DYING MAN'S GIFT

New Zealand Herald, Volume LXXV, Issue 23040, 18 May 1938, Page 20

DYING MAN'S GIFT

COUBT UPHOLDS CLAIM MONEY AND JEWELLERY HAMILTON DALMATIAN'S ACT [from our own correspondent] HAMILTON, Tuesday The validity of .a gift of £H.'3l in money and jewellery valued at £>)Q uu.de by the donor when ho knew bo was about to die was contested before Sir Michael Myers in the Hamilton Supreme Court to-day. Iho plaintiff was Stephen Marinovich, restaurantkeeper, Hamilton (Mr. A. h. Tompkins), and the defendant was*the Public Trustee (Mr. F. A. ile la Marc). Mr. Tompkins explained that the action concerned the estate of Peter Babich, a restaurant-keeper, of Hamilton, who died on October 7 last with- j out making a will. He loft an estate | which had been sworn at £BOOO. B(v sides money invested in shares and somo placed on fixed deposit, Babicli used to keep considerable sums in his poc- | kcts and in his shop. At Babieh's invitation Marinovich. a cousin, came out from Dalmatia in 1927, Babich paying his fare. Marinovich, who was treated by Babich like a son, assisted ill the shop. Cousin's Work at Shop Several years before he died, Babich became affected with kidney trouble, counsel continued. Babich was very suspicious of doctors, and would not undergo treatment. During the last year of his life, Babich was unable to do much, and Marinovich carried on practically all tho work of the shop. On October 2, a few days before ho died, Babich directed Marinovich to open a drawer and told him that he could have the jewels to be found there. He later handed his keys to Marinovich. When removed to hospital in October, counsel said, Babich asked a friend named Tony Gera to tell Marinovich that he (Marinovich) could take all tho money in the shop and in his clothes and carry on the. business as he liked. Babich then said that he was done for. Mr. Tompkins said the remainder of the estate would go to a brother and sister in Dalmatia and a brother in New York. Evidence on the lines of counsel's statement was given by Stephen Marinovich and Tony Gera. Dr. H. Douglas said there was no chance of Babich recovering when witness saw him on October 3 and ordered him to hospital. Babich was in full possession of his mental faculties at the time. Public Trustee's Attitude Mr. de la Mare said the real point at issue was the act of delivery. With regard to the delivery of tho jewellery he could not carry the matter further, but with respect to the money ho contended that the handing over of tho keys did not constitute delivery. All there was, was a message from Gera. Counsel agreed that there was no doubt as to the intention of Babich if the evidence of Marinovich and Gera was accepted. His Honor said tho Public Trustee had quite properly contested the case, as it was his duty to put the plaintiff to tho proof. As far as the evidence was concerned, he had no hesitation in saying that he accepted the testimony of plaintiff and the witness Gera as that' of honest witnesses. Their evidence was in no way ambiguous. As far as the gift of jewellery was concerned. His Honor continued, he had no doubt that it was a valid one and he held accordingly. As to the money, be agreed with the modern authorities cited by Mr. Tompkins and he must hold that they amply justified the conclusion that that gift was also valid.

Judgment was given for plaintiff. It was held that plaintiff was entitled to the possession of the jewellery and money valued at £3Bl. His Honor directed that costs should bo paid out of the estate.