DISPUTE ABOUT GIFT

Press, Volume LXXI, Issue 21506, 22 June 1935, Page 6

DISPUTE ABOUT GIFT

RETIRED TEACHER'S ESTATE SUPREME COURT ACTION J A claim to have determined whether certain moneys were given by the late James Gillander3, retired school teacher, of Christchurch, to his sister Rachel Gillanders, during his lifetime, was heard in the Supreme Court yesterday before his Honour Mr Justice Northcroft. His Honour found that there was insufficient evidence to show that the gift had been made. The plaintiff was Alfred Steventon Nicholls. executor of the will of James Gillanders, and the money involved was the sum of £760 15s 6d, being superannuation moneys handled by the defendant in the last four years of James Gillanders's life, since she was appointed his agent to collect them in January, 1930. Defendant maintained that from 1931 Gillanders made her a gift of his superannuation money, but plaintiff asked for full accounts and for the return of the residue remaining from payments made on behalf of the deceased. Mr C. S. Thomas appeared for the plaintiff and Mr W. It. Lascelles for the defendant. Mr Thomas said that James Gillanders died in November, 1934, aged 70. For some time before his death the defendant, his sister, had collected his superannuation moneys and paid certain sums for him. After his aeath defendant had contended that the balance of the money was a gift to her. Mr Lascelles said that testator had left an estate worth £IB,OOO, with considerable charitable bequests. The superannuation amounted to £lB ws, 3d a month. Superannuation Moneys Rachel Gillanders said that after his stroke in January, 1930, her brother had asked her to make arrangements to be appointed his agent to collect his superannuation money ai the Post Office each month, as he was partly disabled. She used to collect it and pay it to him at his house. After the second stroke a year later he went to "The Rowans" hospital. There she asked him what should be done with the money then. He was most emphatic that he wanted her -to keep it and pay it into her ov/n Post Office account. She had been reluctant to do this, but he had insisted that she should keep it all. At the end of every month she told him it was pay day and gave him an opportunity to say whether he wanted It. He had not done so. Her brother's mental condition up to April, 1932, was good. Nicholls. as her brother's solicitor, had asked her in October. 1932, what was the position about the superannuation money. She had told him that her brother had given it to her, and she was sure he meant her to keep it. Questioned by him, she had said that she had no proof of this beyond her brother's word, and he had said that he was afraid this was insufficient and she would have to account for the money. She had offered to hand the money over to Nicholls, but he had told her to continue. She had thereafter treated the money just as before, giving her brother any he asked for, and often asking him if he wanted any change Her brother had been most careful in his dealings with money, and she was sure he knew what he was doing. She had made no disbursements from the money except for the testator. With his consent, she had made an allowance of £2 a month for her sister Margaret, and had also allowed £2 a month to enable her brother Robert, of Rangiora, to visit the testator twice a week. She had collected the money for three years and 10 months, making a total of £768 153 6d. Payment Disputed On her brother's death she had shown her statement of the use of the money to Nicholls, who had disputed the payment of £92 to her sister Margaret. She had told him that although she might not have a legal claim to the money she had a moral claim, and that it was his fault if her claim wa3 not legal. Cross-examined by Mr Thomas, witness did not agree that the keeping of a full account of the moneys from the first was inconsistent with knowledge that the money was a gift to her. She had never obtained a signed document because she did not wish her brother to think that she wanted to obtain his money. Alfred Steventon Nicholls, solicitor, said that he had been a close personal friend of James Gillanders for 25 years and had been a constant visitor to him in bis home find In the hospital

He had handled Gillandcrs's business affairs for him. When he had asked Gillandert about his superannuation, the reply was: "Rachel is attending to that." He denied that Miss Gillanders had told him in 1932 or at any time before testator's death that her brother had given her the money. The first time he was told of it was in December, 1934, after the death of Gillanders. He had then told her that she would have to establish proof of the gift. He was unable to find any evidence substantiating the gift. Had he known anything of such a gift he would have had the position made clear Robert Ross Gillanders, a brother of the deceased, said that neither his brother nor the defendant told him the money was a gift to her, the first intimation of this claim being given bv Nicholls after the death of James Gillanders. He denied having suggested to the defendant that she should divide the money with him. He had said that if Nicholls, as executor, did not ask for the money he thought it fair to divide it. His Honour said that in such a case, where a deceased man was naturally not available to give evidence, and there was no evidence apart from that of the defendant, the proof must be strict. He gained the impression that Miss Gillanders believed that she was speaking the truth. He entertained some doubt, however, whether Miss Gillanders had always held the same view about the money as she did now. Many of her actions—such as the keeping of strict accounts of *he money and the generous spending from it on her brother—were not consistent with it being a gift to her, and seemed to indicate that from the beginning she realised it would have to be accounted for. In the circumstances he must hold that the proof was not sufficient. He did not wish it to be thought that Miss Gillanders was accused of any wilful attempt to mislead the court. The evidence fell short of the standard required in that sort of case. The defence could not be sustained, stated his Honour in conclusion. He made an order referring the accounts to the registrar.