NON-SUIT ENTERED

Gisborne Herald, Volume LXVIII, Issue 20632, 13 August 1941, Page 6

NON-SUIT ENTERED

TRUSTEE SEEKS RULING BUSHNELL ESTATE CASE SUPREME COURT HEARING The question of whether £4OOO placed at the disposal of Percy W. Bushnell by his father during the later years of his life represented a gift or a loan was submitted to Mr. Justice Northcroft in the Supreme Court yesterday, when the Public Tuistee, on behalf of the estate, sought an award on the grounds that the money was a loan. The plaintiff was non-suited. Mr. F. W. Nolan represented the Public Trustee, and Mr. H. F. O’Leary, with him Mr. H. D. Chrisp. appeared for Percy W. Bushnell. Counsel for the plaintiff informec. His Honour that the parties had agreed that nothing that appeared in the will of the late Mr. H. J. Bushnell could be taken as evidence of a loan having been made; but the plaintiff would show that in his income tax 'returns the late Mr. Bushnell included amounts shown as interest received from his son. It was submitted that these receipts count only apply to the loan which the Public Trustee claimed had been made. Moreover, entries in the deceased's private ledgers also showed interest payments by P. W. Bushnell. The onus o; showing that the money was a gift wa. on the defendant. Philip C. Dwyer, district Public Trustee at Gisborne, said that the Public Trustee had prepared two will, for the late Mr. H. J. Bushnell, onc on March 2,193 C, and one on April 15, 1940, which made minor alteration* onlv. The provision for P. W. Bush nell was the same in both wills. Mi Bushnell died on August 5, 1940, anc probate was granted a month later, the approximate gross value of the estate being '£40,000. Defendant’s Repudiation When witness received two boxes containing papers, the property of the intej Mr. H. J. Bushnell, he found thai these boxes did not contain certain documents which he had expected to find there including a written acknowledgment of a loan male by Mr. H. J. Bushnell to P. W. Bushnell. Later, witness mentioned to the defendant a debt of £5200 to his father’s estate, and the defendant denied any liability, stating that £4OOO of that amount represented gifts made to him by his father, and the balance being a mattei between the defendant and his mother. The £5200 was discussed often between witness and the defendant who constantly held that he had no liability Witness had asked for a statutory declaration setting out defendant's reason for denying liability, and in this declaration P. W. Bushnell explained in detail the circumstances which he held justified him in regarding the £4OOO from his father as a gift. The £I2OO item which P. W. Bushnell stated he owed to his mother bad been abandoned by the Public Trustee, but the claim to the other £4OOO was sustained. Income Tax on Interest Witness had investigated the late Mr. H. J. BushhelTs private ledgers, and also copies of the income tax returns for several years, from 1935 to 1938; and he quoted entries referring to interest payments from P. W. Bushnell to his father. Mr. O’Leary lodged an objection to the production of one private ledger, on the ground that an entry in it concerned an alleged loan to the defendant. He pointed out that an> such entry could have no value unless it was made contemporaneously with the loan. His Honour admitted the document, noting Mr. O’Leary’s objection. Continuing his evidence this morning, the witness produced documents relating to payments by the defendam to his father, which were clearly indicated by the deceased as payments of interest. j Cross-examined by Mr. O’Leary, the witness said the gross value of the estate was approximately £46,000, this sum including the £4OOO subject ol this claim. He gave an outline of the provision made by the testator for his widow, and bequests to individuals and to charitable objects. The defendant received a devise of property, the value of which was not stated in the will, but which had a Government value of £13,000. Witness knew nothing of a will made in 1926 by the late Mr. li. J. Bushnell. Note of Hand Not Seen The inclusion in the last will of a note that the defendant was indebted to the testator for £5200, at call, and acknowledged by note of hand, was made by direction of the testator, said the witness. Witness had never seen the note of hand, nor had he any evidence but the testator’s word that it had existed. When the matter of this £5200 was taken up with the defendant after his father’s death, he had explained that £I2OO of this money was a matter between himself and his mother, and the balance of £4OOO had been a gift from his father to him. The explanation relating to the £I2OO was accepted, and it was assumed that part of the £I2OO was deriveo from Mr. I-I. J. Bushnell. Witness said in answer to further questions that he understood from the defendant that at some time the deceased had handed over his business to the defendant. Counsel; Have you investigated that claim? Witness: The Stamp Department is doing that. There was nothing in the meagre records kept by the deceased to show where the sum of £4OOO handed to the defendant by his father had been derived from, witness continued. Counsel produced bank slips for £3OOO and £IOOO, covering deposits by the defendant by way of cheques on the Post Office Savings Bank, which witness said presumably covered the £4OOO received by defendant from his father. Witness examined copies of the deceased’s Post Office Savings Bank account, which showed no entry corresponding to the deposits in the defendant’s account. To His Honour, Mr. O’Leary stated that the explanation was that probably the money v/as partly derived from Government stock which matured about that time, and partly from a fixed deposit account which also matured at about the same time. Case for the Defence This dosed the case for the plaintiff, and Mr. O’Leary, for defendant, said hat he was entitled to ask for judgment at this stage. The plaintiff had adopted as part of his case the declaration inside by the defendant as to the oayments made by his father to him. ! The witness had said that from the

outset the defendant had claimed thai the money v/as by way of gift. There was also the presumption, admitted by counsel for the plaintiff’, that money paid by a father to a son was ar advancement by way of gift. Nothinr in the evidence produced by plaintiff had rebutted the latter presumption, nor disproved the defendant’s definite statement that the money was given to him. Referring to the payments shown ir the deceased’s accounts as interest frdrr the defendant, Mr. O’Leary said Hir Honour would be familiar with many cases in which gifts were qualified by the donors. One donor might give r property, but retain the rents; another might give securities, but ask foi something by way of interest. An old English judgment held that a payment agreed to by a donee was consistent with “reverence and good manners,” and that principle applied in this case. It did not lie in the mouth of the donee to refuse a condition, when such refusal might result in the withdrawal of the gift. His Honour: The old cases called it “reverence and good manners,” and you describe it as “tact and diplomacy?” Mr. O’Leary: “Reverence and good manners” would be our choice, Your Honour. The payment of interest to his father by the defendant, counse 'deled, was perfectly consistent with the defendant’s declaration. His Honour pointed out that the amounts of interest were irregular, and this might not be thought to support the defendant’s claim that his ’either had been prepared to take 2 per cent on the money even though it was a gift. Counsel submitted that it was merely a question of the deceased’s state of Mind. Actually the defendant ’ad not limited his interests payments to 2 per cent. Mr. O’Leary further pointed out that the deceased’s memory was not clear in 1940 on more ’ h an one matter, as it was shown by his will that he believed the defendant to be owing to him a sum of £I2OO which defendant actually owed to his mother. Mr. Nolan contended that the entries in the deceased’s ledgers and income-tax returns, showing paymen* to him of interest, should receive full weight. Evidence of the payment of interest by the defendant was at least sufficient to place the onus of proof on the defendant. His Honour said that his present view was that a payment of £4OOO had been made, and interest had been paid thereon. The defendant held that it was a conditional gift. He was net. yet in a position to say that he was clear in hir, mind as to whether the money was a gift or a loan. He was prepared to give a non-si;: at this stage, said His Honour, but ibt a judgment that would dispose of the matter in dispute. Mr. O'Leary asked if His Honour could give him a few minutes to consider the matter, and this being accorded, he returned after a short retirement and stated that he did not propose to lead evidence. His Honour said that iri that case he would non-suit the Public Trustee, .he effect of tnis award being that the sum claimed was not recoverable at the present stage of the plaintiff’s ease. Costs would be awarded to the defendant.