AN ANNUITY DEAL

Nelson Evening Mail, Volume LVI, 23 June 1922, Page 4

AN ANNUITY DEAL

ACTION TO SET ASIDE DEED OF assignment HEARING CONCLUDED DECISION RESERVED Tho hearing was concluded at the Supremo Court last night, before His Honour Mr Justice Salmond, of tho action Alice Brusewitz, executrix in the estate of the late Henry Ellis Leopold Brusewitz v. George Brown, jeweller, an application to set aside a deed of assignment. . Mr C. R. Fell appeared for plaintiff and Mr J. P. Haves for defendant. , Defendant was 'in the box when w& went to press yesterday, and after his cross-examination was questioned by His Honour as follows: His Honour: You were going to pay him an additional £2B a year for tho rest- of his life and were taking over a ■; mortgage for £IOOO. Is that correct?— Yes. . . •. V And you consider this was doing Brusewitz a good turn. How _ mucus longer did you expect him to live?— About ten years. . You knew he was a heavy ...drinker—that he drank to excess.—To put it literally that he was a drunkard?—Yes. That ho was 67 years of age?—Yes. That he suffered from delirium tre- . mens? —No. And you say on your oath that you anticipated this man to live until his was 77 years of age?—Yes. Supposing he had lived for ten years, how much would you have paid him?—• 1 would have paid him £2BO. And what did you get for that?—The mortgage. * - . You got a thousand pounds. Was that doing him a good turn?—l didn't look at it. in that way. In what way would you look at it?— Just in (the way of an ordinary annuity. i - So you look upon it as a good turn? It was not a gift made to you by\ Brusewitz? —I don’t look at it in that way. He first mentioned the matter 1 of an annuity to me. • You were a frie'nd of Brusewitz s and were going to do him a good turn.? Didn’t it occur to you that a transaction like that would* depend upon what his prospects of life were?’ —Well, 1 thought that when you went into an annuity you just went in and pad . your money down. Did you know he was a dying nun. at the time?—l did not. You say you collected his first-quart-er’s interest and paid it to Brusewitz. Did you pay the whole- of it?—l paid him the interest right up to. , the quarter. , „ .. Was he entitled to the lot?—No. Get a receipt for it?—No. Did you give, Baigent a receipt lor it?—No. Does Mr Baigent pay you interest on this mortgage without getting a :.’O- -, , , Mr Fell explained that the payments were made by cheques. _ , , To Mr Hayes i He had never done any other annuity transaction, and knew nothing about annuity taolus j , nor bad he enquired ■ about - them. Brusewitz told him, however, tl\at lie, had. In November last he considered" Brusewitz was more capable of -judging -annuity tables than witness- Mr Brusewitz suggested witness going to Rout and Milner. Witness had nob. suggested this firm. He nad done business - with practically every legal firm in Nelson. The deeds were paid for (by witness. _ . „ . His Honour: . Why ?—lt was all agreed to at the time with Mr BrnseContiuuing, witness said, after the deeds were signed he made no chaigo in his visits to Brusewitz, or .with his intimacy with him. He was with, Brusewitz only once a day and never aL Wilham Vernon Rout, barrister and solicitor, of the firm, of Milner and Rout, ref cried to the- legal business ho did in November last with Bmewitz and defendant. , He was instruct; ed by Mr Brown.- ■ . . Witness here raised the question pt privilege, but on His Honour s assurance that the question of pnvdege did not arise, witness proceeded to Retail the transaction regarding the Mr Brown gave him the. details oi tne transaction. He -considered he wasacting for Brown, who ‘told him to do everything that v/as necessary to pus the business through da.-a, proper nev. Brusewitz mentally-at the .mie was as fit as ho ever. knew Run, ana was quite capable of undertaking and carrying out the transaction. _ witz in the course of discussion told witness tliat his income “sufficient for him to live on and that tor some' time he • had ■ been for means to increase hia uicome. »vi ness understood Brusewitz to say he liad made enquiries nuity, but there were stumblng bJocKS in the way of converting a Brdsewitz then stated that he had discussed -the matter- with . Brown, bub that at first Brown was unvnllmg. to ■ .L-r, pioo & Brosowitg i pay more than .in enumerated his .various exponas o showTSt £IOB was the minima income lie required to live m Teasmiable comfort. Ho also explained Brown who ultimately agreed to p y Hi. pim a year. Witness S-strong un* Sossfon U» offer Em Brusowite. There was some *»• cuTion “to BruaewWa | phya-rf CM--diliou, Brusewita a „i ss a s h P Si.rJs“Sa« 3 advice about tho tKmsaction. and that :f Pf- had no preference he (witness; would ask Mr Harley to come alor.g on 3,e following day. Brusewito consented. . Brusewitz was peiJectiy sobri lbai d y and there was no sign of liquoi toouihim or that he was under the mof auyouc. n 'jf wnerallv. Brusewitz could more ahi owd with Brown® “ mental ability went. At Ito «IP> 8 St.e°?b“twrkn« time of the interview nor who was S °To g His was no question in my mind but that I was actmg { °CoShig witness said that at the end of the interview Mr Harley ana Mr Brusewitz discussed the pomh. e d by witness the previous day, ana Brusewitz : also gave a very lucid ex nk!Sn of the Whole transaction, and expressed gratification at Jj I®, 1 ®, of the transaction, and that it wou mean extra oomfoit to um. i,. A His Honour expressed surprise-iit the statement that Brusewitz abou d lwe expressed gratification at compktmg a transaction which eft him f h * month for the rest of Ins mo loi nw S<> To AHs^Henour, witness said lie was not aware that Bnisowitz was !tn ■ ex* CC Continuing, witness out the business Brusewitz knew, full well what he was doing. He was-a shrewd, man. ~ His Honour; Do v you consider Wu« was the act of a shrewd man. . . Witness replied thatunder the -circumstances ho considered Brusewitz’had acted wisely. ■ There' were only two courses open to ,hun. .He did -no

call him a provident man. To Mr Fell: He did not _know that this was the first occasion Air Harley had acted for Air Brusewitz. He did not think the question arose at tne time. Ho had pointed out to Brusewitz the question of Brown’s personal security. Independent legal advice Was advisable. To His Honour: He was not sure whether, if ho had been acting for Brusewitz, he would have obtained medical advice for him. He did not think it was relevant to this particular transaction. William Eric Arnold, manager of the Nelson branch of the Government Insurance Department, stated that his office would pay an annuity of £lO7 10s for a man 67 years of age on £IOOO. This would bo independent of the man’s physical condition. No enquiries were ever made this. A. A. Grace, journalist, said he hud ■ known the late Mr Brusewitz for a • great number of years, and had boon well acquainted with him for the last 7 or 8 years. During these latter years ho wont to see him every two or three weeks, .and usually stayed with him half an hour or so. They were interested in talking world politics, literature, etc. Deceased had also once lived iu the same village in England as witness, and this was an additional honcl between them. Both were interested in military subjects, and deceased could talk interestingly and ably fin the subject of strategy. During these years he should say that cle■ceased’s mental abilities were, good; of course sometimes ho was not as well as he was at other times. I or long periods lie would be a total abstainer, and for longer periods still he would ■be a moderate drinker, and then at considerable intervals he would drink more than lie should, and then u was that his mental, abilities were not of their best. When witness first got intimate with deceased and judging from what he saw he should say his financial position was not good—he seemed to bo in considerable poverty. So lav as he knew no one helped him financially; hut witness helepd him in various ways ) —such as taking him soup and custards | when he was not well, and on certain occasions he cooked at times for him. The defendant had similarly acted towards deceased as well as cleaning the place up and feeding the poultry. He remembered in 1916 deceased being taken to the hospital—at witness’s own instance, in fact when he called in Di Johnston. Witness accompanied him to' the hospital, and on the way the question arose as to the payment foi the motor car, which deceased insisted ■ on paying. He remembered when lie went to live in the Provincial Hotel, where witness went to see him about every 2 or 3 weeks. Witness thought deceased atill needed looking after in the way of diet, and advised him about it, but he did not know whether he carried out his advice. Deceased had spoken to him about the annuity alter jliis business was fixed up. He said he had taken out art* annuity with George Brown. Witness asked why, and Brusewitz replied that Brown gave him more than he could got from a company. Witness said this would mean in case of his death that the principal would be lost to the family. Brusewitz ‘said “when, they went away from me to Australia they skinned me of eveiy ■sixpence they could lay their ham s on, and since being away they had not ■been *vei;y interested in me, mvo they?” Witness could not say anything to this and the conversation ended. On this occasion-Brusewitz said he considered Brown had “considerable dibs meaning that he thought he was sate. Brusewitz's 'mental condition at the time was quite good ; he seemed to be seized of all the points and witness was satisfied that he knew what he had done and had done what be had wanted to. , Cross-examined: He know the family better than he knew Mr . Brusewitz. Mr Brusewitz had never talked about the family going away and leaving him. :.jq e did not tell witness that as soon ■as he sold out he was going to join (them in Western Australia. lie had 'seen Mr Brusewitz every two or three weeks while he was at the Masonic he used to lend him books. As a general rule he did not care to drink With Mr Brusewitz because witness knew he "sometimes togk too much. Ho thought that -Mr Brusewitz s illnesses were'the result of excessive drinking, lie last saw Mr Brusewitz about 2 or 3 weeks before he died, when he was suffering from a cut on the head, caused he said by falling oft a seat. “All I knew was that I was sitting on the seat and-they picked me up there •were deceased’s own words. He Believed deceased had a further seizure. Ale wrote and told Mrs Brusewitz of Die fact. Airs and Miss Brusewitz came to see him after the funeral, and he remembered telling them that Mi Brusewitz had never spoken to him about financial affairs. Witness explained .that at the time he was greatly worried over family matters and he had forgotten the fact. At the commencement of the war deceased was an interesting man to talk to about •strategy,' and he considered when he last saw deceased that he was just as 'interesting to listen to. He believed Jy£ v Baigent told witness that ho had kicked him out, but he could not recollect Ahe reason. To Mr Hayes: He had never seen Brown and Brusewitz together. Was he an easy man to acquire influence over?—He was a difficult man to deal with. He had a great deal of self-esteem, and one had to be careful how to approach him. I would not liked to have tried to acquire influence over him in his business affairs. When you wrote to Airs Brusewitz telling her of Mr Brusewitz’s condition, did she do anything?—-Not so tar as 1 know. . ~ William H. Aloxey, fruiterer, said ho had known deceased for 131, years. After he went to live at the Jrr(\vincial Hotel witness saw him two or three times a week, as he visited the hotel to buy vegetables. He had several talks with Brusewitz. About October or November last he found him quite normal mentally and as keen as ever in the 13£ years he bad known him,. , Did ho seem capable of transacting business? —Absolutely. Continuing, witness said it would take a very good man to gain influence over Brusewitz, and there was no sign of Brown having gained any. Cross-examined; He knew Brown intimately. Witness at one time was chief steward at the City Club, of , w hich Brusewitz was a member, but he would not say ho was a heavy drinker. Bertram Richardson, retired solicitor, knew the deceased during the last five or six years of his life. Last summer when, in town lie called to see him at the • Provincial Hotel. His condition was then much the same as during the period he had known him. never looked a well man, and complained of rheumatism. He had a peculiar .gait, and walked like a broken-kneed horse,, and witness put it down to rheumatism. And mentally ?—He was quite ail : there.” , ,And capable of transacting his own business?—l should say so. "'Continuing witness said he knew nothing'whatever about deceased’s family affairs. ; Cross-examined by Mr Fell: Deceas-

cd never discussed his financial affairs ■with him. .Alfred Kendall Baxter, printer, said ; he had known the late Air Brusewitz ever since ids boyhood, and knew him intimately from last October or November. Stamps were a hobby with deceased, and witness was also interested in the same thing. He stood alone as a stamp collector, and was a very keen buyer and of sound judgment. During last 'summer he saw him frequently, and witness could see nothing wrong with him mentally. He had never known him to repeat the same anecdote twice like lots of younger men. did. Cross-examined by Mr boh: Nearly all our conversation was about stamps, bub sometimes they drifted on world subjects. Deceased iiad never spoken to him about Air Drown. Witness usually saw Mr Brown at Brusewitz s on Saturday afternoons. After last Christmas witness called several times but found lie was unwell. On one. Saturday afternoon deceased said ho wanted to write to Ins wife, but that his hands were too shaky. Did he seem to be going down hilt after Christmas?-—Yes: but I thought, he might live a few years with proper attention. • . . To Air Hayes: He had seen signs ot intimate friendship between Brown and Brusewitz on the Saturday at lei noons. Nat Brownlie', licensee of the 1 rovincial Hotel, said he knew deceascu two years before his death. In June or July of last year be came to live at bis hotel, and stayed there up to the time of liis death. Mentally he considered him a .very intelligent man, and quite capable of managing his own affairs. He paid 32/- a week for board and lodging. He was very punctual m his payments, and quite abie to keep account of what lie owed. He never knew him to bo short of money. He had a very good memory. _ In what way did he show his intelligence?—lf there was any dispute among people it was generally referred to Air Brusewitz for decision. And was he able to give it?—Oh yes. I Did lie ever show you any sign lof defective intellect?—No. 1 Did he ever show signs of shrewdness?—Yes, be was a man who was quite shrewd. . , And did you ever sec him with tno defendant? —Yes. How often?— Every afternoon except Sl How long did Brown generally stay with him? —Sometimes not 20 minutes. Did they drink together?—Yes. . To what extent?—Sometime two drinks; sometimes one. What did Brusewitz drink?—Whisky usually; sometimes kola-nip. And Brown?—Beer. . . Did Brown show any signs of haying influence over Brusewitz?—Not to mv idea. ■ , . 'Did von ever see Brown pay him over money?—Yes, on two occasions 1 saw him handing over notes, but i do not know what for. Before or after Christmas?—l do not sce Brusewitz hand over any money to Brown?—No. j While Brusewitz was at your hotel did lie get many letters?—l do not know; I did not collect them. Cross-examined by Mr Fell. Hid you remember sending a telegram flora Mr Brusewitz to his wife giving his address? —No. You knew when he came to youx hotel that he was a heavy drinker. No Did not Mr Baigeut toll you when he (Brusewitz) first went to live with you that you would have to look after iiiin.—Ho told me not to give him too much drink. . Would there be any occasion for a warning if be was not a heavy dnnkei ■ —I don’t know. You rationed him? —Yes. 1 Four drinks a day? —Yes. In spite of your rationing him he got too much drink ? —I never saw him with too much. You knew from the. state he came home iu that he had got more di ink c —Yes. , . Did you know that Brown was doing any business for him 3 —No. Did you not tell 'Mr Baigeut that in spite of your rationing him he got drink outside? —-Yes. And that at the last he was m a fiightful state?—No, Was he spending much money at vour hotel 'besides his’board and his four drinks? —I stopped him ‘‘shouring” for the whole bar, us I did not want him imposed on. What do you reckon he would spend on drink a day? —Four or live shillings at the most. Did he appear to have any older extravagant habits? —No. When he died he had no considerable quantity'of personal belongings? —Two suits. And after the funeral Mrs Brusewitz got his effects?—-Yes. Mr Brown had been through tne box to get her address?—No; 1 went through it. t Did you not tell Mrs Brusewitz that Brown went through the box? —No. During the whole time he was with you, do you think he spent £200? 1 do not think so. To Air Hayes: He rationed Drusewitz’s drink to four a day about six weeks after ho came to him, because witness considered he was getting too much. From then on ho was strictlv kept to the four drinks in his hotel." The drinks wore spread over the whole day. His condition was such that lie could take these four drinks without injury to himself, ibe four drinks made no difference to ins intelligence ? —lt never failed in any way. , , , Elspeth Brownlie, wife of the former witness, said with the exception of October and November, she had seen. Mr Brusewitz every day, and he was one of the most intelligent men she had ever met. She did not think ho ever lost his high standard of intelligence. He had a wonderful memory. He told witness at Christmas that he had received no token of any kind from his family. He received very few letters while he was at the Provincial—not three in as many weeks. . ~ , Mr Foil: The liquor was rationed, 'but in spite of this lie used to come in file worse for liquor? —Once of twice. Oftoner than that I. put it to you?— No. You remember when ho fell off the veranda and cut his head? —Yes. He told me he had had a seizure or something. ' Was this after one of the occasions when you saw him come in after haying ton much liquor 3 —I can’t say. Olive Cummings, employed at the Provincial Hotel, also gave evidence that deceased had a wonderful memory and was very intelligent, and that this was kept up until a week or 1 so before he was taken to the hospital So far as she remembered, deceased bad -mentioned receiving only one letter from his wife. Cross-examined : When he mentioned about receiving a letter he spoke about his family in affectionate terms? I—Yes. .. Did you know he was rationed? — Yes.

Arnl then ho got more than his ration when he went out?—l have heard so. Did you ever see any difference m him when he came in?—No. .Defendant was recalled by Air Fell to produce his bank book. In reply to Mr Fell, defendant said lie had not a banking account immediately prior to December of last year. He had had several banning accounts at different periods. He would swear that ho iiad no banking account between July and the opening of the book (produced). His Honour: You t tab you wore doing a good turn to Brusewitz, and as a result, of tins arrangement be would have only £9 a month to live on. How jdo you think lie was going to live on jit?—He thought lie could got iu a I private house at the Port. Did you make any arrangement about till*P—No; but 1 told him about several places. Do you blank lie could have lived cm the annuity?—l {lid not .think much about it. He asked mo to give ic to him, and I did so. Ido not. suppose that I would have seen him stuck. I had helped him before. This was all the evidence. In addressing the Court Air Hayes, dealing with the facts of the case, said that if Air Brusewitz had purchased such an. Junmuty from the Government or any other office, there would luve boon no ground for such, proceedings. Was the defendant in a different position? The evidence did not prove that defendant had obtained influence over Air Brusewitg; but proved that bo thoroughly understood what he had done Ho submitted that tiie plaintiff must prove, in order to win the case, the existence, of such uifuenco as alleged, and aho the abuse of that influence; and coun--1 =.ff submitted that neither had been proved . Shortly after Mr Fell had opened vs address His Honour iuvrposed. What do vouhase your claim on, Mr Fid!* 1 Is it some fraud or mistake, or misunderstanding on the part of the parties, or is it Hie improper use of influence? Cou 'scl; It is the improper use cl influence based upon the relationship of the parties arising out of special ciromstuioes. Counsel proceeded on these lines submitting that even if it watf proved that there was no influence, defendant must still prove that the transaction iva; fair, just, and reasonable, providing that plaintiff established in the first distance the especial circumstances and facts. Counsel quoted numerous authorities seeking to prove +! m existence of the Relationship which plaintiff was seeking to set up. , , His Honour remarked that the evidence raised a suspicion in his mind that one at least of Brusewiiz’s motives was to see that no property was left after his dcvbh. Air Fell 1 : This arose entirely from his disordered invagination owing to his drinking habits. Mr Ha yes replied. His Honour. Do you .say there was no undue influence exercised n any wav? What do yon say his (Brusewiirz’s) motive was? Mr Hayes: To make a deal that might be profitable todiimsclf: His Honour: Your case is that he know all about it. Thar, being «o, what was Brusewitz’s motive 3 Counsel Hone springs eternal m the human breast your Honour. He tk.mglri he might have, ten or tiikccn years to live. His Honour: Supposing he did, what position was he putting himself in ? Counsel: From his point of view, getting a pound or two more a year for an annuity than he would from a recognised office. His Honour: His position was that of a capitalist. He had £IOOO, and he changed it into an annuity of 42s a week? He had not enough to live on, and he was reducing himself to poverty. Is not that so? He was paying 32s a weok for liisi board, und had only 10s left to supply all bis other wants. It was not enough to pav for his drinks. You do not think his motive was to ijiake himself a compulsory teetotaller? Counsel: No. He considered the alternative of putting his money in the Post Office Savings Bank— His Honour: Well, what was his motive? , , Counsel: He might have been actuated by tbe motive to put himself out of the power to do such things.’ His Honour: ft is difficult to believe that his motive was to make himself a compulsory teetotaller ? Counsel: Yes. His Honour; Or compulsory thrift? Counsel; Well, that is difficult to say. He might have wanted to put it out of his power to do it. His Honour: It does not sound like Brusewitz, does it? Counsel: He was very keen in some things. . . , His Honour; The suggestion is that he must have been acting under some influence of some sort. Air Fell has suggested that he was engineered into it by Brown. Counsel: I say that Brown did nothing of the sort. Hie Honour; Air Fell says yes. it is for you to prove that there was no influence. . - , Counsel: If the Court is satisfied that Hie position is as Air Fell suggests, I must prove that at the time of the grant he (Brusewitz) was removed from the influence of the party to which the grant was made? His Honour; 1 am not expressing any opinion about jt. Counsel; Yes, your Honour. I appreciate the fact that you are putting me in the position of placing my views before the Court. In the course' of further argument Air Haves said another motive was that Brusewitz did not want his family to have the money. His Honour; Certainly a possible motive that might have occurred to his mind. On she other hand lie was cutting elf his nose to spit 6 his face. Ho was depriving himself of the money. , < , ■ ~ His Honour intimated that he would reserve judgment, and the Court adjourned at 9 p.m.