SUPREME COURT.

Manawatu Times, Volume XXVII, Issue 7958, 20 April 1904, Page 4

SUPREME COURT.

(Before Mr Justice Cooper.)

A Family Dispute,

An adjourned sitting of tho Supreme ! Court was held at Palmerston yesterday to hear the case of Agnes McDonald ana I Margaret L. McDonell v. John E I McDonald. Plaintiffs m mother and daughter, and defendant is the son. Mr Gififord Mnjre and Mr B. S. Cooper represented plaintiffs, and Mr Morrison appeared for defendant. From the statement of claim it appeared that in 1878 Hector McDonald i husband of Agnes McDonald, died intestate, leaving real and personal property of considerable value. Administration of the estate was granted the widow, who appointed her eldest son Hector to manage the estate. In January, 1888, Hector, witli the consent of plaintiffs and other beneficiaries of the estate assigned his management to defendant and Roderick McDonald for | tho bonefit of the benoficru-ics. Subsej quently defendant ntssumed sole managership of the estate, and but reniained in possession ever since. Defendant had never rendered any account of tho management of the estate. It was further alleged that iti 1895 defendant represented to plaintiffs that the estate was practically worth nothing, and whatever interest they had in jit they must sell to him for £250. 1 Plaintiffs signed their agreement, selling j their shares to defendant, but received no money at tho time. Plaintiffs were ignorant of their legal rights and claims, it was alloged, and they bad taken no advice as to tho value of their shares, borne time prior to 1895 defendant had purchased tho share's of the other beneficiaries, and in 1898Tho paid plaintiffs j the £250 for their shares. Margaret ! McDonell refused to accopt that amount, | and defendant, it was alleged, threa- ; tenod her with criminal proceedings, and under fear she signed a receipt and accepted tho £250. Plaintiffs claimed that the sale of their shares should be declared void ; that defendant be declared trustee for I the plaintiffs and others interested, and all property .received by him .under ■,tho deed of January, 1888,' constituting him, with Roderick, manager of the estate, and all income and profits received from the estate; that the defendant be ordered to give account for all profits and outgoings of the property from January, 1888 ; and plaintiffs claimed judgment for whatever amount may, on such takings, be found to be d-ie, and such further relief as the court may deem them entitled to. Mr Moore made an application to have the statement of claim amended by adding that the representations of de- ! fendant were untrue to the knowledge of defendant, but were' relied on by plaintiffs as true, and that defendant entirely failed at. any time to give plaintiffs full particulars or any information as to the value of the estate, or any information from which plaintiffs could form an opinion as to its Talue. Mr Morrison objected, on the ground that tho Court could not permit an amendment that altered the whole subEtance of the claim.

His Honour said he would grant the application, on condition that the action was adjourned and plaintiffs paid all costs of the adjournment. The first part of the amendment changed the action to one of direct fraud preferred againßt defendant. Under the circumstances plaintiffs' counsel decided to proceed with the case on the original claim. In the defence filed it was denied that defendant took over the management of the estate in 1888, and contended that the flock belonging- to the estate was managed jointly by defendant and Bodorick McDonald. Defendant denied he continued in possession nntil the present time, and said that during the time he managed the stock he fully acquainted plaintiffs with the position of affairs. Defendant admitted acquiring the rights of the family in the flock of sheep and the stock belonging to the estate, but paid more than the i market vaiue of the stock, lie- denied telling plaintiffs they must sell their sheep to him; they entered voluntarily into the agreement* Even if their allegations had been true, by their acquie6cense and delay, they had lost any right they may have had; and, further, that the claim was barred by the Statutes of Limitation and the Trustees Act. In December, 1896, and June, 1898, defendant, he alleged, paid Margaret McDonell her share of the purchase money of her interest in the estate, and that in March, 1897, and June, 1898, he paid Agaes McDonald her share, and that the payments were made after the plaintiffs had received independent advice.

Agnes McDonald and Margaret McDonell. were examined to bear out plaintiffs statement of claim. Crossexamined, the latter admitted that when her brother took over management the sheep were worth only ss, and there was a debt of £2,000 on the property. Her brother found money to ieep the place" going,at first, but witness considered she could easily hay» obtained another manager to have done the same. Mr Morrison applied for a, nonsuit, but the application was refused. Evidence as to the drafting of the trust deed was given by the ; solicitor conoerned, Mr Franklin.

Defendant was then put into the box, and was under examination whan the Court adjourned.