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4 corrections, most recently by doug.butler - Show corrections

A DISPUTED WILL.

ESTATE OF THE LATE MR. ROBERT

DIXSON.

THE UNIVERSITY INVOLVED.

TWO CAVEATS LODGED..

EVIDENCE FOR THE PROPONENTS.

The hearing of the case arising out of the   dispute in connection with the will of the late Mr Robert Dixson, formerly of Vic- toria, but late of Church road, Burgess Hill, London, tobacco manufacturer, was resumed in the Banco Court jesterdn), before Mr Justice Holroyd, without a jury.  

Mr Purves, Q.C., and Mr Topp appeared     in support of the will, and Mr Isaacs and  

Mr Coldham for the caveators.

Samuel G Pirani, of the firm of Messrs Braham and Pirani solicitors noting tor the proponents of the will resumed his evidence, and produced letters telegrams and other documents mainly connected with the nego-   tiations carried on between testator and his   wife with a view to a judicial separation.

Mr Topp- You remember the negotiations   in November, 1889, as to whether Mrs Dikson should have power to dispose of £3,000 of the £9,000 to the eldest son, Hugh?   -Yes. Testator said that Hugh should have nothing for he had taken his papers and he did not intend to give him anything. I told  

bim I did not sec that it mntle nil) difference,

for if the £0,000 wore divided between Walter and Lilian Helen, they could still give Hugh a third: and he replied, "Oh, well, then, they would only have £0,000." I said to him-" Mr. Dixson, you had better settle this matter. It seems to me it does not make much difference how it goes. You are willing to give £3,000, and you had better let them arrange themselves how they will divide it." He said-" Well, I am not going to give him £3,000." I pointed out to him that if he left it to Mrs. Dikson for her to dis- pose of it he need not mention Hugh at all, and testator then agreed to that course.   He declined to alter the terms to   which he agreed. He would, however, like to have the blind but said that if he did take the blind boy, Mrs. Dixon's allow- ance would be reduced by £100 a year. On the 14th December he said he was going to keep the blind boy Walter, and that Mrs. Dixson should not have the extra £100 for his keep. I told bim that for a man in his posi- tion it was a matter not worth fighting

about.

What was his reply to that? -He said, " I don't care ; I am not going to let Mrs. Dixson have all her own way in everything. I have already agreed to let her have the disposal of £3,000, and I think she should not ask me to give way in the matter of the £100. I am going to fight it." I told him I thought he was wrong, but that I could only advise him as to what he ought to do, and that if he did not follow my advice, he must, of course, do as he liked, and he did not alter his position. On the 5th February the deed of settlement was drawn up, and two days later the will in dispute was made as described by counsel. Testator, when be gave instructions for the will, was in my office about an hour and a half, and, in my opinion, was perfectly sober and rational, and capable of understanding and transacting business-as far as I could

see, I never saw a man more capable.

On the 24th February, 1890, Mr. Temple- ton, manager of the Trustees, Executors, and Agency Company, called at your office. -Yes, he told me he had received the following message from testator,

"Am very ill. Think I am dying. Please come   here at once and send doctor and nurse. Telephone

your office to send out clerk and caretaker imme-

diately."

Mr. Templeton told me he had sent Dr. Fetherstone out to Hiawatha and asked me also to go out.

Did you go out ?--Yes, I saw him dressed in one of the downstairs rooms. He seemed very ¡ll and shaky. I said, " Mr. Templeton asked me to come out to see you in conse quence of a letter you sent him this morn- ing, Have you seen Dr. Fetherstone?" He said "Yes" I said, "What is the matter with you?" and he said, "I am very ill with   diarrhoea" I saw what was the matter with   him.    

He had been drinking ?-He had evidently been drinking heavily. He had the appear- ance of a man who had been drinking heavily.

His Honour.-Was that the first time you had seen him intoxicated ?-It was the first time I had seen any indications of drink

about him.

Mr. Topp.--He was not intoxicated, but he had been drinking .-Yes,-and he was very shaky. He said he was going to sell his furniture, let his house, and go home to England as soon as ever he could get away. He showed me his house and also some pictures, which he said he would not sell be- cause they were valuable, he having paid a lot of money for them. I formed a different opinion in regard to the value of the pictures, and advised him to dispose of them. He did not seem inclined to do this, and I asked him what he intended to do with them. He said he was going to store them, but I told him that if he did they would eat their heads off. He then concluded to consult Mr. Templeton before he did anything in regard to the

pictures. He showed me his books, of which there was a good lot. I noticed a loaded re- volver on the mantleshelf, and said, " You had better give me that." He replied, " Oh, you need not trouble about that ; it will do   no harm'" ''He then showed me his dogs, and I came away.

On that occasion did he seem rational ? Yes. He smelt of drink, but seemed rational and to understand what he was talking about. He had evidently been drinking a great deal. That was the last occasion on which I saw him at all.

When he came to your office how did he appear as to dress ?-He usually dressed in a  

black frock coat, and looked neat enough. At other times he dressed in a flannelette suit, and looked rather slovenly.

Was he clean?-He was always clean in his appearance. He usually had a black bag, which he sometimes slung over his shoulder with a stick, and I think he walked a little lame. '

Cross-examined by Mr. Isaacs,-You first made his acquaintance in June, 1889, and then lost sight of bim until October ?-Yes.

And in your interviews with bim you never   noticed any signs of drink about him?-Not until the 24th February, 1890. I attributed his tremulous writing to extreme nervous-

ness. "  

How old did he appear to be ?-About 50.  

As a fact he was about 47?-I do not know, '

Mr. Isaacs.-Did his writing strike you as peculiar?-I have never seen any writing like

it. It struck me ns the writing ol an extremely

nervous man. '

Look at the signature to the will?-Yes. The " Robert" is worse than the " Dixson."

Does it not bear evidence of extreme nervousness ?-Extreme shakiness.

Is it not as though his hand trembled all the way down the stroke?-Yes.

Did he show any nervousness in his talk- ing?-No he was a self- contained man,   who did not talk much at any time. He simply answered what was asked, and said what he had to say.  

On the 23th October, 1889, he told you he had already made a will in September, con- taining a provision, that not moro than £3,000 should be spent in tracing the history of his sons, Hugh Robert and Robert Frederick,   and also of his wife's mother, Rosannah   Major, with a view to clearing his character   of the foul aspersions cast upon him by his wife and eldeest sons?--Yes I told him   a charge against his sons was a very extra- ordinary one, and asked him if he could   prove it.              

Did you ever subsequently call his attention to that provision?-Never.

Why did you not, when he was making the will in dispute?-Because I understood that he had settled everything by the deed of separation. I myself was satisfied in regard to the accusation , but he said that when the time came he would be prepared to substan- tiate the charge.

Did you not observe that this extraordinary provision was with a view of clearing his own chaiaeter?-I understood that the deed of separation had cleared everything - that he was not going to press the matter any further, and that the family were not going to press the charges against him any

further.

You havo said that in your opinion the testator was sane. Did it not strike you as   extraordinary that he should make such a   provision in regard to his mother in law?-I did not pay much attention to that. (Laugh   ter ) I had formed the opinion that his accusation against his sons was not true, but that as his wife had made charges against him he made accusations true or false against the family, in the hope that some

would stick

He made accusations which he knew were not true?-I had formed that opinion. It was quite enough for me that a man should make such a charge against his sons, whether   that charge were true or not. He never gave me any evidence that would crush Mrs Dixson should she come into court in the proceedings for separation.  

Did yon get any letter trom Mrs Dixson to

Mr Dixson -None

Or from Hugh? -He never brought me any letters.

Have you seen any? -I think I saw some in the evidence taken on commission.

But apart from what is in evidence?-No, I saw no letters outside of this case, and I

know of none

You remember during the negotiations for   a settlement his saying that his balance sheet was disastrous? -Yes but I believed that to   be untrue-to be a piece of bluff.

What did he tell you about Mrs Dixson?-   He said she was a very extravagant woman,

who was fond of society, while he was not, and that they did not agree, and had not agreed for a number of years He said he was fond of reading while she was fond of dancing, which he did not care about.  

Did he ever say anything about Lilian? - He told me Lilian sided with her mother in connection with the separation proceed-

ings.

Mr Isaacs read the following note, ad- dressed to his wife, under date Adelaide, 3rd September, 1889 -

" I distinctly repudiate you as my wife, and here- after ignore your existence - Robert Dixson."  

His Honour -That is the date of the former will

Mr Isaacs read the following telegram, dated 6th September, 1889, from testator to

his wife -

" Please don't write any more letters. Yon only     make things worse for yourself, Walter and Lilian. Strike as hard as you like. Cease this fooling and I   will allow you £450 a year for yourself, Walter, and Lilian, and £300 for furniture, on condition that you   reside in Sydney. If offer is not accepted by tele- gram before noon tomorrow it will be withdrawn For the children's sake try and be reasonable if you   can. What can you gain by your bad conduct?  

Robert."

Did he ever tell you why he did not want   to part from Walter?-My impression was that he wanted to save tho £100 a year.  

He did not manifest any tenderness for Walter? -Not in the least.

Did he ever tell you of a letter he wrote to     his brother Hugh saying he wished Walter to

live with him and would make every pro- vision for his comfort, and that as he was Walter's legal guardian he would take legal action if an attempt were made to keep Walter from him?-He did not consult me about thnt.    

Did he ever say that he had ever loved his wife or any of his children at all?-He did

not.

Mr. Isaacs read a letter from testator to Mrs. Dixson dated 24th December, 1889, in which, after speaking of the unfortunate character ol their marriage, he said :

" I always meant to leave you, Walter, and Lilian, the bulk of my estate. When I am dead what would

it matter to me who has it?"-  

His Honour.-What does that mean, 'I always meant, ' &c.?              

Mr. Isaacs.-Of course it will form matter

for comment, afterwards. On the 6th January, 1890, he sent a letter to his wife;-  

"Too ill to attend to business. Cannot be bothered by trifles. You are inhuman. Have decided to give up business and study only health. Competition is

severe in Adelaide, and all three factories losing

heavily.'"          

Had any deeds whatever been signed on the 6th January.-Nothing had been signed at that time. The first was on the 5th Feb- ruary. He said nothing to me as to his Adelaide business at that time.

Did he ever tell you his wife's maiden name was Whingate?-I have heard that from

others.

You don't think it was from him ?-I think I saw it in an exhibit to one of Mrs. Dixson's affidavits in the separation proceedings.

On the 20th February, 1800, he sends this telegram to Mrs. Dixon :

"Whingate has shot her last bolt. My turn has

come.-Robert Dixon."

Whingate is the name of a man whom tes- tator in the separation proceedings spoke of in connection with his mother-in-law, and that telegram apparently refers to her. Then, on the 16th February, nine days after the will was made, he sent this tele- gram to Mrs. Dixson :

"Think I am dying. Come to Melbourne imme-

diately. If recovered sufficiently will make codicil giving you another £2,000, conditions that you accompany me to Europe by Salazie."

At the bottom of the telegram is the word "codicil," and "Robert Dixson." Did he ever communicate to you the fact that he had requested his wife to accompany him to Europe ?-No.

The Court adj'oumed until Monday morn- ing. .

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