DEATHS.
At the Kaikorai, on the 24th inst., Mr. Alexander Gar vie. The Funeral takes place to-day, at 1 o'clock. Friends will please accept this invitation.
At Half-way Bush, on the 25th inst., Mr. Alexander Chalmers. The Funeral takes place on Monday, at 1 o'clock. Friends will please accept this invitation. -Otago Witness, 27/7/1861.
SUPREME COURT,
CIVIL SIDE.
Friday, 31st January. (Before his Honor Mr. Justice Gresson, and a Special Jury.)
CHALMERS V. BURNS. This was an issue joined between Elizabeth Chalmers, the relict of the late Alexr. Chalmers, of the Hallway Bush, and the Rev. Thos. Burns, to whom certain property had been bequeathed in trust by the deceased tor certain religious purposes, as to whether the deceased was of sound mind at the time he executed the will in question.
Mr. Gillies, who appeared for the plaintiff, opened the case, observing that although it was apparently a very simple case, it was really a most difficult one for a jury to decide, as it was no less than to try the sanity of the testator at the time he made his will. It was the desire to obtain a fair deliverance more than a keen contest between two parties. Mr. Chalmers of Halfway Bush possessed a large amount of property. He was during his life known as a sober, staid, and religious man. He became ill, and that illness induced a state of mind which must be termed unsound He was subject to extraordinary delusions with regard to those about him; he thought the evidence would show this. His conduct then was thoroughly inconsistent with his previous life. He would also call the medical man who had attended him, and the solicitor who had prepared his will, who would be able to speak of his conduct at that time. The law presumed that every one was sane until it was proved otherwise, and they must consider that the will in question was executed by Mr. Chalmers while in his sound mind, unless it was proved otherwise. Mr. Gillies then read several extracts from legal authorities bearing on the law of lunacy, after which he read the will, and admitted that it was to a great extent a very sensible will; but owing to some unfounded suspicion of his wife, he bequeathed the great hulk of his property to the Jewish Mission of the Free Church of Scotland, and for the erection of a college for ministers at the Halfway Bush. He appeared on behalf of the widow to have the will set aside, and probate granted to the widow as legal executrix, who would then be bound to distribute according to law. The executors of the will had been very unwilling to accept the office, but at length one of them, the Rev. Dr. Burns, had agreed to apply for probate in order to try the case. He then called John Gillies who said he had known Mr. Chalmers for some years before his death. He was a sober and religious man. He was rather passionate but never used bad language while he was in good health. Witness remembered calling upon him about a month before his death. He was not in bed at that time, although he generally was. His bedding was lying on the floor almost in the fire. He was sitting by the fire wrapped up in a blanket. He was peeling and eating a lot of cold potatoes which were in a plate on his knees. Witness remained with him about two hours. He kept talking nearly all the time. His language was most indecent, and it was impossible to check him. He spoke in a most filthy and revolting manner of his wife, and he insisted that she was always listening at the door, and that if witness would look he would find her there. He went once or twice to look but she was not there, but the more he was reasoned with about it the more positive he became. His whole conduct and conversation was totally different from what it used to be when he was in health. Witness advised him to get medical advice, but he stopped him at once by saying it was no use as it would only do him harm, as all that ailed him was his stomach being a little out of order and that he would be all right if he could get his food properly cooked. As he was going away Mrs. Chalmers expressed a wish to consult with witness, but he declined lest it might irritate her husband if he heard of it.
Cross-examined by Mr. Cook. — There was nothing peculiar in the way the deceased was eating the potatoes when he called. He had the character of being penurious, but he lived in a fair plain way. Witness had known the former wife of deceased, and they appeared kind and affectionate to each other. They had two children, and by his second wife he had one. He and his second wife appeared to live happily until he became ill. Before the death of his first wife he seemed to favour his second son to the neglect of his eldest son, and this feeling always continued. He was ill about three or four months before his death. Witness thought he had seen him once before and once after the interview he had described, during his illness. He did not observe anything peculiar in the first interview. He did not know of anything in the affairs of deceased to cause derangement, except disease. There was a most marked change between his behaviour on the first and second occasion on which he had seen him. During the first interview the conversation was chiefly of a religious nature, and the deceased appeared perfectly rational. There was a considerable interval between the two interviews.
By the Court. — The last interview he had with deceased he was lying on a bed on the floor, with his head nearly covered up by the bed-clothes. Witness spoke to him, but he did not appear to hear him; but, after speaking to him several times, deceased replied, "I am so weak, I can't speak to you," and again covered his head with the clothes. Witness remained about a quarter of an hour, and then he spoke to him several times, he never replied, except once, when he asked him if he should pray with him, when deceased replied yes. Witness did so and then went away.
Mr. Johnson said that he was a solicitor, and knew the late Mr. Chalmers, slightly. He had prepared the will (produced) for him. He gave the instructions for it personally. He was at that time at Mr. Sibbald's house, in High-street. The will was executed the following day. He first gave the instructions on Monday morning, and on that occasion he appeared very inconsistent. When he began, he was perfectly clear and business like, but as he went on he became confused, giving instructions on a particular point, and then breaking off in the middle, he would ramble to some other point, leaving the previous one quite unsettled. That was about between 10 and 12 o'clock in the morning, and he wanted the draft of the will, by half-past 3 o'clock the same day. Witness took it to him about that time, and deceased told him to bring his chair as close to the bed as possible, and to read the draft in as low a tone as possible, so that it could not be overheard. Witness did so, but the deceased interrupted him every minute or so, by saying "you are too loud sir, you are too loud, everyone in the house will hear you." Witness was reading at the time, almost in a whisper. Witness had omitted the words "in connexion with the Free Church of Scotland," after the bequest to the Jewish Mission, and the deceased was very excited about it. The deceased insisted on having the will engrossed in duplicate, by 9 o'clock next morning, and that no clerk was to be employed. Witness found it impossible to complete it by that time, and told him so next morning, but promised to have it by the afternoon. He was not at all satisfied as to the sanity of the deceased the previous day, so on this account he made some suggestion about substituting Mr. Stuart's name for Dr. Burns, as trustee, to which the deceased replied that he did not approve of Mr. Stuart, and believed him to be unsound in his doctrine. Witness then made some remark about the Jewish Mission, when the eyes of deceased became fixed and he got very excited, and he said it was not of much consequence about the bequest, as he believed the Jewish religion would prevail over the whole earth in a very few years. Witness brought the engrossed will at about four o'clock that day, when it was executed. He then directed witness to put the duplicates into envelopes, and to seal them with his notarial seal. He did so, and handed deceased one envelope, and retained the other as deceased directed him. He then handed deceased his account for drawing the will, when deceased said he could not pay as he had no money. Witness pressed him, but could get no satisfaction, being told he never got paid in a hurry. He called again the next morning and told deceased if he had no money he would be satisfied with a cheque on the bank, to show that he owed the money. Deceased replied it was no use, as he had no money in the bank. He then got very angry, and abused witness in unmeasured terms, threatening to send for a policeman to remove him if he did not leave the room.
Cross-examined by Mr. Cook: His manner at the first interview was such, that the witness was led to doubt his sanity.
James Marshall said he had known the deceased for twelve years. He was always moderate in his language, and appeared to be a religious. Witness had visited him during his last illness and had observed a great change in his character and conduct. No person could please him, and he often threatened to strike his boy with his stick. He was always complaining of his wife after he became ill. she did everything she could to please him, and gave him no ground for his complaints. He even went so far as to forbid her his presence. About the middle of July, witness and Mr. Proudfoot went to his house, when he talked rationally at times, and at other times very nonsensically. When they wanted to go away, he said they were both blackguard's because they would not remain with him all night as he expected to die before morning. He also said that if they went away he would get up and run down through the bush to the house of witness. On the following morning he made witness take him to town, as he said he wanted to get quit of the place, his wife, and family. He said someone would take him in. He remained in town about three weeks. Witness did not see him again before he died.
The cross-examination of this witness was unimportant.
By the Court: There was no provocation given by his son when he threatened to strike him.
Angus McMillan, said he had seen a good deal of the deceased as he was his next neighbour. He observed a great change in the conduct of deceased towards his family during his last illness. He would not allow his wife to come near him while ill, as he complained that she could do nothing to his satisfaction. Witness never saw anything in her conduct to give any cause for these complaints. There was nothing in the conduct of the deceased to lead to the belief that his mind was affected, except his conduct to his family.
Jane Barnwell remembered Mr. Chalmers coming to lodge at her house on the 1st July last. He was very strange in his ways. One night he took the fire out of the grate and put it in the centre of the room on the carpet. He said that she did not give him fire enough, but the fireplace was quite full at the time, and there was also wood beside it. One night he called her up, and asked for bread, although there was a plateful of it in the room. He abused her very much, and said she was starving him. He left her house without saying a word to anybody about it. He had been there 11 days.
Cross-examined by Mr. Cook — He used to be dressing and undressing the whole of the night he was at her house, he was so restless. In the daytime he used to lay in bed generally. It was about one o'clock at night when he put the fire in the middle of the room. She slept in the next room and she heard him. He never took his food regularly. He sometimes complained of his digestion, and used mutton chops generally, drinking ginger beer and tea. He was generally very talkative, and talked to himself all night. He sometimes spoke rationally, and at other times he talked great nonsense, using very bad language, complaining of not being properly attended to. He used to talk in such a strange way that she could not understand his meaning. He never mentioned his family or state of religion.
Elizabeth Sibbald remembered Mr. Chalmers coming to live at her house in July last. He remained there ten days. He sometimes spoke in a very foolish manner. When he complained it was chiefly against his family. He was very troublesome, whimsical, and changeable. He staid at her home one night after Mr. Johnson was there. About a week before that he came in one evening when he was passing by and he remarked that he looked very ill. He said he was going to the Provincial for dinner as he had none for eight days. He went but did not get any dinner and returned to her house. She offered him some dinner but as soon as she brought it he ordered her away with it.
Cross-examined by Mr. Cook. — He did not rest at night during his stay at her house. He said it was full of rats but there were none in the place.
Edward Hulme, M.D., said he had attended the deceased during his last illness. He was suffering from disease of the lungs, and complained of weakness and loss of appetite. When he first saw him he did not observe anything peculiar about him. From the morbid state of the deceased's mind he was led to believe that his mind was in a weak state in consequence of bodily disease. He was labouring under disease. Witness thought that the evidence he had heard in Court respecting his conduct during his illness was inconsistent with his being of sound mind.
Cross-examined by Mr. Cook. — He thought that those who were most kind to him were his enemies and doing all they could to annoy him. He had also an aversion to all his relatives.
By the Court. — Aversion to particular persons is an uncommon symptom in illness and by the medical profession is always considered us a proof of insanity. Disease may produce a great amount of irritability, but not to such an extent as in Mr. Chalmers' case. It was more than bodily ailment. A person in such a state could not be considered as in sound mind.
Mr. Cook then addressed the jury for the defendants, who had no personal interest in the matter, but simply acted as one of the trustees of the testator, and they only wished to see the case fairly and impartially investigated. He admitted that the evidence was of a most serious nature, especially that of Mr. Gillies, Dr. Hulme, and Miss Barnwell, on whose testimony he thought the question would turn. He would not detain them by commenting on the evidence, but would call the attesting witness to the will.
Charles Reid said that the signature to the will produced was his. He saw Mr. Chalmers sign it, and declare it to be his will.
Mr. A. Anderson, was also present and signed it. Mr. Chalmers appeared to he very ill, but there was nothing in his conduct to lead to the belief that he was of unsound mind. They remained in the room about twenty minutes, and during that time Mr. Chalmers looked over the will.
Andrew Anderson, the other attesting witness to the will, gave similar evidence to the last witness.
His Honor, in charging the case, laid down the law of insanity, and after going over the evidence, he remarked that, although cases of this kind were often of a most difficult character to determine, he did not think that the jury would find this to be one. He thought the evidence was most clear and distinct, that the deceased was labouring under delusions which might have the effect of rendering him of what was called unsound disposing mind. If the evidence proved that the deceased had been of unsound mind, within say six months of the time in question, then they would be bound to find for the plaintiff, and it would fall on the other side to prove that he had been in his sound mind at the time he executed the will. The property affected by the case was very considerable. He believed that it amounted to about £18,000.
The jury after a few minutes' absence, returned as their verdict, "That the deceased Alexander Chalmers was not of sound mind when he executed his will."
This being the last case of the session, the special jurors were discharged, and the Court after making several orders, was adjourned until Monday next. -Otago Witness, 8/2/1862.
IMPORTANT SALE BY AUCTION
TUESDAY, 25th MARCH.
ESTATE OF THE LATE ALEX. CHALMERS, ESQ., HALF-WAY BUSH.
MR. WM. CARR YOUNG has received instructions to sell by auction, on Tuesday, the 25th of March, at the Farm, Half-way Bash,
All the Household Furniture, Fanning Implements, and Other Effects; together with the Stock, comprising Horses, Dairy Cattle, and Bullocks, the property of the late Alexander Chalmers.
Sale to Commence at 11 a.m.
Terms at Sale.
No Reserve.
Catalogue to be had at the Office of the Auctioneer a week before the Sale. -Otago Witness, 1/3/1862.
DIED.
On the 26th August, Elizabeth, aged eight years and nine months, only daughter of Elizabeth and the late Alexander Chalmers, sen., late of Chalmerston, Halfway Bush, Otago. The funeral will move from her late residence George street, near Dundas street, at 2 p.m. Friends will please accept this invitation. Home papers please copy. Spicer and Murray, undertakers, George street. -Otago Daily Times, 27/8/1864.
Elizabeth's mother, also names Elizabeth, remarried and was laid to rest in the Southern Cemetery in 1905, aged 86.
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