SUPREME COURT.

Otago Daily Times, Issue 9905, 25 November 1893, Page 5 (Supplement)

SUPREME COURT.

CIVIL SITTINGS. Friday, November 24-. (Before his Honor Mr Justice Williams.) His Honor took his seat in court at 10.-30 a.m. YAUGHAN V. EVANS. , Mr Fraser, with him Mr Platts, for plaintiff ; Mr A. S. Adams for defendant. The plaintiff, in his statement of claim, states that he is a lighterman residing at Port Chalmers; that the defendant is his sister, and is a married woman, living apart trom her husband, John Evans, of P.">rt Chalmers, labourer; that in the month oE August 1892 the plaintiff, then bein» in extreme sickness, and believing him" sell to be about to die, as the solicitation and request of the defendant and in contemplation ot death, caused to be transferred to the defendant certain moneys the property of the plaintiff, amounting to £380, of which sum there was then lying in the National Bank of New Zealand, Limited, at Port Chalmers, the sum of £41, in the National Bank of New Zealand, Limited, at Dunedin, ths sum of £237 and m the Government Savings Bank at Dunedin the sum of £100, and: also the dwelling house of the plaintiff, situate on the foreshore of the Otago Harbour ; that the plaintiff, subsequently to the month of August 1892, after a protracted sickness, recovered from the said illness; that the plaintiff on divers occasions since his recovery had demanded back from the defendant, and the defendant had refused, and still refused, to refund the said moneys or to jewftDsfef the said dwelling house. Wharefore v r prays fcsiat tile omrb may declare the defendant to be a trustee in respect of the said sum of £380 and accrued interest thereon since the month of August 1892, and of the said dwelling house for the benefit of the plaintiff ; and that the defendant be ordered to re-transfer the said sum of £380 and the dwelling house to c o?on ntlfl and t0 Pay interest on the said sum ot ±,580 at the rate of £5 per cent, per annum rom the month of August 1892; that the defendant ba ordered to pay the costs of and incidental to and occasioned by these proceedings; ;hat the plaintiff may have such other or further relief as to the court may seem fit _ The defendant admits the statements made m paragraphs 1 and 2 of the statement of claimshe admits that in the month of August the plaintiff transferred to her the moneys and property mentioned in paragraph 3 of the statement of claim, but denies that the plaintiff was then in extreme sickness and that the said transfer was at her solicitation or request, and says that the said transfer was made by the plaintiff voluntarily and for valuable consideration. She denies all the allegations contained in paragr*P™ and 5 of the statement of claim. Mr Platts stated the case as disclosed by the statements of claim and defence, and called the following evidence:— William Goldie deposed: I am a master mariner at Port Chalmers, and have known both parties to this action intimately for many years. I remember when Vaughan was ill last year. I visited him occasionally and found at each visit that he seemed much weaker and looked very ill; indeed. I remember being at a T£oo nte£ baU in th. c latter end August, .WA. tie was at his own houss when Mrs kvsns called. She asked me if I would come down and witness some documents, asEichard her brother, was not expected to live till morn-m-\l Vi he?J had an appointment that night, but would come the first thing next morning. She pressed upon me to come, as she did not expect her brother to live till the morning She explained the documents to be witnessed were the transfer of some money and property I told her I would be home at midnight. I went to Vaughan's house in my volunteer uniform. lam a justice of the peace I have been 31 years in Port Chalmers. When 1 arrived at Vaughan's house I didn't think he was very long for this world. He said he did not expect to live long. I cheered him up and ;old him that while there was life there was lope. He was suffering from dropsy and heart disease. The conversation took placa in the presence of the defendant. Vaughan or Mrs Jivans asked if I would witness some documents for the transfer of property The documents were produced by Mrs Evans The deposit receipts and the possessory title "of the house were produced. Vaughan, I fancy Blgn^ documents. Mrs Evans mentioned ihe house. She said there was no title for the louse, and asked me what was the best thingto do I drew up the document produced with regard to the house. I put £50 in as a formal matter. I fancy there was some talk between ihemselves as to the value the house was rated for. No money passed. Nothing at all was said to lead me to believe that money had passed or would pass. I drew from Mrs Evans 'that it was to save Mrs Evans from any trouble alter Vaughan's demise. I couldn't say that oue party showed more desire than the other to have the matter finished. Vaughan said " I cannot do any more. I have left everything to my sister. lam not long for this world." Subsequently Vaughan went to the hospital and remained there up to last February. I have since had a dozen conversations with Mrs livaas. She used to come to my house to consult me. She came about her brother wantiua the money back. I advised her to return it She said he would spend it. I advised her to return the money to him; have the money tied up by a settlement; have the interest paid to her, and that she should maintain her brothar. During the list 10 years Vaughan had been a very saving man. I considered him very, very close, and anxious for money If I had known there was a will in existence, I would have been no party to what was done on the night in question. Cross-examined by Mr Adams: Before that nignt I had seen Vaughan several times Mrs Evans used to come up to my home very ofton and talk about the matter. She said she would like to have everything arranged before his death. lam not more intimate with Vaughan than with other people. I live about 500 yards from his place. I only prepared a will on one occasion in my life—that was in Hobson's Bay. lam not in the habit of drawing out wills. The brother and sister seemed to ive most agreeably with each other. To my knowledge Mr Vaughan has been very saving during the last 10 years. His sister has lived with him for nine or ten years. Before she ca/, m nt 0 him» Vau 2nan ha<i a lighter, value £400. lam sure Mrs Evans was present She went into a back room to get the documents, and handed them to me. Mrs Evans has some difficulty in expressing herself. If she was describing a male she wouldcallhim she. Sheand her brother are Welsh. I understand her better now. Re-examined by Mr Fraser: Mrs Evans was there all the time. Mrs Evans took possession of the signed document and the deposit receipts - t I handed them to her, and there my duty F ended. i Richard Vaughan, examined by Mr Platts • s lam a lighterman at Port Chalmers, where I 6 have lived for 33 years. I had always a little E money. I have not been able to work the last l two years. I existed on the interest of the l money I had in other banks and the capital I £ had in the savings bank. My sister came to live £ with me. She lived with me cix or seven ) years, and then got married. On their proposi- ' tion I consented that they should live with me. ! They lived with me for two years. They did not agree well, and Evans left her and has not | been back since. I was very ill with heart , disease aDddropsyin August last year. I could : not lie in bed. I had to sit on chairs, and some- ■" times on the floor. Dr Cunninghame, of Port ] Chalmers, was called in after I could not go Jo his house. She told me my case was hopeless. I made certain my time in this world was ! short. The doctor told me if I had 1 anything to settle or write he would ' do so. I was nursed by eight or ten old ' friends who took turn and turn about. That ! went on for about six weeks. My sister asked me to turn over my property to her; that if I 1 didn't it would all go to the Government and ! the lawyers, and she would get none of it. I ' told her I had made a will for her about 12 ! years ago, and that would do just as well. She said " Oh, no; you turn it over to me, and if you get well I will hand it over to you." She spoke in the same way to me about half a dozen times. I was very ill on the night Mr Goldie called. I remember very little of what took place. I knew that my sister got everything from me that night. The house is value for about £70 or £80. It is insured for £100. The money in the banks and the house represented all my property. When that was trans- . ferred I had not a penny left. I went to the hospital, and was there three months and ' a half. _ I went home and said to my siEter the best thing for her to do was to return back the property and we would live the same as before. She said it was as well in her hand 3. I : objected; but she refused to give it up—then I or afterwards. She afterwards said she was going Home from New Zealand. I said "Surely you are not going to leave me penniless ?" and she said " I have got it and intend to keep it." Cross-examined by Mr Adams: I have been living in my own house, getting my meals and sleeping there since coming out of the hospital. I have never seen my sister in good health. She has cost me a lot for doctors. I have treated her well since she camo to live with me. She has turned very disagreeable since she got over all that belonged to me. Twelve months ago] she"got me to make a will in her favour. She tells me that she destroyed that will. I was so ill that I never thought I would want the property, and I let them do what they liked with-it. Re-examined by Mr Platts: I have been living with my sister since these proceedings commenced. She had p.ll my money, and I had not a penny to go any whsre else. She has been very disagreeable towards me. William Hunter, examined by Mr Fraser • I am manager of the National Bank at Port Chalmers. Mr Goldie called upon me in August 1892, and in consequence of what he told me, I went to Vaughan's house. It would be in all likelihood the 14th of AuguEt. found Vaughan evidently in a very weak condition Mrs Evans, hia sister, was with him. vaughan draw my attention to his legs, which were swollen abnormally, aud he said his I heart was bad. He was very despondent. Mrs Evans chiefly spoke. I spoke about deposit receipts. I said, " I understand you wish certain deposit receipts transferred in the name of Mrs Evans ? " He assented. He did ■c | not give auy reason that I remember. Mrs i Evans produced the deposit receipts and also

the Dunedin Savings Bank book, showing an amount to credit of about £100. I had the receipts endorsed by Vaughan and cheques signed, and a letter written to the Dunedin Saving's Bank, authorising them to pay the cheque he had drawn. The Dunedin office agreed to issue a new receipt in favour of Mrs livans, carrying on the interest for £239. £41 was on deposit at the Port Chalmers branch, and it was treated in the same manner The money from the Dunedin Savings Bank was remitted by the Dunedin office to me, and the receipt for £10214-i issued in Mrs Evans's favour for a year. I cannot remember whether any remark was made as to why this was done. I had nuy own idaa. Vaughan signed his name tairly well. I had known Vaughan for about four years. I should call him a frugal, careful man. Aftsr Vaughan got better I saw Sirs Evans's in Vaughan's presence. I went there to speak to Mrs Evans abouS her refusal to do what I considered a righteous &ct. I told her she should nob take up such a position in regard to her brother. I told her that if she acted in a sisterly and righteo-.:? way, she wonld restore him to his former position. She refused point blank to give anything to him. She mentioned that he would squander it. I believe the transfers to his sister included tha whole of his property. Cross-examined by Mr Adams: So far as I understood, Vaughan decidedly wanted to do what was done at the time of the transfer. I did not suggest a will. No will was produced. Dr John Cunninghams, examined by Mr ifraser : I know the parties to this suit. Last year, m the month of August, Vaughan was suffering from a bad form of heart disease tT?j i? lght terminate fatally at any moment. l told the patient that there was no cuse fo» n« digease, and thai; ab any moment; he might oL m *rimm, lnent ianS er< J Wd both Vaugffan andMra Evans what his Condition was. I told the patient distinctly that he was incurable. *iis system had ran down very considerably. I gave more particulars to Mrs Evans. I advised Vaughan, as I would in any serious case, to arrange his business matters. I remember visiting Vaughan on the 13th of August. His condition was then very bad. I told Mrs Evans ot the critical condition he was in. I told her tnere was a danger that he would not pass the night. He afterwards weni to the hospital, and has since got better, but the organic disease is Btill there. Thomas Anderson, examined by Mr Platts • lam a carpenter, living at Port Chalmers I ™w the Parties to this action, in August 1892 myself and several others sat up with »anghan in turns. He was very ill and despondent. We cheered him up as well as we sould. '" . This was the plaintiff's case. For the defendant's case the following evidence was given:— Harriet Evans deposed: The plaintiff is my Brother. I have lived in his house since 1892 [always put what money I could spare in the National B&nk m my brother's name. When the interest was due my brother would sign the paper, and I would go and .draw it. My brother made a will some years ago. He was not satisfied, and wanted to make over the money to me. Jne night he sent me to Mr Goldie to come 3own and make the money over to me Mr aoldie was going to the volunteers' ball and could lot come, out he said he would come when when Mr Goldie came. I laid the papers on the table before I went to bed, and I cound them there the next morning. I never suggested that he should make the property war to me. My brother was anxious that the Government should not get it. He was anxious ibout it, and said he would make the property Dyer to me. My brother never asked me to Jive him back this money or property till of ate-about two months. He seemed quite lappy and satisfied until then. I have been ;aking care of my brother since coming out of ;he hospital I said, "If you geb if btck, you Kill spend ib" He called me everything I lever said "If you transfer this in my name md you get better I will g i ve it back to you." [am not a strong woman. I cannot earn my )wn hying. I have drawn the interest on these ieposit receipts since they were put in mv mmc. I have not got a soul or relation in the )ld country, and have never told him that I was ;omg Home. . Cross-examined by Mr Frassr: My husband s not supporting me. We lived Wo years jogether, and were very happy. I have some noney of my own. I have not got £300 I was very saving with my brother's money' I jad some money when I came from Home. I lid not buy much clothes and saved as much noney as I could. I don't remember Dr .unmngbame telling me that my brother would lot last till morning. He said he was bad. He yas not worse on August 13. My brother was ively that day and night. My brother was in i harry for me to go and see Mr Goldie I mew there was a will. I never read it. I had tin my bos. My brother sent me to bed on lie, m S Ut that Mr Goldie came. I heard Mr *oldie come. My brother previously asked me 0 get die papers out before I went to bed. Mr 3un,er destroyed the will. I gave him the willind he said,_ "You don't want this any more," he tore ifc and pat it in the fire. Ikm quite -ure of that. Mr Hanter never asked me to an i toe money back after my brother came out aiwSXt (Lit pe6) ink«aad ™<* - Mr Hunter, bsiDg re-called, said it was purely magmation on the last witness's part about the: ml. He never saw such a document Cross-examined by MrAdams: I am speaking ibout the will positively. No such document sras ever produced; This closed the evidence. Counsel having addressed the court, his Honor gave judgment as follows : — The svidence of the defendant is contradicted not >nly by the plaintiff but by two completely ndependent witnesses, and the case must be jonsidered as if the evidence of the plaintiff yas substantially correct. Looking, therefore, it that evidence this transaction was carried >ut when the plaintiff was in the immediate ixpectation of death. There was, therefore, at inyratean implied condition that if he recovered rom bis illness the property thus handed over rauld be handed back. The plaintiff himself says there was an express condition to that jfiecb, and I have no doubb that the plaintiff's statement is true. It was suggested because :he documents show a present transfer that that a inconsistent with the notion of a transaction ;hat was only to be completed in the event of leath. In all cases, however, where there is a ionatio mortis causa there must not only be 1 gift in words but the possession of and iomimon over the thing given also be vested in ;he donee. You have not oaly to look at the iocuments, but also at the surrounding circumjtances to ascertain the intention of the donor md from the circumstances if you can gather shat it was intended there should be a restora;ion of the property by the donee in fee event ■A the recovery of the denor that is sufficient of itself to prevent the gift being considered as ibsolute and to make it mortis causa only The suggestion thab the plaintiff was a party to a 3cheme to defraud the revenue is to my mind untenable. The plaintiff was at the time really unable to attend to any business whatever. He simply did what was asked of him, and if he supposed that by the transaction probate duty would be escaped that shows not a fraudulent intention on his part, but merely ignorance ot the law. It is absurd to suggest that the man if he supposed that he was going to recover would have parted with the whole of his property in the way he did. There was no reason whatever for his doing so I think, therefore, the plaintiff is entitled to relief. As to the cottage, it eeems to me that the plaintiff is entitled to have the document handed up in order to be cancelled. As to the money, the defendant will be ordered to re-transfer the amount at deposit, with accrued interest. Defendant to pay costs as per scale on £450, disbursements, and witnesses' expenses. Judgment for plaintiff as follows: That the document as to cottage be delivered up to be cancelled; that the funds and accrued interest m the banks be re-transferred to the plaintiff; defendant to pay costs as on £430; disbursements and witnesses' expenses to be fixed by the registrar. The court then adjourned until 10.30 a.m. on Monday next.