to by my mother, and without any
solicitation at all on my part.
When Mr Sissons was called, Mr Button suggested
to his learned friend the propriety of calling Mr White instead, as failure to do
so and the consequent opportunity for husband and wife to confer together would
be matter for comment by tbe jury. Mr Cotter stigmatised the suggestion as a piece
of presumption on the part of his learned friend. He needed not to have called
Mrs White at all at this stage, but he had mentioned the reason for doing so.
His Honor remarked that learned counsel could call tbe witnesses in what order they
pleaeed, but that comment would probably be prevented by the court suggested
by Mr Button.
Chas. Henry White, husband of last witness, was then called. He swore that
Mrs Fuller, while at his house, directed him to draw out a form of will for leaving
her jewellery to his wife. He told her it would be better to have it done legally,
and, with hor concurrence, he went to Mr Alexander and had the codicil (produced)
drawn up. He took down the necessary instructions from Mrs Fuller's lips,
Mrs Fuller had also given him instructions previously about the preparation of
the will, and he had taken thorn down, but he destroyed them when she agreed
to his suggestion that Mr Thorne should be sent for to prepare the will. He it
was who told Mr Thorne to coma up and see Mrs Fuller, and at Mrs Fullor's request
witness was presentt at her interviews with Mr Thorne. Mr Thorno did not
think it right that witness and his wife should be in the room while he took these
instructions,and neither witness nor his wife interfered.
Mr Thorne did not ask them to leave the room, although structions on the back of
a former will, which hadng the intorviow with Mr Rigby.
At Mrs Fuller's request he subsequently went down-and told Mr Thorne that
Mrs Fuller did not like Mr Rigby, as he would only make out the will a oertain way.
Mr Thorne so very vexed and angry, and said witness only wanted to find out
what was in the will, and that ths whole thing had been a swindle right through.
He almost called witness a swindler. They had some words, and when he reported the
matter to Mrs Fuller she said she had thought as much,
viz., that Mr Thorne would get nasty when he heard what she though about
Mr Rigby, and that he had no right to say what he had.
Witness told her he would have nothing further to do with regard to the will,
and that was why Mr Lewis was then called in.
He himself had nothing more to do with the will. He saw Mrs Fuller once delirious
for about two hours on the 23rd or 24th of August, while Mr Thompson was up.
She was delirious once again about October. Those fits of delirium came on when
she had anything to worry her any great excitement - ae weeks before her death.
With these exceptions up till three weeks before her death her mind was quite clear,
and she was able to transact her ordinary affairs.
The witness was cross examined at seme length by Mr Theo. Cooper.
(Left sitting).
Auckland Star, 4th Feb 1887
The Disputed Will Case.
Chas. Henry White (cross-examined by Mr Theo. Cooper):
Mrs Fuller did not say to him (pointing to Harry Fuller) "Charlie, this is my
first born son. Tell me if my children are. provided for in the will you have got
your solicitor to make.
Tell me truthfully that they are provided for just the same as in the
will Mr. Thorne made,
" Neither did he remember 'saying "I do not know what is in the will,"
nor did he remember Mrs Fuller bursting out crying, and he turning then upon
his heel and leaving the room.
He had an interview with Harry Fuller on the 26th January, but did not try to
induce him to give evidence in his favour.
Harry however said he did not care which way the will case went, but that he would
like to got back his chain.
Charlie Fuller lived with him, but he had not tried by the use of threats to get
him on his own side.
He did not tell him that if he did not give such evidence as witness wished
him to give he had power to imprison him.
Charlie did tell him, however, that Harry 1 had got him to go into Thorne and
Rigby's office and make and 'sign a statement there,
Charlie in consequence did not want to return home with bim,
but witness told him to come until it was settled who should be his guardian.
Robert Sissons, a Justice of the Pence, was then sworn. Asked where he resided,
he said that he was a sort of a cosmopolitan, as he had four daughters scattered about,
and was accustomed to give each ot them a turn.
He had known Mrs Fuller ever since she went to Whangarei, and was made executor in
her earlier wills. She came up to Auckland at his suggestion for medical advice,
and he saw her nearly every day until her death. She was in mind as sound at he
was now. She was an extraordinarily clever woman.
"Up till three weeks prior to her death," continued the witness, "she was compos mentis
as we say in the Latin"'
Up till that time ehe was well enough to transact her business,
Mr O'Meaghor began to cross-examine tho witness about Mrs Fuller's transactions
with Mr Thompson, and tbe witness persisted in giving his answers after his own
very diffuse fashion. His Honor at length intervened. He begged the witness to
"take into consideration the fact that human life had been distressingly abridged
since the Flood." From the 14th of September until three weeks prior to Mrs Fuller's
death she never mentioned the later wills to him.
By Mr Laishley: Mrs Fuller and he were engaged to be married, and on that account
they were very intimate.
His Honor: That does not always follow,
Mr Sissons. In-subsequent cross-examination by Mr Button the witness provoked
laughter by asserting hotly " I'd sooner die than tell an untruth. I don't believe
I've told one in my whole life. 1 swear I never told one intentionally.
" This witness's evidence closed the plaintiff's case, and Mr Button then opened
the case for the defence. In doing so he showed that the law regarded a will
as invalid when it was clear that undue influence had been exerted to induce
the testator to make. it.
In other words the will should be the effict of the testator's volition,
and not of somebody else's.
At the conclusion of Mr Button's address the Court adjourned till 10 o'clock
this morning.
Auckland Start 5th February 1887 page 2
The Disputed Will Case.
YESTERDAY'S PROCEEDINGS (Concluded).
Dr. James Chapple MacMillan deposed that he was in Medical attendance upon
Mrs Fuller after her arrival from Whangurei
until the 19th of October when he left for Melbourne, returning on the 24th November.
Dr. Hooper acted for him in his absence. He himself began to attend her on
the 19th August. On the afternoon of the 30th of August he attended at Mrs Fuller's
pursuant to appointment with Mr Rigby. He arrived a little late,
In Mrs Fuller's bedroom he found Mrs Fuller and Mr Rigby, and the latter explained
that he had commenced his business with Mrs Fuller.
Mr Rigby explained that Mr. Thorne had had instructions from Mrs Fuller to prepare
a will, which, on being put together, did not strike him as being exactly fair,
and that he (Mr Rigby) had come to explain this to Mrs Fuller, to see if that, was
really what she wished or if she wished anything different.
The particulars of the unfair will were mentioned, but he could not remember them,
excepting that they amounted to an unequal distribution of the property.
Mrs Fuller stated what she did wish. She said that she wished her property to be
fairly and equally divided, excepting in the case of her son Harry. She was going to
leave him £100, her reason being that she had already spent considerable sums for him.
She referred also to a young boy, who was not of age, and she wished him to be
educated and taken care of.
She seemed perfectly decided in everything she said as to her wishes as far as he
was able to judge, she was perfectly competent on that day to make her will.
Witness expressed the opinion that the instructions given to Mr Rigby effected a
perfectly fair disposition of the property. Mrs. Fuller thanked him for coming.
The disease from which she was suffering was cancer of the womb, which, as time
went on, had an extremely depressing effect both physically and mentally.
Narcotics were prescribed for the purpose of alleviating her sufferings, but not
Until October. She was allowed to take stimulants, 5 or 6 glasses of wine a day
During her last 3 weeks of her life, she was insencible almost the whole time.
Cross examined by Mr Cotter:
Mrs Fuller never complained in his presence of influence
of any person over her. He had seen both Mrs Low and Mrs Harrison, besides others,
with Mrs. Fuller during his visits to the latter.
Wm. Forbes, clerk in the employ of Mrrrs Thorne and Rigby, gave evidence
corroberative of Mr Rigby's account of the interview between himself and
Mrs Fuller at the reading over and sitting of the will. The witness was cross
examined at some length by Messrs Cottor and O'Mcaghor, and towards the close
manifested signs of faintness, which caused a little delay. After this his
cross examination was concluded. He was not re-examined. The further hearing of
the case was then adjourned until 10 o'clock This morning.
Thames Star ,10th feb 1887
A Protracted Will Case. [Press Association.] AUCKLAND, Feb. 9.
A disputed will case, which has been before the Supreme Court for six days,
occupying the attention of Mr Justice Ward and a special jury, and seven leading
members of the legal profession, came to a conclusion last night, and resulted in
the will being upheld. The parties in the suit were the three daughters and the
younger son of the late Mrs Fuller, of the Settlers' Hotel, Whangarei.
The deceased lady, while in her last illness in September last, made two wills at
an interval of ten days apart. By the former, she made special provision for her
younger son, and left the residue of the property to be equally divided amongst her
three daughters. By the latter will, however, she gave the lion's share, about half
the entire property, according to Mr Thome's estimate, to her youngest daughter
(Mrs White), the next largest slice to Charles Fuller (younger son),
and the balance to Mrs Harrison (wife of Max Rinkle, a well-known clown) and
Mrs Low (the other two daughters). This latest will was the one attacked, but it
is now upheld.
The estate is worth from £3200 to £3500, and the costs of the action,
which are to be paid out of the estate, are said to amount to from £5OO to £IOOO.
His Honor said that, if the testatrix made two wills at once, thus causing
litigation, the estate must suffer. No one came out of the case as well as the
counsel and the jury.
Evening Star, 10th feb 1887
The disputed will case," in which Mr W. J. Suiter, as executor in the estate ot
Mrs Fuller, proceeded against Messrs. Harrison and Lowe, who had lodged a caveat
against probate of the will of Mrs. Fuller, of the Settlers' Hotel, Whangarei,
has been finally settled.
After being locked-up three hours, the jury returned a
Verdict, by a majority of three-fourths, affirming the will propounded by Mr Suiter
to be the true will and testament of Mrs Fuller. The estate is worth something
over £3000, and the costs of this litigation will amount to about £1000.
Thames Star ,10th feb 1887
A Protracted Will Case. [Press Association.] AUCKLAND, Feb. 9.
A disputed will case, which has been before the Supreme Court for six days,
occupying the attention of Mr Justice Ward and a special jury, and seven leading
members of the legal profession, came to a conclusion last night, and resulted in
the will being upheld. The parties in the suit were the three daughters and the
younger son of the late Mrs Fuller, of the Settlers' Hotel, Whangarei.
The deceased lady, while in her last illness in September last, made two wills at
an interval of ten days apart. By the former, she made special provision for her
younger son, and left the residue of the property to be equally divided amongst her
three daughters. By the latter will, however, she gave the lion's share, about half
the entire property, according to Mr Thome's estimate, to her youngest daughter
(Mrs White), the next largest slice to Charles Fuller (younger son),
and the balance to Mrs Harrison (wife of Max Rinkle, a well-known clown) and
Mrs Low (the other two daughters). This latest will was the one attacked, but it
is now upheld.
The estate is worth from £3200 to £3500, and the costs of the action,
which are to be paid out of the estate, are said to amount to from £5OO to £IOOO.
His Honor said that, if the testatrix made two wills at once, thus causing
litigation, the estate must suffer. No one came out of the case as well as the
counsel and the jury.
NEW ZEALAND HERALD, 8th February 1887
LAW AND POLICE.
SUPREME COURT.-Civil Sittings. Monday.
[Before Hie Honor Mr. Justice Ward and a special jury of twelve]
THE DISPUTED WILL CASE.
The hearing of the case for the defence was resumed to-day, counsel appearing
as before. Eliza Albino Lowe, wife of John Lowe, and daughter of the late Mrs. Fuller,
in answer to Mr. Cooper deposed that prior to her marriage she lived with her
mother in the Settlers' Hotel, Whangarei, and assisted her during the time she
kept the house for Mr. Thompson, and her mother received wages on her behalf.
She was acquainted with her husband's transactions with the late Mrs. Fuller,
and the only ascistance she ever gave him was the loan of £30, which be paid back.
During tho time her mother was away in Auckland, on her last illness, witness and
her husband had charge of the Settlers' Hotel, on her mother's behalf.
Witness came to Auckland on the 4th of October. Her mother was then staying
with Mrs. White. Mrs, Harrison came to town in October, and was there three
or four days before witness left on the 14th of October. During that time a
conversation took place between Mrs. Harrison, Mrs. White, and witness in
the dining room, in relation to her mother's affairs. Mrs. White brought up
the subject of the will. She said her mother had made a will, and had left
Mrs. Harrison, witness, and Mrs. White and Charlie equally provided for.
Some time after this conversation they went into Mrs. Fuller's room. Mrs. Harrison
spoke, and said Janey had been telling them about the will. Her mother then spoke,
and said she had Mr. Carruth's will put aside, because at her death the property
would have had to be sold, and that she had given Messrs. Thorne and Rigby
instructions to make a fresh one, and that she left them all equal shares,
barring Harry. Shortly after this witness returned to Whaugarei, and came back
in the month of November, arriving on the night of the 4th, and she went to
Mrs. White's, where she stayed about a fortnight, till the 15th. She then left,
as Mr White told her she was to leave the house without giving any reason.
During that time she was only twice alone with her mother. Her mother
complained about Mrs. White being so very selfish, and that if she did not
do what Mrs. White wished, she would have to go to the hospital.
This conversation took place on the first occasion she was alone with her mother,
and the latter told I her to go on Monday and see Messrs. Thorne and Rigby,
but before she could complete the sentence Mrs. White was heard approaching,
and her mother said " Hush don't say anything ; don't speak, l am frightened
to apeak in front of her." Witness got up and met Mrs. White at the door,
and nothing more transpired.
On the next interview, about the 7th. her mother
told her that Mr. White and Mr. Thorne had a row, and Mr. White wanted her
to take all her business out of Mr. Thorne's hands, and she signed a paper
to take her business out of Mr. Thome's hands after her death, as she did not
wish them to be sighted while she was living, as Mr. Thome held a paper
she wished no one to see till after her death. There was other conversation,
but she could not remember clearly what it was about.
Those were the only two
occasions on which she had any conversation alone with her mother since
her illness. On all other occasions Mrs. White was preeent.
She was staying at this time at Mrs. White's houne, for a fortnight, and
when Mr. White told her to leave, she took lodgings, aud then left for Whangarei
on the 8th of December. She was not in Auckland when her mother died.
She reoeived intimation from Mr. White of the probable death of her mother,
but it was then too late for her to come from Whangarei, and she was not in time
to attend the funeral. She had some knowledge of her mother's jewellery.
One set, a brooch, earrings, bracelet, and locket, was value for C 5 guineas.
Witness was with her mother when it was bought, in October, 1882. She also had
a gold watch, and chain that Mr. Thompson made her a present of, ann aha had
brooches, earrings, and five diamond rings, one of which witness believed cost £50.
In cross-examination by Mr. Cotter, witness said she was 17 when she wax married.
Her husband kept his own books, but the only money she knew of her mother advancing
to her husband was the £,50 already referred to. That was in 1879, and the money
was paid back. Mrs. White seemed to be anxious not to leave witness alone
with her mother, aud followed her when she went into the room. She bad free
access to the room, but Mrs. White or her brother Charlie were always there while
she was there. Witness did not make any complaint to Mrs. White, or ask to have a
few minutes' conversation with her mother. Although Mrs. White sometimes went
out witnußH accompanied her, and she never left her in the house alone.
Charlie kept watch on her as well as Mrs. White, but although it struck her as
strange that she should be watched in this way, she never complained to Mrs. White,
Mr. White, or Charlie..
On one occasion her mother sent Charlie for a drink, and before she had time to
say anything, he returned and said Mrs. White would bring it. Her brother Charlie
used to go to school during this second visit, but while he was at school
Mrs. White watched. Witness never spoke to Mrs. White about the complaint her
mother had made. She observed Mrs. White onoe I unkind to her mother.
On the 16th of November, the day Mrs. Harrison arrived, a letter arrived for
her mother in reference to the valuation of the Kaino Hotel, Mrs. Fuller
said she had given no instruction to do so. Mrs. White flew in a rage,
and said she would take her things and leave her mother in the house to
do as she liked. Mrs. Harrison was present at the time. This wan the only
instance of unkindnese that witness observed during h«r visits.
When Mr. White told her to leave the house, he said Mrs. White and he
had a row about her, and he wished her to leave the houHe, and witness
replied that she would leave that night if it caused any unpleasantness,
but ho said he did not wish her to leave that J night; that Mrs. Harrison
was expected up on Thursday, and if witness left before the came,
it would put her mother all about, and she would want to know where
witness had gone, but if eho stayed till Mrs. Harrison came, that ha
could tell her mother ho had no room for witness. So she remained till Mrs. Harrison came on the lb'tb. Witness did not speak to Mrs. White about what her husband had said. She never saw Mr. Cave at her mother's pUoe, but she knew he was there, for Mrs. White let him in, and he went into her mother's room. She knew he was » solicitor. He was there twice during her stay: first on the Prince of Wales' birthday, and next on the following Saturday. Prior to this visit Mrs. White asked Mr. White when Mr. Cave was to come with the document, and he replied that he would be here about 10 o'olook. Mrs. White said she hoped he would be punctual, as her mother generally took her draught about that time. Mrs. White did give her mother a sleeping draught before Mr. Cavo arrived, and when witness remonstrated with her, she replied that it did not matter. Mrs. White had informed witness that tho object of Mr. Cave's visit was with reference to two allotments which h«r mother desired to have her. Witness was not present at the reading of the will, having ridden overland to get to the funeral. When witness heard about the will, knowing it was not the will her mother had told her of, she went at once and taw Mr. Carrutb. When she came to Auckland she did not go near Mrs. White's home, or ask her for any explanation about the will. She never complained to Dr. McMullen about her treatment, or the complaint made by her mother regarding being sent to the hospital. Mr. O'Meagher was about to cross-examine the witness. His Honor asked by what right he crossexamined the witnesses for the defence 1 He appeared for some of the defundants. ' Mr. O'Meagher »aid his position was an awkward one. He was made a defendant against his will by the other side. He found nothing to regulate the position in which he wan placed, 11 in Honor said that it seemed to him to give him an undue advantage to allow him to cross-examine witnesses on both sides. Mr. Button said that eo far as they were concerned they did not object to Mr, O'Meagher's crose-oxamining ; icfact, it was an advantage to them, for on 'wo or three occasions Mr. O'Mengher had elicited facts which they could not have dene. Mr. O'Meagher said there was something of a sneer and a emila in tjb*t statement. Hie Honor said that ai there was no opposition he would permit the crossexamination to proceed. Mr. O'Meaghur than put a few questions to the witness, eliciting the fact that witness bad complained to Mre. Harrison once of
Alre. White's treatment of her, but ehe could observe that both her sisters seemed to be turned against her, and for this reason she did not care to enter into conversation with either of them on the subject. The witness was re-examined by Mr. Cooper, and eaid that after Mr. Cave's visit she went into her mother's room with Mrs. White, and found her mother crying. Mr. Cotter objected to this on the ground that it did not arise out of the arose examination, but His Honor overruled the objection. Witness continued that her mother did not reply, but Mrs. White said she was crying about the worry of these papers, but did not say what papers they were. On the occasion of the second visit of Mr. Cave, or rather before it, Mrs. White told her that her mother wae to leave witness two allotments, aud that Mr. Cave was coming with the deeds. She said nothing about a will. John Lowe, husband of the last witness, examined by Mr. Button, deposed that, in 1879. he borrowed £30 fiom Mm. Fuller, and he repaid that. That was all the pecuniary assistance he ever received from hla mother-in-law. The witness was not oross-ex-atnined. Henry Colin Paller, eldest eon of the deceased, examined by Mr. Cooper, depoied that he was iu Auckland at different times' during his mother's last illness On the last Sunday of November (the 28th it was) he received a message by his brother Charlie to go and see his mother, and he went down immediately with him to Mrs. White's house, and saw his mother in bed. When ho first went in she was alone. She appeared to be sensible, and talked sensibly She started to talk to him, aud Mr. and Mrs. White came in. She told them that she wanted to speak to him privately, and they then left the room, leaving hie mother and him alone. He sat beside the bed, and hie mother told him that Mr. White had brought his eolioitor there, and that she had made another will. She said ehe was not aware what was in the other will, meaning the last one, and asked witness to call White in. Witness sug-
gested that she had better call White in,
and ask him yourself. So she rang tho bell and sent the servant for Mr. White,
who canie in and stood by the beri. She said to White, "This is my first-born
son, end I want you to tell him what was in the last will that yonr lawyers prepared for me." Sho asked him if my sisters and younger brother were provided for, the same as in the will prepared by Mr. Thorno. Mr. White said he did nab know, not having seen Mr. Thorne'a will. She then started to cry, and said he knew very well that Mr. Tborne'e will had been read over to him, and said : "tell my son what this last will contains." He replied he could not tell exactly, but everything was fixed up all right. Hß then went out of the room, and advised witness to come too, and not to bother her with business matters, as they only upset her. Witness left the room then and went out on the balcony with Mr. White, and asked him the meaning of what hi* mother had said, but as White did not seem inclined to hare any conversation about it hn did not press it, but left and went home. On th« 2nd of November, that was some time previous, he had sn interview with hie mother, who sent for him. She told him she wanted him to go to Whangaroi to take charge of the Kamo Hotel. He .said all right, and sat beside her to get her instruction!. She told him she was going to realise on the bill of sale she iia.l over Harrison, the balance of which was £312. He was to watoh the valuation in her interest, and go over the stock with Mr. Thompson. Mrs. White, who wan present at the time, interposed, and said Mr. Thompson should have nothing whatever to do with it. Mother naked Mri. Whits why she had each & down on Mr. Thompson, and she replied that Mr. Wakelin should value it, and no one else. Witness nuked his mother how it was to be, and she said for peace sake it must be Mr. Wakelin. Witness then wrote out the instructions, and Mrs. White came into the room to see the instructions signed. Prior to leaving he went into the room to kiss his mother good-bye, not k no win ij; that he would ever see her again, and she told him then to take no notice of the instructions Janey (Mrs. White) bad given him, but as Janey was so prejudiced against Mr. Thompson to go to Mr. Kyte and let him look after her interest with witness. She told him to call on Thome and Rigby and get instructions as to what he was to do. When hie mother was leaving Whangarei there was a saddle and bridle whicn she had possession of, and he took them to hie ewn house by his mother's instructions, and he afterwards received a message to take them to Mrs. White's houie, which be did immediately. He went into his mother's bed - room and asked her why she had changed her mind. She said Mrs. White would have the saddle and bridle in Mr. White's charge, and sho had to do it for peace sake. In cross-examination, witness said he was entitled to £100 under either will, and two days after his mother's death he rose £40 on it, giving a lien on the will for £50. Finally, he sold out his interest altogether for £78 to Mr. Cohen. Lie had a good idea why his mother only left him £100 was became he has been wild, and did not stay at home. Bis wife was in gaol, and he lived with a woman named Jane Tooley, at one time a nervant in hie mother'* hotel. His mother had approved of his living with Jane Tooley until he could obtain a divoroe from his wife, ami marry Jane. Mrs. White had slept under Jane's roof while be was living with her. The reaaon he did not complain of not being allowed to see his mother was that his metimr told him not to say anything about it, or Janey would fly In a passion, and tell lior to dear out. She frequently told him thin. She asked him why he did not oome to see her, and he told her he had called, but Janey said she was asleep. She said no such thing, but the Whites did not like him to come and see them. He never complained to Dr. MacMullen or Dr. Hooper of the way Mrs. White treated hie mother. The witness was also croxs-examined by Mr. O'Meagher. The occasion he referred to wae the 28th of November. She was quite sensible for a time, but he had often seen her insensible. In answer to Mr. Cooper, witness said that June Tooley And Mrs. White were on the rnoct friendly Isrme, aud Jane had attended his mother part of the time during her illness, and in faot his mother had died on some of Jane's bedclothes. (Mr. Cotter said this w*s a lie, they would contradict it.) He n«ver had any conversation with Mr. Kigby about intestaoy, and never expeoted mole than £100 under the will. Thie closed the defendant's case.
Mr. Otter intimated hie intention of calling rebutting evidence.
He recalled Mrs. White,
who positively denied the statement of Mrs. Harrison, that she had told her to cloie
the door to prevent Mrs Lowe going into her mother's room. She had in no
way prevented
Mrs Harrison from having free access to her mother. In fact, she was only too glad
to get her to help in any way, but it was hard work to get her into the nmni.
During her mother's illness witness had a servant, but witness always looked after
the cooking, and generally washed her mother's olothes, as the servant did not like
to do it. She never sent her brother Charlie to watch Mrs, Lowe or Mrs. Harrison,
but she sent him in to watch mother while they were in the dining rourn,
as she used
to try to get out of bed. She knew nothing of the conversation refered to by
Mrs. Harrison about the division of the property. The only will she knew of
was the Whangarei will.
She knew that a will had been prepared by Thorne and Rlgby, and another by Mr. Cave,
but she knew nothing, until after the funeral, of the contents of the will.
When Mr. Rigby called Mr. White and herself into the room, and informed them her
mother had signed a will, he told them nothing of the contents, but simply that
they would know the contents later on. She never denied her mother to her brother
Harry when she was fit to see him, but for ten days he never called, and witness sent
a message round for him, as his mother wanted to see him. She had slept two nights
in Jane Tooley's house, but she denied that any of the bedding on which her mother
died belonged to Jane Tooley. The only reason why Mrs. Lowe left their house was
because they had not room after Mrs. Harrison came up.
An examination in chief by Mr O'Meagher was then taken. Mrs. White deposed :
On the day that Rigby and his olerk entered to have the will executed ahe didn't
enter her mother's room, and she could not tell whether they closed the door,
as she went to the kitchen to cook, she thought, some chicken broth. Mrs Harrison
often went into her mother's room. She never prohibited any of them ; in hot,
often when her two sisters went to the play, left the baok and front doors open
so else to set a watch on Mre. Harrison or Mrs. Lowe, and no person had ever complained
of suoh restraint, or that there was any ground for it. She was generally in her
mother's room, for her mother said that ihe understood her best.
She was suffering from neuralgia, and frequently lay down to take a rest.
When she got fit of temper she did not rage, she generally sulked.
She denied that her mother was affected In any way after Mr. Care's visits,
and the statement that her mother oried after his visit was not true.
She denied even knowing the saddle referred to. Henry Fuller was in town at
the time her brother stated that it was sent for, aud ehe never dictated to her
mother about anything. Ia cross - examination the witness denied that she had
ever received a present from Jane Tooley, or that she had ever waited on her mother.
She never came there at witness's request, although she was there a good while,
witness only allowed her to come, as her mother told her that when Harry came
he would take her away. Witness let it go on till Harry came up from the
Kamo Hotel business, and on several occasions her mother hunted Jane out of the bedroom.
Jane Tooley and her mother once accompanied them to look for a house. Harry had been
told to send a cab, and they met them and drove round with them.
Mr. White was also called and examined by Mr. Cotter. The first question atked was whether previous to Mr. Cave's visit Mr. Alexander was not his solicitor. Mr. Button objected that that oould not be rebutting evidence. Mr. Cotter contended that he had power to ask with regard to undue influence, but His Honor ruled that the witness bad been cross-examined and to- examined, and he was already called as Mr. Cotter's witness. Mr. Cotter took exception to the ruling, and asked His Honor to make a note cf it. After argument, the question was allowed, and witness atated that Mr. Alexander was his solicitor, and np to the time of Mrs. Fuller's death Mr. Cave had done no business for him. The witness was cross-examined as to the circumstances of Mtb. Lowe's leaving the house when Mrs. Harrison arrived. He was ex»mined by Mr. O'Meagher and cross-ex-amined by Mr. Cooper.
Charles Fuller (the infant), ia answer to Mr. Cotter, said that he had often
aeen Mrs. Harrison and Mrs. Lowe in her mother's bedroom alone, and during these
times Mrs. White was frequently out for a walk. On one occasion Mrs. White and he
went to Mr. White's shop in Queen-street, and left Mrs. Lowe in Mrs. Fuller s bedroom,
and the servant downstairs. They were away a couple of hours, and on their return
Mrs. Lowe was still in the room with their mother.
In answer to Mr. O'Meagber, witness said he visited Thome and Rigby's office on
the 27th January. He left at about ten o'clock on a mesnage, and met
his brother Harry in Mr. White's shop, about 12. They went over to the Opera House,
where Mr, and Mrs. Harriiou were practising. Witness and his brother went into
the United Service Hotel, and Harry shouted for him a Scotch champagne.
(Mr. Button objected that this could not be evidence.) They went into the City Club,
and witness *ehoated for his brother, and they had another after, and then went
to Thorne and Rigby's office. Witness felt a bit dizzy about the head.
Witness was asked as to what transpired at Mr. Rigby's office, and objection being
taken by Mr. Button His Honor oould not see how that oould be made evidence in chief.
In farther reply to counsel, he said he signed a paper in Rigby and Thome's office,
but he did not recollect its contents.
In answer to Mr. Button, the witness said his mother told him he would be well provided
for; that he would have schooling, clothing, and a trade, bat never told him what
proportion he would have, nor was anything said about his sisters' shares.
He was now living with-the Whites. Samuel Cohen, financial agent, deposed to
knowing Henry Colin Fuller. He came to witness's office, and wanted to borrow
£40 on the security of £100 left to him in his mother's will, and told him be
could see the will at Mr. Cave's. Witness wa» quite satisfied, and he lent the money.
On Friday last be had another transaction with Fuller, who offered to sell ont
his interest. He made an appointment with Fuller to complete tho transaction,
but Fuller, when he got done, seemed to want to get out of it, and said that
Rigby had told him if they upset this will, they would all share and share alike.
In cross-examination he said hie first transaction was that he gave Faller
£42, and Mr. Cave £1 for the deed, and the bill being for £50, that left witness £7.
He could not say whether or not the £40 wae paid to Fuller, and the £2 to Mr. Cave,
but his impression was he paid Mr. Cave cash for the deed. He bought Fuller ,
whole interest for £87-
Mrs. Meredith was recalled by Mr. O'Measher with a view to showing that Mrs. Harrison or Mrs. Lowe were left in Mre. Fuller's room alone, but ahe could not give positive evidence.
At Mr. Cooper's request, Mr. Bigby was recalled, and said at the interview
uctwoun Henry Fuller, Charles Fuller, and himself, the boy was perfectly sober not
a sign of drink about him. In oross-exainination by Mr. O'Meagher the witness
stated he did not send for Charles Fuller, and he detailed the conversation
that took place. He told the boy that Mr. Laishley was his guardian, and he ought to
go to him. He told him if he liked to make a statement he would take it, but he would
ask no questions. He took down the statement in writing. Witness told him he might sign
it if he liked, and he said it was perfectly tree, and signed it.
This closed the evidence. The Court then adjourned until 10 o'clock next morning,
when Mr. O'Meagher will address the jury,
Evening Star, 10th feb 1887
The disputed will case," in which Mr W. J. Suiter, as executor in the estate ot
Mrs Fuller, proceeded against Messrs. Harrison and Lowe, who had lodged a caveat
against probate of the will of Mrs. Fuller, of the Settlers' Hotel, Whangarei,
has been finally settled.
After being locked-up three hours, the jury returned a
Verdict, by a majority of three-fourths, affirming the will propounded by Mr Suiter
to be the true will and testament of Mrs Fuller. The estate is worth something
over £3000, and the costs of this litigation will amount to about £1000.
Follwing this dispute payment on the Hotel mortgage fell into arrears
and was forced to be sold
