CLAIM AGAINST AN ESTATE.

New Zealand Times, Volume LXXI, Issue 4302, 11 March 1901, Page 2

CLAIM AGAINST AN ESTATE.

ATTENDANCE ON A BROTHER. In the Supreme Court on Saturday, before Sir Justice Cooper and. a common jury of twelve, the hearing was begun of au action between Keady O’Leary, of Palmerston North, contractor, and the Public Trustee, a claim and counterclaim. Mr Skcrrett, with him Sir limes, appeared for Keady O’Leary and Mr Treadwell for the Public Trustee. In his statement of claim K. O'Leary set out that the Public Trustee was the administrator of the estate and effects of Timothy O'Leary, late of Palmerston North, hotelkeeper, who died intestate. The deceased was indebted to Keady O’Leary in the sum of £ll7 17s. being money lent in small amounts to or paid on behalf of the deceased by Keady O’Leary between the 6th December, 1898, and the ith September, 1899. The second cause of action was that Keady O’Leary rendered services for reward to his brother Timothy between the Ist July, 1890, and the 30th September, 1899. The sum of £583 16s was claimed on account of 973 days’ attendance at 12s per day. - The Public Trustee, by way of defence, denied indebtedness, and asserted that any services rendered by Keady O’Leary, to Timothy O’Leary were rendered in consideration of free board and lodging, or without contemplation of reward. The Public Trust ee counterclaimed £4OO for- money lent by Timothy O’Leary to Keady O’Leary, with interest thereon at 6 per cent, per annum from the 29th September, 1899. The defence to the counter-claim was that the £4OO was a gift.

Mr Skerrett, in opening the case, said that Timothy O’Leary died_ last year, without leaving a will. His property thus became divisible among bis nine brothers and sisters, some of whom resided in Now Zealand and some in Ireland. The share of each of' them was about £3Ol. As was nob unusual, family differences liad arisen, and in consequence the Public Trustee, as administrator, felt himself bound to let the matter be investigated, with a view' to seeing whether Kcady O’Leary, who made certain claims against the estate, was entitled to anything, and, if soi what amount. The deceased was constantly in a state of muddle and fuddle through drink, and was a great trouble to his brothers and sisters. For some years his brother Kcady looked after him, in his drunken bouts. No claim was made in respect, of any such services rendered prior to 1896, but in that year Timothy said that if Kcady would come and look after him he wo raid see that lie was well paid for his services. For a very considerable period thereafter Keady was in constant attendance on his brother Timothy, and he-asked for a reasonable remuneration for those services, which he said were rendered at the request of the deceased. The circumstances in connection' with Keady O’Leary’s claim for money advanced were that cheques were frequently drawn for Timothy’s, expenses. The latter was frequently too fuddledi to sign cheques, so lie requested Keady to draw .them. The defence to this latter claim was a- denial for the purpose of putting Keady to the proof, and an ' assertion that the money was paid out of Timothy’s funds. As to the claim for services rendered, it was asserted by the Public Trustee that the services were rendered in consideration of free board and lodging and without contemplation of reward. As to the counter-claim for £4OO, it would be shown that Keady O’Leary..desired.to.go into a- farm with' another brother named Jeremiah, and received the sum of money in question from. Timothy. Witnesses would bo called to show that the money was a gift. Keady gave Timothy a receipt for tho money, but hie did so under pocu- ! liar circumstances. Whilst bush-felling on the ,farm he met with, a mishap, which impressed him with the fact that the work was dangerous. He thought that if he gave Timothy a receipt for the £4OO it would bo better for his (Kcady’s) wife if ho" was filled in tho bush, as it would prevent anyone else from getting the money from, her. It was only under pressure that Timothy: accepted the receipt. Upon that receipt; a. claiin was set up. by the Public Trustee which, if it were allowed, would more than swamp tho £3Ol which Keady' was entitled to out of Timothy’s es-j tate. ,

Keady O’Leiary, who was the first witness, said that in J 894 his brother Tim was licensee of the Railway Hotel in Palmerston North. Tim was a man of means. He was addicted to drink. Witness was called from Wanganui and Wellington to look after him. There was no talk of payment at that time. In June, 1896, witness was looking after his j brother. At the end of that month witness said he would go back to work. Tim*i asked him to-stay with nmi, and said it would pay witness better than anything ho could go at. Tim wanted witness to look after the hotel and himself. That was what Tim said, witness was to bo paid for. Witness remained for a month or nix weeks. Tim way better then, and said witness could go away if he wanted to do so. Witness came to Wellington in August, 1896, and worked here for about two months making a cycling track at the Athletic Park. Tim sent for him, and he went back to him in November or December, and stayed with him till March, 1897. On thte 14tb of that month witness took a metalling contract at Sandon. Tim’s wife died on the 17tn, and witness was sent for on the following day. He stayed With Tim for seven or eight weeks, and then went back to Sandon and worked on the contact till the 4th June. On that date he returned to Palmerston North to go to another job. Tim asked him to stay again, and he stayed till the Ist September. Witness looked after the hotel and his brother. On the Ist September he went back to. his contract and remained till the 24th December. Witness, on returning to Palmerston, said be was making v cr,ygcod wages. Tim replied, “You had better stay with me; I can’t do without you.” Before Now Year’s Day witness gave up bis share in the contract. He stayed till the Ist March, 1898, with his brother, who was very bad. Then lie came to Wellington to look for a contract. After about three weeks he got a telegram from Tim, asking him to cme back. He did so, and stayed at the hotel till May, 1899, when Tim sold out. After that Tim stayed in the hotel till July. Ho was continually drinking, and was in a very bad state. In July witness took him to Wanganui to his sister’s place. Witness came to Palmerston and Wellington. In about two or three weeks time witness was telegraphed for, and he went to Wanganui, where he stayed till August. ’ Them he returned to Palmerston, where he took the Princess Family Hotel on the 27th of that month. Tim stayed with him till the 12th November, 1899, when witness sold out in consequence of bis brother’s starting to drink again. Witness and his brother were staying at another hotel till the 7th December. Witness then took a private bouse, but Tim did not go to it with him. Witness kept no note of the dates; but be bad checked them as well as he could with the dates of his contracts. He was not sure that the years which he had give in his evidence-were right. The witness was next examined as to the drawing of cheques. In regard to the receipt for the £4OO, ..be said I, Timothy at first refused to take it. Wit- ( ness sgnj it would be no great load, and {

eventually Timothy took it and put it in his pocket. . The Court at 12.15 p.m. adjourned till this morning, when Ready O’Leary will bo cross-examined.