SUPREME COURT

Press, Volume XC, Issue 27309, 27 March 1954, Page 5

SUPREME COURT

CLAIM AGAINST ESTATE

DECISION RESERVED After hearing submissions by counsel in the Supreme Court yesterday, Mr Justice Archer postponed until Monday morning his decision on the claim by Rupert William Wilson, a moulder, against the Public Trustee, as executor of the will of his mother, Christina Wilson, a widow, for a cottage property in Oamaru, which, he said, had been promised him by his mother. The hearing began on Thursday. Mr I. H. Main, of Oamaru, appeared for the plaintiff, and Mr A. W. Brown for the Public Trustee.

The .sole question in- the case was whether a promise was made to the plaintiff to leave him the cottage, which was practically the whole of the small estate of about £6OO, said Mr Brown. He submitted strongly that the plaintiff had lied in his evidence and his lies had been transparent. The £2O the plaintiff said hd paid on a car was in fact paid by his mother and the receipt was given to her. The very day the deposit was paid on the car, the late Mrs Wilson borrowed £2O from her solicitors. The plaintiff had said that he paid the deposit of £75 on the house; but the estimates were in his mother’s name and the receipts were in her name. There were documents in the mother’s writing saying she had paid the money. The only evidence of a promise that given by the plaintiff himself, the most interested party, said Mr Brown. Even if there was a promise, there were no services rendered, so the claim could not be upheld under the Testamentary Promises Act. After his first wife died, the plaintiff and his five young children were given a home for years by his mother who received only a pittance from him towards their keep. If ever a man received payment for his services in keeping a garden and a section in order, it was the plaintiff.

“This claim is brought under the Testamentary Promises Act. It is not a fajnily protection matter, nor is there any question of testamentary capacity or undue influence,” said Mr Brown. “I submit that your Honour cannot properly give judgment for the plaintiff in this case which has got to be proved up to the hilt.” Counsel For Plaintiff The plaintiff had indeed been a good son to his mother, said Mr Main. He was the only member of the family constantly on hand in Oamaru from 1937 to 1951 to help his mother in her old age. It was plain that the mother was a woman to whom her property of three sections and a cottage property was everything. It was a reasonable inference that she would insist on everything concerning her property being put in her name, even if the plaintiff had paid for things. She was not only possessive regarding her property but she was also possessive regarding her son. She obviously transacted all her son’s business for him, paying the accounts for him and getting the receipts in her name. But the evidence of the plaintiff showed that he entrusted his mother with his business affairs. With the exception of the will of 1949, by which the mother left all her estate to her daughter, Mrs Edwards, all the mother’s previous w\lls were of one pattern. By one will of 1938 the mother left the plaintiff her whole estate; but when he remonstrated with her she altered it to leave Mrs Edwards a section and the plaintiff the cottage. A paper setting out the mother’s testamentary promise to the plaintiff had not been found, though it had been witnessed by neighbours. Mr Main submitted that the plaintiff had proved his case.

GIRL CLAIMS £2OO FROM FATHER

HEARING ADJOURNED Mr Justice Archer, in the Supreme Court yesterday, adjourned until Monday the hearing of a claim by a school girl, Judith Helen Wilkins, suing by her mother, Mrs Helen Marjorie Wilkins, against her father, Thomas Davy Wilkins, an electrician, for £2OO. Evidence was given for both parties and legal submissions were made by counsel for the defence before the Court adjourned. Mr R. W. Edgley is appearing for the plaintiff, and Mr B. J. Drake for the defendant. . The plaintiff was bom in 1939. Her mother and father were "ow separated, said Mr Edgley. On May 30, 1947, the defendant opened a Post Office Savings Bank account for the plaintiff, the amount being £228. The defendant opened the account as trustee for his daughter. On August 1, ] 1949, the sum of £2OO was withdrawn from the account by the defendant, who signed the withdrawal form. This form appeared to be signed by the plaintiff also but she would say she could not remember it and could not recognise the signature. A child under seven could not operate a Post Office Savings Bank account but could do so on reaching the age of seven. The amount now in the account was £46 Is sd. None of the £2OO withdrawn by the defendant had been received by the plaintiff. The defendant took it and used it for his own purposes. Mr Edgley said the allegations in the statement of claim were that the defendant fraudulently and in breach of his duty as trustee converted the £2OO to his own use- alternatively that in breach of his duty as trustee he received the £2OO and converted it to his own use; and alternatively that he received the £2OO for the use of the plaintiff and failed to account for it. It was further alleged that the defendant was not a fit and proper person to be entrusted with control of the account. The plaintiff asked that the defendant should be removed from the office of trustee and that he be ordered to account to the plaintiff for the £2OO. “We say the defendant held the money in trust for the plaintiff and he had no right to use it,” said Mr Edgley. The Defence The case was not so simple as would appear at first sight, said Mr Drake. In July, 1941, the defendant suffered injuries in an accident while employed by the M.E.D. and received £903 in compensation money. He believed he would get interest on only £lOOO in the Po§t Office. Apparently he had an arrangement with his wife to keep her Post Office account about equal with his so he paid £3OO into her account. He also had a small account in the name of his daughter and he paid £2OO into it. He told his daughter she had £2B in the savings bank. His purpose was to make sure that interest was paid on all the money deposited. The defendant would say that he had no intention at that time of giving his daughter £2OO but just the interest on it. He had the impression he could draw the mony out of his daughter’s account at any time but he found that, if he w-anted to draw it, he would have to produce evidence that ,it was needed for his daughter’s education. He also found that his daughter could operate her account when she was seven. Domestic differences arose and the defendant did not want his wife to get the money so he decided to open a joint account in his and his daughter's name. He did not know he .was putting himself in the position of a trustee. At no time did he have the intention to make himself a trustee for his daughter for £2OO. By 1949 the defendant realised he would have to set up a separate home so he decided to uplift the £2OO and put it in his own account. He and his daughter went to the Post Office and both signed the withdrawal slip for £2OO. The hearing was adjourned until Monday morning.