“GIFT” DEBENTURES

Dominion, Volume 24, Issue 65, 10 December 1930, Page 12

“GIFT” DEBENTURES

Transaction Questioned COURT’S SCRUTINY Executor Intervenes SURRENDER ORDERED A transaction in which Victor Alfred Smith, electrician, of Wellington, alleged that he had been presented with thirteen Wellington City Council debentures worth £lOO each by Martin Byrne, a late employee of the council, shortly before his death was subjected to close scrutiny in the Supreme Court yesterday. Finally Sir Michael Myers, Chief Justice, ordered that eleven debentures, together with outstanding interest coupons, should be delivered to the Public Trustee, the executor of Byrne’s will. The remaining two debentures had already been sold by the defendant, and judgment was given against him for £220/5/4, the amount he bad realised on them. At the last criminal sessions of the Supreme Court Smith was charged with theft of the debentures, but the jury could not agree and a new trial was ordered. Yesterday’s proceedings were taken by the Public Trustee as executor of Byrne’s last will, which was made on January 6, and the court was asked to make an order that the trustee was entitled to possession of the debentures as part of the deceased’s estate, which had been left to his brother. The defendant contested the claim on the ground that the debentures bad been given him by the deceased “in contemplation of death.” Statement of Claim. In the statement of claim it was set out that probate on Byrne’s will had been granted on July 9, 1930. At the time of Byrne’s death, it was alleged, he had been the absolute owner of thirteen Wellington City Council debentures of £lOO each, and it was further alleged that the defendant had wrongfully deprived Byrne of these, together with interest coupons, to all of which the plaintiff was entitled as executor in the- will. On June 4, it was stated, the defendant had wrongfully presented eight interest coupons and had received cheques amounting to £22, while on June 18 he had sold two debentures at a price of £199/5/3. The superintendent of police at Wellington had obtained from the defendant one debenture, but had not obtained possession of an outstanding interest coupon, which, it was alleged, had been wrongfully detached from the debenture and retained by the defendant. The superintendent also had obtained possession of the remaining ten debentures with all outstanding interest coupons, and the plaintiff claimed that, as executor in the estate, he was entitled to possession of these debentures; in addition the plaintiff claimed recovery of £221/5/3, the amount received by the defendant for the debentures and coupons he had cashed. The defendant claimed that he was entitled to the debentures because they had been given to him by the deceased not long before he died. He denied that the plaintiff had any title whatever to the debentures. “Get Me That Envelope.” In opening,-Mr. Macassey said that the deceased had stayed at the defendant’s house in Tory Street shortly before he died. He had been a frugal man, and during his life had atnassed a fortune of between £2OOO and £3OOO, and he had made a will giving all his property to his brother. It was alleged by the defendant that the deceased had made a present to him of the debentures, which were valued at £l3oo—that the deceased had said, when he was ill one night: “Vic., get me that envelope in the drawer,” and, when the defendant had done so, “Take this, and if anything happens to me, keep it.” Byrne had died on May 24, suddenly. After his death the defendant had gone through his papers and had found the envelope in which the debentures were kept, and the plaintiff alleged that he stole them. On May 29 a Public Trust employee had called at the defendant’s house for the purpose of collecting Byrne’s effects, and had seen Mrs. Smith, the defendant’s wife, who had shown him to the deceased’s room, but no word had been said about the debentures. Later the defendant had called on a sharebroker and had left with him two debentures for sale. He had been asked how he had come into possession of them, and, it was understood, the reply had been something to the effect that “I am a thrifty man.” The debentures had been sold for about £197. Later again the defendant had left ten debentures for sale with anothei* sharebroker. Mr. Alexander, of the Public Trust Office, had seen defendant, and had especially asked him if Byrne had said anything about bonds before he died, and the defendant had replied in the negative, while in reply to a further question, the defendant had said he did not know anyone to whom the deceased would have been likely to give the bonds. Opening Account at Bank. On July 1, continued counsel, defendant had received a cheque for £591, the proceeds of the sale of six debentures, and on the same day Detective Murray had seen him opening an account at a bank. The defendant had accompanied the detective to the police station, and had made a statement. His Honour; What happened to the cheque? Mr. Macassey: Payment was stopped, and the debentures were recovered. In his statement the defendant had explained that the deceased had given the debentures to him, and he bad also said that he bad denied any knowledge of them to the Public Trust, official because he did not think it was any business of that office. Most of the evidence called was similar to that heard in the criminal pro ceedings and followed the lines of Mr Macassey’s address. Two fellow work men of the deceased said they did not think he was the type of man who would have made such a gift, and Detective Mui ray also described the dead man ns a very careful, frugal man whose habits bordered on meanness. Case For Defendant. Evidence that would be given by the defendant, his wife and his (laughter, Mr. Leicester said, would be that on tae day the gift was made the deceased had had a very bad attack. Counsel said that while the story told by the defendant to tie police was in its-nature extraordinary, in that one would hardly expect Byrne to make such a gift tu the Smiths when he bad known them only a short while, still it was fallacious ro argue that he could not have done so. It did not follow that the man, faced with death, and having received many kindnesses, would not make the gift. The most difficult point from counsel's point of view was the manner in which the defendant had behaved after ne had received the bonds—making a false statement to the police and an evasive, if not false, statement to the Public Trust official. With reference to one statement made by the defendant in which he denied that his wife had been present when the gift was made, counsel said that the defendant’s explanation was ‘-lint, having a dislike of detectives and their methods, he did not want his wife to be worried by them at that time, as she was ill. Several Previous Convictions. The defendant, in evidence, detailed how the alleged gift had been made by Ihe deceased and the actions he had taken after receiving the bonds. He was cross-examined at length by Mr. Maeussey on the statements he had made to 1

the police and to the Public Trust official, and in reply to further questioning admitted several previous convictions on theft and other charges. Evidence was also given by Mrs. Smith, wife of the defendant, who. in replv to a question from his Honour, corrected a statement she had previously made as to the day on which she had been with her husband to see. Mr. bievwright to obtain a legal opinion on the bonds. £2OO Gone in Twelve Days. To Mr. Macassey the witness said, she could not say where the £2OO received in twelve days from sales of debentures had gone, except that £5O had been spent in the purchase of a wireless set. Mr. Macassey: Was not a good deal ot money spent on drink? —“No.” Was not one of the coupons cashed at an hotel?—“That does not say that the money was spent in liquor.’’ You deny that money was spent on liquor?—“Yes.” “Open to Suspicion." “I have no doubt at all what the judgment of the court should be,” said his Honour in giving his decision The whole question was whether the defendant could prove satisfactorily that the transaction was a gift. He had entirely failed to give that proof in a manner that it would be proper for the court to accept. His Honour outlined at length the various items upon which the defendant had failed to give a satisfactory account of his actions, and mentioned that it seemed to him open to suspicion that the- story told of Mrs. Smith’s presence at the transaction was not merely an afterthought following on the opinion obtained from the solicitor that such a gift as this might be quite in order, but yet be upset for want of corroborative evidence. . . Judgment would be for the plaintiff in terms of the prayer, and the amo’int °e recovered would be altered to £—o/5/4, which amount the defendant had received from his various proceeds.