SUPREME COURT.

Hawke's Bay Tribune, Volume IX, Issue 81, 20 March 1919, Page 3

SUPREME COURT.

MACFARLANE v. J. V. BROWN. In, the second action relative to the estates of the late Edward William Knowles ,and his wife, Diana Eden Knowles, also deceased, the plaintiff is, as in the first case, Aine--1 lia Charlotte Macfarlane, their only child; the defendant is John Vigor Brown, the plaintiff’s infant children, being merely joined “pro forma” as second defendants. Plaintiff and defendant are joint trustees and executors of the will (dated 18th December, 1899) and codicil (dated Bth May, 1906) of Mrs. Knowles, who died on 10th January, 1918. By these testamentary documents the trustees were directed to realise the estate of the testatrix, puy a legacy of £5OO to Mrs. Macfarlane, and invest the residue, paying the income to Mrs. Macfarlane curing life and holding the capital in trust for the children. The statement of claim sets 0..« that the principal part of Mrs Knowles s esate consists of her onethird share in the residuary estate of her husband, who predeceased her. As was disclosed in the first acticn hi itsiduaiv istitc h d been matte bv Mr. Knowles s will - dattd subsequtnth to Ins w k s co dnil thi subject ot i duiitable and educational trust that was, on a purelvr technical point., declared bv the'’ Courts to be void. The plaintiff declares herseli as being "dissatisfied with the course ot administration of her father s estate bv the defendant, John Vigor Brown, who, as appeared m the first action, is cotrustee ot same with blank Logan., bht uso states tl at tis app irenl that differences and difficulties must, arise m connection with the administration ot her mother s estate. She theiefoic piavs that an accouni be tiken o-t hit mothd s cstau and that it mu b wlmnnsteicd undet tne electee ot the vuun. The defendant in his Statement o) Defence alleges that at the present stage in the administration of Mrs. Knowles’s estate no accounts are possible, and that there are no prospective difficulties in the way of its administration by plaintiff and defendant as joint trustees and executors. He further states that thee I is little else in Mrs Knowles’s ests*c beyond her share in tac residuary estate of her husband, and that plaintiff has had full accounts and information with regard to that. Finally the defendant declares that “any allegation of wilful default, dishonesty, or misconduct against the defendant is wholly foundationless,” and that “the proceedings are caused by caprice on the part or the plaintiff and with the object of compelling the defendant to resign” his offices of trustee and executor under Mrs. Knowles’s will. EVIDENCE. Janies Macfarlane, sheepfarmer, husband of plaintiff, ■ said his wife and Mr. Brown were executors and trustees under this will. Mrs. Macfarlane was claiming a decree for administration because of her dissatisfaction with the trustee. His Honour said this evidence was not relevant. Mr. Skerrett objected also and plaintiff was thereon called. THE PLAINTIFF. Amelia Charlotte Macfarlane, daughter of the late Mr. and Mrs. Knowles, said she was one of the executors of her late mother's will and was asking that the estate be administered under supervision of the Court. She was not satisfied with Mr. Brown as a trustee without the control of the Court. She felt she could not trust him. Her reasons were that she did not want Mr. Brown in this will at all, because he never consulted her in matters under her father’s will although he pretended to be a friend to her father. For instance, in the selling of the property in Dickens street and the “Daily Telegraph” property. She was not .satisfied with the latter sale which she considered had been made under the value ot the property. Then £BOOO was put into War Bonds unknown ■ to her. She knew nothing till she saw the balance-sheet. Then there were properties in Lighthouse and Clyde roads which he tried to take from witness and put into the estate. Witness had these long before she was married, and that was 18 yars ago. Her husband had paid the taxes on these. Although interviewed by Mr. Brown, witness refused to allow these to go into the estate. Witness always, thought Mr Brown a friend of theirs until her father’s will was. made. , His Honour said he did not know what bearing this evidence had on the case.

Mr. Skerrett objected and said this evidence was really a charge against Mr. Brown of undue influence on Mr. Knowles. If such . a charge was made it should have been put in the claim. His Honour considered it irrelevant. What was put to him was that because a lady was mentioned Lu a former will by -a testator and not put in the second one on the

same’terms, a trustee should be set aside.

'Witness in answer to Mr. Myers, said under the previous will of her father she was an executor, and trustee, but in the second will Mr. Brown is put in and the charity clause was inserted.

His Honour asked why was this fact put in, if not to influence the Court. The will in question is the will of her mother.

Mr. Myers further pressed the necessity, but His Honour said this evidence was more against the plaintiff than for her. This would not weigh w’ith him in the least.

To Mr. Skerrett: Witness had been married-18 years to-day. Prior to that time the rents on the Lighthouse and Clyde road properties were collected by her father, although they were her properties. They were paid into his accoun-. He allowed her £lOO when she was married. Witness thought her father was investing the rents for her. Her husband paid all the rates. Witness never asked her father for the monev or discussed it. She did not know what the result would be if she not. an order Jjr administration bv the Court. THI DI I I NDAN I. .John V. Brown said he had b <i sent for to iro to bai.nsbu.rv. Loiran and Williams other. and there asked if he w’onld withdraw’ from the uuti -lip md tit- jiot( dr would not lie taken. And he replied th it it, vould bi impos if flll tl insinuation that had been mi It i_,unst him ind hi case must go on i f i is hi wis concerned.

kDJOI HNI D If) MUI 1\( TON. ■ Mr. Skerrett asKeu His Honour ilitiimmc tin tacts, o* the i ise on his ietuin 11 oin Gisborne. He obji<t<d to it be ng nmoud to the Court ot Appeal. Printing, etc., would be a great cost, anil he did nob think the case justified its being taken to the Court ot Appeal. Ttie parties must themselves stand the cost ot the lemoval and he did not think it, proper to impose on either party the expense of removal in this case. His Honour said it was usual to remove a case if the parties disagreed. Mr. Myers said if a common decree was obtained Mrs. Macfarlane would have to pay two-thirds of the cost, and it was her idea that it should go there so as to get an early determination. It meant additional exnense all round but he considered the questions of considerable importance. His Honour said he would think it over. He had never removed a. case unless the parties agreed. Mr. Mvers said the litigation m this ease. was different. Mr. bker.rett said earlv in the ease the other side had opposed discussion of the two points raised, so that thev went on with the castnot knowing the position in recard to these law noints. How could the Apj eal ( it dete mine th j lion of -values, etc., without seems the properties. The two abstract academic questions ot law were the only two. the Appeal Court could determine.

Mr Mx is said jilainliff \ ould 1 self pay for the cost or pnnrmg. He did not agree with Mr., Skerrett that they had opposed to argus me law points.

Mr. Myers applied that the whole matter be removed into the Court r jf Appeal His Honour said he would consider the matter and would take tie case in Wellington, on March 31st. If he thought o.f moving the .matter to the Court of Appeal he would give notice.