A CHARLTON LAND CASE.

Mataura Ensign, Issue 1170, 16 April 1903, Page 5

A CHARLTON LAND CASE.

ANDERSON v. ANDEBBON

In tbe latest isuie of lb" 'Gssz tte Lav Reports,' details are given ol the d'vision by Mr Justice Williams in Charlton Anderson v. Anderson. The faats set out tbat Jas. Anderson by his will left all his property to his widow, the plaintiff, to the exclusion of three infant children. Plaintiff's brother-in-law {John Anderson) remarked the non-pro-vision for the children, whereupon the plaintiff stated that it was her late husband's wish that the property should be secured to them, and that she would like to give effect to that wish. The brother-in-law instructed Mr J. B. Nichol, solicitor, Gore, to prepare a settlement, making certain provision for the children ; providii g that tbe settlor's interest was to cease if and when she re-married ; and appointing himself joint trustee with, her of the settlement. Upon proceedings to impeach this settlement it was proved that the settlement, although dated two months later, was executed seven days after the decease of the settlor's husband ; that tbe settlor was then in a low state of health owing to continuous nursing of her husband, and after his death, of her son; and that she was unacquainted with legal business, and had not bad independent advice. There was no evidence whatever of fraud and undue influence.

' His Honor held that the plaintiff had not nnderstood or considered the effect of the settlement when she signed it, and that on that ground alone it should be set aside. In the course of a lengthy judgment, his Honor said, " I see no reason to question the good faith of. Mr John Anderson. He evidently thought that the children ought to be protected, and did what he conceived to be best in the interests of the children. But he might well have suggested tbat any transaction by the plaintiff as to tbe land should be postponed till a longer period after her husband's death, when tbe plaintiff would have been in a better position physically and mentally to know what she was about, and would have had a fuller and more prolonged opportunity of considering from every point of view her own and her children's future. That the Court will interfere, although the suggestion of* the settlement emanated solely from the settlow and where there is a total absence of fraud or undue influence, is illustrated by the case of Phillipson v. Kerry (32 Bev. 628). Tbat a voluntary settlement cannot be rectified so as to carry out any suggested intention of the except at the request or with the concent of the settlor himself is clear. I conclude, therefore, that on the day the plaintiff executed the deed of settlement she did ngt really consider and understand the effect of it, and that sbe is therefore entitled to have it set aside. The deed of settlement will he ordered to be given up to be cancelled and a re-transfer will be ordered of the land to tbe plaintiff by John Anderson, subject of course to the lease of the present tenant."