INVERCARGILL FAMILY LAWSUIT.

Otago Witness, Issue 3018, 17 January 1912, Page 6

INVERCARGILL FAMILY LAWSUIT.

THE JUDGE'S DECISION

The judgment of Mr Justice Williams in the case Ravmond v. Raymond and another, was read'at the Invercarg.il■.Supreme Court on the 6th The case was heard on December 1 at the sittings of .he Supremo Court at Inyercargill Mr .V A. Stout appeared for the plaintiff and Mr 11. A. Macdonald gor the defendants. ine judgment proceeded to say: The plaintiff in the present case soaks to recover from the defendants, the executors of the plaintiff's wife, moneys which were invested in her name but which tlie plaintiff claims to belong to him. 1 h* statement of claim alleges that the plaintiff pa.d over to his wife all Ins earnings of every description, with the intention and on the express condition that she should defray thereout all tho household expenses of themselves and their family, and should hold the surplus as trustee tor the plaintiff Tho plaintiff claims that the whole of his wife's estate other than the piocecds of sale of land, which he admits belonged to her, consists of saving from money given her by him for .the abovo purpose. After quoting decisions bearing on tho case, the decision continued: The plaintiff says that ho gave bis wife all his earnings to, many vears back. He says. "I did this because 1 was so hard run with my multifarious duties that 1 had no time to attend to household accounts. I paid this money over to my wife to pay the bpuscnold accounts and to run the house. Any surplus savings apart from the genera) household requirements were invested in freehold 1 security. They wero invested with my knowledge and consent. I knew about the investmc Iff*. These moneys were invested first though my son 1' rank. I think it was about 1900' when my wife took over the financial business from rrank and handed it over to D'Arcy.'*. The plaintiff further says: "I never discussed the question of the ownership of the surplus money with my wife. I simply handed it over to her to do the best for both of us. Mr Frank Raymond says: " I did my parents' business affairs up to 1900, and did some odd business after that. I got most of rnv instructions from my mother. My father was consulted in some of the dealings." He further says "I only invested two sums of money on mortgago for my father through my mother. The first loan there was no reference to my father. It was a small loan. There was the advance made about 1900 of £2OO lo Mr Trwin. of East Inverca-rgill. I wanted my mother to lend the money. She said she had to yro to see father. The two of them looked at it with me. and ho said he would not lend the money because he did not think the security good enough. I advised him to have it valued. Mr Robert Tapper valued it. and the money was lent. The money came from my mother's account at the bank." Further on ho says: "My mother never indicated in any way but that the moneys were my father's." Both the plaintiff and Mr Fttmk Raymond speak of a conversation with Mrs Raymond about a sum of £SOO. which Mrs Raymond said D'Arcy wanted to be advanced to him to obtain an interest in Henderson and Co. Mrs Raymond wanted it lent. Tho plaintiff didn't want to lend it, and Mr Frank Raymond advised it should rot be lent. As a matter of fact, it was not lent. Mr D'Arcy Raymond sates that he nevtr asked for tho loan, knew nothing about it, and did not require it for the purpose mentioned. After Mr Frank Raymond ceased to manage for Mis Raymond. Mr D'Arcy managed her investments". It does not appear that after Mr Frank Raymond gave up tho management the plaintiff was ever consulted as to tho investments or attempted to exercise any control over ithom. Mr.? Raymond kept a banking account, in her own name fro.n 1898 to 12C8, (which she. operated upon without any iniberferenca by the plaintiff. In the circitm6tar.c:s above mentioned there is nothing Bncon?istei.t with rho moneys invested in (the name of the wife being a gift to her by the husband. A wife might well consult iher husband occasionally an to investments tr>f her property and rleclitc to make an investment of which he disapproved. It iwas not till 1907 that any question arose las lo the ownership of the moneys invested on Mrs Raymond's name. From that time forward tiil her death in March, 1911, she disputed her husband's right to them. He, however, took no step? to ;:.-;•■;■.'. lis claim. The cause ho gives is that-his *ife's health [was precarious. He. li iwover. .-Jid not hesitate to discuss tho matter with her and the state of her health did not pro sat jhim leaving her in 1209 and being away

for 16 months on a trip to England. Section 23 of "Tho Marred Woman's Property Act, 1908," provides that in any question between husband and wife as to ithc title to or possession of property either party may apply in a summary way to inquire and adjudicate in it. Power is expressly given to the judge to hear the application in a .private room in order to avoid the scandal of publicity. This simple, cheap, and speedy remedy the plaintiff did eiot avail himself of. The plaintiff was not without legal assistance a.s he had consulted Mr Frank Raymond (who is a solicitor) in 1809 before he went to England. ,Tho plaintiff chese to wait till his wife ,was dead and her mouth closed and then .brought this action. The action is a claim iby the plaintiff against the estate of a decoa«sed person. In such a case, though .not a rule of law, it is a rule of prudence ithat the court should not act upon the evidence of the plaintiff alone unless it is corroborated either by the evidence or the (Surrounding circumstances. More especially lis this the case when the deceased person in her lifetime had for over three years disputed the claim and if living might have ;bsen expected to give evidence to resist it. lit was the delay of the plaintiff in not (taking proceedings in his wife's lifetime ithat has prevented her evidence being available. The plaintiff has in effect prevented this wife's story being heard. The law Hinder circumstances detailed in cases quoted (would presume in the present case that on advancement or provision for the wife iwas the object of the husband unless there iwas evidence to rebut the presumption. It. lis incumbent upon the plaintiff to bring (forward sufficient evidence to rebut it. In isuch circumstances any court would hosiitate to give judgment on the evidence of tthe plaintiff unless there was vorv strong corroboration of it. The court is a.sked I'rom tho circumstances to draw tho inference that the surplus, although invested in the name of the wife with the consent of tho husband, was to be Isold by her in trust for her husband. I am of opinion ithat the evidence is insufficient *° enable .this inference to be drawn or to rebut, the presumption that arises from the fact •that the money was invested in the wife's inaine 'with the consent of the plaintiff. ■Further than this, I am by no means satisfied that the wife's estate other than the iproceeds of the land consists entirely- or .mainly of savings from moneys given her jor the plaintiff. The list of items, amountling to £363, which in her lifetime she showed to the plaintiff, represents money which she had icceived in carrying on dairying and other farming operations on her own property. There will be judgment for the defendants, co-sts en the highest scale as on a claim for £696 (the amount of the estate held by the defendants other ■than the proc-eds of tho sale of lamd), disbursements and witnesses' ex; eases to be fixed by the registrar.