WILLED MONEY NOT PAID

NZ Truth, Issue 984, 4 October 1924, Page 7

WILLED MONEY NOT PAID

Illegitimates Suffer

Defaulting Trustees Ordered to

Pay Up.

If ever there was a tangled skein to be unravelled it was what has become known as the Soutar will case, which has occupied the attention of the Supreme Court at Auckland since away back m April last. The trustees were removed by consent because of their mismanagement, and the report of the District Public Trustee at Hamilton, Mr. F. J. E. Moore, who' was commissioned by Judge Herdman to go 'into the accounts, was presented last week and showed a pretty state of affairs. I "Truth" has already dealt plainly with this matter, but, m order to refresh the memory of the reader, the salient facts may be recalled. The story is a remarkable one m many ways. Philip Robert William Soutar was a farmer of Whakatane. He shouldered arms m the cause of King and Empire m the world conflagration, and m the cause of liberty he gave his life. In the days before soldiering was fashionable he, like many another man, .had his adventures m love. But his was free love, and he showed a decided partiality for a winsome half-caste woman, one Kathleen Pine, who bore him two children. These the soldier did not neglect or forget when it came to making provision for tlie dire probabilities of the battlefield, and m his will he ordered that the sum of £500 be set aside for the education of his two daughters by the unsanctified union. Soutar also made provision for a brother (Kenneth Norman Soutar) and for three sisters (Amy Janet Gaitt, wife of Edward Gaitt; Lucy .Witch:ell, wife of Guy Annesley Witchell; and Brenda Soutar, spinster 1 ); further, he provided that a fifth cf the residue of the estate go to Alice Doreen Soutar, the child of Brenda Soutar, spinster. So that it will be seen that the fallen soldier, if he did have his failings, also had some virtues, and generosity was one of these. He left as his trustees, Guy Annesley Witchell, farmer, of Whakatane, and Patrick Arthur Harron, solicitor, also of Whakatane. . TWO BENEFICIARIES EXCLUDED. The deceaseds-e state was sworn for the purposes of probate at the net value of £'2452 5s sd. By his will the deceased directed his trustees to sell and convert his estate, and, after paying 1 all debts, funeral, and testamentary expenses, out of the proceeds i of conversion to stand aside £500 upon j , trust, and to apply that sum and the income therefrom towards the education of Winnie Irene and Kathleen, iis two children by one Kathleen Pine, with whom the deceased cohabited; and he directed" that after the younger attained the age of 16 years, any balance should fall into the residuary estate. The Hamilton District Public Trustee,, pointed out m his report that "deceased's two principal assets consisted of interests, m land. He was interested m common . with Kenneth Norman Soutar m the case of their deceased's mother's property,; and he was also interested m the Kopeopeo Syndicate, which was comprised of Kenneth Soutar, the deceased, and the defendant trustee, Patrick Arthur Harron. In the course of the realisation the respective rights and liabilities of

the joint owners . were not always clearly distinguished, and the proceeds from the realisation of the joint interests were not always received and disbursed through the regular channels." The proceeds from the sale of the mother's property were paid by the purchasers -direct to the beneficiaries of the deceased's estate, and this was also done m the case of the K6peopeo estate. The report goes on to show that the total amount paid to or on behalf of the executors amounted to £5466 3s 7d. This has been applied inpayment of administration expenses and debts and m payment to the residuary beneficiaries, with the" exception of £1207 9s 3d paid into the Court. The following are the payments made to the. residuary beneficiaries, the distributive share m each case being £715 3s' 6d as a fifth share:

It will be seen that not a penny has been set aside for the benefit of. the two illegitimate children of Kathleen Pine, although specifically provided for m the- will, probate of which was granted way back m 1917; that the, child of Brenda Soutar (Alice Doreen Soutar), instead of having received £7-15 has only had £30; ' and m spite of the size of the original 1 estate, the Public Trustee winds up a lengthy report by stating: "Whether sufficient funds will be available after the liabilities of creditors have been discharged and the remaining . assets realised to set aside the trust fund of £500 with interest (£216 13s 4d) m favor of the testator's two children and adjust the rights of the residuary beneficiaries, it is impossible at this stage to say. ..." At the former hearing, an item was read out by Lawyer J. D. Davys, of Rotorua, who appeared for the plaintiff, Brenda Soutar, which was an item m a solicitor's r bill of costs. It was as follows:

To attending Mr. Witchell, who stated that the fact of the children being illegitimate made it a personal affront to his susceptibilities to have the children at Matata, and insisted that they should be sent to some distant school — 6 S Bd. But the wife of this same Mr. Witched co-trustee with Solicitor Harron, was overpaid her due share as a residuary beneficiary to the tune of £214, without .apparent.. hurt to that gent's susceptibilities; and it was stated at the recent hearing that he has .now gone bankrupt.

"A NICE OLD MESS."

Briefly, this was the position put before his Honor Mr. Justice Herdman at Auckland by Lawyer Davys and Mr. Moore, District Public Trustee ut Hamilton, who spent nine days of 14 hours each unravelling the "nice jold mess" as his Honor . characterised the whole affair. Lawyer Davys said that no proper accounts had been kept of the transactions m the estate. The overpayments made by the trustees amounted to £801; besides which there were cash at the bank amounting ttf £3 16s lOd (which had been allowed to become absorbed m payment of the bank's annual' charge for keeping the account), £11 3s deceased's military pay (never uplifted), and a debt of £20 due by one G. Kelly (neversued for and now time- barred). Mr. Davys contended that the trustees must be held responsible for the overpayments, and he asked that judgment be given accordingly. The cruel part of the whole affair was that one ••* I the illegitimate children was dead, and the other was now about 10 years of age and was' resident at Taupo. These children had received not a*"penny 7 and had not much prospect of getting anything, for the estate was practically bankrupt. " ' ■ . " The defendant, Patrick -Harron, appeared m person, but his co-trustee did not show up,, nor was he represented by counsel, Lawyer Chalmers, who had previously appeared for him, withdrawing from the case. Harron was invited by the Judge to 'give any explanation he could of the muddled state affairs had got into, and the explanation given was to the effect that many of the payments to the residuary beneficiaries had not been made >by the trustees, but direct to the beneficiaries by other people. Independent solicitors had always been engaged for the trustees, and he had considered all along that there was sufficient m the estate to meet all the demands provided for m the will. : The Judge said it was obviously the duty of. the trustees to see that all moneys due to .the estate were controlled. V Defendant, said that any mistakes had been honestly made. The Judge: I have no doubt of that. They were stupid mistakes. . Harron .reckoned that Kenneth Souttar was quite safe for the refund of what had been overpaid him. He did not know about Mrs. Witchell, whose husband had gone bankrupt. He reckoned that the over-payments could be traced. . Mr. Moore was of opinion that recovery of overpaid money would be difficult. It might be kept back from any other moneys which came into the hands of the trustees. Defendant Harron reckoned that he should b,e given an opportunity to see what he could do m the way of recovering the overpaid money. He submitted that the plaintiff Brenda Soutar was not entitled to sue as she had consented to the breaches of trust m her. over-payments. Mr. Davys said that Brenda Soutar was not taking action on her own behalf, but on account of the child which had only received £30. '

A COSTLY AFFAIR

The Judge reckoned the least said m the matter from the point of view of defendant Harron the better. Everything may' have been done m good faith, but there had been great negligence. They could '\not hang the matter over longer as Harron asked as it had been on the way too long at present. Nobody knew where they were till the Public Trustee (Mr Moore) had made out his report, which was a most valuable document There would be no good derived from a stay of execution as asked by Harron The .Public Trustee, -who Ihad' been joined as plaintiff, then asked for -judgment against defendant trustees for £801 16s sd, plus £3 10s lost m baiXing account. . Judgment was entered against the former trustees /for (the amount of £,805 15s 4d, , the. amount lost by the breaches of the '"trustees. His Honor ordered that the Public Trustee's costs of, £47 5s and actual disbursements be paid to the estate. The costs of the action were awarded against defendants as on an action for the recovery of £ 500, counsel being allowed a' second day at £15 15s.

£ s d Mrs. A. Gaitt 794 18 '4 Brenda Soutar 1167 1 0 Mrs. Witchell 930 0 0 Kenneth N. Soutar • 770 13 2 Alice Doreen Soutar 30 7 10 Overpaid. £ s d Mrs. A. Gaitt 79 14 10 Brenda Soutar 451 17 6 Mrs. Witchell 214 16 6 Kenneth N. Soutar 55 9 8