SUPREME COURT

Dominion, Volume 9, Issue 2790, 7 June 1916, Page 9

SUPREME COURT

REPUDIATING A TRUST AN UNUSUAL CASE In the Supremo Court yesterday, His Honour Mr, Justice Hosking heard the case of Mary Isold Tome, wife of Frank Howard Toms, steward, of Auckland, who prayed the Court to set aside a trust vested in tho Public Trustee. Mr, A. .E. Skelton, of Auckland, appeared for the petitioner, and Air. i'i. Jt\ nay, on uehuit ol the Public Trustee. l V n rM 0r * ier f>™mllather's will, Mary Iso*oins was "a beneficiary. Betore a solicitor at Eketahuna, where she was • i.i s ! 10 s, K IIC( i a deed appointing the Public Trustee as trustee for her and her child, under her grandfather's will, and her application was to have this . deed set aside and cancelled. She &lso desired the delivery of all moneys ftnd securities held by the Public Trustee. Her grounds for the application were that &t the time of executing the document she had no experience of legal or business affairs, ami was also ignorant of tho effects of incidence of tho trust created by the document she signed. The deed had not been explained to her before signing, and she pleaded that she had not sufficient capacity to understand it without explanation. - The defence was a general denial of the statements made -by. plaintiff. The deed had been explained to her, and she tully understood its contents. Mr. Skelton, for the plaintiff, said the petitioner was now 27 years of age. In December, 1900, slie came in to under the will of tho late 'William Nicols, of Feathers-ton. She placed tho money. with Mr. T. M. Page, solicitor, who let the money out on mortgage. She married F. H. Toms in May or, June, 1911, and then some .£BOO of the legacy was spent in paying debts, furnishing a home, and *£80 was drawn on her order from Mr. Page, but it wag lost by her husband. The question arose as to the 1 disposal of the balanco of the money. She favoured a private trustee, her father,.the Public Trustee, and a deed was'drawn and signed placing the money, with the Public Trustee. Mr.. Skelton admitted, that the objects of ✓the trust were praiseworthy, and no reflection was cast upon Mr. Pago. His Honour: Does sho want the money to spend it? If she is weak-minded, as you say, it was perhaps the best thing to do. She ought to be protected against herself, and: the pity is there is not a law to make such protection compulsory. He may. bo bound to renounce 'the deed by law, but it seemed that prudence dictates that the trust as made should stand. Mr. Skelton agreed, but plaintiff 'was entitled, ho thought, to a partial revocation. His Honour: If the woman is well adfised (I have no right to coerce her) she would bo satisfied with a revocation in part, but not the whole of it, else she might be stripped of it all. His Honour suggested an adjournment for half an hour to see if the parties would agree. Mr. Hay contended that the deed was entered info for the purpose of protecting the woman from her husband. His Honour: A self-protected settlement is not difficult to set aside. Mr. Hay: Circumstances, Tour Honour, in this case seem to confirm the necessity for the deed and' its continuance. His Honour: Very well; I will hear tho case. • The evidence of . the plaintiff supported tho statement made by Mr. Skelton. ' To His Honour: She understood vhen she signed the document that after she got a house and furniture tho rest of the money would increase by being let out at interest. If she died, she understood that her child ('there is one of the marriage) or children would get the interest. After getting a house and furniture in lier own name, which she would' not sigu away, sho also understood that the document provided.for further moneys being paid to her out of the principal. Plaintiff's husband explained how he lost ,£BO, an open cheque from' Mr. Page. They were living. at Hastings, . and he went to Eketahuna to get the money. He had a few drinks. He got the cheque and went to Masterton, where he had more drinks. Next day lie/cashed the cheque at Eketahuna. He admitted he was not quite sober, and gave tho money,.about 4!70) ho thought, to a friend, and three days later a party of them went by motor to Hastings. All the money, savo £20, had been squandered. Seeing he was !}«•' husband, and had always done her correspondence, Mr. Page should have consulted him. To Mr. Hay. Aftei 1 his wife left Mr. Page ; s office sho told him that she had put her money with the Public Trust; that it was all right, and that sho would be able to get what sho required when slie wanted it. Over his .wife he had no influence, but he considered, sho knewnothing of business.

John Nicols, father df plaintiff, a re« tired farmer living at Eketahnna, said he moved to get the settlement effected because he henrd rumours that the money was being wasted. He explained how his daughter had, agreed to put the money in trust for the child, she to use the interest, the securing of a homo was to be provided for in the terms of the trust, subject to the Trustee's discretion. His daughter signed the deed quite freely, and was satisfied. He took an , interest in seeing that all his four daughters' moneys were properly invested. Neither his daughter, .Mrs. Toms, nor any of the family were weak-minded.

T. St. Page, solicitor, Eketahuna, stated that he drew the deed in his office, with plaintiff present, and explained every clause as written, and re-read it to h/r before she signed, which she did, sarins it was the best thing to do. ■ The idea of the deed came more from her than from her father. Next day the husband was exceedingly angry, and wanted to know what lie had done with his wife's money. He gave him no answer. Three .or four days after the husband got dCB6. To His Honour: He was positive Mrs. Toms knew the nature of the - deed : she signed. She did not-borrow any money until after she was married, - and .£3OO was spent between the date of the marriage and the date of the deed—six months.

His. Honour stated that many ladies have executed marriage settlements without knowing as much of them as this young woman did of this one. If this deed had been executed before marriage it would not have been attacked.

After hearing the addresses of counsel, Hi 3 Honour reserved judgment, and the Court-Adjourned till this morning.