SUPREME COURT.

Otago Witness, Issue 2390, 21 December 1899, Page 47

SUPREME COURT.

CIVIL SITTINGS

(Before His Honor Mr Justice Williams.) Monday, December 18. dovglas john laiinach v. sievvtttght and another (administrators in the estate of the late W. J. M. Larnach).

This v,as a case in which the plaintiff, second soa of the late W J. M. Larnach, sought to set aside an assignment deed dated 1887, and to have his rights declared in the trust property and nionevs referred to in the deed.

Mr W. C. MacGregor appeared for plaintiff; Mr F. R. Chapman for the defendant, Walter Hislop; and Mr James for the defendant, Basil Sievwright.

Mr MacGregor, in opening the case for the plaintiff, said the plaintiff sought to set aside a deed which had been previously before his Honor. The positi6n taken up by the plaintiff was the same as that assumed by him in the former trial, f and though he admitted that he had read the'first part of the deed in question, and though tho late Mr Larnach did state/that it was to give him back "' The Camp " he was no; bound to the deed, not having been made awaie of the true effect of it, and having done nothing to acquiesce in it since its execution. It would be necessary for him to go somewhat fully into the life history of the plaintiff, both prior and subsequent to the- signing of the deed. Mr MacG-regor proceeded to relate the principle facts m the plaintiff's life from the time he was 17 years of age to the time of his father's death, with the object of showing that he had always been entirely under his father's control, financially and otherwise, and had no expectations except from his father. He had been led to understand that he was to be the son who was to have " The Camp. ' After the signing of the deed the plaintiff went on living az " The Camp " with this exception, that his father gave him a- cheque book, and allowed him to collect the rents and otherwise manage the businsss of the estate. His father had toH him that he was to have " The Camp " as compensation for the money that had been squandered on one of his other sons. Plaintiff had, moreover, spent all his savings in improvements on the property. Further, he had received several offers from wealthy friends of his father of place on stations, etc., and those offers had been refused on the assumption that •' The Camp " would bo his own. Mr MacGregor pointed out that before the 1887 deed plaintiff had never signed or read a deed of any kind, and he would say that if ho had known thi effect of that deed would be to part witji all his interest in " The Camp ' he would never have signed it. Apparently instead of the plaintiff believing that the effect of the deed was to part him from " The Camp " it wa* more likely ho conceived it to be portion of a scheme by which he alone was to be placed in possession of it, and ho remained under thai impression until after the judgment of September last. The plaintiff did not allege in this case that there had been anything in the nature of fraud or misrepresentation in an nctive sense on the part of the late Mr Larnach ; in the former case it was a material part of the caso that the parties complaining had been intentionally misled. Ho submitted (1) that the plaintiff did noi, understand the deed when signed ; (2) that he did not acquiesce in the deed after it was signed ; and (3) — and this was peculiar lo his own case — that, even if he did acquiesce, the acquiescence was not founded on a full knowledge of his rights, and waj baaed on a falso impression as to tho facts and the law.

Mr MacGregor then called the plaintiff, who, in the course of his evidence, stated that when offers of place on stations in Australia had been mado lo him by friends of his father, his father had told him he was not to go away from " The Camp" as he was to have it. During cert? in family discussions that had taken place subsequent to the signing of the deed he had always tak^n up the position that " The Camp" was his.

Cross-examined by Mr Chapman, plaintiff said that his father always told him " The Camp " would be his from the time he came out from England in 1882 up to the time of his death. His father's second wife had also told him of his father's intention to give him "The Camp " in consequence of his elder brother's actions. He lmtl understood at some date since 18S3 that it was his father's intention to disinherit the ghh (except his daughter Gladys) in addition to his eldest son. His father v anted to make his will when he was at "The Camp ' a month before his death, leaving "'The Camp" to witness, but witness would not, allow him to do so while he was living with him alo.ie. After his return to Wellington hi<s father went to Brandon and Hislop twice to gr-c a will diawn up in witnesVa favour; but thiough Mr Brandon being his father's brother-in-law he advised him to go to Sir Robert Stout. Sir R. Stout, however, had been concerned in the dispute between his father and his eldest son, and his father therefore had not gone to him. Although he read some portion of the deed he had not, from that, understood its nature; but his father told him it was giving him ba--k The Camp." At the time of his father's death he did not know whether there was any will. His father certainly did not intend to ha-vo the place cut up. tl's kiiGW that his father did not intend to give his third wife any interest in "The Camp." He had been on perfectly friendly terms with hi 3 brother and sister 3 until about a foitnight after his father's funeral, when they had comeand stormed "The Camp " in the company of Mi- Solomon, and demanded the keys from him. "Witness had been present at the last trial, and heard the evidence given by Donald Larnach and his two sisters that they were misled as to the contents of the deed. He thought it very improbable that they were misled, and he had expressed a dc.=ire to give evidence on behalf of Mis Larnach. He did not, before giving instructions to Mr MacGregor to bring the present action, discuss the matter with his stepmother, but he had talked to her about tho decision given in the previous case. Since the deed was signed more than £10,000 had been spent in actual building improvements. Money was expended in this manner down to the time of his father's death.

Re-examined by Mr MacGregor : Ho considered the action of b.13 brother and sisters in bringing .tk* &tS3 into court was dishonour-

able and disgraceful, for 'hey v.xve mnkiyj* charges that virtually amounted to fraud against hia father. Thai was what ho objected to, and he himself made no such charges. Mr JlacGregor put in as evidence certain portions oi tho pvicloace given in the previous caso by sevc-r.il cf the -witnesses, some points; of vhich, admitted by his Honor, were objected to by Mr Ghppyr.an. * Tlis cou:t adjourned at this stage to 10.30 ne.xt morning.