AN ANNUITY TRANSACTION

Nelson Evening Mail, Volume LVI, 17 June 1922, Page 5

AN ANNUITY TRANSACTION

i 'APPLICATION TO SET ASIDE DEED DF ASSIGNMENT ■> • The hearing was commenced at toe Supreme Court last evening before His Honour, Mr Justice Hosking, of the action Alice Brusewitz, executrix in the estate of the latfe Henry Ellis Leopold Brusewitz, v. George Brown, jeweller, a claim to set aside a deed, of assignment. Mr Foil appeared for plaintiff and Mr Hayes for the defendant. STATEMENT OF CLAIM The statement of claim sets out: 1. That she is too administratrix of the estate of Henry Ellis Leopold Brusewitz, late of the City of Nelson, retired photographer, uhder letters of administration granted by the Supreme Court of New Zealand, Nelson district, on the 18th day of May, 1922, and the widow of the said Henry Ellis Leopold Brusewitz. , „ , . , 2. That ■’ prior- to the Bui day qt November, 1921, the said Henry Ellis Leopold Brusewitz was seized of an estate’ as mortgagee ih the lands described in Deed of Mortgage registered at Nelson No. 45,839, securing toe repayment by one of the. sum of one thousand pounds (£1000) with interest at eight pounds (£8) pea 1 .centum per annum, payable quarterly, whito of one thousand pounds (£1000), together with accrued interest, was on the Btli day of November, 1921, owing t 1“ aidWy Ellis I*opold Bmc. witz upon the said Deed of MortSa | e ’That for many years prior to toe last mentioned date the Ellis Leopold Brusewitz had bean drinking heavily and to such an extent as to bo incapable of managing his business or business affairs, and m consequence of-his drinking “s he had to give up his business and had' been unable to support toe plamtif 4 That the defendant for ft number of veais prior to the. lata mentioned fj fed praised friendship for the raid HemyVhj and 'hnd be©n constantly .with him && Sin Tia drinking rf rf L! Instantly , ta Mmtgage, the rfj) SSion of the W-O-WTtfi SsewiS? ”r y ««rfy Jr'me hundred and eight (£108) per annum so tag raid Henry El \ ls the funeral 5«it ««, «-y rf frft’ SerSpoS insweted f^s-J----pare an assignment . Deed of prepared.! , times the said 8, That a* 'RnißßWltz was Henry Ellis strongly u^ r t e defendant for addependent a ff a irs and was vice and help ™ * ly consider toe qmte i 0 ho was enier“ho feof •» * ** nis duty to P e , • e an appeal* mat m ord©r to pg ance of fairness hifl so ii c itors -to the defendant , . f r t h e said procure indenendent but the Henry Slhs j:/ no t procure defendants Solicitors who such -advice from tne . _ had prevmusiy aoted itz> but Leopdd y P Neltrom Mr W. C. S 5 affairs or t e position of his Ellis Leo--1 10. That the said Henrv pold Brusewitz g the said documents y November, ley. mid on tne Bth nay n h 1921, d.d sign *0 M Mr W 0. advice was of n , no t seized Of Harley was at A t f acte to proHsnr, Blis UP“li; SrSm said Not(PK« k.qprfLdli registered it M- * 4 % snid Deed of Lnensnt « dated the tata© Henry Elli© L©o--12. That the raid n on the pold Brusewitz,died & ® 15to day of Match, 1922^n 13. That on the sfc “ A plaintiff 1922. thc to to {olloWS -._ wrote to defe aI1 ' M Brusewitz, “We are •rtmgjg we saw Messrs nnd on the 1 _ . understood Rout and Milner,, w , n W ® e?6reTlce to wore your solicitors, Brase , the assignment of anc j suggested witz’s mortgage 1 detailed that, under toe ■ re-transfer ll^US^° Ü BtCta of it to Mrs Brusewirz interest rf 1 S, Sn tatmed. n. that rf v ss&s W Since we have mtend to. n <mly ~ndnda ttat™^ our r A thpre 1S onlv. ftohoitors. if tois Brusewitz and 1 one course ” T ut before ton will certainlv take it, blit doincr so she wis ps the matter and of s st^t b at thfi traps-, ment of OJU .Jr bear the veiw ugly nction does no- - f nrf > jfc does, "T 1 S W'T mmli"’- conduct sinnn 1 llio said Pftcd nf Asainnrnput of M'wteacrc 1 ’' 11 -'™ entered into by on id Honrv Ellis Lfonnld Brusevdtz In- ipodomiate consideration, and ,-nder to- ’before nn improper **"d unfair; for «oid H>prw Efim Leopold BrnscUz to,enter with the ;defendant „ n .j Loemoid DvnrpwUz has been improperly timrohv. Wi, nw f W A to" «Mntiff nc such ndct,.niTiv "forewid prnvs: • t m too of A P ,«or,< of ATort'""'* the 2th dev nnd ton deferent tonnM bn f n ' ..nnn-ifrn ."pd to the pl"m- ---+ iff (1, n M nrfr "! < fr ' v ’’emsXTn. 45.893 find the monies oeeim „,1 ft, n-tov, . . , J. 11 in\ rpunf nn nnnpnnt, tn pf nil • -.4 V,. +Pn mepTef , ’ of ’ 1 1 , . , i i. 3 il Tln-nrl O* Aoc'-nrn"" 4 - ilpfr'n n/ p f i, VwomW fe)l 1 .T ..11 ",, f np "A- Imintr P^ede 7.rXn P f r-nnn-f n* rny „„,Vj raid Deed of Covenant, of toe saraei

IPfli'M fobe) and that the plaintiff have judgment against the defendant for the balaince'of such amount. (3) Such -further and other relief to which this Honourable Court may deem the plaintiff entitled. I ; STATEMENT OF DEFENCE The statement of defence set out. (1) Ho admits the allegation in para. 2/2, H, 12 and 13, of the statement nf claim{2l He denies the allegations in pars. 3,4, 6, 8 and 14 ol the statement of claim. . , (3) He admits the allegation in par. 5 save that he says the first offer and proposal (which was to sell the m ort--gage heroin referred to) came, from the said Henry Ellis Leopold Brusewitz. (4) He admits the allegation m par. 7 save that he denies that it was his offer and that it was his solicitors who prepared the assignment and deed of covenant. He says that Messrs Rout and Milner who prepared the said deeds were the solicitors chosen by the said Henry E. L. Brimewit/. (5) He admits that Mr Vt- C. Harley was asked to advise I the said, Henry E. L.’ Brusewitz, but otherwise he denies the allegations in par. 9. (6) He admits, that the_ said. Heray E. L. Brusewitz was advised toy. Mr W, C. .Harley to sign the said documents and did sign them, but otherwise he denies the allegations in par. 10. ' (7) And the defendant further says that after the execution of the ■ ?aid documents '(namely the assignment and deed of covenant) ; the said Hennr E. L. Brusevfitz' confirmed anq abode by them on four different occasions, namely, on or" about Ist December 1921, Ist January, February , and March 1922 by" accepting payment or the £9 payable him under the said deed of covenant. Mr’ Fell ‘called ’ , - , William Oan-ol Harley, barrister and solicitor, who said that outside the occasion on toe Bth November 1 of lata year he had never acted for the iate Mr Brusewitz, and knew omy by hearsay ol his domestic ' affairs. _ Un Bth November of lust year Mr W. V. Rout came' to him, and explained that he was engaged in a transaction with Mr Brusewitz and considered 1 it was advisable 1 for Mr Brusewitz to have advice. Witness went' to the Provincial Hotel with Mr Rout, where they, met Mr Brusewitz,; and Mr Rout produced two deeds —on© of l & mortgcig© and tn.© other some form of covenant. Mr Rout explained the nature of toe transaction he was entering into with Mr. Broym, in order that witness might satisfy himself that everything was- all rightWitness went 011 to detail 1 thq-epn-versation that ensued with Mr Brusewitz, who spoke'of toe ; circumstances leading up to the transaction and the transaction itself. Brusewitz went .on to state that ■he had been told' by Dr Johnston' that apart.frojn rheumatism he had every reason to , believe that he might live for, ten or 12, years longer. At too end ol the conversation Brusewitz- asked witness if he. thought he had acted wisely. Before replying witness asked him if hp was any obligation -to provide for bis family, and was told that he was not. ,He further stated that he was fled wiili th© personal security of Brown. Witness then. told him that if the facte as stated were correct the transaction should he all right. Brusewitz’s physical condition was Hayes': Brusewitz was absolutely sober ait to© time .of the interview, and appeared to 06 lady clear-headed, with ft thorough, grasp of the transaction. There were no signs that was finder the influence of Brown. , To His Honour: He, considered he was taken along by Mr RoUi muon ip the same' way as a man who .would The called, to witness awilL.H©, considered his duty waa to AH Rout. Dr J. P.‘ 8- Jamieson, stated that be first attended Brusewitz professionally in Dedemberj 1916,.;• when he TO- admitted'- to the Hospital suffemg [delmum trepiens produced d fg His physical; condition w W, 1 - next saw him ruarv 1919, when h© wa« ogam aft. mitted sneering from toeQW tooub|e, Hfs physical condition was then worn. On discharge .witness was ol to© “pinion l tIA h‘ v<m he wWafe.*! live more than two or three years at l M.r°Feil asked witness what was the cause of deceased’s death- (Deceased died on 15th March, 1822). , ' Mr, Hayes, objected to-too and His Honour upheld to© wW Continuing, witness saad, ho Tw« W deceased oocasionhlly ip weak since 1919, and h?s. condition, was weak oni-l tntl.prine. Witness went on to give his opinion, as to the peraaanen results of drinking on.-a ™an s mmto From' 1916- ohwaris deceaseds hf© was not an insurable one- , , . , W To Mr Hayes:/ Whether tom* continued to drink oi? not he did n think he would have lived more than three years. It was not unreasonable to assume .that deceased; had uot continued to drink to excess dunng toe last three years of te we. . Dr W D. S. 'Johnston, said he.first .attended' Brusewitz in' for «WJ* of acloholic poifionmg. He nexlj at tended him m' 1915. from toe. same cause, and m 1516' he **nf J*™ Jf •hospital suffering’ the same ogmolaint. He had not seen hm profesSonaliv since. ■ He had since occasion: ally seem him in the streets, and he appeared 1 shaky, °©^ d whether he had stepped [drinking; as he had not spoken to him on tnese occasions. In 1916 he could not hove passed Brusewitz fOT ( “S it He had never told Brusewitz that he had a reasonable expectancy of living for 10 or 12 years as stated, by a previous witness. When he last , saw him he was obviously going down Ml, » much so that he, remarked on his conMr Hayes: Even u\ 1916 deceased walked very badly-tottering m fact. Walter. A. Harrington) t«l«r at the ■National Bank, Nelson; and John Gordon Everett, . acting ' teller, at the BanK of New Zealand, identified cheques for £SO drawn by H. Baigent to toe order of H. Brusewitz and presented tor payment by defendant. • Edward A. Bcvendge, jeweller, stated that he had visited Mr Brusewitz in his rooms, Hardy Street, m company with defendant in 1917. ■ Brown, had taken soup to Brusewitz and, tidied up the room. Daga Brusewitz, law clerk, a daughter of deceased, said she and her mother went to Perth in 1911 and returned in 1919. ‘ : A correspondence was kept 'up' with her father. She came to Nelson af Christmas, 1921, and raw her father, who looked as rf he Imd been indulging in a drinlqng. bout. Re shook hands and smiled, 1 but| did not ■recognise her at first. she saw him, when he seemed much improved. To \Mr Fell; Witness said before 1919 her father did most of his business with Fell and Atkinson and Maginnlty and Son. • The Court adjourned at lu.o p.m. until this morning. The case had hot been called <m again to-day up to the time w© went to press. ■ - If once used, yon will always' insist on Sender and Sons’ Emalypti _ Exteact, because it is' the pore, etherjal eßteaqt of the eacalypt. ' Sander and Som Encalypti' Bictract wards 'off, influenza, tore throat*', oouglm. and to ld *- protects from tafetaioas dieeaees. In nut «n genuine Sander • Extract ; /V:/ ; : J : ;/