DEATH-BED GIFT

Northern Advocate, 12 August 1935, Page 6

DEATH-BED GIFT

OLD MAN’S MONEY WOMAN’S CLAIM FAILS “UNABLE TO BELIEVE PLAINTIFF.” SUPREME COURT JUDGMENT. [Special to “Northern Advocate.”} AUCKLAND, This Day. . Judgment was given by Mr Justice Callan in the Supreme Court on Saturday for the Public Trustee, as defendant in the action in which Mrs Elsie Pearse sought to recover £B9l , from the estate of Michael Coghlan, of which the Public Trustee was administrator. “The plaintiff,” said his Honour, “is the wife of an elderly retired bank manager very much older than herself. She is obviously a woman of intelligence, education and pleasant manner. In this action she claims, by way of donatio mortis causa, the sum of approximately £90,0, being the contents of two savings bank accounts, and practically the whole of the worldly estate of an elderly man named Michael Coghlan, who died at the age of 82 years in the Auckland Public Hospital on December 18, 1934. “She alleges that the donatio was made to her two days before his death, during a visit she paid to Coghlan at the hospital on Sunday, December 16. Coghlan was admitted to the hospital on November 26, 1934, as the result of a street accident. Short Acquaintance. “I am disposed to think that the friendship between Mrs Pearse and Coghlan, if it began before this accident, began only shortly before it, and that the whole of their acquaintance with each other was of comparatively short duration, and had never been more than a casual acquaintance until shortly before this accident. Under these circumstances, the making of such a donatio mortis causa, as here alleged, by such a donor to such a donee might appear somewhat surprising; but I am prepared to believe that Michael Coghlan might well have been disposed to make such a gift to Mrs Pearse. “There is no doubt that she was extremely attentive to him throughout his stay in hospital. She appears to have visited him as frequently as the hospital rules permitted, and to have stayed at his bedside during the whole duration of his visiting hours, and brought him stout, Spanish cream and other delicacies. There is the testimony of others that she treated him in an 'Affectionate manner, so that another patient in an adjoining bed at first assumed them to be father and daughter. Charges on Estate. “There is no evidence that Michael Coghlan has any relatives whatever in this country and, indeed, no evidence that he had any relatives elsewhere. Under these circumstances I can quite understand that this uneducated man might be flattered and comforted by the unremitting attention that Mrs Pearse appears to have bestowed upon him, and that this frame of mind might dispose him to leave all his money to her. While he was enjoying these attentions from Mrs Pearse, he did not know that his estate was to be charged by her with the cost of all the delicacies, with the cost of taxis by which she came back and forward to the hospital, with the rent of a room in her house, which, she says, he had agreed to take from j her just before the accident, but which ■ he never occupied, and with the; wreath that she provided for the funeral and the grave. “Yet, Mrs Pearse did seek to charge the estate with these items. The circumstances of this arc that there was a sum of £23 in cash in the possession of the house manager at the hospital. After the death Mrs Pearse obtained possession of this £23, and signed a voucher in which she described herself as “trustee.” The most charitable view to take of this portion of plaintiff’s conduct is that by this time she was in a state of some uneasiness as to whether she would be able to successfully hold the subject matter of the alleged donatio mortis causa, and that she was disposed to make sure of at least £23. “Grave Doubts.” “However, all this happened alter Coghlan’s death and, as I have already said, kindness to him in his loneliness might well have disposed him to make such a gift as alleged. My difficulty is that I have grave doubts as to whether ho ever accomplished such a gift. At the conclusion of the trial, for many reasons, which I need not detail, 1 felt that plaintiff had not discharged the onus of proof that is upon her.” Referring to the evidence ol the last witness, Mr Baker, solicitor, his Honour said it satisfied him. beyond all doubt, that Mrs Pearse told some story to him that at the hospital Coghlan: and/or herself, desired and sought

pen and paper for the purpose of re- I cording this gift. In her evidence she I had said no such thing. Her evidence ! in court was absolutely inconsistent j with any such thing having happened. | In court she represented the gift as ! having been made to her without any j preliminary discussion at ail, during i the last interview she ever had with | Coghlan. ! “Unable to Believe Plaintiff.” • “I am, therefore, placed in a position,” concluded his Honour, “that in I a matter of considerable importance I { find myself unable to believe the j plaintiff. Despite her oath to the con- i trary, I believe that she did say some- j thing about pen and paper in connec- ' lion with this gift, to Mr Baker on j February 5. Further, if she was then | telling Mr Baker the truth, then the j •transaction between Coghlan and her- i self in the hospital were not as she | now describes them. If she was not | telling Mr Baker the truth, she was j endeavouring to bolster up her claim ■ by the invention of a particular, which j she thinks might have helped her. In | the result, there is no possible view j of this aspect of the case which en- j ables me to have that complete confi- ! dence in the testimony of the plain- | tiif. which is always necessary in cases j of this sort.” i Judgment was given for the defend- j ant, with costs at per scale on a claim j for £IOO, disbursements and witness' i expenses to be fixed by the registrar. | His Honour certified for one extra day j at £ls 15/ and. for special counsel for j each of two days, at 8 guineas a day.' | Mr Schramm appeared for the plaintiff and Mr A. H. Johnstone,, K.C., and Mr Butler for the defendant.