SUPREME COURT.

Press, Volume XLVIII, Issue 7830, 7 April 1891, Page 3

SUPREME COURT.

SITTINGS AT 2tlSI PRIUS.

Monday, April & (Before his Honor Mr Justice Dennlston and a Special Jury of four). The Nisi Prius sittings of the Court were resumed at 10.30 a.m. PARISH V PARISH. j In this case John Parish, a* the surviv- i inn trustee under the will of William Parish, deceased, was plaintiff, and Jacob Parish, one of the sons cf the testator, defendant. By the will of the testator certain property was left to the plaintiff and ono John Thomas Brown, since deceased, in trust for the benefit of the widow and children of the said William Parish. The trust set forth that the widow should, during her lifetime, or until her second marriage, enjoy tbe rents and profits of the estate. It was further provided that on the death or second marriage of the widow the property was to be divided up between the seven sons and daughters of the testator as tenants in common. The testator died In 1878, and his will was made in 1850, Between the time of the will being made and the death of the testator, and np to the present time, the defendant was in possession of a rural section purchased by the testator, for which a Crown grant was issued to him. The plaintiff in the present action claimed that the land in Question should come into the general property and be divisible between tbe various sons and daughters of the testator. The defendant, on the contrary, claimed that the land belonged to him as a gift from his father, the testator, and also on account of certain moneys advanced by the defendant to the testator. He further claimed that he was entitled, besides the piece of land now occupied by him, to his share of the property equally with the other children of the testator when the division of the property under the will came about. The defendants applied to have the land placed under the Land Transfer Act, but the plaintiff, on behalf of the other children, entered a caveat agalust the defendant dealing with it. The present action was brought to decide the question of the caveat, and plaintiff alleged that he did not desire, on the part of the children, that the possession of the land should be taken away from the defendant, but that he should be restrained from bringing the land under the Land Transfer Act. The brothers and sisters of defendant stated that they were quite willing that the defendant should keep the land, and If the value of the land was over what was coming to the defendant' under the will of the testator when tbe estate came to be distributed they would not call upon blm to refund the over amount. On the other hand, if It were found that the value of the land was less than his share, as ascertained, they would be prepared to make it up. Under these circumstances the plaintiff claimed that the Court should declare the land now occupied by the defendant as portion of the estate divisible amongst the sons and daughters of the testator. The defence alleged that the defendant was working with his father, without wages, up to the time that he was twenty-three years of age. In tbe year 1860 defendant alleged that the testator, in consideration of the working by the plaintiff for many years without wages, bought for him the section of land now in dispute, and that he had expended a good deal of money upon the land in the way of improvements, &c. It was also alleged that the defendant entered Into possession of the land in 1861, and bad continued in possession ever since. That in the same year the testator, at the request of the defendant, erected a house on tbe farm, in consideration of the testator being allowed to sell the grain of defendant aud to pay himself out of the proceeds. This was done. The next year the testator borrowed £140 from defendant! and In the year 1867 the testator received some £40 more on account of the sale of grain. In the year 1869, defendant let the land to Mr Ladbrook for three years under an agreement as owner. The testator was present on the occasion, and made no objection to tbe defendant being treated as owner and receiving the rent. Subsequently, the defendant returned to tbe land at the expiration of the three years. During this period, he was working partly for himself and partly for his father, and received no wages. Mr Geo. Harper appeared for the plaintiff; Mr Deacon for the defendant. Mr Harper openea the case for the plaintiff, and put iv the Crown grant and 'probate of the will, the onus of proving the title to the land being on the "defendant* „ . Mr Deacon opened his case, and called evidence in support. Learned counsel addressed the Court, and his Honor summed up. it being understood that the jury would find questions of fact, leaving the legal questions to be argued later. • The jury found that there had been no gift of the land to the defendant, and that he had made certain improvements thereon to the knowledge of the testator. ' The legal points will be argued in banco. The Court then rose.