UNDUE INFLUENCE ALLEGED

Press, Volume LXXXIV, Issue 25435, 5 March 1948, Page 5

UNDUE INFLUENCE ALLEGED

CLAIM FOR RETURN OF PROPERTY A claim for the return of property and money was heard by Mr Justice Fleming in the Supreme Court yesterday. The plaintiff was Harry Pierson, of New Brighton, a retired labourer, and the defendan* w ®s Mrs Freda Elizabeth Ashby. .Mr G. C. Sandston appeared for the plaintiff and Mr A. W. Brown for the Public Trustee, as administrator of Mrs Ashby’s estate.

The statement of claim said that the plaintiff was 73 and had always been deaf and dumb. In February, 1947, the plaintiff was living at his home at 7 Estuary road New Brighton, when the defendant, whom he had known 20 years previously, took up residence .there without his permission and his wishes. The defendant proceeded, by menaces, threats and undue influence, to take over the plaintiff’s assets, which included the house property valued at £315, a deposit of £359 in the post office savings bank, the sum of £369 in cash, £327 in a National Savings account, 110 fully paid £1 ordinary shares in Whakatane Paper Mills, Ltd., and one £lO debenture in Whakatane Paper Mills, Ltd. It was further stated that the defendant was committed to a mental institution in July. 1947. The plaintiff asked the Court to void the transfers of his property and shares end to make an order for their retransfer to him. He also asked for judgment for the sum of £1069. "This is an unusual case and some of its aspects are quite unusual,” said Mr Sandston. "For most of his life the plaintiff was a farm labourer and for several years he worked as a rover for a family named Beker on a farm at Flaxton. The defendant was formerly a Miss Beker. Pierson was industrious and thrifty. Ten years ago he bought the home at 7 Estuary road and in February, 1947, he asked Mrs Beker (the defendant’s mother) to come and make her home with him. Mrs Ashby came, too, though he did not ask her and did not want her. Mrs Ashby is a big, masterful woman, who dominated Pierson. Her actions were conditioned, no doubt, by her mental state—she was committed to a mental hospital on July 24, 1947. Her mental state was of a dangerous kind, which would be frightening to ordinary people, so 4 we can only conjecture what it would appear to a timid, little man like the plaintiff, who is cut off from the world by reason of his being deaf and dumb. “It was not long before Mrs Ashby edged her mother out of the house and she then proceeded to carry out her scheme to get the plaintiff’s property,” continued counsel. "There was only £4 8s 9d left in Pierson’s Post Office account when Mrs Ashby was committed to a mental hospital, but there is about £238 in the hands of the Public Trustee. The plaintiff says he did not want to carry out the transactions, but Mrs Ashby locked threatening and menacing. My main submission is that Pierson was not

a free agent. She made him sign post office withdrawal slips and hand the money to her.” Mrs Ashby went to live at 7 Estuary road in February, 1947, and from then to July, 1947, practically all the plaintiff's money was withdrawn from his post office savings bank account. Mrs Ashby had two bank accounts, one in the Bank of New Zealand and the other in the Bank of Australasia, said counsel. On February 24, 1947, the sum of £144 was withdrawn from Pierson’s post office account and the same day £144 was paid into Mrs Ashby’s account in the Bank of New Zealand. On February 28, 1947, the sum of £4O was withdrawn from Pierson’s post office account and, on March 3, £4O was paid into Mrs Ashby’s account in the Bank of New Zealand. The intervening days were a Saturday and Sunday. On March 14, £46 was withdrawn from his post office account and £46 was paid into Mrs Ashby’s account in the Bank of Australasia on March 17. The intervening days were a Saturday and Sunday. On March 28, the plaintiff and Mrs Ashby called at the office of a legal firm and Mrs Ashby told the solicitor that the planitiff wanted to transfer his house property and mortgage to her as a gift. The solicitor, Mr H. S. Clark, warned plaintiff of the import of the transaction and suggested he should get the advice of an independent solicitor. The transaction was not completed and Mrs Ashby and plaintiff left the office. On April 2, the plaintiff, his brother and his sister, called on Mr Clark and it was decided that Frederick Pierson should apply -to the Supreme Court for an order appointing him manager of his brother’s affairs, but plaintiff did not sign the form of consent. On April 16, 1947, Mrs Ashby called with plaintiff on another solicitor, Mr H. W. Hunter. Mrs Ashby said that Pierson wanted to sell his property to her for £350. Mr Hunter did not know either party and thought it, was a straightout deal. Mrs Ashby drew £4OO from her account in the Bank of Australasia and preferred Mr Hunter £345. He took £245, and when the sale was completed. Mrs Ashby paid the other £lOO. Mrs Ashby told Mr Hunter that Pierson wanted to be paid in cash and this was done. Pierson receiving £344 14s 6d. As soon as Mrs Ashby and Pierson left the office. Mrs Ashby took the money back from Pierson. That some day she paid £3lO in cash into her own account in the Bank of Australasia, and, of course, she had the title to the house as well. “Pierson used to keep £369 in cash hidden in a shed at his home. This was a legacy from a sister. One day he went to the shed to get 12s 6d to pay a carrier. Mrs Ashby followed him, saw him with the money and took it from him. On March 9, Mrs Ashby paid £394 into her account in the Bank of New Zealand. This was just after the money was taken from Pierson. A mortgage for £538 was not transferred to Mrs Ashby, though it was in her possession.

“Mrs Ashby made Pierson sign withdrawal slips on his National Savings account. When this account was closed on April 8, 1947, the sum of £327 had been paid out. On April 9, the sum of £326 was paid into Mrs Ashby's account in the Bank of Australasia. Mrs Ashby also made Pierson sign transfers to her of his shares in Whakatane Paper Mills. Ltd., though he did not want to do so. The shares are now registered in her -name. She also had 78 shares in Whakatane Paper Mills. Ltd. The £lO debenture fell due and was paid out. Mrs Ashby got the cash. She had extensive renovations made to the property at 7 Estuary road, again-.t Pierson’s wishes but, if the Court finds for plaintiff an amount could be deducted for that.”

Evidence, on the lines of Mr Sandston’s statement of the case, was given by Frederick Pierson, brother of the plaintiff; Herbert Stanley Clark, solicitor; and Hugh William Hunter, solicitor Dr. R. W. Bellringer gave evidence on Mrs Ashby’s mental condition. He also said that the plaintiff was born deaf but he was not completely dumb. He could make sounds, but it was his deafness that caused his failure to make articulate speech. The plaintiff gave evidence by reading silently his affidavit and signifying that it was correct. He was cross-examined by Mr Brown, who taught at the school for the deaf for eight months. His Honour congratulated counsel “on his handling of an exceedingly difficult cross-examina-tion.” Gift Suggested Mr Brown said it was impossible for him to call evidence. The claim was against a woman who, unfortunately, was unable to come before the Court and give evidence The Public Trustee considered it his bounden duty to let all the facts be laid before the Court and let the Court decide, by making any order it thought fit. The Public Trustee could not pay out an estate which it administered. It was a matter for the Court.

“I think it is a very proper attitude on the part of the Public Trustee, and one of which I have already expressed approval,” said his Honour. It would seem clear that the money Mrs Ashby obtained did come from Pierson, continued Mr Brown. When Mrs Ashby arrived at Pierson’s home she had £3B in an account and her only income was £3 sterling a month from her husband in England. She also had 78 shares in Whakatane Paper Mills, Ltd. It might seem extraordinary at first sight to say that Pierson made her a gift of his property: but when they went to see Mr Hunter they were friendly and Pierson apparently was happy to have the property transferred to Mrs Ashby because she was going to look after him. That would obviate the statement thgt Pierson was menaced by Mrs Ashby. If the Court came to the conclusion that it was a gift, Mrs Ashby would be in the position of a trustee and the property would have to be retransferred to Pierson. That would avoid the stigma that Mrs Ashby wrongfully* threatened and menaced Pierson. It would also provide a more reasonable explanation of the transactions.

His Honour: I do not think any stigma attaches to this poor woman, for when these things were done it was at the beginning of her malady. Mrs Ashby <jid not spend one penny oi the money on herself, said Mr Brown The sum of £554 was spent on alterations to the house, and £157 on furniture. She still had £255 The three lots of figures came to £966, and the money claimed by plaintiff totalled £1069. In the five months she was in Pierson’s house she received about £l7 from her husband, and. further she would be entitled to her own money £3B, and a certain amount of he: keep. There was still an account of £65 for plumbing to be paid and one of £33 for interior decorating. If the Court decided that Mrs Ashby was trustee, these accounts should be paid by Pierson, for he got the benefit of them. Having heard the evidence and observed the demeanour of the plaintiff in the witness box, he was satisfied the plaintiff was dominated by the defendant, said his Honour. He did not think the defendant had any fraud in her mind, but, unfortunately. the beginnings of insanity were quite apparent when the nature of the transactions was looked at. Looking at the whole matter, he was satisfied the plaintiff never was in a position really to give his consent .to the transactions. There was no suggestion of fault and wrong in the circumstances. The Court made a declaration that the purported sale and transfer of the house property were void* as having been 00-

tained by duress or undue influence. A decree was made that the property be retransferred to the plaintiff. The transfer of the 110 shares was declared void and an order was made for their retransfer to the plaintiff. A decree was made that the furniture in the house be acknowledged to be the property of the plaintiff. Judgment was deferred on the monetary claim. ~.