SUPREME COURT.

Lyttelton Times, Volume LXI, Issue 7225, 26 April 1884, Page 3

SUPREME COURT.

CIVIL Friday, Apjul 25,

,„ r,,-, His Honor Mr Justice Johnston.) ( BKAMI-KY V. I. WILSON AND EDWAUD MULCOCK. Mr Joynt for plaintiff ; Mr Garrick for of claim alleged that i fintiff was the widow of William Bramley, ftkSon. who had died on May 7, 1870 miii" will, under which defendants and l.imfff wove apP ointed executors and -.■utrix. Plaintiff also alleged that by i„fcniaua»'enient of the trust by defendants I "r mterests had suffered, and she prayed llrit defendants should pay interest on the {Ues the costs of this action, and that HnVinight bo removed from their trusteeship, and proper trustees appointed oy tho to Jvr'thodofeneeall tho material allegations were denied. Mr Garrick admited the probate of the Mr Jovnt called: Ed waul Mulcock, a farmer living at Fhxton; one of the trustees and executors ii'imed in tho will of William Bramley: Mr Isaac Wilson and Mrs Bramley were Mr Bramley died in May 1876. The affair.-! 0 f the estate were principally wound up bv witness. The live stock and plant, and everything except the land, were 'sold by auction. There were moneys in the ost.ito in the Bank of New Zealand ■it R.*m>-iora--£7OO and some few odd shilling Was party to a petition (produced )to get the will construed. The live stock and other farming stock of deceased realised £llsO 13s Id; the total amount of t\\o testator's personal estate was £243S lis ■VI • the testator had to his credit in the Bank, when he died, £7Ol 7s 7d; there were debts owing to him, £577 10s <M. As against' that the debts of the testator'amounted to £292 15s lOd. The funeral and testamentary expenses wore £l-0 Is 9d; stamp duty,£ll3 2s lid. -\ner paving debts, &c, and one legacy of £si\> to the widow, £1403 10s lid remained m the hands of the Trustees. Witness let the £I4W 10s lid out on mortgage within a month or so. Drew the £7OO out of the Bank, and mixed it with the proceeds of the sale of the personal estate. Put the money in the Bank of New Zealand, Rangiora* The account was headed "E. Mulcock's Trust account." No moneys except Bramley's were placed to the credit of this account. Signed cheques with the usual signature and "Trust account" following" it. Neither Mr Wilson nor Mrs Bramley had anything to do with this Trust account. Produced books kept by witness of the accounts in the estate. During the intermediate three years between May 6,1879, and July, 1882, there were no separate books kept in the Trust estate. During this period there was nothing to distinguish the Bramley moneys from witness' own private account in the bank. About .June or July, 1882, was called upon by Joynt and Perceval for explanation of the erf-ate on behalf of Mrs Bramley. (Letter of June 19, ISS2—Joynt and Perceval to Edward Mulcock—requesting full details of accounts for Mrs Bramley, who, as cotrustee, was entitled to such; also, of June 22, same to same, requesting that the books be placed in the hands of an independent person in order to have accounts investigated.) Messrs Garrick and Cowlishaw replied to these letters for witness, and a statement of accounts was furnished. From time to time witness retained for his own use certain small sums amounting in all to £4OO, for which he paid 9, and latterly 8, per cent. These sums appeared in the ledger (produced) under the head of fixed -deposit accounts. There is nothing to show what money witness received and what Wilson received. Could not find an entry of £139 9s 5d paid to either witness or Mr Wilson. Gave the estate no security for these moneys. Nor cud Mr Wilson. Put moneys witness and Mr Wilson borrowed under the head of " fixed deposit" because it was more convenient for witness. Mrs Bramley knew and consented to the borrowing of the money without security. On July 3, 1883, witness wrote to Mrs Bramley that owing to litigation he was unable to render the usual annual summary of the accounts of the estate, but would be happy to have the books examined by anyone she might appoint. On one occasion there was £l5O paid in to the Trust account on a mortgage, and there was about £SO accumulated money. Mrs Bramley and witness talked the matter over, and agreed that it would be better to let the sum accumulate till it got to £3OO or £4OO, so as to put it out on security, for the reason that if the money was allowed to lay in the Trust account in the Bank it would be of no benefit to tho estate whatever, but by witness taking it it would be paying interest to the estate instead of lying idle. fl*hat was about April, 1879. Roughly, witness had £360, from time to time; could not get it invested after holding it two years. Mr Wilson then said, "We must not let the money lie idle. I'll take it if you can't find any use for it." He took it, and held it three months till an investment could be found, when in September, 1881, Mrs Bramley objected, and suggested that the money might be put into seme Building Society. Spoke to Mr Wilson, who said the Kaiapoi Factory would allow 5 per cent. Took Mrs Bramley's opinion, and she thought it was the best offer, and witness placed it there. Any other moneys that accumulated witness also placed there. Whatever balance the books showed at the end of six months witness placed there. As soon as witness received Mrs Bramley's letter complaining of this investment, he drew out the balance, £177 18s 7d, that then remained in the Factory, and put it in the Bank. In April, 1881, w itnea3 paid £2lB back, and Mr Wilson borrowed £4OO. The Bank book showed that there was £4lO to the credit of the estate when Mr Wilson borrowed the£4oo.

Several letters, comprising correspondence which had passed between the solicitors for the parties, and Mr Mulcock and Mrs ! Bramley, were put in. They showed that the plaintiff had complained that she was never consulted by her co-trustees (defendants) as to the investment of moneys and the management of the estate. This was 4enied by defendants, and Messrs Garrick and Cowlishaw consented to a separate account being opened in the names of the three trustees. There had also been a dispute as to the correct meaning of the will in the matter of the income allowed to plaintiff. There were in all 40 different letters put in. Edward Mulcock, recalled by Mr Joynt: Said it was a fact that Mr Wilson and he were shareholders in the Kaiapoi Woollen Company. Till his recent illness, Mr Wilson was Managing Director of the Company, There had been no alteration in the Trust account in the Bank, as had been promised in Messrs Garrick and Cowlishaw's letter of October, 1882. Witness could not say that the accounts were audited by Mr T. B. Craig, as was • al3o intimated in the same letter. Mr Garrick did not cross-examine. Elizabeth Bramley, widow of the late wiinam Bramley, and one of the Trustees •ana _the executrix named in the will : anortly after her husband's death witness had a meeting with her co-trustees—May or J une, 1876. It w<as arranged that everything was to be sold, and witness' husband a money was to be withdrawn from xne Bank, and all the moneys placed to toe 'Bramley Estate Account" at the «fa Z ?^ nd ' Eangiora. Neithor wen nor ever did witness agree that the money should be placedin onaccountof Mr Mulcock's, or of " Mulcock's Trust Estate " « was said that Mr Mulcock was to be ™e working Trustee, and was to consult the other two. Mr Wilson did not say he would take any particular part. Was sure mat the terms in which the Trust account was described were " The Bramley Estate Account." It was agreed that Mr Mulcock

alone was to operate on that account, and ho was to draw all cheques. Had been sometimes consulted by Mr Mulcock as to investments—those to Messrs White, Melville and Luxton. In 1883 Mr Mulcock began to consult witness pretty regularly. Onco before this Mr Mulcock had said ho should bo short of money, and he wanted to borrow .£IOO from the estate. Ho did not s>ay for how long or what rate of interest. "Witness consented to this. He never spoke to witness as to his taking up to £KH) from the estate, and witness never sanctioned his holding, moneys up to this amount. Never agreed to his taking £2OO for two years. Was not aware that he had withdrawn from .£350 to £IOO from the estate. Was not informed of Mr I. Wilson taking- JB-100 from the estate till after ho had got it. Was not asked about withdrawing Mr Meredith's loan, nor the investment in the Kaiapoi Factory. Wns not awjiro till now that the Kaiapoi Factory had received £9BO at 5 per cent. Mr Mulcock told witness that £SOO was invested there at 5 per cent. £l5O was lent to Mr Fulton, of Rangiora, without witness* knowledge. Was told of it afterwards, and considered the security was not worth the money. The defendants did not generally consult witness Several times asked Mr Mulcock how the affairs stood. lu 1881 ho said that lie would have the books audited as soon as Mr Wilson came back from England. In January or February, 1882, Mr Wilson brought a balance-sheet to witness. Some time afterwards he called and asked for it j he folded it up and put it in his pocket, saying he would wipe his hands clean of the whole affair. On this balance-sheet there was an item, "E. Mulcock, for interest, £30," and witness enquired for particulars from Mr Wilson, as to the amount lent, &c. Mr Wilson replied that witness had no right to make such enquiries, as Mr Mulcock had been so kind and done so much for the estate ; that if witness had been getting her living at the wash tub she would have something else to occupy her thoughts. Mr Wilson's name was on the balancesheet as an approval. When Mr Wilson asked for the balance-sheet he said witness had been exhibiting it, and he did not want his name brought before the public. Witness.told him she had had legal advice about it. He replied, " You have had the advice of a fool." Witness replied it was the advice of a gentleman. Subsequently witness demanded to see the books. Mr Mulcock told her she would make an enemy of Mr Wilson for life if she insisted on such a thing. Witness afterwards employed Mr Chapman to investigate the books for her, and with him saw defendants together. Mr Mulcock produced the will from a tin box which contained bis private papers. Mr Wilson looked at the will and said witness had got nothing by her interference, in insisting on seeing the books and having them audited, as they (defendants) had been too liberal and had paid her more than was due to her by £6O, Swhich they must have back with compound interest. Witness only saw one book and a pass-book. Mr Wilson or Mr Mulcock held the book so that Mr Chapman could not see all of it. They told him that the part he did not see would come in the next time when he came to audit the books. Witness did not authorise him to s'gn the books as correct. (A balance-sheet produced, showed that on Dec. 21,1881, Mr Chapman had certified the books correct.) It was later than that —in 1882—that witness referred to. Never on any other occasion had access to the books. Applied to the Manager of the Bank of New Zealand, Eangiora, to see the account in the "Bramley Trust Estate." He referred witness to her co-trustees. At the interview with defendants above mentioned, witness' daughter was present. Had complained to Mr Wilson about the trust money being banked in Mr Mulcock's name, and asked him whether this was right. Mr Wilson replied that witness ought to be ashamed at making such a suggestion, and it was not right and proper for a fellow to be put in as trustee, whether he would or not, and not to have any recompense. Mr Mulcock's cheques to witness were at first signed " E. Mulcock, Trust Account," but latterly simply "E. Mulcock." In May, 1882, Mr Mulcock asked witness to sign a Teceipt for the money she had had, and said if she did not she would have to borrow from the estate. Witness told him she had always given receipts for the money she had received up to that time. He gave no explanation as to the object of the receipts. Witness did not get her quarter's money then till she had been to Mr Joynt about the matter. Mr Mulcock had acknowledged to witness that he had put the trust money to his private account. He said he had so many accounts to look after, and it was more convenient to de so. Never told defendants that she wished them to act without her in the management of the estate.

Cross-examined: Witness had obtained an advance of ,£3OO from the estate about a year ago, but this had been repaid with seven per cent interest. It was in August, 1881, that witness and Mr Chapman saw the books at Mr Wilson's, not in 1882, as witness previously said. Mr Chapman acted for witness for about six months. Mr Wilson complained that witness had been speaking about his having used the estate's money. Had not been doing so. There was no fault found by witness as to Mulcock's management for the first three years. It was because witness: had not received any balance-sheets that she complained, and wished the accounts audited. She was not satisfied after Mr Chapman examined the books, and did not authorise him to sign them. Mr Mulcock once suggested that small sums should be used for working the estate, but witness was surprised to hear that he kept the money in his private account. Witness had every faith in defendants. Complained of Meredith's money being withdrawn from him, because witness considered 1 per cent a fair rate of interest at the time. Mr Joynt did not re-examine this witness. The Court adjourned at 4.50 p.m. to 10.30 a.m. to-morrow (Saturday) when the case will be resumed.