FAMILY DISPUTE BROUGHT TO COURT FOR SETTLEMENT

Manawatu Times, Volume LV, Issue 7294, 2 August 1930, Page 9

FAMILY DISPUTE BROUGHT TO COURT FOR SETTLEMENT

Question of Moneys Lent

In the Palmerston North Supreme Court yesterday the Hon. Mr Justice Blair was engaged hearing a family dispute in which Albert Joseph Rising, clerk, of Palmerston North, asked for the removal of the three trustees of his late father’s -will and the appointment 'of the Public Trusteo in their place; an order declaring null and void a deed of family arrangement; and finally, for the return of £950 to the estate alleged* ly lent one of the trustees Ohae John Rising, of Mangahno. Mr A. M. Ongley appeared for plaintiff and Mr H. B. Cooper with Mr McSherry (Pahiatua) for the defendant Chas. John Eising. ! It was intimated that the trustees had agreed to the appointment of the Public Trustee in their stead and that the family agreement should be wiped out. The case consequently resolved itself into a consideration of the facts relating to the £950. In outlining the circumstances of the case, Mr Ongley stated that Carl Eising ,a farmer, of Makomako, died on April 16, 1918 leaving a will dated •October 10, 1917. There wore three trustees —the widow, Sarah Teresa Eising, and two sons, Win. George and Charles John Eising. On July 31, 1918 probate was granted the first two trustees, Charles John then being away at the war. However, the latter returned in April 1919. and expressed his dissatisfaction with the will which gave the ohldren equal shares. He considered that it was not right that the eldest should get just the same as the others. A deed of family arrangement was entofed into giving the estate after the death of the widow, to the other two trustees subject to a payment to Albert Joseph Eisin.g (plaintiff) of £3OO when he became 21 years of ago and £3OO to Margaret Anne Eising, one of the daughters, and £3OO to the other daughter should she give up her religious life as a nun in a convent. This arrangement was made on October 18, 1922. Each of tho children’s share should have beeu £7OO but the three who weren’t trustees would receive under the deed £3OO, instead of £7OO, and the other two (tho trustees) £I3OO each. On April 2S, 1923 Charles John Eising drew £950 as part of his share to start out on his own, . Mt Ongley alleged that the other two trustees agreed to Chas. John Eising Laving this money ‘'in order to get rid of him and save family friction.” After getting that money Chas. John Eising was admitted to probate on May 5, 1925. the widow and Wm. Geo. Eising (the other trustees) realising they had given this money away took legal advice and made a claim against Chas. John Eising that he pay the money back into the estate. The matter stood over till plaintiff reached his majority on August 28, 1928. How*

over, no satisfaction was obtained then, when Chas. John Eising received his money certain assets of tho estate were realised. The position to-day was that the farm was still a farm, tho stock still stock, and the widow had a life increst in it. Plaiqtiff was askng that the £950 bo paid back into the estate. Mr Cooper said he was disputing that the money belonged to the estate •and contended that it belonged to the widow. " . ' Mr Ongley explained that capital and income moneys were used indiscriminately in running the farm, no separate accounts being kept. In evidence Mrs Eising, the widow, said that on the return of Chas John Eising from the war he expressed his dissatisfaction with the will. He complaned that ho should, as the eldest son, receive more than an equal share. ‘‘There was a disturbance every week at least,” added witness. Thero had been no trouble in the family before that. Eventually she got tho deed of family arrangement made out to satisfy him. The others agreed to take less for the sake of peace. After that Chas. John was not so bad for a while until he wanted more money to buy a place or get tho family off the homestead. Witness offered to build a fourroomied house on one of the sections but he was not satisfied. He wanted nothing less than a ten-roomed house and a car. Then John came to her with a proposition, to sell the homestead to a neighbour and another to put money into a hat business in Palmerston North. Finally witness could not put up with the trouble any longer so she gave him £950 from the estate money to get a place of his own. Witness said she never had a private account. She and heT son Wm. George (the other trustee) wanted the money repaid to the estate because they could not meet the mortgage on tho farm and were getting no interest on the £950. To Mr Cooper: The first thing he told me on tho way back in the train after he landed was that ho was going to run the farm and wotild not take any back-door orders. On tho farm John pottered around and took two days off to go to town. Just prior to John getting his £950, witness received wool cheques for £159 10s 2d and £417 8s lOd. The wool had been held for three years and during that time she had to meet interest and expenses out of the bank moneys. She mat an overdraft out of the proceeds of a sale of a section in Palmerston North. The account was known • as the estate account and everything made from the estate was paid into that account. Witness stated that John used, to buy and sell for heir in his own name which accounted for cheques in his name being paid into the account. However, a part of £2OO he got from a Patriotic society was used by the estate while the wool was in the shed. She didn’t thing she got as much as £lO7 from him to pay the interest. She never once suggested that the £950 was a personal advance; he had been told from the beginning that it was out of the estate. Witness disagreed with the allegation that there had been no trouble in the family till John objected to being relegated to the gig to take his girl out

it while another brother had the car. ‘‘There was trouble from the very day he landed in New Zealand,” concluded witness. Wm. George Easing of Pahiatua, said he was now managing tho estate. When his brother John returned to Now Zealand there we%e squabbles every day. John wanted •to start stock dealing when stock was no good at all and wanting this and that. The deed of family arrangement was John’s own doing. Witness did not know much about it although ho. signed the deed. As soon as tlio document was questioned he was quite willing to cancel it. Tho giving of £950 to John Eising was more for peace’s sake than anything. The money was taken out of the estate ■ —everything went through the same bank account. To Mr Copper: Witness could net recollect John having paid moneys into tho estate to tide 1 over tho stringent period when the wool was held up. This concluded plaintiff’s case. Mr Cooper submitted that under the family deed, defendant was entitled to half the estate less £9OO. His Honour pointed out however, that defendant had no interest in the estate till after his mother’s death or remarriage. Mr Cooper contended that plaintiff could not obtain remedy under, the present. proceedings . because at the time the advanco was made, defendant was not a trustee and so could not be sued for a breach of trust. His Honour, after hearing Mr Cooper further, observed that the case seemed to resolve itself into two parts. Firstly, whether the money lent was estate money or private and secondly, whether the parties had gone the wrong way about the transactions. Plaintiff was not asking for the £950 but just that defendant account, for it to tho estate.

Defendant, from tho witness stand,, denied telling liis mother that ho was going to take charge when he got home. On arriving home be helped to work tho property till he left to take up his own land.. Ho worked continuously except when ho went in each Tuesday to tho stock sale. He secured a loan of £2OO from a Patriotic Society to get the bush felled on the farm but the teudor was too high. He went, in for dealing instead and was successful. At various times he made advances to the estate, including £lO7 for interest. The There was no family that got on better for the first three years till his mother and his brother Bill seemed to be up against him and aggravated Mm whenever they could. Eventually it was put to him that ho should go away and the Mangahoo place was bought. His mother made tho arrangements with the banker and she said she would have tho wool money besides tho cash from a place in Palmerston North she was trying to sell. Witness said ho was about three years home before he saw Ms father’s will. All ho knew was what his mother told him—that there were three trustees and he and his brother Bill were to get half the farm provided the others got so much each. He was greatly surprised to find on reading the will, that the place was te be divided equally. He mentioned that he and

Bill should ho working on wages if the place whs to be divided equally. That was what led up to the family agreement. One night his mother came to him crying stating that she could not pay her accounts and asked if ho would help her. This ho did paying £lO7 interest as well as other debts. .Up to the time ho Was appointed an executor in 1925 he never interfered with with, the accounts in any way. He asked his mother who was going to square up with the Patriotic Society and she said she would. Except signing a mortgage he had done nothing else in eonnection with the estato even as a trustee. Defendant stated that ho decided to get a family acknowledgment of the £450 they owed him and a receipt was signed. Every item was considered and they agreed to accept the liability, The advance of £950 to him he understood was from his mother. His Honour: Borrowed or a gift? Defendant: I didn’t understand 1 was borrowing it at all. I was accepting it in a way, as part of my share out of the estate. His Honour: Was it a gift from your mother or an advance against your share of the estate. Defendant: I should say an advance against my share of tho estate. They had my money and I thought they were helping me. I can’t say it was a gift. ' I knew half the money was wool money. His Honour: Were you to get this £950 and still get half the estate? Defendant: No. The £950 was to come off my share. At this stage the case was adjourntotal advances were round about £450. ed till Monday morning.